Chemical Data Reporting (CDR) under Toxic Substances Control Act (TSCA) requirements takes time and knowledge to become or remain compliant. The CDR submission periods are from June 1 to September 30 at 4-year intervals, beginning in 2016. The 2012 CDR submission period, in which 2011 manufacturing, processing, and use and 2010 production volume information was reported, ended August 13, 2012.
There’s still another couple of years until the 2016 TSCA reporting, however, there is no time like the present to get organized. Although the U.S. Environmental Protection Agency (EPA) included several changes in the 2012 reporting requirements, the agency delayed implementation of others until 2016, including:
- Facilities that manufacture or import a chemical substance in production volumes of 25,000 pounds (lbs) or more during any calendar year since the last reporting year (2012) will need to report.
- Manufacturers/importers will be required to provide the production volume for each year since the last reporting year.
- The reporting threshold for processing and use will be 25,000 lbs.
- The reporting threshold of 2,500 lbs will apply to chemical substances that are the subject of:
– A rule proposed or promulgated under TSCA section 5(a)(2), Significant New Use Rules (SNUR), section 5(b)(4) , Chemicals of Concern List rules, or section 6, Actions—rules containing prohibitions/restrictions arising from unreasonable risk findings.
– An order issued under TSCA section 5(e), Exposure-Based Policy: Criteria, or section 5(f) Rule of Order, or
– Relief granted under a TSCA section 5 or 7, civil action, New Chemicals Program or Imminent Hazards, respectively.
For facilities that did not report in during the last cycle, there are two other important changes implemented in 2012. First, like many EPA reporting requirements, the CDR went digital via the agency’s e-CDRweb. This system requires that facilities first be registered in the Central Data Exchange (CDX) under the program “Submissions for Chemical Safety and Pesticide Programs (CSPP).” Facilities that are already registered on the CDX for electronic reporting under TSCA, Toxic Release Inventory (TRI), or Premanufacture Notices do not need to reregister.
In addition, the EPA’s commitment to increasing transparency with regard to public access to chemical information resulted in a more rigorous process for claims of Confidential Business Information (CBI). The CBI claims must meet specific criteria set forth under 40 CFR 2.208, Substantive criteria for use in confidentiality determinations. These criteria specifically state:
- The business has asserted a business confidentiality claim, which has not expired by its terms, nor been waived, nor withdrawn;
- The business has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures;
- The information is not, and has not been, reasonably obtainable without the business’s consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding);
- No statute specifically requires disclosure of the information; and
- Either—
– The business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business’s competitive position; or
– The information is voluntarily submitted information (see Sec. 2.201(i)), and its disclosure would be likely to impair the government’s ability to obtain necessary information in the future.
CDR is complicated and if submitted inaccurately (or not at all), can result in substantial penalties.
Reporting under TSCA’s CDR is required for at least one very good reason: to provide the EPA with a complete list of all chemicals and chemical mixtures in the domestic marketplace and information on what they are being used for. Overall, enforcement of CDR (formerly known as Inventory Update Reporting or IUR) regulations has resulted in approximately $2.3 million dollars in civil penalties for 43 facilities that failed to meet reporting requirements. Under TSCA, penalties can be assessed up to $37,500 per violation/ per day, and as the record shows, there is no statute of limitations on TSCA violations.
For example, three cases in 2012 illustrate some of the common violations to the CDR/IUR reporting requirements as well as other TSCA violations. One Pennsylvania company that recycles mercury and mercury-containing materials at two facilities was inspected and found to be in violation of TSCA and the IUR for one chemical that was not reported in the 2006 IUR reporting period. In addition, the company was also found to have multiple export notification violations under TSCA section 12(b) and import certification violations under TSCA section 13. The company corrected all violations and paid a penalty of $103,433.
In another EPA enforcement action, an international catalyst production company’s Pasadena, California, facility was cited for filing an inaccurate and incomplete partial updating of the 2006 IUR after it manufactured several commercial chemical substances in excess of 25,000 pounds (lbs). In 2009, a revised IUR report was submitted for nine chemicals that were manufactured at rates significantly above the 10 percent variance rate allowed. Also in the revised IUR report was manufacturing information for an additional four chemical substances that were left out of the original 2006 submission. The company resolved all violations and paid a fine of $202,779.
The third example is a multinational United States-based firm that sells specialty chemicals, polymer products, and processing equipment for several industries. The violation, which occurred at the company’s Arkansas facility was for failure to file a partial updating of the TSCA IUR after manufacturing two commercial chemical substances in excess of 25,000 lbs. In 2012, however, the firm filed a 2006 IUR form that included both chemical substances, which should have been reported by the March 23, 2007, deadline. The company corrected all violations and paid a penalty of $55,901.
Obviously, the EPA is not shy about enforcing TSCA CDR requirements, and there is no reason to believe that is going to change anytime soon. In fact, the EPA currently conducts specific compliance monitoring programs for core TSCA reporting and testing, polychlorinated biphenyls (PCBs), asbestos, lead, TSCA state and tribal programs, chemical substance imports and exports, and good laboratory practices. These programs are all part of the larger TSCA Compliance Monitoring Strategy that the EPA developed in 2011 as a multiyear approach to move from a program-to-program format to a “One-TSCA” format. The One-TSCA program will delegate responsibilities and resources regionally to monitor compliance and to respond effectively to complaints and tips regarding TSCA regulations and violations. To accomplish compliance monitoring, the EPA will use field inspections as well as other methods to “determine the compliance status of a regulated ‘operation’ and gather evidence for potential enforcement,” including information request letters, ‘desk inspections,’ and subpoenas.
For assistance with your TSCA requirements or any of your environmental and health & safety (EHS) regulatory compliance, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at 908-442-8599 or rcarito@TotalEnviron.com.