EPA Proposes New Extension of Compliance Dates for PIP (3: 1) -Containing Articles | Bergeson & Campbell, CP

The U.S. Environmental Protection Agency (EPA) announced on October 21, 2021 that it is proposing to further extend compliance dates for items containing phenol, isopropyl phosphate (3: 1) (PIP (3: 1)) to ensure supply chains for key consumer and business goods are not disrupted. As noted in our September 3, 2021 memorandum which discusses a September 17, 2021 final rule, the EPA has extended some compliance dates for the PIP (3: 1) to March 8, 2022, “To address difficulties inadvertently created by the original applicable compliance dates in the January 2021 Final Rule”. 86 Fed. Reg. 51823. The EPA announces a proposal to extend the compliance date for the processing and commercial distribution of certain items containing PIP (3: 1) and PIP (3: 1) used to manufacture such items until ‘To October 31, 2024, as well as associated record keeping requirements for manufacturers, processors and distributors of items containing PIP (3: 1). Comments will be due 60 days after the EPA publishes the proposed rule in the Federal Register. The EPA has released a pre-release version of the proposed rule (proposed rule).

The EPA says the rule it is proposing also provides a description of the specific types of information it will need to support any further extensions to compliance dates. Depending on the pre-publication version of the proposed rule, the EPA will assess extension requests beyond October 2024 by assessing the level of detail and documentation provided by commentators on:

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

The EPA is also seeking comment on whether these are the appropriate types of information to use in assessing compliance date extensions and whether there are other considerations that should apply. Without this more specific information, the EPA says it “will be unlikely to extend the compliance dates again.”

According to the EPA, the items covered by the proposed rule include a wide range of key consumer and commercial goods such as cell phones, laptops and other electronic and electrical devices and industrial and commercial equipment used in various industries. , including transportation, construction, agriculture, forestry, mining, life sciences and semiconductor production.

Next Steps for Final PBT Rules

As noted in the EPA’s September 3, 2021 announcement and reported in our September 3, 2021 memorandum, the EPA intends to issue a proposal for new, separate regulations on PIP (3: 1) and four other persistent, bioaccumulative and toxic (PBT) chemicals – 2,4,6-tris (tert-butyl) phenol (2,4,6-TTBP), decabromodiphenylether (decaBDE), hexachlorobutadiene (HCBD) and pentachlorothiophenol (PCTP) ) — in spring 2023. The EPA states that it reviews the provisions of the final PBT rules, assesses other applicable provisions of the amended TSCA, and determines how executive decrees and other administrative priorities might be handled, as well as new information provided by officials. stakeholders in response. to a notification from March 2021 and a request for comment. The EPA plans to revise the final rules to further reduce exposures, promote environmental justice, and better protect human health and the environment.

In addition, the EPA indicates in the pre-publication version of the proposed rule that it will take into account in the development of the draft. 2023 the proposed rule the need for further extensions of compliance dates beyond those established in the final rule associated with the advertised proposal. EPA further states that “EPA also intends to thoroughly review the justifications underlying the exclusions in the January 2021 PIP (3: 1) Final Rule and other final rules under Section 6 (h) of the TSCA to determine whether to adopt new compliance dates for these activities. currently excluded from the final rules of January 2021 or to further extend compliance dates which have already been extended, in accordance with the statutory directive to reduce exposure to the extent possible.

Remark

The proposed rule announced on October 21, 2021 is expected to provide considerable comfort to importers, processors and distributors, including retailers of electrical and electronic devices, although what will be included in the associated final rule remains to be determined. We imagine, however, that many may be disappointed with the length of the proposed extension of the compliance date. As evidenced by the numerous comments submitted in response to the EPA’s March 2021 notice and request for additional comment, most importers and distributors of electrical and electronic items could not be sure whether the PIP (3: 1) was in any part of an item, if it could be replaced if it was, and it would take years to study the complex global supply chains that underpin the most important items. more complex. The EPA states in the proposed rule: “While the consumer electronics sector and some industry stakeholders have provided detailed information on the steps required to replace PIP (3: 1) in their chains supply, as well as reasonable estimates of the time required to complete each of these steps, most did not.

Potentially affected manufacturers, importers, processors and distributors should again consider the need to comment on this proposed rule and include, where possible, the types of detailed information that the EPA is looking for in the proposed rule to support the proposed extensions. and future from the date of compliance. . This should include updates and improvements to any comments submitted on the March 2021 Notice.

As we indicated in our memorandum of September 3, 2021, while we understand the need for additional information from the EPA, we question whether the EPA is fully aware of the formidable business challenges of obtaining specifics. on every part of a device as complex as a computer. It will be essential to address the progress made in the investigation of supply chains and the search and qualification of replacements. In addition, it will be essential for reviewers to provide details of any testing or certification required for parts which contain or which may contain PIP (3: 1). Preparing such comments within 60 days will be a significant challenge, especially since the end of this period will include the holiday season. Once the comments are submitted, the EPA will again be asked to review the comments and their requested granularity and to publish the updated rule in final version before the March 8, 2022, date of compliance.

We note that in the proposed rule, the EPA states that in its 2023 developing rules on PBTs, “the EPA will address comments received in response to the March 2021 notification and request for comments that are not addressed by the September 2021 final rule extending the PIP compliance dates ( 3: 1). Interpretive-type clarification requests, such as “The EPA should expressly clarify that articles containing PIP (3: 1) in adhesives and lubricants are excluded from any prohibition” (see 40 CFR Section 751.407 (a) (1), (a) (2) (i) and (b) (1) (ii)), “EPA should clarify that the record keeping and downstream notification requirements do not apply to activities Listed in 40 CFR Section 751.401 (b) ”and“ The EPA should clarify the R&D exemption as it applies to the final rule so that it allows the use of PIP (3: 1) in R&D for substitute products and items that do not contain PIP (3: 1) ”(see 40 CFR Section 751.401 (b) (3)), were presented in comments submitted on the March 2021 Notice, unrelated specifically to compliance date extensions, which were not addressed in the Final Rule. September 2021 nor in the current proposed rule. Answers to interpretive-type questions are essential in determining the scope and compliance of the PBT rules, and the EPA should not wait 2023 to deal with this type of problem. As with other actions, including, but not limited to, the TSCA Fees Rule and the Chemical Data Reporting Rule, the EPA should answer questions about interpretation issues in public publications widely available on its website. , through questions and answers, fact sheets or other mechanisms. While we recognize the resource limitations faced by the EPA, expect 2023 Responding to critical questions presented in comments received in or before May 2021 leaves affected companies and others in regulatory and commercial limbo.

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