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The Latest on Toxic Chemical Release Reporting and Chemical Data Reporting

If you receive scrap metal or other metal-containing material from domestic suppliers or your facility receives imported scrap metal, whether directly or indirectly via a broker (you need to know), you will want to read the rest of this.

First the “easy” one—Toxic Chemical Release Reporting (also known as Toxic Release Inventory (TRI) Reporting), under the Emergency Planning and Community Right-to-Know Act (EPCRA) regulations.

TRI does not apply to recycling facilities operating fully under SIC/NAICS Codes 5093/423930 (Scrap and Waste Materials) or 5015/423140 (Used Motor Vehicle Parts). However, you may get a call this month from some of your suppliers about it, and you should know what to expect.

While not applicable to such recycling facilities, TRI does potentially apply to your suppliers of industrial scrap metal, other metallic material, and certain other chemicals (rarer) for recycling if these suppliers (1) operate under a listed SIC/NAICS Code (e.g., SIC Code 332, Fabricated Metal Product Manufacturing) and (2) make or use one or more listed TRI chemicals (e.g., aluminum dust, copper, lead) above applicable thresholds. Neither 5093/423930 nor 5015/423140 is a TRI-listed SIC/NAICS Code.

If your suppliers are subject to TRI reporting for 2018 activity, they must submit TRI information (using Form R) by July 1, 2019.  Reported information includes “waste management” of reported TRI chemicals. EPA decided years ago to include off-site recycling as a form of waste management to allow manufacturers to demonstrate their pollution prevention activities via TRI Reporting (clearly ignorant of their equating of recycling as both waste management AND a toxic release). Off-site recycling of a TRI chemical includes, for instance, industrial scrap copper sent to a scrap metal recycling facility for recycling. In reporting this information, the supplier is instructed by EPA to identify an off-site facility receiving a TRI chemical by its EPA ID number (also known as a RCRA ID number, often issued by a state environmental authority). While scrap metal recyclers are not required to have an EPA ID number, they may have one for other reasons (e.g., being a large quantity handler of Universal Waste).

If you receive a call from a supplier asking for your RCRA or EPA ID number, it is almost certainly a legitimate request for your supplier’s TRI reporting needs. If you do not have one, tell your supplier to “enter NA in the box for the off-site location EPA Identification Number”. If your supplier does not believe you, tell your supplier to see pages 61-62 of the on-line TRI Reporting Forms & Instructions.  If you do have an EPA ID number, provide it to your supplier. If you are not sure whether you have an EPA ID number, you can search for your own facility at EPA’s ECHO Database website to see whether an EPA ID is associated with your facility (you may also call ISRI for help).

Now, the “hard” one—Chemical Data Reporting (CDR) under Section 8(a) of the Toxic Substances Control Act (TSCA). In short, it is almost certain that recycling facilities that imported 25,000 pounds or more of scrap metal (by metallic element) to any US facility during any of the calendar years 2016, 2017, 2018, or 2019 will have to submit CDR Form U for each reportable metal in 2020, starting June 1, 2020 through September 30, 2020. ISRI has CDR guidance posted online, and EPA will be providing webinars about CDR.

This is disappointing because ISRI has been trying for more than a decade to get EPA to exempt reporting of imported scrap metal under CDR, given that domestically sourced and processed scrap metal is not subject to CDR, and neither is exporting scrap metal. Earlier this year, ISRI staff met with staff in the President’s Office of Information and Regulatory Affairs to argue for such an exemption. ISRI staff explained, with EPA staff present to listen only, why the CDR regulations were neither intended nor designed for the recycling industry and that reporting imported scrap metal is an empty exercise and does not fulfill the purpose of TSCA. In late April, EPA issued in the Federal Register proposed changes to CDR as well as to the TSCA Section 8(a) size standards for small manufacturers (and importers). Unfortunately, EPA’s proposal did not address the question of exempting imported scrap metal, which ISRI included as a top federal regulatory issue in its 2017 comments on regulatory reform. However, EPA did propose to nearly triple the company-wide annual sales thresholds in the definition of small manufacturers (and importers): (1) from $40 million to $110 million, but still with a 100,000-pound maximum at each U.S. facility, or (2) from $4 million to $11 million without a quantity limit at any U.S. facility. It is unclear whether these higher thresholds will help recyclers to become exempt as a small importer. ISRI expects to submit comments on the proposal by the due date of June 24, 2019.

In conclusion, please do not be surprised to receive calls this month from your suppliers requesting your EPA ID number (if you have one; if you do not, not to worry). If you have received imported scrap metal at any of your U.S. facilities during 2016-2019 (even via a broker), you should (if you have not already) begin to assemble your records for 2016-2019 to determine whether you will have a reporting obligation under CDR at this time next year.

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