Advisories March 16, 2021

Environment, Land Use & Natural Resources Advisory: EPA Pauses Enforcement of PIP (3:1) Ban for Six Months – With a Catch

Executive Summary
Minute Read

The Environmental Protection Agency has pipped enforcement of a ban on phenol, isopropylated, phosphate (3:1). Our Environment, Land Use & Natural Resources Group discusses why companies must still comply with much of the rule despite a 180-day no-action assurance.

  • What does the no-action assurance cover?
  • What other requirements will companies need to comply with?
  • What is the EPA doing next?

The U.S. Environmental Protection Agency (EPA) has granted temporary partial relief to companies subject to its recent rulemaking that prohibits, with a few exceptions, the processing and distribution of PIP (3:1) and PIP (3:1)-containing articles after March 8, 2021. The move comes after contributions from numerous industry stakeholders in recent days. “PIP” is short for phenol, isopropylated, phosphate (3:1), a chemical used as a flame retardant, plasticizer, and an anti-wear or anti-compressibility additive in coatings, adhesives, sealants, and plastics. PIP is frequently used in the manufacture of products that range from cars to aerospace vehicles to at-home electronics. The PIP rule was published in January 2021 as part of a group of final rules designed to reduce exposure to five persistent, bioaccumulative, and toxic (PBT) chemicals under Section 6(h) of the Toxic Substances Control Act (TSCA).

On March 8, 2021, the day before the PIP (3:1) prohibition became effective, the EPA issued a 180-day “no-action assurance” on the enforcement of certain of the rule’s provisions. Specifically, while the PIP rule is now in effect, the EPA agreed to exercise its enforcement discretion to not enforce the rule’s prohibitions on the processing and distributing in commerce of PIP (3:1) for use in articles and PIP (3:1)-containing articles and certain associated recordkeeping requirements.

Significantly, several provisions of the rule are not covered by the EPA’s no-action assurance and remain subject to EPA enforcement during the no-action period. These include the rule’s prohibition on discharges to water and the downstream notification requirements for PIP (3:1) and articles containing PIP (3:1). Certain recordkeeping requirements also remain in effect, including a new requirement to keep records that include a statement that any PIP (3:1) and PIP (3:1)-containing articles are complying with all aspects of the PIP rule.

Importantly, the benefit of protection from EPA enforcement during the no-action period only extends to companies that comply with all PIP rule requirements that are not covered by the no-action assurance. Further, the no-action assurance is silent on how subject companies should address TSCA certifications made upon importing PIP (3:1) and PIP (3:1)-containing articles. Companies continuing to import PIP (3:1) and PIP (3:1)-containing articles after March 8 should consult with counsel.

Finally, the EPA also announced a 60-day public comment period to collect additional input on all five of the previously published final rules relating to PBT chemicals. The EPA will be seeking comment on whether portions of the PIP rule should be stayed for a time to allow companies to come into compliance with those provisions. The new deadline for collecting public comments is forthcoming, but the EPA anticipates considering the comments it receives and making a decision about the future effectiveness of the rule by the end of the no-action period.

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Nicholas Clarke
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