TSCA PIP (3:1) Rule: What Retailers Should Know

Guest Blog from Bergeson & Campbell P.C.

Beginning July 7, 2021, processors and distributors of products containing phenol, isopropylated phosphate (3:1) (PIP (3:1)), a commonly used plasticizer, flame retardant, and anti-wear additive, are required to notify customers of certain prohibitions related to PIP (3:1) on processing, distribution, and releases to water.[1] PIP (3:1) may be present as a flame retardant and/or plasticizer in plastic components such as polyvinyl chloride (PVC) wire covers, cables, covers, and casings, including AC power cords and USB cables used in consumer products like laptops, televisions, and gaming consoles. PIP (3:1) may also be present in heating, ventilation, air-conditioning, and refrigeration (HVACR) equipment; electronic equipment, including acoustic pianos, radios, and consumer and commercial projectors; and even the forklifts used in warehouses. The good news for retailers is that under the U.S. Environmental Protection Agency’s (EPA) January 2021 final rule concerning PIP (3:1), the downstream notification requirement applies only to those scenarios where a product has an accompanying safety data sheet (SDS) and does not apply to PIP-containing "articles". Retail distributors who otherwise would not author SDSs are not required to generate them. The PIP (3:1) rule demonstrates how chemical restrictions under the Toxic Substances Control Act (TSCA) can result in commercial disruption, however, and underscores the importance of following EPA rulemakings and knowing what may be present in consumer products.
On January 6, 2021, EPA issued a final rule to prohibit the processing and distribution in commerce of PIP (3:1), and of products and articles containing PIP (3:1), for all uses, except for certain exemptions. Despite the many types of items containing PIP (3:1), this prohibition was scheduled to take effect March 9, 2021. However, in response to serious concerns raised by industry stakeholders about severe economic consequences from such prohibitions, EPA issued a March 8, 2021, No Action Assurance (NAA) indicating that EPA will exercise its enforcement discretion regarding the prohibitions on processing and distribution of PIP (3:1) for use in articles, and the articles to which PIP (3:1) has been added. The NAA is scheduled to remain in effect until September 4, 2021, or the effective date of a final action addressing the compliance date for the prohibition of PIP (3:1) and related articles, whichever occurs earlier.

The PIP (3:1) rule is just one of five final rules that EPA issued in January 2021 for persistent, bioaccumulative, and toxic (PBT) chemicals. The other rules apply to decabromodiphenyl ether (DecaBDE), an additive flame retardant; 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP), an intermediate/reactant in processing; hexachlorobutadiene (HCBD), a byproduct produced during the manufacture of chlorinated hydrocarbons; and pentachlorothiophenol (PCTP), an additive used to make rubber more pliable in industrial uses.
Under TSCA, EPA is required to address chemicals that pose unreasonable risks to human health or the environment. EPA has completed final risk evaluations for the first batch of ten existing chemicals, which include asbestos, several solvents, a pigment, and a class of flame retardants. While the Biden EPA completes a review to ensure that these first risk evaluations completed under the Trump Administration follow science and the law, EPA is also moving forward to the risk management step for certain chemicals. EPA states that it will likely release proposed risk management rules for cyclic aliphatic bromide cluster (HBCD), C.I. Pigment Violet 29 (PV29), and asbestos (part 1: chrysotile asbestos) first. According to EPA, HBCD is used primarily as a flame retardant in building materials such as insulation, solder paste, recycled plastics, and automobile replacement parts. PV29 is incorporated into paints and coatings used in the automobile industry and into plastic and rubber products used primarily in automobiles and industrial carpeting. PV29 is also used in consumer watercolors and artistic color. EPA has identified several asbestos-containing products being imported and used, including sheet gaskets, brake blocks, aftermarket automotive brakes/linings, other vehicle friction products, and other gaskets.

As this first batch of chemicals moves to the final stages of risk management under TSCA and taking into account EPA’s plan to consider further their risk evaluations, EPA has begun working on 20 chemicals designated as high-priority for risk evaluation. The 20 chemicals include solvents, phthalates, and flame retardants. Under the Trump Administration, EPA has already completed the final scope documents, which provide information on the focus of the risk evaluation.
As EPA completes each risk evaluation for a high-priority chemical, it will designate another high-priority chemical to take its place. TSCA requires that at least half of all high-priority chemicals be drawn from EPA’s 2014 update of the TSCA Work Plan. EPA will give preference to Work Plan chemicals that have persistence and bioaccumulation scores of three; are known human carcinogens; or have high acute or chronic toxicity.
Retailers and other stakeholders will have an opportunity to review and comment on any proposed risk management rules for the first ten chemicals. Retailers can also review the 20 high-priority chemicals and review and comment when EPA releases draft risk evaluations and proposed risk management rules for any chemicals where EPA has found unreasonable risk. Retailers may wish to review the chemicals listed in the TSCA Work Plan now to determine if any are used in their product supply chains.
As seen with the PIP (3:1) rule, a final risk management rule can have a significant economic impact. Retailers can subscribe now to EPA news releases on pesticides and toxic chemicals to receive notice via e-mail of developments concerning chemicals. EPA announces public notice and comment opportunities on draft documents and proposed rules in the Federal Register. EPA also has a web page regarding risk management for existing chemicals under TSCA that lists meetings, webinars, and other engagement opportunities, as well as public and stakeholder engagement opportunities.


Bergeson & Campbell P.C. is an AV-rated (highest ranking) Washington, D.C. law firm focusing on conventional and nanoscale, industrial, agricultural, and specialty chemical product regulation and approval matters, including TSCA matters, FIFRA/FQPA matters, FDA medical device and product approval, registration and data compensation arbitrations, chemical product litigation, and associated business counseling and litigation issues. Please reach out to Carla Hutton at CHUTTON@lawbc.com for more information on the above blog or the firm.

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