Toxic Substances Control Act / Chemical Data Reporting for 2020
Posted: April 13th, 2020Authors: Mark R.
This article is part of ALL4’s 4 The Record: Quarantine Series.
40 CFR 711
What’s New in the 2020 CDR?
Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) under Title 40 Code of Federal Regulations Part 711 (40 CFR §711) requires chemical manufacturers and importers to report about the chemicals they manufacture domestically or import into the United States every four years. The 2020 reporting period starts on June 1, 2020, covering 2016-2019. This subpart specifies reporting and recordkeeping procedures under Section 8(a) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2607(a)) for certain manufacturers (including importers) of chemical substances. EPA uses CDR information to evaluate the potential health and environmental risks of these chemicals.
Reporting generally applies to chemicals manufactured or imported at the 25,000-pound threshold. Chemicals subject to TSCA Special Actions or Orders on June 1, 2020 are reportable at the 2,500-pound threshold.
On April 9, 2020, EPA published two final rules in the Federal Register that implement some of U.S. EPA’s 2019 proposed changes to CDR and that extended the 2020 Chemical Data Reporting (CDR) reporting period. The key changes to the 2020 CDR reporting provisions are highlighted below:
- Extension – The reporting deadline for 2020 CDR submittals has been extended to November 30, 2020 – this is a one-time extension.
- Confidential Business Information – The Frank R. Lautenberg Chemical Safety for the 21st Century Act (2016 TSCA Amendments) drove changes in the substantiation process for confidential business information (CBI) claims. This final rule modified the CBI requirements under CDR to align with 2016 TSCA Amendment process, describing when upfront substantiation is required and identifying CDR data elements that cannot be claimed as confidential. The substantiation questions were modified from the proposal based on public comments and were codified in 40 CFR §711.30.
- Additional Chemicals Subject to the 2,500-Pound Reporting Threshold – TSCA Section 4 gives U.S. EPA the authority to require chemical manufacturers (including importers) and processors to test existing chemicals and report the results to U.S. EPA. Chemical substances subject to TSCA Section 4 Special Orders are now subject to the 2,500-pound reporting threshold, as described in 40 CFR §711.8(b).
- New Exemptions – Black Liquor and calcium carbonate generated at pulp mills have been exempted from reporting for Pulp Mills due to type of use on-site, and a third chemical substance generated at pulp mills (oxidized black liquor) was also listed as exempt from reporting in 40 CFR §711.10(d)(1)(i)(B).
- Co-Manufacturing Reporting Options – The designation of “toll-manufactured chemical’ was changed to “co-manufactured chemical” and a joint submittal procedure was to be established for co-manufactured chemicals in which both companies (the contracting company and the producing company) complete part of the same form. EPA also provided a second option for reporting for co-manufacturing. In the second option, the producing company will complete the full report, with the contracting company providing the information that is not otherwise known to or reasonably ascertainable by the producing company, as provided in 40 CFR §711.22(c).
- Processing and Use Code Options – For 2020 CDR, EPA will allow most reporting facilities to choose between the previously-used processing and use codes and codes developed through the Organization for Economic Co-operation and Development (OECD). The OECD codes provide more refinement and allow international comparison. Use of the OECD codes becomes mandatory with 2024 CDR, as presented in 40 CFR §711.15(b)(4) and Tables 8, 9, and 11.
- Updated Reporting Tool – The pre-formatted Form U from prior reporting years will be replaced with a customized report based on the information that is submitted by a site using electronic reporting tool (e-CDRweb).
- Small Manufacturer Criteria – EPA will modify the Small Manufacturer criteria in a separate action (separate from the current revisions to 40 CFR §711). The definition of “small manufacturer” in 40 CFR §704 is proposed to be revised and a definition of “small government” is to be added to 40 CFR §704. The terms small manufacturer and small government are listed in the final language for 40 CFR §711.9 and refer to 40 CFR §704.3.
Key Takeaways from the TSCA CDR Final Rules
Industries subject to CDR – such as chemical manufacturers, refineries, pulp and paper mills, and cement plants – should gather their production information for the past four years, their 2016 CDR reports/calculations, process flow diagrams, and customer use information. If your facility plans to complete the CDR internally, consider obtaining training from EPA, industry groups, or consultants. The reporting season opens June 1, 2020 – the reporting thresholds are based on EPA special action applicable to chemicals on that date.
Reporting facilities using consultants should enter the e-CDRweb tool and select their consultant early in the process. In addition to the “support” role, EPA opened a new “agent” role that is modeled after the TSCA new chemicals process. Agents will have the ability edit, unlock, or provide amendments to the original created form in the tool.
Facilities using co-manufacturing should coordinate early regarding their reporting options. Anecdotally, a number of firms got follow-up mail and calls from U.S. EPA in 2016 and 2017 to amend forms where that communication broke down between parties.
ALL4 has supported clients in CDR-subject industries in prior reporting years, and we have been working closely with industry groups in developing technical guidance and training for the 2020 CDR. If your facility needs support with CDR, please reach out to ALL4’s Sheryl Watkins and Mark Robinson.