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The finish line may be in sight in a decade-long effort to persuade the U.S. Environmental Protection Agency (EPA) to curb unnecessary and duplicative Toxic Substances Control Act (TSCA) reporting requirements that discourage recycling of manufacturing byproducts.
In January, EPA sent the White House Office of Management and Budget a draft proposal to make changes to the current Chemical Data Reporting (CDR) regulations. Although the draft proposal has not been released publicly, we believe it may address reporting obligations for byproducts sent for recycling. It remains to be seen whether the changes that EPA is proposing constitute meaningful relief for U.S. printed circuit board manufacturers.
Printed circuit board manufacturers have long been committed to sound environmental practices, including the recycling of byproducts to reduce waste and recover valuable metals. Current TSCA reporting requirements, however, are forcing some PCB manufacturers to consider whether recycling is too burdensome and, more importantly, too risky.
Existing TSCA regulations contain specific exemptions for byproducts, but the EPA’s narrow interpretation of these rules over the past 13 years has eliminated any meaningful distinction between new chemical products and byproducts. EPA has interpreted TSCA’s exemption of byproducts to apply only if the “chemical component” in the byproduct is removed through a process not involving a chemical reaction. In effect, this interpretation excludes the recycling of metals from the exemption, and instead treats metal-containing byproducts sent for recycling as new products subject to the full regimen of TSCA regulation. Most significantly, this includes a pre-manufacture notice (PMN), registration, and other requirements under Sections 5 and 6, as well as reporting and monitoring under Sections 8 and 12 and associated penalties or enforcement provisions.
The burdens imposed by EPA’s approach to this issue discourages recycling without providing any additional protection of public health and the environment. Consider the following facts:
1. EPA has not demonstrated that TSCA registration and reporting of byproducts sent for recycling is needed to protect public health and the environment. For nearly 30 years prior to 2003, EPA did not require reporting on inorganics because they were considered low risk. In 2011, EPA made a commitment to reexamine reporting requirements based on the data received during the 2012 reporting cycle, to determine whether some reporting could be eased or eliminated. IPC—through in-person meetings, letters and congressional testimony—has urged EPA to complete this analysis. But to date, we are unaware of any meaningful analysis of this data.
2. TSCA reporting imposes a burden on manufacturers. In addition to reporting of byproducts required under other laws, namely RCRA and EPCRA, TSCA imposes an additional layer of reporting for manufacturers. Most PCB manufacturers send byproducts for recycling despite the cost and despite the risk of regulatory fines for TSCA non-compliance. A typical printed circuit board factory has a database of well over 300 chemicals entries. Reporting under Section 8 requires generating very detailed information on chemical compounds or substances sent for recycling and how they may be processed by the recycler. Each TSCA report can average 64 labor hours per facility.
3. The guesswork required to report byproducts sent for recycling exposes manufacturers to considerable risk. EPA bases the applicability of notification and reporting requirements on the recycler’s actions, yet it requires the byproduct generator to make this determination. This is problematic because when the generator sends the byproduct for recycling, it may not have the information needed to determine regulatory applicability. Only the recycler knows for certain what chemical reactions (often safeguarded as trade secrets) will take place during the recycling process and how the resulting chemicals will be used. Yet, byproduct generators are required to report on this information, and they risk fines of $37,500 per day for each chemical they fail to report fully and accurately.
4. TSCA reporting of byproducts sent for recycling is largely duplicative of reporting required from the recycler and by other environmental, health and safety laws. TSCA reporting requires byproduct generators to provide information that serves the same purpose as that reported by recyclers. Moreover, EPA seeks the same basic information from byproduct generators under other reporting regimes (e.g., RCRA and EPCRA); but because EPA offices do not coordinate, the various reporting regimes require the same information to be provided in several different formats, increasing the burden.
5. Congress itself has required EPA to reduce the reporting burden on byproducts sent for recycling. In 2016, as part of the Frank R. Lautenberg Chemical Safety Act, IPC persuaded Congress to require the EPA Administrator to finalize within three and a half years a negotiated rulemaking “limiting the reporting requirements … for manufacturers of any inorganic byproducts, when such byproducts, whether by the product manufacturer or by any other person, are subsequently recycled, reused, or reprocessed.” Unfortunately, the negotiated rulemaking process ground to a halt after only a few months of effort due to an impasse among the stakeholders.
The good news is that the Trump Administration can resolve this issue through the new CDR rulemaking, most simply by eliminating TSCA reporting for inorganic byproducts sent for recycling. Until then, the existing reporting requirements will continue to discourage recycling of resource-rich byproducts and impose unnecessary business burdens on U.S. manufacturers.