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EPA Further Postpones TSCA Compliance Date for Articles Containing PIP

On March 8, 2022, the U.S. Environmental Protection Agency (EPA or Agency) published a final rule that extends the phase-in for the Toxic Substances Control Act (TSCA) ban on most articles containing phenol, isopropylated phosphate (3:1) (PIP (3:1)) through October 31, 2024. This extension comes just as the postponement announced by EPA in September of 2021 was set to expire. 

Specifically, the extension further postpones to November 1, 2024, the prohibition on processing and distribution in commerce of: (1) PIP (3:1)-containing articles, (2) PIP (3:1) used to make such articles, and (3) the associated recordkeeping requirements for manufacturers, processors, and distributors of PIP (3:1)-containing articles. However, the extended compliance date does not apply to the downstream notification requirements at 40 C.F.R. § 751.407(e) that apply to those who distribute PIP (3:1) as a neat substance or in a mixture but not as part of an article. The preamble to this final rule confirms that the downstream notification requirements are not applicable to distribution of articles containing PIP (3:1).

Acknowledging that public comments on extending the compliance date until October 2024 indicated that the extension would be insufficient for about two-thirds of affected industries, EPA stated that in the Spring of 2023 industries that believe that they will need more time will have another opportunity to demonstrate that the October 2024 compliance date is impracticable. EPA confirmed its intent to issue at that time proposed modifications to the current full and partial exclusions from bans on, respectively, PIP (3:1) and the other four persistent, bioaccumulative, and toxic (PBT) chemicals regulated under TSCA section 6(h). Changes to the current exclusions will be proposed in light of Executive orders, and other guidance issued by the Biden-Harris Administration on environmental justice, and on a review of the justifications for those exclusions adopted by EPA under the Trump Administration.

At that time, EPA also will consider any additional information regarding the need for further extensions of the PIP (3:1) compliance date, measuring compliance by the “manufactured-by” date, practicable sell-through periods in different industries, the applicability of the rule to replacement parts, and de minimis concentration thresholds.  In the meantime, industry is expected to further investigate supply chains and options for substitution to either complete the transition out of PIP (3:1) by the new deadline or develop detailed information supporting a later practicable compliance date.