The US EPA is "actively considering" how to address requests from the nuclear energy sector to continue using the flame retardant decaBDE after a TSCA prohibition came into force in January, the agency has told Chemical Watch.
The agency received an "urgent" request earlier this year from the Nuclear Energy Institute (NEI) asking for at least four to five more years to comply, because "virtually all" of the nuclear power industry had been unaware of the decaBDE rule. The agency has also fielded a plea for compliance relief from a supplier who was aware of the rulemaking as early as 2016 but later learned it could not complete the transition on time, according to documents recently shared with Chemical Watch (see box).
The scenario highlights the practical challenges industry and the EPA face as TSCA regulations reach further down the supply chain, where product transition times can be difficult to determine and communications between suppliers and end-users can break down.
The agency said it "has received a number of stakeholder requests regarding the continued manufacture and use of decaBDE and is actively considering how to address them".
Supplier's seven-year transition
The EPA’s January 2021 TSCA rule prohibiting most applications of decaBDE included two extra years – until 6 January this year – for the flame retardant’s use in wires and cables in nuclear power generation facilities.
The extension followed a request during the rulemaking process from RSCC Wire & Cable, which described itself as "the de facto sole source manufacturer of certain safety power cables used in nuclear facilities" in a recent letter to the EPA.
RSCC told Chemical Watch it began researching an alternative that would meet Nuclear Regulatory Commission (NRC) requirements in 2016, the same year the EPA indicated it was taking ‘expedited’ action on decaBDE and four other persistent, bioaccumulative and toxic (PBT) substances.
Before the EPA finalised the rule in 2021, RSCC told the EPA it would need at least two more years to qualify a decaBDE-free alternative, "due to the extensive qualification process required by the NRC regulations", the company said.
But in October of last year, several months ahead of the January extended deadline, the supplier told the EPA it needed more time to finalise a non-decaBDE alternative.
The RSCC submitted a formal request in January to extend the compliance deadline until 30 April 2024. It informed the agency at the time that it had stopped manufacturing, processing and distributing cables that did not comply with the new requirements.
The EPA denied the request two weeks later.
On 27 February, the RSCC’s non-decaBDE alternative received qualification for use in nuclear safety-related cables, the company said, opening the door for it to begin manufacturing compliant products.
In the NEI’s own enforcement delay request from earlier that month, however, it told the EPA it will take years for the replacement cables to become incorporated into a wide range of subcomponents and components used in nuclear facilities.
Relief not assured
When faced with a similar compliance challenge in 2021 for a prohibition on the use of the flame retardant PIP (3:1) in articles, the EPA provided a no action assurance (NAA) to insulate companies from immediate enforcement action, and ultimately extended the compliance deadline by three and a half years.
However, the agency has expressed frustration over the recurring issue of companies not knowing what is in their products. And in its January response to RSCC’s extension request, the EPA reflected a desire to avoid a repeat of the PIP (3:1) process.
The EPA told RSCC in a 26 January letter that it "does not intend to initiate a rulemaking to extend the compliance date", nor would it be asking the enforcement office to issue an NAA.
The EPA said that when it signalled its intent to reopen the PBT rules in 2021, RSCC did not submit any comments, nor did the company mention problems with meeting the 2023 deadline when it spoke with the agency in April 2021.
"In short, despite earlier opportunities in 2021 to raise concerns with EPA, RSCC failed to contact EPA until October of 2022", it said in the letter.
In more recent comments shared with Chemical Watch, the agency said it granted RSCC’s original request for a two-year compliance timeline as it was made before the rule became final. "Unfortunately, the supplier did not meet the extended compliance date they requested," the EPA said.
Now the agency is considering how to respond to the NEI request for another four or more years to comply. The EPA did not say when it would make a final decision.