On January 6, 2021, the U.S. Environmental Protection Agency (EPA) published final rules under Toxic Substances Control Act (TSCA) Section 6(h) to restrict the importation and use of five persistent, bioaccumulative, and toxic (PBT) chemicals. These chemicals include:
- PIP (3:1) (phenol, isopropylated phosphate (3:1), CAS 68937-41-7)
- DecaBDE (decabromodiphenyl ether, CAS 1163-19-5)
- 2,4,6 TTBP (2,4,6-tris(tert-butyl)phenol, CAS 732-26-3)
- HCBD (hexachlorobutadiene, CAS 87-68-3)
- PCTP (pentachlorothiophenol, CAS 133-49-3)
The published final rules specified various in-force dates for new restrictions, beginning as early as March 6, 2021 for PIP (3:1), HCBD, and PCTP manufacturers. On March 8, 2021, the EPA issued an update on the implementation of these new restrictions. This update included a temporary 180-day "No Action Assurance" indicating that the EPA will use discretion on enforcement issues related to the prohibitions on processing and distribution of PIP (3:1) for use in, and as used in, articles. However, record-keeping and downstream notification requirements related to PIP (3:1) in the final rule are still in effect as of the originally established date.
Of the five listed substances, PIP (3:1) may have the greatest impact in many industries. This phosphate flame retardant may replace older restricted brominated flame retardants, and is often a required additive in thermoplastics and resins used to meet electrical safety and flammability standards, as well as in rubberized materials (e.g., seals or gaskets) used in hydraulic and fuel applications.
Many potentially impacted companies have expressed concern about meeting the new requirements by the in-force dates, or about in-force dates having passed before new processes could be developed. This is particularly true for PIP (3:1), where limited replacement options and potential conflicts with fire- or electrical-safety requirements may exist. A number of industry groups and other interested parties have engaged with the U.S. EPA to discuss these and other issues surrounding the enforcement of the rules as published.
For most affected organizations, the best approach remains the same regardless of whether the in-force date has passed:
- Awareness. Read and understand the published rules and restrictions, and research their applicability to any relevant processes or products. Watch for potential updates to requirements or timelines.
- Prompt supply chain engagement. Timely engagement with the supply chain will help identify parts or materials that may contain listed substances. This knowledge is the first step to assessing risks, considering alternatives, and making decisions.
- Due diligence documentation. Documenting the due diligence data-gathering and decision-making process supports consistency and transparency, and demonstrates a company's commitment to compliance efforts.
These steps provide a strong foundation for making necessary decisions, and for meeting any other obligations (such as notification or recordkeeping) that may be required.
Article is current as of 2021-03-12.