It seems like yesterday when the U.S. Environmental Protection Agency (EPA) issued a final rule prohibiting isopropylated phosphate (3:1) (PIP (3:1)), and for many in the manufacturing sector, the world got a little bit crazier. The EPA vowed to revise the final rule and did so on Nov. 24, 2023. The EPA’s proposal would amend the regulations for decabromodiphenyl ether (decaBDE) and PIP (3:1), two of the five persistent, bioaccumulative and toxic (PBT) chemicals addressed in final rules issued under the Toxic Substances Control Act (TSCA) in January 2021.
Background
On Jan. 6, 2021, the EPA issued final rules for five PBTs — 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP), decaBDE, hexachlorobutadiene (HCBD), pentachlorothiophenol (PCTP), and PIP (3:1). The rules limit or prohibit the manufacture (including import), processing, and/or distribution in commerce. The EPA requested on March 8, 2021, additional public input on these rules and opened a 60-day comment period. In March 2022, the EPA issued a final rule extending the compliance dates to Oct. 31, 2024, for the prohibitions on PIP (3:1) when used in some articles.
decaBDE
For decaBDE, the EPA proposes to:
- Require a label on existing plastic shipping pallets known to contain decaBDE;
- Require the use of personal protective equipment (PPE) for some activities involving decaBDE, codifying existing practices;
- Prohibit releases to water during the manufacturing, processing and distribution in commerce of decaBDE and decaBDE-containing products;
- Extend the compliance date for processing and distribution in commerce of decaBDE-containing wire and cable insulation for use in nuclear power generation facilities;
- Require export notification for decaBDE-containing wire and cable for use in nuclear power generation facilities; and
- Modify existing recordkeeping requirements and require records associated with the workplace protection requirements.
PIP (3:1)
For PIP (3:1), EPA proposes to, among other restrictions:
- Require the use of PPE for the domestic manufacture 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 in the manufacture of cyanoacrylate adhesives;
- Narrow the scope of the exclusion for lubricants and greases to aviation and turbine uses, with a five-year phased-in prohibition for all other uses;
- Add new exclusions for use in wire harnesses and electric circuit boards;
- Replace the exclusion for new and replacement parts for motor vehicles with a 15-year phased-in prohibition for new parts and an additional 15 years for replacement parts;
- Extend the compliance timeframe for an additional 10 years for use in manufacturing equipment and in the semiconductor industry; and
- Modify existing recordkeeping requirements and require records associated with the workplace protection requirements.
Discussion
The most critical revisions are EPA’s proposal to allow continued use of PIP (3:1) in wire harnesses and circuit boards for fire safety reasons and to extend the compliance timeframe for an additional ten years for use in manufacturing equipment and in the semiconductor industry. These uses of PIP (3:1) were largely responsible for the tumult in 2021 when importers and distributors of electronics discovered the EPA had promulgated a full ban on the presence of PIP (3:1) in articles. For both substances, the EPA is adding requirements to use gloves and respirators while acknowledging these are routinely worn.
The EPA also proposed that employers keep records of the “name, workplace address, work shift, job classification, and work area of each person reasonably likely to directly handle [the PBT] or handle equipment or materials on which [the PBT] may be present and the type of PPE selected to be worn by each of these persons.” It is unclear what protective benefit the EPA expects from such records beyond the benefit derivative of the other existing workplace protection standards.
The EPA did not propose to eliminate the restriction on processing and distribution of articles that may contain either decaBDE or PIP (3:1) that has previously been sold or supplied to an end user.
Many will be disappointed the EPA does not propose a de minimis limit for either substance. Suppliers routinely certify to the substance not being intentionally added and will often certify that a substance is not present above a measurable threshold (such as the 1,000 ppm for brominated diphenyl ethers, the European Union (EU) Restriction of Hazardous Substances (RoHS) Directive standard).
Readers are urged to comment on the proposed rule as the rule, when issued in final, will have a significant impact on the manufacturing sector.
