Recent developments from EPA reinforce how important it is for companies to keep a close eye on implementation of the Toxic Substances Control Act (TSCA) as the statute’s overhaul, by the Frank R. Lautenberg Chemical Safety for the 21st Century Act amendments, moves into its fifth year. The message to take home is that TSCA chemical rulemakings can affect more than the chemical manufacturers – they can also affect chemical users and imported and distributed articles.
The importance of this point was emphasized earlier this week, when, after hearing from electronics companies and other importers that the March 8, 2021 effective date of a prohibition on the processing and distribution of PIP (3:1) for use in articles was unfeasible, EPA announced it would exercise enforcement discretion for six months. EPA’s temporary 180-day “No Action Assurance” states the Agency will not pursue enforcement around PIP (3:1) in articles, or articles to which PIP (3:1) has been added, to allow companies to assess their supply chain. EPA also announced it may extend the compliance date if needed after gathering more information.
The PIP (3:1) rule is one of five TSCA Persistent, Bioaccumulative, and Toxics (PBT) rules that were finalized by the TSCA deadline of December 22, 2020 and went into effect February 5, 2021. The PBT rules address five chemicals – DecaBDE, PIP (3:1), 2,4,6-TTBP, HCBD, and PCTP – and contain various phase outs, substitution requirements, packaging changes, and other risk management approaches to reduce exposure to these chemicals for the general population, consumers and commercial users, and susceptible subpopulations.
Revealing the Agency may make some tweaks or changes to all five PBT rules, EPA also announced a 60-day public comment period to collect additional input on the final PBT rules. EPA is seeking comments on potential further exposure reductions, implementation issues, and additional or alternative measures or approaches. In particular, EPA notes that it is “seeking comment on specifics of recently raised issues regarding the compliance date for the prohibition on the processing and distribution of PIP (3:1) for use in articles, and PIP (3:1)-containing articles.”
Illustrating the broad reach of TSCA regulations, electronics and electrical companies raised significant concerns about the PIP (3:1) Final Rule’s compliance date and potential disruptions to supply chains throughout the U.S. economy because of the prevalence of PIP (3:1) in their products. These companies needed additional time to identify, replace, and certify the absence of PIP (3:1) in their goods to avoid further disrupting consumer access to their products. This new comment period provides an opportunity for chemical users, like electronics and electrical companies, who may not have participated in the prior PBT rulemakings to ensure they no longer use these chemicals and can meet the rules' various phase out and substitution requirements.
Companies should closely monitor EPA regulatory activities under TSCA going forward. The PBT final rules will certainly affect chemical manufacturers but, as described above, will also have impacts on companies down the supply chain that use these chemicals. Chemical manufacturers and users should be encouraged by the additional opportunity for public comment. In the PIP (3:1) Final Rule, EPA included a number of phase outs and other accommodations for companies that submitted comments during the first public comment period. The automotive and aerospace industries, for example, are allowed to continue the processing and distribution of PIP (3:1) for use in new and replacement parts. Likewise, the rule carves out an exception for PIP (3:1) use in aviation hydraulic fluids.
Industry participation in public comment periods and engagement in the rulemaking process is essential to developing rules that both respond to business realities and still achieve statutory goals. Including counsel in developing and tracking these complex and fast-moving TSCA developments can help a company manage its supply chain, plan, make its issues known, and be ready for the future.
If you have any questions, please contact Alexandra Dunn.
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