The U.S. Environmental Protection Agency (EPA) released on December 22, 2020, final rules under Section 6(h) of the Toxic Substances Control Act (TSCA) for five persistent, bioaccumulative and toxic (PBT) chemicals -- decabromodiphenyl ether (decaBDE); phenol, isopropylated phosphate (3:1) (PIP (3:1)); 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP); hexachlorobutadiene (HCBD); and pentachlorothiophenol (PCTP). TSCA required EPA to take expedited action on specific PBT chemicals to address risk and reduce exposures to the extent practicable. EPA identified these five PBT chemicals for expedited action, following criteria outlined in TSCA. The final rules limit or prohibit the manufacture (including import), processing, and/or distribution in commerce for the following:

• DecaBDE: A flame retardant in plastic enclosures for televisions, computers, audio and video equipment, textiles and upholstered articles, wire and cables for communication and electronic equipment, and other applications;

• PIP (3:1): A plasticizer, a flame retardant, an anti-wear additive, or an anti-compressibility additive in hydraulic fluid, lubricating oils, lubricants and greases, various industrial coatings, adhesives, sealants, and plastic articles;

• 2,4,6-TTBP: An intermediate/reactant in processing, and it is incorporated into formulations destined for fuel and fuel-related additives;

• HCBD: A chemical used as a halogenated aliphatic hydrocarbon that is produced as a byproduct during the manufacture of chlorinated hydrocarbons; and

• PCTP: A chemical used to make rubber more pliable in industrial uses.

The final rules will be effective 30 days after publication in the Federal Register.

In a related action, EPA announced on December 8, 2020, the receipt of a manufacturer-requested risk evaluation for two other PBT chemicals within the octahydro-tetramethyl-naphthalenyl-ethanone (OTNE) chemical category. EPA states that it will soon open a public comment period on the request and, if granted, these chemicals would be subject to the full TSCA risk evaluation process. More information on the manufacturer request is available in our December 9, 2020, blog item, “EPA Receives Manufacturer Request for Risk Evaluation of Chemical Category under TSCA Section 6.”

EPA’s website includes a summary of the uses, identified hazards, and risk management actions for each of the five PBT chemicals. The following summary includes minor revisions and clarifications to the information provided by EPA. Stakeholders should check the final rules to confirm the requirements.

DecaBDE

EPA is prohibiting the manufacture (including import), processing, and distribution in commerce of decaBDE, and products containing decaBDE, for all uses, except for the following:

• Manufacture, processing, and distribution in commerce for use in curtains in the hospitality industry, and the distribution of the curtains themselves, for a period of 18 months, after which the prohibition would go into effect;

• Processing and distribution in commerce for use in wire and cable insulation in nuclear power generation facilities, and the distribution of the wire and cable insulation that contains decaBDE, for a period of two years, after which the prohibition would go into effect;

• Manufacture, processing, and distribution in commerce for use in parts for new aerospace vehicles, and distribution in commerce of the new vehicles containing such parts, for a period of three years, after which the prohibitions would go into effect;

  • Manufacture, processing, and distribution in commerce for those aerospace vehicles produced with decaBDE containing parts will be excluded from the prohibition until the end of their service lives; manufacture, processing, and distribution in commerce for use in replacement parts for aerospace vehicles, and distribution in commerce of the replacement parts themselves;

• Manufacture, processing, and distribution in commerce for use in replacement parts in motor vehicles, and distribution in commerce of the replacement parts themselves until the end of the vehicles’ service lives or 2036, whichever is earlier;

• Distribution in commerce of plastic shipping pallets manufactured prior to 60 days after the publication of the final rule that contain decaBDE until the end of the pallets’ service lives; and

• Processing and distribution in commerce for recycling of plastic that contained decaBDE before the plastic was recycled (i.e., the plastic to be recycled is from articles and products that were originally made with decaBDE), and the articles and products made from such recycled plastic so long as no new decaBDE is added during the recycling or production process.

PIP (3:1)

EPA is prohibiting processing and distribution in commerce of PIP (3:1), and products containing the chemical substance, for all uses, except for the following:

• Processing and distribution in commerce for use in aviation hydraulic fluid in hydraulic systems and use in specialty hydraulic fluids for military applications;

• Processing and distributing in commerce of PIP (3:1) for use in photographic printing articles and PIP (3:1)-containing photographic printing articles until January 1, 2022;

• Processing and distribution in commerce for use in lubricants and greases;

• Processing and distribution in commerce for use in new and replacement parts for the aerospace and automotive industries;

• Processing and distribution in commerce for use as an intermediate in the manufacture of cyanoacrylate glue;

• Processing and distribution in commerce for use in specialized engine air filters for locomotive and marine applications;

• Processing and distribution in commerce for use in sealants and adhesives until four years after publication of the final rule in the Federal Register; and

• Processing and distribution in commerce for recycling of plastic that contained PIP (3:1) before the plastic was recycled (i.e., the plastic to be recycled is from articles and products that were originally made with PIP (3:1)), and the articles and products made from such recycled plastic so long as no new PIP (3:1) is added during the recycling or production process.

EPA states that it is requiring that persons manufacturing, processing, and distributing in commerce PIP (3:1) and products containing PIP (3:1) notify their customers of these restrictions. EPA is also prohibiting releases to water from the remaining manufacturing, processing, and distribution in commerce activities and requiring commercial users of PIP (3:1) and PIP (3:1)-containing products to follow existing regulations and best practices to prevent releases to water during use.

2,4,6-TTBP

EPA is prohibiting the distribution in commerce of 2,4,6-TTBP and products containing 2,4,6-TTBP at concentrations above 0.3% by weight in any container with a volume of less than 35 gallons to prevent effectively the use of 2,4,6-TTBP as a fuel additive or fuel injector cleaner by consumers and small commercial operations (e.g., automotive repair shops, marinas). EPA is also prohibiting the processing and distribution in commerce of 2,4,6-TTBP, and products containing 2,4,6-TTBP, for use as an oil or lubricant additive in concentrations above 0.3% by weight regardless of container size.

HCBD

EPA is prohibiting the manufacturing (including import), processing, and distribution in commerce of HCBD and HCBD-containing products or articles, except for the unintentional production of HCBD as a byproduct during the production of chlorinated solvents, and the processing and distribution in commerce of HCBD for burning as a waste fuel.

PCTP

EPA is prohibiting the manufacture (including import), processing, and distribution in commerce of PCTP, and products or articles containing PCTP, unless PCTP concentrations are at or below 1% by weight.

Commentary

To our eye, EPA’s actions are neither surprising nor inappropriate. We will continue to evaluate the rules as EPA’s many actions over the past several weeks warrant close scrutiny.