On June 22, 2020, the Toxic Substances Control Act (TSCA), as reformed by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), will celebrate its fourth anniversary. While many of the reformed TSCA framework rules have been drafted and are undergoing implementation, the proposed changes to the chemical data reporting (CDR) rule have not yet been promulgated. With the next CDR reporting season beginning soon (June 1, 2020), not having a rule published in the Federal Register means there are still uncertainties about the final rule language and compliance requirements.
A little context on the complexities of CDR reporting
CDR is an information gathering mechanism under TSCA Section 8(a) used by the Environmental Protection Agency (EPA) to manage the manufacturing and importation of large volume chemicals that have the potential to adversely impact human health and the environment. CDR reporting is a regulatory compliance requirement for many United States manufacturers and importers, but it is often overlooked because of its quadrennial reporting cycle. Moreover, staff trained specifically on TSCA CDR frequently transition into new roles between reporting years and replacements are often not in place until just before the next regulatory due date. A lot can change in the four years between reporting due dates, and institutional knowledge and required data can get lost in the shuffle.
What’s different about the 2020 CDR?
Unlike the last cycle in 2016, the 2020 CDR will occur under the reformed TSCA. To make things even more complex, this reporting cycle will also be performed under the recently amended CDR rule. While substantial changes to the proposed rule are unlikely, organizations need the final CDR rule’s exact wording to confidently complete the 2020 CDR. With the CDR reporting season opening on June 1, companies can monitor several proposed rule changes as they await a finalized rule, including:
- Small entity reporting exemptions
- Exemptions for some byproducts
- Simplified reporting
- Allowable use of OECD processing and use data codes
- Removal of outdated content
- Consolidated exemptions
The EPA estimates the proposed changes will result in an overall net decrease in reporting burdens, including costs. As an example, the small entities definition change is expected to result in fewer industry sites having to report. However, while the proposed changes may reduce reporting burdens over time, the fact that the proposed changes are likely to take effect close to the start of the 2020 CDR cycle means that regulated stakeholders will have to get up-to-speed on changes quickly.
What are some key 2020 CDR preparation tips?
First of all, it is important to produce accurate submittals and file them with the EPA within the reporting window. The biggest pitfalls for facilities are typically associated with underreporting, Chemical Abstract Service (CAS) issues, and faulty recordkeeping. It is vital to have backup documentation as EPA auditors are likely to ask for this as proof of sound recordkeeping practices.
It is also prudent to keep a running tally of production and importation records to facilitate annual summaries. Even though CDR reports are due to the EPA just every four years, having annual data at-the-ready makes for a smoother quadrennial reporting process.
Other tips toward a more efficient reporting process include:
- Confirm CAS Registry Numbers (CASRN) are assigned to the chemicals correctly in your tracking system.
- Pay attention to any “new” chemicals that may need verification with the TSCA Inventory and that could potentially be subject to pre-manufacture or significant new use notifications.
- Take note of impurities, byproducts, intermediaries, and reaction products in the process, and how spent catalysts are accounted for. Claimed exemptions must be consistent with the rule. The reporting threshold is 25,000 pounds of chemicals per year but may be lower for certain substances listed in TSCA.
With CDR, inaccurate reporting can have serious consequences such as audit flags, violations, and fines. The reformed TSCA has enhanced civil fines ranging in the tens of thousands of dollars per violation per day. In addition to civil penalties, EPA can also seek criminal imprisonment for up to one year.
Preparing for the 2020 CDR?
Trihydro has experience providing CDR services and can advise on companywide TSCA compliance. Contact us today to get started.
Andrew Pawlisz, D.A.B.T