1660317383120 Deadlineextended

Supply-Chain Aid — EPA Proposes PIP 3:1 Compliance Extension

Nov. 22, 2021
The agency plans to push deadline to October 31, 2024

The U.S. Environmental Protection Agency (EPA) announced on October 21 that it intends to move further back 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. The agency proposed extending the compliance date until October 31, 2024, along with the associated recordkeeping requirements for manufacturers, processors and distributors of PIP (3:1)-containing articles. This article discusses this important development.


The January 2021 final rule regulating PIP (3:1) (and four other chemicals) in articles caught industry by surprise. PIP (3:1)’s uncelebrated profile may have contributed to the 2019 proposed rule’s general lack of recognition as a potential showstopper. A final rule issued January 6, 2021, prohibited the processing and distribution in commerce of PIP (3:1), and the products or articles containing the chemical substance, for all uses, except for a handful of specific exemptions or prohibition phase-ins. The final rule also requires manufacturers, processors and distributors of PIP (3:1) to notify their customers of these restrictions. The rule contains other prohibitions, which were to be effective as of March 8, 2021.

Industry advocacy eventually persuaded the EPA to issue a rare “No Action Assurance.” These administrative expedients advise regulated entities that the EPA will not pursue legal action for a specified duration to allow affected parties to get their act together, in this case until September 5, 2021. On September 17, 2021, the EPA provided a short-term extension of the deadline for compliance with the PIP (3:1) restrictions to March 8, 2022.

On October 28, 2021, the EPA suggested extending the deadline again to October 31, 2024. Importantly, the agency’s proposal provides a description of the specific kinds of information it will require to support any additional extensions to the compliance dates. According to the prepublication version of the proposed rule, the EPA will review requests for extensions beyond October 2024 by evaluating the level of detail and documentation provided by the commenters on:


• The specific uses of PIP (3:1) in articles throughout their supply chains;
• Concrete steps taken to identify, test, and qualify substitutes for those uses, including details on the substitutes tested and the specific certifications that would require updating;
• Estimates of the time required to identify, test, and qualify substitutes with supporting documentation; and
• Documentation of the specific need for replacement parts, which may include the documented service life of the equipment and specific identification of any applicable regulatory requirements for the assurance of replacement parts.

The EPA also requested comment on whether these are the appropriate types of information for use in evaluating compliance date extensions and whether other considerations should apply. Without more specific information, the agency states it “will be unlikely to extend the compliance dates again.”

The EPA also intends to issue a proposal for a new separate rulemaking on PIP (3:1) and the other four persistent, bioaccumulative, and toxic (PBT) chemicals — 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP); decabromodiphenyl ether (decaBDE); hexachlorobutadiene (HCBD); and pentachlorothiophenol (PCTP) — in spring 2023.


The recent proposed rule provides considerable comfort to importers, processors and distributors, including retailers of electric and electronic devices, of products containing PIP (3:1). What the final rule will include remains to be seen, but the extension was greeted with a collective sigh of relief. Potentially impacted entities should carefully consider the implications of the proposed rule, as the final is expected to look similar.

At least two points are clear. First, the EPA has regulated articles more frequently in the recent past and is expected to continue to do so. This will further press commercial entities to know exactly what chemicals are included in products sourced to them and demand transparency in requiring supplier certifications of one form or another.

Second, expect the EPA to be tough when it reviews the PBT final rule of January 2021 and proposes a new rule in 2023. The PBT rule was issued under the prior Administration, and the EPA has stated it intends to “further reduce exposures” and “promote environmental justice.” There will be much more to follow in the New Year as this already complicated administrative saga continues.

LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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