In 2017, at the direction of a provision in the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act, which fundamentally reformed the Toxic Substances Control Act (TSCA), EPA convened a group of stakeholders representing environmental groups, states, tribes, industry, and agency officials to negotiate a rulemaking to limit the burden of reporting requirements under the Chemical Data Reporting (CDR) rule for manufacturers of inorganic byproducts that are sent for recycling. The effort was doomed from the start when the agency decided that it would only pursue rulemaking if all stakeholders reached consensus on a recommendation (thereby giving environmental groups an effective veto over even modest reductions in reporting, which they had no interest in or compelling reason to support). At least, however, EPA recognized eventually that the amended Act required the agency to propose something to address the byproduct reporting situation.

For background, the CDR rule requires manufacturers (including importers) of chemical substances listed on the TSCA Chemical Substance Inventory to report data on chemical manufacturing, processing, and use every four years. EPA uses the data to help assess the potential human health and environmental effects of these chemicals. The next reporting cycle begins June 1, 2020, and requires submission of detailed information for 2019, as well as production related information for 2016-2018.

Numerous byproduct materials — things like furnace pollution control dust, slags, drosses, skimmings, mill scale, etc. — are listed on the TSCA Inventory and reportable under the program. There are some existing exemptions, but for the most part, if these materials are sent for recycling then they are subject to reporting, but if disposed they are not (which is something of a disincentive to recycle!). The vast majority of such materials (or the chemical substances contained in them) are reported under other EPA programs, such as the Toxic Release Inventory or RCRA Biennial Waste reports, or available from other sources.

The negotiating committee came up with numerous practical recommendations to eliminate some of the duplicative or relatively useless information requirements for recycled byproducts. For example, furnace dust typically is sent off-site to a processor that recycles the metals in the dust (and subsequently reports the extracted metals under the CDR program). Requiring the facility that generates the furnace dust also to report on the dust under the CDR program is of no utility. Nevertheless, practical suggestions to remedy this were unable to reach consensus with all stakeholders, largely out of fear, as best I could tell, that somehow theoretically vital information would be lost or that the exemption would set a precedent that could be extended to other materials in the future.

Well, on April 25th, EPA published proposed revisions intended to streamline reporting for 2020 under the TSCA CDR program. Unfortunately, the provisions related to recycled byproducts fail to provide any meaningful relief to companies subject to reporting and do nothing to address the unnecessary reporting of information for these materials. EPA proposes limited new provisions related to byproducts:

(1) Allowing the option to report using metal categories for the constituents of inorganic byproducts — i.e., instead of reporting for “furnace dust” a facility could instead file reports for the individual metals (e.g., zinc, nickel, etc.) in the byproduct. The utility of this option is questionable and it seems unlikely that a mill would choose to report for a specific metal (or, in most cases, numerous metals), rather than file a single report using the byproduct name listed on the Inventory which would cover all possible reportable metals in that byproduct (a point I and others made during the committee negotiations); and

(2) Adding two exemptions for specifically identified byproducts that are recycled in a site limited, enclosed system and for byproducts that are manufactured as part of non-integral pollution control and boiler equipment.

EPA also proposes a petition process to expand the list of CDR-exempted byproducts, similar to an existing petition process for chemicals of “low current interest.” While the petition option is nice, it simply puts the ball back in the court of the individual company or industry to seek and justify their own exemption.

In short, EPA’s proposal does practically nothing to limit byproduct reporting requirements or reduce burdens, as directed by the Lautenberg Act.

TSCA section 8(a)(6)s:


(A) The Administrator shall enter into a negotiated rulemaking pursuant to subchapter III of chapter 5 of title 5, United States Code, to develop and publish, not later than 3 years after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a proposed rule providing for limiting the reporting requirements, under this subsection, for manufacturers of any inorganic byproducts, when such byproducts, whether by the byproduct manufacturer or by any other person, are subsequently recycled, reused, or reprocessed.

(B) Not later than 3 and one-half years after such date of enactment, the Administrator shall publish a final rule resulting from such negotiated rulemaking.

Comments are due June 24th.