TSCA: Something Old, Something New

The Toxic Substances Control Act (TSCA) regulations are once again looming for some parts of the recycling industry. One set of TSCA regulations—Chemical Data Reporting (CDR)—is “old”. A new set of TSCA regulations has been proposed, with an upcoming October 28, 2019 comment deadline. (Another set of TSCA regulations addresses polychlorinated biphenyls (PCBs), but I am not focusing on that set here, important as it is.)

Starting with the new, in late July, EPA proposed new regulations under Section 6(h) of TSCA to restrict or prohibit manufacture, processing, and distribution in commerce of four chemicals deemed to be persistent, bioaccumulative, and toxic. Under TSCA, recycling activity is considered processing and distribution in commerce, so absent a recycling exemption, the proposed prohibitions would apply to recycling activity.

One of these four chemicals is decabromodiphenyl ether (decaBDE). DecaBDE is a common and legacy flame retardant used in some plastics and present in some electronics device. For decaBDE, because of its known presence in the recycling stream, EPA proposed exemptions for recycling activity, but the proposed exemption language seems to be inadequate.

The other three chemicals are less familiar: phenol, isopropylated phosphate (PIP) (3:1); 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP); and pentachlorothiophenol (PCTP). PIP (3:1) is used in lubricants and hydraulic fluids. 2,4,6-TTBP is an antioxidant that can be used as a fuel additive or lubricant additive. PCTP may be found as an impurity in the rubber core of golf balls (who knew?!) via use of zinc PCTP in the rubber, a processing activity according to EPA. TSCA’s stringency likely requires specific recycling exemptions for all of these other chemicals too, because any of them could potentially end up in the recycling stream by accident (e.g., residual material on scrap, a stray golf ball in an end-of-life vehicle). ISRI is developing comments on this proposal and welcomes input from members.

Regarding the “old”, as reported this past June, recycling facilities that imported 25,000 pounds or more of scrap metal (by metallic element) to any U.S. facility during any of the calendar years 2016, 2017, 2018, or 2019 will almost certainly have to report in 2020 under CDR. (ISRI has CDR guidance posted online.) ISRI has been trying for more than a decade to convince EPA to exempt reporting of imported scrap metal for recycling under CDR, given that neither domestically sourced and recycled scrap metal nor exported scrap metal is subject to CDR.

Last April, EPA proposed changes to CDR but did not address the question of exempting imported scrap metal. ISRI included such an exemption as a top federal environmental regulatory issue in its 2017 comments on regulatory reform. This CDR proposal offered ISRI another opportunity to request (again) this exemption. In preparing comments, ISRI found a very interesting piece of Congressional testimony from 1971 on an early version of proposed TSCA legislation covering what would become CDR. In that testimony, a then-future EPA Administrator who was then-Chair of the Council on Environmental Quality said the following (emphasis added):

“We have as a general rule tried to avoid any impression that the setting of standards in this country—environmental standards—constitutes a hidden trade barrier. So I think we tend to avoid where possible the imposition of restrictions on the free flow of trade as a result of environmental factors. Of course, on the import side the very nature of the public policy would be negated if you permitted imports to come in which did not meet our standards while our own manufacturers had to meet those standards. That reason does not apply to exports.”  

This testimony strongly supports ISRI’s repeated calls for exempting scrap metal imported for recycling from CDR given that domestically sourced scrap metal that is recycled is not subject to CDR. The relevant principle here is balance: either (1) both domestic and imported are reported or (2) neither is reported. Our current situation is in-between: domestic, not reported; imported, reported. This situation does not make sense on its face and is inconsistent with the original reason for requiring the reporting of imported chemical substances. 

In comments submitted in late June on the proposed CDR changes, ISRI requested a broad CDR exemption based on the principle of balance derived from this testimony. The broad CDR exemption would include scrap metal imported for recycling.

This testimony is so old and hard to find that I doubt that anyone at EPA today had ever seen it before ISRI’s recent comments. This would imply that EPA staff do not know why CDR includes imported chemical substances in the first place, a major problem for ISRI. The argument based on this testimony is probably ISRI’s best shot at convincing EPA—now “educated” on the history—to grant a broad CDR exemption that includes scrap metal imported for recycling.

As best as I can tell, EPA will issue the final CDR changes sometime this December because EPA needs to prepare the regulated community for any CDR changes for the 2020 reporting period, starting June 1, 2020.

I am hoping that metal recyclers will not be a part of the CDR regulated community in 2020 and beyond, but I am not holding my breath. We will see some time in December 2019 if EPA heeds reason and history.

For questions or additional information, contact David Wagger at (202) 662-8533.

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