In-House Counsel Committee Report

I. DecaBDEs in Nuclear: A case study in how an agency other than your primary regulator can affect your operations, and what you can do to head off issues

Much of the U.S. Nuclear Regulatory Commission’s (NRC) statutory authority to regulate the civilian use of nuclear materials in the United States comes from the Atomic Energy Act of 1954, as amended. As a lead federal agency carrying out major federal actions such as issuing new licenses to construct nuclear power plants or renewing nuclear power plant licenses for an additional 20 years, the NRC often carries out the procedural provisions of the National Environmental Policy Act (NEPA). Indeed, the NRC’s mission is to “license[] and regulate[] the Nation’s civilian use of radioactive materials to provide reasonable assurance of adequate protection of public health and safety, to promote the common defense and security, and to protect the environment.”

However, as all agencies are, their jurisdictional power is bound only to what Congress has delegated to them. Thus, although the NRC’s mission includes to “protect the environment,” that can only extend to an issue with a radiological health, safety, and security nexus. Compare this with the U.S. Environmental Protection Agency (EPA), where the EPA’s statutory basis and authority is numerous and broad. Accordingly, at a nuclear power plant, although the NRC may be considered the “primary” federal regulator due to the obvious radiological health and safety and security nexus, the EPA (or authorized state authority) has jurisdiction over the nuclear power plant in many non-radioactive material areas, such as air and water effluents (e.g., NPDES permit), and toxic substances that one would expect at any industrial power plant. Because nuclear power plants have certain environmental licenses and permits other than their NRC-issued license that affect their operability, companies in the nuclear power industry not only must pay attention to NRC-proposed and final rules, but EPA-proposed and final rules, as well (and any other agency that may affect the plant, for that matter).

For example, take the following case study. Decabromodiphenyl ether, also known as “decaBDE,” is used as an additive flame retardant in electronics, applications for aerospace and vehicles, as well as wires and cables – including those found in nuclear power plants. In 2021, the EPA concluded that decaBDE was “toxic to aquatic invertebrates, fish, and terrestrial invertebrates. Data indicate the potential for developmental, neurological, and immunological effects, developmental toxicity and liver effects in mammals.” Accordingly, the EPA asserted jurisdiction over the material under the Toxic Substance Control Act (TSCA) Section 6(h), and banned the manufacture, processing, and distribution of the material in commerce after March 8, 2021. With regard to the nuclear industry and nuclear power plants using decaBDE, the EPA set forth a delayed compliance date of “[t]wo years for any processing and distribution in commerce of decaBDE for wire and cable insulation in nuclear power generation facilities, and the decaBDE-containing wire and cable insulation.” Although the EPA’s final rule was not intended to disrupt the power supply sector, it would have a wide impact, as decaBDE wiring is broadly used in the nuclear industry—possibly affecting any planned maintenance that was already slated to use decaBDE wiring in pre-planned outages in the upcoming year. The EPA even stated that it was

Aware of the critical role the nuclear industry plays in the U.S. which provides 20% of the domestic power supply. The Department of Energy (DOE) and/or NRC estimate that flame-retardant material is required in approximately 450 miles of wires and cables and in over 2,000 components and subcomponents in each of over 90 commercial nuclear power reactors.

The EPA continued, stating that any unplanned outage by a nuclear power plant would reduce the amount of available power to the grid, which in turn could potentially impact grid stability.

One company was caught up in the EPA’s decaBDE ban. On May 1, 2023, the EPA’s Environmental Appeals Board ratified a consent agreement and issued a final order between RSCC Wire & Cable LLC (RSCC) and the EPA outlining certain terms. Although the order alleged that RSSC manufactured decaBDE at least nine times after the EPA’s ban date of March 8, 2021, and RSSC agreed to pay a civil penalty of $253,741, RSSC was permitted to continue to process and distribute “in-process” wire and cable for the purpose of processing decaBDE-containing wire and cable for use in nuclear facilities. The consent agreement permitted RSCC to continue to use decaBDE for five years from the date of the consent agreement and provided, among other things, measures to ensure employee and environmental protection during the processing of raw decaBDE. This outcome likely demonstrated that the EPA realized that the continued use of decaBDE wires and cables (especially for five years after the consent decree was effective) was critical to the nuclear industry, notwithstanding its final rule.

On May 2, 2023, the EPA issued an enforcement statement communicating that it would provide broad enforcement discretion permitting continued use of decaBDE in wiring and cable in the nuclear industry, provided that companies that process or distribute decaBDE-containing wire or cable complied with the following conditions:

• They work diligently to qualify decaBDE-free alternative components under NRC regulations and guidance;
• They include a statement in records required to be kept under 40 C.F.R. § 751.405(c)(1)(ii) that the decaBDE-containing products or articles either comply with section 751.405(a), or are consistent with the Enforcement Statement; and
• They report any exports of decaBDE-containing wire or cable to EPA using the TSCA Section 12(b) reporting tool available in EPA’s Central Data Exchange.

On November 24, 2023, the EPA published a proposed rule that, among other chemicals, would reexamine the ban on decaBDE. The EPA proposed to extend the compliance period for processing and distribution in commerce of decaBDE-containing wire and cable insulation, and the components for use at nuclear power generating facilities, including research and test reactors, until after the end of the service life of the wire and cable and components containing the wire and cable. Comments were due on the proposed rule January 8, 2024.

Consider some takeaways from this case study for an in-house general counsel. First, although one may be in an industry regulated primarily by state or Federal regulators, one must not forget that there are other regulators out there that may promulgate rules that can have an immense impact on your industry’s operations. One must keep abreast with the industry and government happenings by participating in industry trade groups to learn about any proposed rule that, while may be well intended, might not be best carried out if eventually promulgated into a final rule. Also, strive to submit comments on proposed rules—either on behalf of your company, or contribute to your lobbying group to submit on your industry’s behalf. Comments submitted through the administrative process make a difference, and government agencies do take painstaking time to carefully consider and respond to each comment. Finally, schedule a meeting with the regulator’s representative (e.g., inspector) and describe the potential adverse impact of the proposed rule that the agency may not have considered. For example, while it is no doubt that everyone would like to eliminate toxic materials like decaBDEs, the implementation is more complex than simply banning the material—and as the EPA stated itself, it had no intent to impact the nation’s power supply sector. Through the administrative process, industry and government can hopefully work together on rules that are efficient and effective and arrive at a common goal—a clean, safe environment for all.