Industry Remains in Dark on EPA Plans For 2011 Chemical Reporting Requirements

Just months before U.S. companies are required to provide the Environmental Protection Agency production volume and other information about the chemicals they make or import, they do not know what information they will have to provide or the number of years the data must encompass.

“We don't know what EPA wants,” Robert Keifer, director of regulatory and technical affairs at the American Chemistry Council, told BNA March 9. He referred to the periodic reports that EPA collects under its Inventory Update Reporting rule. The council represents major U.S. chemical manufacturers.

Through the IUR rule, first issued in 1986, EPA collects facts about chemicals such as the identity of compounds, the volume at which they are made or produced, and basic production, exposure, and use information. The frequency of the IUR reports and the amount of information required to be filed has varied over time, but EPA has kept the requirement that the data must address the chemicals made in or imported into the United States in the calendar year that preceded the reporting year. Under the most recent IUR rule, issued in 2003, manufacturers must report between June 1 and Sept. 30 of this year.

In August 2010, however, EPA proposed to require more information in 2011 and to require that some of the volume information cover not only 2010 but also 2006, 2007, 2008, and 2009 (34 CRR 791, 8/16/10).

Final Rule Under Review at OMB.

A final rule has not been issued. EPA's intended final rule has been at the White House Office of Management and Budget since Jan. 20. Since the beginning of February, OMB has held at least four meetings with the American Chemistry Council, the Society of Chemical Manufacturers and Affiliates Inc. (SOCMA), the Small Business Administration, the National Mining Association, and other parties that represent companies that must comply with the regulations.

Kathleen Roberts, who formerly worked for the chemistry council and now consults with the North American Metals Council, attended one of those meetings and told BNA: “It goes without saying, companies need to know what is expected.” Frankly, Roberts said, “they needed to know it by the end of last year.”

Charles Franklin, an attorney with Akin Gump Strauss Hauer & Feld LLP who also chairs the American Bar Association's Pesticides, Chemical Regulation, and Right-to-Know Committee, told BNA that for clients and for the committee, not knowing what or when they have to report is “a big deal.”

The proposed revisions to the IUR rule also are occurring at the same time EPA has repeatedly said it wants chemical manufacturers to better justify information they say warrants protection as confidential, Franklin noted. Justification is not in and of itself a problem, he said, but explaining why confidentiality is needed for a greater scope of information would require more time. “Although we haven't seen what EPA did in the final rule, OMB should be concerned about EPA demanding more CBI [confidential business information] reporting at the same time it is giving CBI less protection,” Franklin said.

Kiefer, from the American Chemistry Council, told BNA companies want to comply, but if EPA were to require everything it said it might in the proposed rule, and require production and importation volume information for the years 2006-2009, that could be a heavy burden, particularly for companies that import chemicals.

Software, Data Quality Concerns.

Software used to track information such as specific ingredients in imported mixtures of chemicals was not designed to retrospectively collect the information for all the years EPA has proposed, Kiefer said.

Dan Newton, manager of government relations at SOCMA, told BNA there could be some data quality issues if the rule were finalized as it was proposed.

ACC and SOCMA proposed to OMB that the reporting deadline be no earlier than nine to 12 months after a final rule is published, that EPA drop the retroactive reporting requirements for the years 2006-2009, and that EPA phase in the agency's proposal to require exposure and use information for chemicals made in or imported into the United States in volumes of 25,000 pounds or more. In 2006, the production/importation volume that triggered the reporting requirement was 300,000 pounds.

OMB did not respond March 9 to BNA's query about when it would complete its review of EPA's rule, but typically such assessments can take 90 days or more. EPA also did not reply to questions about the status or scope of the final Inventory Update Reporting regulation.

Traditionally, EPA has used the upcoming GlobalChem conference, organized by the American Chemistry Council and SOCMA, as a convenient forum through which it can let chemical manufacturers know what the agency's regulatory expectations are, including those for IUR reports. This year's conference will be held in Baltimore March 21-23 and will include a “special session” on the IUR.

Instead of EPA officials briefing chemical companies on the agency's expectations, however, industry representatives will be briefing participants on what the agency proposed last year, Kiefer told BNA.