EPA Proposes Extension Until 2024 for Compliance with Problematic PBT Rule

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As the U.S. EPA embarks on a full review of regulations addressing the sale, distribution and use of five “persistent, bioaccumulative and toxic” (PBT) substances, the agency already is proposing to extend until 2024 the compliance date with the existing rule for one of the five PBTs – phenol, isopropylated phosphate (3:1) (known as “PIP (3:1)”).

Originally finalized this past January, the PBT rules immediately drew widespread criticism, particularly with regard to PIP (3:1) and the broad prohibition on the processing, import, and other distribution in commerce of components and products containing the substance, initially scheduled to come into effect on March 8, 2021.  PIP (3:1) is a widely used plasticizer and flame retardant that is present in a wide range of components, particularly electronics including cell phones, laptop computers, wiring harnesses, and other equipment used across a broad spectrum of industries.  With only limited exemptions in the current PBT rule, many companies were faced with a major compliance dilemma that could prevent access to and import of critical parts or materials.  In response, EPA adopted a “no action assurance” policy that paused enforcement of certain provisions of the PIP (3:1) rule for six months.  In September, EPA further extended the enforcement pause until March 8, 2022.

Now, EPA is proposing a further extension until October 31, 2024 of the compliance deadline for the provisions related to PIP (3:1) in articles.

EPA is proposing to further extend the compliance dates related to articles containing phenol, isopropylated phosphate (3:1) (PIP (3:1)) to ensure supply chains for key consumer and commercial goods are not disrupted.

– EPA Press Release, October 21, 2021

The latest proposed rule seeks to further extend the compliance date applicable to the processing and distribution in commerce of certain PIP (3:1)-containing articles, and the PIP (3:1) used to make those articles, along with associated recordkeeping requirements for manufacturers, processors, and distributors of PIP (3:1)-containing articles.

In the proposal, EPA describes specific kinds of information the agency is seeking to support finalizing the proposed compliance date extension, including:

  • Specific uses of PIP (3:1) in articles throughout their supply chains;
  • “Concrete steps taken” to identify, test, and qualify substitutes for those uses;
  • Specific product certifications that would require updating (such as flammability standards);
  • An estimate of the time that would be required to remove the substance; and
  • Documentation of specific needs for replacement parts, including the service life of the equipment and the identification of any applicable regulatory requirements for the assurance of replacement parts.

The current proposed extension follows the agency’s September announcement that it plans to propose by the Spring of 2023 new rulemakings for all five PBT chemicals addressed in the January 2021 final rule:  in addition to PIP (3:1), Decabromodiphenyl ether (DecaBDE), 2,4,6-Tris(tert-butyl)phenol (2,4,6-TTBP), Hexachlorobutadiene (HCBD), and Pentachlorothiophenol (PCTP).

The provisions of the January 2021 rules remain in effect while EPA works on the new rulemaking effort, with the exception of PIP (3:1) as noted above.

Further information on the proposed PIP (3:1) rulemaking is available at EPA’s website.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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