Earlier this year, more than one-third of the nation's commercial nuclear power reactors, which supply 20% of the country's energy, were at risk of shutdowns and other problems due to a recently banned flame retardant in wires and cables, decaBDE. The potential disruption highlights the implications industry faces as the U.S. Environmental Protection Agency (EPA) continues to regulate and restrict the use of certain chemicals. Principal Mark Duvall (Washington, DC) discussed these developments in Bloomberg Law’s “Unforeseen Impact of Chemical Rules Revealed in Energy Near Miss” on May 30.

When reflecting on the potential power disruption earlier this year, Mark commented that “the earlier that critical uses are identified and the sooner EPA gets certain details, the better.” When EPA releases a proposed rule that would ban or restrict the use of a certain chemical, Mark said that “the time needed to identify, certify, or otherwise ‘qualify’ alternative chemicals and goods made with them is critical information companies should share with [EPA]” in their comments.

When proposing the rule, EPA did not consider the nuclear industry as one to be potentially impacted by the banning of the flame retardant. B&D Client RSCC Wire & Cable LLC, an affiliate of Marmon Energy Services, one of the sole producers of the nuclear industry cables, was one of the organizations impacted and had to quickly readjust to comply with the shortened implementation of the chemical ban that went from five years to two. In accordance with the EPA’s final rule deadline, Mark said that RSCC “stopped all shipment and production of decaBDE-containing wires and cables by January 6 to comply with the EPA’s deadline” and EPA’s definition of “processing.”

Mark also noted, “a chemical rule may apply to companies throughout the supply chain without their knowledge, because of [EPA’s] sometimes “opaque” use of words like manufacturing and processing."

Mark finally added that “supply chains could be tripped up by EPA’s coming rules because they increasingly apply to chemicals in articles,” noting that “cars, computers, cellphones, pipes, and gaskets are types of “articles.”

Beveridge & Diamond's Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice based on frequently changing chemical regulations. For assistance in commenting on any of EPA’s chemical rulemakings, please contact Mark or another member of B&D’s chemicals practices.