EPA Reworks its Regulations for PBTs DecaBDE and PIP (3:1)
On November 19, 2024, EPA published a final rule revising its Toxic Substances Control Act (TSCA) regulations for decaBDE and PIP (3:1), two persistent, bioaccumulative, and toxic (PBT) chemicals. The rule generally lessens burdens on industry stakeholders, who argued that the original PIP (3:1) risk management rule would lead to significant supply chain disruptions.
The final rule excludes from prohibition certain uses of PIP (3:1) in lubricants, greases, wire harnesses, and circuit boards. Phased-in prohibitions for PIP (3:1) in marine antifouling coatings and manufacturing equipment, including the semiconductor industry, are now delayed until 2029 and 2034, respectively. And, in response to comments, the rule allows for the “processing and distribution in commerce for maintenance and repair of existing PIP (3:1)-containing articles.”
On the other hand, the rule subjects motor vehicle and aerospace vehicle parts—which were excluded from prohibition under the original rule—to phased-in PIP (3:1) prohibitions that take effect in 2054. EPA also finalized worker protection requirements during PIP (3:1)’s manufacturing and processing.
As for decaBDE, EPA determined that no alternative to decaBDE-containing wire and cable insulation is available for use in nuclear power plants and therefore extended the compliance date for this use until after the end of the wire and cable service life. All other changes to the decaBDE regulations—for which supply chain disruptions were a lesser concern—impose new requirements rather than diminishing existing ones. These include mandating signage in regulated areas, requiring worker protections for certain activities, and prohibiting releases to water.
Importantly, the rule also implements a de minimis standard for the already-effective general prohibitions on the manufacture and distribution of decaBDE and PIP (3:1)-containing products and articles. Products and articles unintentionally containing less than 0.1% of either PBT by weight will now be exempt.
PIP (3:1) Litigation
The rule is likely to resolve a D.C. Circuit case challenging EPA’s risk management rule for PIP (3:1). In a recent court filing in Conditioning, Heating, and Refrigeration Inst. v. EPA, No. 21-1082, the agency said that its release “could obviate the need for further proceedings.”
That case was held in abeyance from 2022 until September as EPA pursued the rulemaking. In the meantime, EPA repeatedly delayed certain phased-in prohibitions for PIP (3:1) and provided a no action assurance on enforcement of the rule.
The rule’s effective date—January 21, 2025—means that its implementation could be delayed by the incoming administration, however.
More on EPA’s actions to delay the PIP (3:1) rule’s compliance deadlines can be found here. A blog post on the November 2023 proposed rule can be found here.
