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EPA Eases Chemical Ban at Last Minute in Win for Industry

March 9, 2021, 1:16 AM

The Environmental Protection Agency offered industries a temporary reprieve Monday saying it would delay enforcement for 180 days of a prohibition set to kick in at midnight barring most shipments of products made with a flame retardant that will be largely banned starting March 9.

The agency also announced a 60-day public comment period for that and four other regulations it finalized in January to control particularly hazardous chemicals.

Information it seeks includes whether the rules sufficiently reduce exposure to these chemicals, including exposures of at-risk groups; whether additional or different regulatory approaches are needed; and whether the compliance date for the flame retardant rule that’s caused the most supply chain concerns should be revised.

The five rules the EPA issued in January restrict chemicals with three characteristics that make them particularly hazardous: they persist in the environment, build up in the food chain, and are toxic. Such chemicals are called PBTs, and Congress required the agency to quickly regulate them when it overhauled the Toxic Substances Control Act—the nation’s primary chemicals law—in 2016.

Of the five rules, the one restricting a flame retardant called phenol, isopropylated phosphate (3:1), or PIP (3:1), has raised widespread concern among companies using equipment that contains it. The electronics industry, for example, has said the rule would have caused supply chain chaos because the agency gave companies only 60 days notice that—effective 12:01 a.m. Tuesday, March 9—they’d be barred from shipping products or parts made with the chemical.

Given the potential for significant disruption in supply chains , the EPA made the right choice to reopen the comment period and provide a 180-day no action assurance, said Lynn L. Bergeson, managing partner with Bergeson and Campbell PC. “Reopening the comment period provides all stakeholders with an opportunity to address the breadth of the PIP rule’s impact on supply chains of which EPA was not fully aware during in the original rulemaking,” she said.

Mike Kirschner, president of Design Chain Associates LLC, a consulting firm working with the electronics and other industries, described EPA’s actions as “very reasonable” and a reflection that the agency is learning the impact amended TSCA can have on companies that use equipment made with chemicals.

U.S. electronics manufacturers must now promptly figure out whether PIP 3:1 is in their supply chains, he said. The goal, within roughly the next 30 days, is to understand whether PIP or a rubber softener that also was restricted in the January rules, pentachlorothiophenol (PCTP) is in their equipment, Kirschner said.

Manufacturers then need to determine what the turnaround time would be to replaceor redesign their equipment to eliminate those chemicals, he said. “This will help inform any comment they may want to provide back to the EPA or to their industry association within the 60-day window,” Kirschner said

It wasn’t immediately clear Monday evening whether and how the EPA’s announcement could affect a petition a coalition of six industry trade associations filed March 4 in the U.S. Court of Appeals for the District of Columbia Circuit asking to challenge the PIP rule.

But in an interview prior to the lawsuit, Martha E. Marrapese, a partner in Wiley Rein LLP’s Washington office and one of the attorneys representing the coalition, said it’s unclear whether the agency conducted all the analyses required by TSCA when it banned PIP and the other persistent chemicals from manufactured goods and replacement parts.

Supply Chain Effects

Several interested parties including the National Association of Manufacturers and an environmental coalition called Safer Chemicals Health Families, couldn’t be reached for comment following the EPA’s announcement Monday evening.

But, a prohibition against shipping electronic products and parts could have shut down industries that don’t use the flame retardant but rely on equipment that does, said Rachel Jones, a vice president at the National Association of Manufacturers, prior to the agency’s announcement.

Shipments of home appliances, school laptops, and other products also could have been affected, she said.

PIP hasn’t been regulated in other countries, so its use hasn’t been tracked. “That makes it very hard to know if it might be in some component part” that’s in another piece of equipment, Jones said.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Hughes at jhughes@bloombergindustry.com

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