Meet the New Requirements – The Deadline is NOW!

On January 6, 2021, the U.S. Environmental Protection Agency (EPA)’s Office of Pollution Protection and Toxics (OPPT) published the much-awaited final rules for Section 6(h) of TSCA. The update restricts companies from placing products containing any of five new toxic substances on the market.

Companies within the scope of the Toxic Substances Control Act (TSCA) have to quickly phase these new substances out of their products. The final rules were just passed on February 5, 2021, and already have come into force on March 6, 2021, for product manufacturers. These substances are widely used, especially by companies in the electronics, industrial equipment, medical, aerospace and defense and automotive industries. If your company is within one of these industries you should immediately evaluate your product offering.

If you haven’t acted on this ruling, you are potentially already non-compliant with requirements needed for the U.S. market. However, if you’re a distributor for some of the products containing the substances, you may have until January 6, 2022, or later.

New Toxic Substances

This grouping of restricted substances in the Toxic Control Act, also known as persistent, bioaccumulative, or toxic (PBT) chemicals, include Phenol, isopropylated phosphate (3:1) (PIP 3:1), a phosphate-ester flame retardant, anti-wear additive, and plasticizer.

  • Decabromodiphenyl ether (DecaBDE), a brominated flame retardant.
  • 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP), a lubricant and fuel additive.
  • Hexachlorobutadiene (HCBD), a chlorinated hydraulic, heat transfer, or transformer fluid.
  • Pentachlorothiophenol (PCTP), a chlorinated plasticizer.

Unless the EPA establishes exclusions under a ruling, most of the substances will be restricted to a zero percent threshold under the EPA’s definition of an “Article,” which is similar to requirements under the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) Regulation. However, it’s important to note that these new substances aren’t restricted by the REACH Regulation, so only those few companies with full material disclosures (FMDs) for their products will be immediately able to evaluate this risk.

Approaching TSCA Compliance Deadlines

Many companies weren’t expecting the almost immediate implementation of the ruling. On February 8, the EPA responded to industry pressure, stating it is “aware of the concerns of these rules, including implementation issues, that have been raised by a range of stakeholders and may consider additional measures, approaches, or revisions that build upon the steps taken thus far.”

A subsequent March 8 release commenced a six-month no-action comment period for restrictions associated with PIP 3:1, and later issued a request for comment on March 16, 2021. This delays enforcement for usage of PIP 3:1 in parts and products until September 4, 2021, but does not change requirements for recordkeeping or downstream customer notifications.

Section 6 substances are prohibited and subject to penalties under 15 U.S.C. 2615 and Title 18 of the U.S. Code. Non-compliance can lead to civil penalties up to $50,000 USD for each day of violation, imprisonment of up to one year, or even both.

If you have questions or need help with your compliance to the Toxic Control Substances Act, email [email protected]. We’re happy to help!