EPA Plans to Extend Compliance Date for Regulation of DecaBDE to Ensure Continuity of Nuclear Power Supply Chain
Action Accompanied by TSCA Enforcement Statement and Settlement
Released on May 3, 2023
Today, the U.S. Environmental Protection Agency (EPA) is announcing its intent to extend the January 6, 2023 compliance date on the prohibition on the processing and distribution of decabromodiphenyl ether (decaBDE) for use in wire and cable insulation in nuclear power generation facilities, and decaBDE-containing wire and cable insulation. DecaBDE is one of the persistent, bioaccumulative and toxic (PBT) chemicals that are the subject of risk management rules under the Toxic Substances Control Act (TSCA) finalized under the previous administration in 2021. EPA expects to propose this compliance date extension as part of a rulemaking on the chemical this fall.
EPA is also issuing a related temporary “Enforcement Statement,” which indicates that the Agency does not intend to pursue violations of this prohibition on processing and distribution of decaBDE-containing wire and cable insulation for use in nuclear power generation facilities, as long as the entities involved are diligently working to qualify their alternative components in accordance with Nuclear Regulatory Commission regulations and guidance. Nuclear facilities need qualified wire and cable available to operate safely, and new types of wire and cable can take years to be certified consistent with NRC regulations. If neither decaBDE-containing wire and cables nor qualified alternatives are available to nuclear power generation facilities, the facilities could potentially face shutdowns. EPA is also announcing a settlement agreement with RSCC Wire & Cable, LLC (RSCC), the only known supplier of qualified decaBDE-containing wire and cable, regarding TSCA violations.
Rulemaking Plans and Enforcement Statement
When TSCA was amended in 2016, it directed EPA to take expedited action on certain PBT chemicals like decaBDE. One of the uses EPA identified for decaBDE was in wire and cable insulation at nuclear power generation facilities. Qualified wire and cable play a vital role in the operation of numerous safety systems required by federal regulations for both safe operation and safe shutdown of the U.S. nuclear sector.
As early as 2018, EPA engaged with relevant stakeholders and RSCC. RSCC indicated that it was evaluating alternatives and working towards an expected phase-out of all decaBDE uses in wire and cable for nuclear power generation facilities by 2021. When the EPA proposed a rule to protect human health and the environment from the exposures of five PBT chemicals, including decaBDE, in 2019, the proposed rule included a prohibition on the manufacturing and processing of decaBDE and decaBDE-containing products or articles by March 2021, with certain exceptions.
After proposing the rule, EPA met again with RSCC, who informed the Agency that it would not meet the proposed deadline and it needed more time to phase out decaBDE. When EPA finalized the PBT rule in 2021, the Agency granted the request for an extended compliance timeline for processing and distribution of decaBDE in wire and cable for use in nuclear power facilities and decaBDE-containing wire and cable insulation and established the compliance date of January 6, 2023.
EPA only became aware in late 2022 that RSCC would not be able to meet the January 6, 2023 deadline due to its inability to fully transition to an alternative. As a result, downstream customers such as nuclear power plants could face potential shutdowns due to being unable to source and obtain decaBDE-free qualified wires and cables that meet NRC regulations. This issue was exacerbated by a lack of effective communication by the nuclear power sector with EPA despite multiple opportunities to comment on EPA’s rulemaking decisions.
Despite EPA’s regulatory efforts to avert unintended adverse impacts to key infrastructure, EPA must take expedited action to ensure continued availability of qualified cable. For more information regarding this matter, read the Request for Enforcement Statement Regarding DecaBDE.
These cables and components play a vital role in the operation of numerous safety systems required by Federal regulations for both safe operation and safe shutdown of nuclear facilities. Without qualified cables and components, reactors that schedule temporary outages for routine maintenance might not be able to restart operations. Other reactors would need to defer planned maintenance to avoid this possibility. Additional power capacity could be at risk if any plants experience premature failures of decaBDE-containing components that would require unplanned repair or replacement. In sum, a lack of qualified cables could decrease electricity production and create reliability risks in the electric system, risks that EPA believes must be prevented.
EPA plans to propose a rule to address the compliance deadline this fall. In the meantime, EPA is issuing a temporary “Enforcement Statement,” which indicates that the Agency does not intend to pursue enforcement for violations of the prohibition on processing and distribution of decaBDE-containing wire and cable insulation for nuclear power generation facilities that went into effect on January 6, 2023, as long as the entities involved are diligently working to qualify their alternative components in accordance with NRC regulations and guidance. The Enforcement Statement also covers related recordkeeping requirements and the use of decaBDE-containing wire and cable. The Enforcement Statement does not cover the prohibition of all processing and distribution in commerce of decaBDE (i.e., raw or compounded) for use in wire and cable insulation in nuclear power generation facilities.
On May 1, 2023, EPA reached a settlement with RSCC, which is the Agency’s first settlement under TSCA section 6 since TSCA was amended in 2016. Specifically, this settlement with RSCC resolves import violations of the manufacturing prohibition of decaBDE-containing products for nine imports that occurred between March 8, 2021 and January 6, 2023. Under the TSCA rules for PBT chemicals that were finalized in 2021, EPA set an extended compliance date for the processing and distribution of decaBDE-containing wire and cable of January 6, 2023. The compliance date for the import of decaBDE-containing wire and cable was March 8, 2021. Therefore, RSCC’s import of decaBDE-containing products after this date was a violation of TSCA.
Additionally, the settlement includes conditions to allow both the continued manufacturing, processing, and distribution of decaBDE-containing wire and cable insultation and the processing, and distribution of decaBDE (including raw and compounded) while the nuclear power generation industry undergoes transition to a decaBDE-free alternative.