TSCA Section 6(h) and More RoHS Exemption Renewal Consultations

TSCA Section 6(h) Brings Numerous Regulatory Changes

The United States’ Toxic Substance Control Act (TSCA) was, after being left fallow for over 30 years, finally revised by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LSCA) which passed in 2016.

The LSCA revision implemented numerous changes, some of which stood to finally address the challenge of regulating toxic chemicals in articles; the EPA had, from a practical standpoint, been unable to address them for decades.

That all changed abruptly on January 6, 2021, and not due to the insurrection at the U.S. Capitol. On that day, the EPA issued “final rules” which amounted to either a restriction or an absolute ban on five substances:

• Decabromodiphenyl ether – DecaBDE
• Phenol, isopropylated phosphate (3:1) – PIP (3:1)
• 2,4,6-Tris(tert-butyl)phenol – 2,4,6-TTBP
• Hexachlorobutadiene – HCBD
• Pentachlorothiophenol – PCTP
  

Apparently, nobody in the electronics industry – except a few upstream in the supply base – noticed.

The industry was effectively taken by surprise, resulting in an old-fashioned freak-out/fire-drill at the prospect of an absolute ban on the use, importation and sale of PIP (3:1) and articles incorporating it, in 60 days. PIP (3:1) is a flame retardant and plasticizer for PVC that may have been used somewhere, by someone, in the industry. That 60 days would end on March 8.

In early- to mid-February, word spread and industry associations took action by collecting use information from their members and holding informational meetings with the EPA.

The elimination of the other substances, for the most part, will have no effect on the operation of the industry. DecaBDE was restricted by EU RoHS in 2008 and in many other jurisdictions before and since. Except for PCTP, which may be used in certain hard rubber items, the others are not used in electrical and electronic products.

While the changes may appear to have occurred suddenly and in a vacuum, that is not the case. The EPA had announced its plan on July 29, 2019 but it had been in the works for years, even before LSCA came into effect:

Section 6(h) of TSCA, 15 U.S.C. 2601 et seq., directs EPA to issue a proposed rule under TSCA section 6(a) on certain persistent, bioaccumulative, and toxic (PBT) chemical substances. More specifically, EPA must take action on those chemical substances identified in the 2014 Update to the TSCA Work Plan for Chemical Assessments (Ref. 1) that, with certain exceptions, EPA has a reasonable basis to conclude are toxic and that with respect to persistence and bioaccumulation score high for one and either high or moderate for the other, pursuant to the TSCA Work Plan Chemicals: Methods Document (Ref. 2) EPA published in 2012 (or a successor scoring system), and exposure to which is likely under the conditions of use.

EPA clearly had worked with other industries, including formulators as well as automotive and aerospace, on this … but, interestingly enough, not with the electronics industry!

My take is that, because the previous TSCA substance bans that had impacted the electronics industry occurred over a generation ago (remember that TSCA has not banned a substance in over 30 years), no route for communication between the industry and the EPA existed. The EPA reached out through the channels it had and the electronics industry didn’t answer. It’s as simple as that.

The EPA certainly did not intend to pull one over on the electronics industry! After discussions with representatives of the electronics industry – including Yours Truly – on the evening of March 8, the EPA issued a press release announcing that it had reopened its stakeholder comment period for 60 days to gather more information from the now-aware electronics industry (and perhaps others), as well as "issuing a temporary 180-day 'No Action Assurance' indicating that the agency will exercise its enforcement discretion regarding the prohibitions on processing and distribution of PIP (3:1) for use in articles, and the articles to which PIP (3:1) has been added.

So, you now have until early May to comment. Use this time to identify whether, where and how your products use this substance and, if you find it in your supply chain, what it will take to replace it. This will inform your stakeholder comment.

I suggest that manufacturers ask for the “No Action Assurance” period to be extended for a period of time that would allow replacement of the substance, as well as depletion of inventories in the U.S.

Two New EU RoHS Exemption Renewal Packs Open for Stakeholder Consultation

The now-open stakeholder consultation for Pack 23 includes another important set of EU RoHS Annex III exemptions:

• 4(f) – Mercury in other discharge lamps for special purposes not specifically mentioned in this Annex
• 8(b) – Cadmium and its compounds in electrical contacts
• 8(b)-I – Cadmium and its compounds in electrical contacts used in:
• circuit breakers
• thermal sensing controls
• thermal motor protectors (excluding hermetic thermal motor protectors)
• AC switches rated at
• 6 A and more at 250 V AC and more, or
• 12 A and more at 125 V AC and more
• DC switches rated at 20 A and more at 18 V DC and more, and
• switches for use at voltage supply frequency ≥ 200 Hz.
• 9(a)-II – Up to 0.75 percent hexavalent chromium by weight, used as an anticorrosion agent in the cooling solution of carbon steel cooling systems of absorption refrigerators:
  • designed to operate fully or partly with electrical heater, having an average utilized power input ≥ 75 W at constant running conditions,
  • designed to fully operate with non-electrical heater.
• 13(a) – Lead in white glasses used for optical applications
• 13(b) – Cadmium and lead in filter glasses and glasses used for reflectance standards
• 13(b)-I – Lead in ion colored optical filter glass types
• 13(b)-II – Cadmium in striking optical filter glass types; excluding applications falling under point 39 of Annex III
• 13(b)-III – Cadmium and lead in glazes used for reflectance standards
• 15 – Lead in solders to complete a viable electrical connection between semiconductor die and carrier within integrated circuit flip chip packages
• 15(a) – Lead in solders to complete a viable electrical connection between the semiconductor die and carrier within integrated circuit flip chip packages where at least one of the following criteria applies:
  • a semiconductor technology node of 90 nm or larger
  • a single die of 300 mm2 or larger in any semiconductor technology node
  • stacked die packages with die of 300 mm2 or larger, or silicon interposers of 300 mm2 or larger.

Note that this project, like Pack 21, is not being managed by Oeko-Institut, but rather by a different consulting firm, Bio Innovation Service. This consultation is open through May 27.

Another stakeholder consultation on seven Annex III exemption renewal requests and one Annex IV exemption renewal request is now open under Pack 24 until June 8. This one is being carried out by Oeko-Institut.

Exemptions in its scope include:

• Annex III, Exemption 5(b) – Lead in glass of fluorescent tubes not exceeding 0,2 percent by weight
• Annex III, Exemption 18(b)  – Lead as activator in the fluorescent powder (1 percent lead by weight or less) of discharge lamps when used as sun tanning lamps containing phosphors such as BSP
• Annex III, Exemption 18(b)-I  – Lead as activator in the fluorescent powder (1 percent lead by weight or less) of discharge lamps containing phosphors such as BSP when used in medical phototherapy equipment
• Annex III, Exemption 24  – Lead in solders for the soldering to machine through hole discoidal and planar array ceramic multilayer capacitors
• Annex III, Exemption 29  – Lead bound in crystal glass as defined in Annex I (Categories 1, 2, 3 and 4) of Council Directive 69/493/EEC
• Annex III, Exemption 32  – Lead oxide in seal frit used for making window assemblies for Argon and Krypton laser tubes
• Annex III, Exemption 34  – Lead in cermet-based trimmer potentiometer elements
• Annex IV, Exemption 34  – Lead as an activator in the fluorescent powder of discharge lamps when used for extracorporeal photopheresis lamps containing BSP (BaSi2O5:Pb) phosphors

This is why component and material manufacturers must understand the exemptions their products take and what the limits are, if any, for replacement materials. Any of these exemptions could change, just like exemptions in the 6, 13, and 15 series (among others) did in the prior renewal process. Keep your eye on the ever-changing RoHS ball, my friend.

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