Key Takeaways

The U.S. Environmental Protection Agency (EPA) published a final rule revising the regulations for decabromodiphenyl ether (decaBDE) and phenol, isopropylated phosphate (3:1) (PIP (3:1)) on November 19, 2024. As discussed in our previous alert on the revisions as proposed last year, EPA first regulated these two substances as persistent, bioaccumulative, and toxic chemicals (PBTs) under the Toxic Substances Control Act (TSCA) in January 2021. With limited exceptions and under various compliance timeframes, those 2021 rules prohibited the manufacture (including import), processing, and distribution in commerce of decaBDE, and products and articles containing decaBDE. The 2021 rules likewise prohibited the processing and distribution in commerce of PIP (3:1) and products and articles containing PIP (3:1).

The final revised rules grant compliance extensions for certain uses of these substances, such as an extension to the end of service life for decaBDE used in wire insulation for nuclear power plants and 10 years for PIP (3:1) used in parts for new manufacturing equipment, including in the semiconductor industry. Further extensions are provided for replacement parts for those kinds of equipment.

In addition, the revised rules modify several of the exclusions in the PIP (3:1) rule, including by narrowing the exclusion for lubricants and greases to aviation and turbine uses and by replacing the exclusion for new and replacement parts for motor vehicles with a 15-year phase-in prohibition for new parts and a 30-year phase-in prohibition for replacement parts.

Both revised rules also contain exclusions for products and articles that contain decaBDE/PIP (3:1) at concentrations less than 0.1% by weight if the substance was not intentionally added to those products or articles. 

Further, the revisions impose new workplace protection requirements for both substances and products (e.g., mixtures, not articles) containing decaBDE or PIP (3:1).

The revisions to the decaBDE and PIP (3:1) rules are scheduled to take effect on January 21, 2025; however, it is very likely that President Trump will issue a regulatory freeze upon his inauguration on January 20, which could delay this effective date and create uncertainty as to the ultimate fate of the revisions.

Background

When Congress amended TSCA in 2016, it added section 6(h), directing EPA to restrict or ban certain PBTs. On January 6, 2021, EPA finalized rules on five PBTs, including decaBDE and PIP (3:1). The other three PBTs are 2,4,6- tris(tert-butyl)phenol (2,4,6-TTBP), pentachlorothiophenol (PCTP), and hexachlorobutadiene (HCBD). DecaBDE, a flame retardant, has been largely phased out globally. In contrast, PIP (3:1) is still widely used as a flame retardant, plasticizer, anti-compressibility additive, and anti-wear additive outside the U.S. and, to some extent, in this country. 

In March 2021, EPA began to re-examine the five PBT rules, leading to extended compliance deadlines for PIP (3:1) and decaBDE. EPA extended the compliance date for the processing and distribution in commerce of PIP (3:1) for use in certain articles, and for the processing and distribution in commerce of certain PIP (3:1)-containing articles, first to March 8, 2022, and then to October 31, 2024. In addition, on May 3, 2023, EPA announced its intent to extend the January 6, 2023 compliance date for the prohibition on processing and distribution of decaBDE for use in wire and cable insulation in nuclear power generation facilities, and decaBDE-containing wire and cable insulation. The agency also granted enforcement discretion to the nuclear industry and suppliers to resume using wire and cable intended for use in nuclear power facilities containing decaBDE, first on May 2, 2023, and then again on September 27, 2024 while finalization of the revisions to the decaBDE rule was pending.

As part of the previous compliance date extensions to the PIP (3:1) rule, EPA announced plans to propose new rulemaking in 2023 to re-examine control measures for the five PBTs. However, the final revised rules only address PIP (3:1) and decaBDE, leaving the rules for the other three PBTs unchanged.

Revisions to the DecaBDE Rule

Once the decaBDE rule takes effect, it will, among other changes:

• Exclude products and articles containing decaBDE at concentrations less than 0.1% by weight, if the decaBDE was not intentionally added to the product or article.
• Extend the compliance date for processing and distribution in commerce of decaBDE-containing wire and cable insulation for use in nuclear power generation facilities, until after the end of the service life of the wire and cable;
• Require export notification for decaBDE-containing wire and cable for use in nuclear power generation facilities;
• Prohibit releases to water during the manufacturing, processing, and distribution in commerce of decaBDE and decaBDE-containing products and requires all persons to follow any applicable regulations for preventing the release of decaBDE;
• Require the use of personal protective equipment (PPE) for certain activities involving decaBDE; and
• Modify existing recordkeeping requirements.

Revisions to the PIP (3:1) Rule

Once the PIP (3:1) rule takes effect, it will, among other changes:

• Exclude products and articles containing PIP (3:1) at concentrations less than 0.1% by weight, if the PIP (3:1) was not intentionally added to the product or article.
• Narrow the scope of the exclusion for lubricants and greases for aerospace use and turbine engines, with a new 15-year phase-in prohibition for non-aerospace and non-turbine applications;
• Replace the exclusion for new and replacement parts for motor vehicles with a 15-year phase-in prohibition for new parts and a 30-year phase-in prohibition for replacement parts;
• Replace the exclusion for new and replacement parts for aerospace vehicles with a 30-year phase-in prohibition for new parts and after the end of service life for replacement parts;
• Add new exclusions for use in wire harnesses and electric circuit boards;
• Add a new 5-year compliance timeframe deadline for processing and distribution of PIP (3:1) for use as an inert ingredient in a Federal Insecticide, Fungicide, and Rodenticide Act-approved antifouling paint coating for U.S. Navy applications;
• Extend the compliance timeframe for an additional 10 years for parts for use in several categories of new manufacturing equipment and in the semiconductor industry, including new heating, ventilation, air-conditioning, refrigeration, and water-heating equipment, new power generating equipment (including outdoor power equipment), new laboratory equipment, and new commercial electronic equipment), and extended compliance periods for parts replacement parts for such equipment;
• Add an exclusion for distribution in commerce of PIP (3:1)-containing parts for motor vehicles and for distribution in commerce of PIP (3:1)-containing manufacturing equipment, including in the semiconductor industry;
• Require the use of PPE for the domestic manufacturing and processing of PIP (3:1) and some PIP (3:1)-containing products and articles;
• Require the use of engineering controls and PPE for the use of PIP (3:1) as an intermediate processing aid in the manufacturing of cyanoacrylate adhesives; and
• Modify existing recordkeeping requirements.

Commentary

Notable components of the final revised rules include extensions to compliance deadlines, the 0.1% de minimis threshold for unintentional presence of both substances, various adjustments to exclusions, new mandates for workplace safety, and a prohibition on water releases of decaBDE. The revised rules are expected to significantly impact the use of decaBDE and PIP (3:1) in a range of sectors, including but not limited to the electronics, semiconductor, automotive, and nuclear industries.

The finalized revisions are scheduled to take effect on January 21, 2025, the day after President-elect Trump’s inauguration. This timing could have ramifications on the implementation of the revisions. As is common during presidential transitions, Trump is expected to freeze finalized by not-yet-effective federal agency rules as soon as he takes office on January 20. For instance, on day one of the previous Trump administration, Trump issued a regulatory freeze memorandum that postponed by 60 days the effective dates of regulations published in the Federal Register but had not yet taken effect. That memorandum also directed agencies to propose a rule to delay effective dates beyond this 60-day period, and consider further action in coordination with the Office of Management and Budget “for regulations that raise substantial questions of law or policy.”

It should therefore be expected that President Trump, through an upcoming regulatory freeze memorandum, will initially delay the effective date of the PIP (3:1) and decaBDE rule revisions by 60 days (i.e., until March 21, 2025). From there, it is uncertain what the new Trump administration may do with the rule revisions. Affected stakeholders should stay informed on developments regarding the rule revisions as the new Trump administration begins. We also encourage stakeholders to join a webinar EPA is hosting to discuss the rule revisions on December 12, 2024, at 2 pm ET. To register for the webinar, click here.