No Action Assurance

The U.S. Environmental Protection Agency ("EPA") took action on March 8, 2021 effectively to defer until September 2021 the March 9 compliance date for its ban on processing and distribution of both articles containing phenol, isopropylated phosphate (3:1) ("PIP (3:1)"), and PIP (3:1) intended for use in articles. The deferral does not apply to other PIP (3:1) uses.

The limited deferral comes from EPA's Office of Enforcement and Compliance Assurance, which issued a "No Action Assurance" policy on March 8, confirming that the Agency would not enforce violations of particular aspects of EPA's January 2021 TSCA Section 6(h) final rule for PIP (3:1). Section 6(h) required EPA to issue rules by December 2020 limiting exposure to TSCA Workplan chemicals that are persistent, bioaccumulative, and toxic ("PBT") substances. Going beyond risk, the rules were required to reduce exposures to these PBTs "to the extent practicable." The final PIP (3:1) rule bans all processing and distribution of PIP (3:1), alone and in articles, except for a few specific exclusions.

The No Action Assurance deferral comes in response to new and serious implementation concerns with the PIP (3:1) ban raised with EPA by a wide range of stakeholders in recent weeks. Companies were not prepared for the short transition period allowed to make substitutions and sell through existing products that do not comply with the PIP (3:1) restrictions. These stakeholders identified significant disruptions in the supply of commercial and consumer products, including electronics, home appliances, electrical equipment, forklifts, and HVAC equipment.

The No Action Assurance policy only applies the processing and distribution of articles containing PIP (3:1), and PIP (3:1) formulations intended for use to make articles. The No Action Assurance does not apply to PIP (3:1) for other uses and does not excuse companies from complying with the PIP (3:1) rule's downstream notification and recordkeeping requirements or requirements to prevent releases to water. As a condition of the No Action Assurance Policy, companies must comply with the rule's compliance statement requirement by preparing a declaration stating that their PIP (3:1) products that are subject to the deferred ban on distribution and processing nevertheless comply with all other aspects of the rule.

Request for Additional Public Comments

Coupled with EPA's release of the No Action Assurance policy for PIP (3:1), EPA also announced that it was reopening the public comment periods for all five final PBT rules published on January 6, 2021:

• PIP (3:1)

• Decabromodiphenyl ether ("DecaBDE")

• 2,4,6-Tris(tert-butyl)phenol ("2,4,6-TTBP")

• Hexachlorobutadiene ("HCBD")

• Pentachlorothiophenol ("PCTP")

This action amounts to a full-scale reconsideration of all five PBT rules in light of Biden Administration priorities and policy. Going beyond the recent concerns of stakeholders with practicable transition periods for PIP (3:1), EPA plans to broadly re-examine the rules and underlying statutory requirements. All aspects of the five rules are open to comment. EPA specifically seeks comments on:

• EPA's statutory obligations under TSCA section 6(h)

• Whether further practicable exposure reductions are possible (including for potentially exposed or susceptible subpopulations and the environment)

• Information relating to the impacts of the final rules on human health

• Implementation issues

• Additional or alternative approaches

• Issues with the compliance date for the prohibition on the processing and distribution of PIP (3:1)

EPA will assess how new Executive Orders and guidance issued by the Biden Administration will be addressed in the rules, as well as any new information submitted. EPA will consider revising the final rules based on feedback about exposure reductions, environmental justice, scientific integrity, and implementation concerns (including reasonable transition periods).

Next Steps for Affected Companies

For companies that may determine that they need an extended transition time - beyond the current no action assurance period - it will be critical to come forward during the comment period with specific facts that demonstrate that the extended period is warranted (e.g., assessment of suitable and available substitutes, times for reformulation, compatibility and performance-testing, and customer or regulatory recertification procedures). Comments will be due 60 days after the date the notice is published in the Federal Register.