By Pat Rizzuto
The Environmental Protection Agency will post by Feb. 1 additional information to help electronics manufacturers, metal recyclers, and other companies understand their obligations to report production volume and other information concerning the byproduct chemicals they generate, a senior EPA official said Jan. 19.
Susan Sharkey, a chemical engineer in EPA's Chemical Control Division, speaking during a workshop organized by the Bergeson & Campbell P.C. law firm on the byproducts reporting requirements of the Chemical Data Reporting rule, said EPA will post updated guidance for byproducts reporting, additional questions and answers, and responses to questions that arose in case studies or “scenarios” discussed at the workshop.
EPA published the Chemical Data Reporting (CDR) rule in August 2011 to replace the Inventory Update Reporting (IUR) rule. The first information reporting submission period required under the CDR rule begins in less than two weeks, starting Feb. 1 and running through June 30 (35 CRR 769, 8/8/11).
By Jan. 23, Bergeson and Campbell plans to post on its website slides EPA presented during the workshop along with an audio recording, said Kathleen Roberts, a Bergeson & Campbell consultant who has worked on EPA reporting regulations for more than 10 years. EPA then will post the additional information Feb. 1, Sharkey told more than 150 workshop participants.
The updated guidance will include corrections and clarifications to information about the regulation that EPA currently has posted, Wendy Cleland-Hamnett, director of EPA's Office of Pollution Prevention and Toxics, said in a Jan. 17 letter to the American Chemistry Council that was obtained by Bloomberg BNA.
Cleland-Hamnett was responding to concerns ACC detailed in a Sept. 12 letter it submitted to the agency.
Despite the agency's efforts, companies are likely to continue to be confused and may make mistakes as they provide EPA required production and other information, Roberts and Lynn Bergeson, managing director of Bergeson & Campbell, told Bloomberg BNA after the workshop.
Bergeson described the byproducts provisions of CDR rule as a “uniquely complicated area.”
The Toxic Substances Control Act defines a byproduct as “a chemical substance produced without a separate chemical intent during the manufacture, processing, use, or disposal of another chemical substance or mixture.”
Under the Chemical Data Reporting rule, companies do not always have to report the production of byproducts.
Because of this complexity, “generalities of any kind are difficult to state,” Bergeson said.
In addition, the companies most significantly affected by the byproduct provisions of the rule—metals recyclers—may not be particularly familiar with TSCA, Bergeson said.
Roberts said there are numerous industrial sectors that will potentially need to report that do not realize it.
Sharkey attributed some of the confusion to a change in the Inventory Update Reporting rule in 2006.
Metals recyclers and some other companies first became responsible for filing IUR—now CDR—reports in 2006 because that was the first time manufacturers of inorganic chemicals were required to report basic manufacturing information, Sharkey told Bloomberg BNA.
Yet, Sharkey said, reporting CDR information may not be as complicated or apply to as many companies as some businesses fear.
She and Frederick Arnold, a chemical engineer at OPPT, discussed 18 specific manufacturing scenarios during the workshop. The scenarios involved situations in which solvents, metals, gases, and even electronic equipment were made or used.
In many of the scenarios, manufacturers had no obligation or a limited obligation to report byproduct chemicals, Sharkey and Arnold told workshop participants.
It is essential, Sharkey said, for companies to become familiar with the byproducts guidance and related information that EPA is posting and will continue to provide throughout the submission period.
After the workshop, Bergeson recommended that companies “know the rules; know your manufacturing/reclamation process; make no assumptions; review EPA materials carefully; and consult experts, as reasonable people are going to disagree.”
Several workshop participants struggled to understand the CDR rule's requirement that one company report information about a byproduct shipped to a second company for recycling or disposal.
Sharkey said she would encourage the first company to obtain as much information from the second as it can.
Cleland-Hamnett also addressed the question in her letter to the American Chemistry Council.
“Manufacturers reporting processing and use information for a chemical substance should report that information to the extent that it is known or reasonably ascertainable by them,” she wrote. But one company may not know all the ways a second business handles its products, she acknowledged.
On Jan. 13, Reps. Fred Upton (R-Mich.) and John Shimkus (R-Ill.), sent a letter to EPA asking it to postpone the Chemical Data Reporting rule's submission period and to let them know the agency's decision by Jan. 20. (See related story in this issue.)
Sharkey told Bloomberg BNA that she was aware of the request, but—as of Jan. 19—understood that the submission period would remain as scheduled to begin Feb. 1 and run through June 30.
EPA's updated guidance and related information will be available at http://www.epa.gov/cdr/.
Bergeson & Campbell will make EPA's slides and the workshop audio recording available at http://www.lawbc.com.
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