Whether by design or accident, three different EPA rules for reporting and recordkeeping under Section 8(a) of the Toxic Substances Control Act (TSCA) have reporting periods during some part of 2024. These three TSCA Section 8(a) rules are Asbestos Reporting and Recordkeeping, Chemical Data Reporting (CDR), and PFAS Reporting and Recordkeeping. The Asbestos and PFAS Reporting and Recordkeeping Rules are new and require reporting only once. In contrast, CDR is neither new nor chemical specific and occurs every four years.
These TSCA Section 8(a) rules are designed to apply to manufacturers of chemical substances (i.e., companies that make a chemical from other chemicals by chemical reaction). However, importing a chemical substance into the U.S. is included in the TSCA definition of manufacturing (see 40 CFR 704.3). Generally, recycling processes (e.g., shredding and sweating metal) are not manufacturing activities under TSCA because they are not based on chemical reaction. For instance, shredding changes a metal’s physical configuration, but not its chemical identity; similarly, melting changes a solid metal to liquid metal, but this phase change does not change the metal’s chemical identity (the same is true for solidification of the liquid metal). A recycler that imports material for recycling is a manufacturer, even if the shredding of it, for instance, in the U.S. is not manufacturing.
Given all of this, only recyclers that imported recyclable materials during recent years (or earlier years in one case) may be required to report if the imported recyclable materials contained a chemical substance that is reportable under one or more of these three TSCA Section 8(a) rules.
However, under these rules, reporting is not required if information about the reportable chemical substance is not “known to or reasonably ascertainable by” (KRA) a potential reporter. “Known to” information is in the possession of the potential reporter, who may need to conduct internal searches to find it. “Reasonably ascertainable by” information exists beyond “known to” information, but new inquiries to customers are not required to produce it (see EPA’s brief KRA guidance). The issue of KRA information is highly relevant to the Asbestos and PFAS Reporting and Recordkeeping Rules, as explained below.
ISRI submitted comments on all three of these rules during several rulemaking processes. Unfortunately, ReMA was not able to obtain reporting exclusions or exemptions for recyclers that imported.
Under the Asbestos Reporting and Recordkeeping Rule (40 CFR 704.180), manufacturers (including importers) and certain processors of asbestos in any amount are required to report certain information to EPA on a one-time basis. It is possible that a recycler may be required to report because of importing recyclable material that contained asbestos in any amount (there are no thresholds below which reporting is not required); recyclers are not required to report because of processing domestically sourced recyclable material that contained asbestos in any amount. Information about importing activities during calendar years 2019, 2020, 2021 and 2022 must be submitted to EPA from Feb. 24 through May 24, 2024 using EPA’s Central Data Exchange (CDX) system. However, if such information is not KRA, then a potential reporter is not required to submit information. If reporting is required (i.e., KRA information exists), then a reporter submits information via CDX using either abbreviated Form A (requiring less information) or Form B. Reporters must maintain records that document the submitted information, retain such records for five years after the submission period ends (i.e., through May 24, 2029), and allow EPA to access or copy them. It is highly recommended to document searches for KRA information about asbestos when no KRA information exists (i.e., searches were fruitless) and reporting is not required. Retaining that search documentation through May 24, 2029 is also highly recommended. While EPA has posted preliminary rule information here, ReMA expects that EPA will provide more-detailed rule information in late 2023 or early 2024, ahead of the start of the submission period on Feb. 24, 2024.
Next during 2024 is CDR. ReMA has posted CDR guidance for 2024 on its environmental compliance webpage. The reporting period for CDR runs from June 1 to Sept. 30, 2024. Required information to be submitted using EPA’s CDX system consists of reportable activities during calendar years 2020, 2021, 2022 and 2023 (e.g., importing at least 25,000 pounds of recyclable aluminum to a U.S. facility during 2022). Calendar Year 2023 is a Principal Year that requires providing more information about 2023 activities. Besides ISRI’s CDR guidance, EPA maintains CDR information on its CDR webpage.
Third and last, under the PFAS Reporting and Recordkeeping Rule (40 CFR 705), manufacturers (including importers) of PFAS in any amount are required to report certain information to EPA on a one-time basis. It is possible that a recycler may be required to report because of importing recyclable material that contained PFAS in any amount (there are no thresholds below which reporting is not required). The definition of PFAS under this Rule is very broad. It includes PFOA, PFOS, Gen-X, and other “obvious” PFAS, but also molecules that are “not obviously” PFAS, such as certain refrigerants, including R-134a. The relevant universe of PFAS, as defined by this Rule, has not been determined yet. Information about importing activities during calendar years 2011 through 2022 must be submitted to EPA from Nov. 12, 2024 through May 8, 2025 using EPA’s CDX system. However, if such information is not KRA, then a potential reporter is not required to submit information. Reporters must retain for 5 years (i.e., through May 7, 2030) records that document any information reported to EPA and allow EPA to access or copy such information. It is highly recommended to document searches for KRA information about PFAS when no KRA information exists (i.e., searches were fruitless) and reporting is not required. Retaining that search documentation through May 7, 2030 is also highly recommended. While EPA has posted preliminary rule information here, ReMA expects that EPA will provide more-detailed rule information in 2024.
Members should contact ISRI’s Chief Scientist / Director of Environmental Management, David Wagger at 202-662-8533 or here for more information about any of these TSCA Section 8(a) Rules. ReMA expects to produce guidance on the Asbestos and PFAS Reporting and Recordkeeping Rules once EPA provides further information on them.
Whether by design or accident, three different EPA rules for reporting and recordkeeping under Section...