There was a sigh of relief this summer when EPA suspended the submission requirement for the TSCA Form U Inventory Update Reports (IUR) of commercial chemical substances (76 FR 27271). For a reporting requirement only came around twice every five years, it caused many quite a bit of stress; so suspending the reporting requirement in 2011 was a wish come true. However after having carefully read through the new Chemical Data Reporting (CDR) rule, I think we need to be careful what we wish for.
On August 16, 2011 EPA published their new CDR rule (76 FR 50816) to replace the old IUR. EPA had previously announced a review of the submission requirements and after settling on what they wanted, they postponed the next calendar year report until their new chemical data reporting system was revised and ready. There are also several important changes in the new 40 CFR Part 711 that manufacturers and importers need know, including reporting thresholds, the requirement to report electronically, making claims of confidentiality and the reporting periods. Chemical substance manufacturers and importers need to closely review the new CDR and verify that their current recordkeeping practices will enable them to prepare their inventory reports as efficiently as possible. The new rule also attempts to clarify, as well as simplify, several key regulatory definitions. A copy of EPA's Comparison Table of IUR vs CDR Definitions can be found on the Resources page of our website - see Program Tools and Guidance.
The next required submission period has been set as February 1 through June 30, 2012. Chemicals that were managed in 2011 need to be evaluated for reporting. Also remember that all manufacturers and importers are required to determine whether they are required to submit under the CDR rule. For the 2012 submission period, the applicability threshold for reporting remains continues to be 25,000 pounds. All manufacturers and importers need sufficient 2011 records to determine whether they have produced or imported 25,000 pounds or more of a chemical substance listed on the TSCA Inventory. Note that certain chemicals are partially or wholly exempted from the reporting process (e.g., as part of an article, a polymers or listed as a petroleum process streams), and certain manufacturers and importers are exempted as well (e.g., small business).
EPA's new CDR web-based system, called eCDRweb is ready and must be used by all those required to report. Few persons in business today are not web-savvy, but remember that the responsible person certifying the accuracy of the report must be able to navigate eCDRweb as well. In fact, the agency kept the name "Form U" for the web report since that is how most people know the requirement. The information required to be reported is essentially the same as the previous IUR Form U's but there are a few noticeable differences.
For the previous IUR requirement, if more than 300,000 pounds of a TSCA chemical substance was produced or imported, the manufacturer or importer had to report additional information pertaining to handling and use of that chemical. Under the CDR program for the 2012 submission period there is no second threshold or additional information to report.
For chemical substances produced after 2011, the reporting requirements change. The initial threshold remains at 25,000 pounds: produce or import more than this quantity of a chemical substance that is not exempted, and you are required to report. However, EPA established a lower production/import threshold of 2,500 pounds for gathering information on certain chemicals of special interest to EPA. This lower threshold also applies to certain companies subject to an order or civil action under TSCA. Most companies will not have to consider this lower threshold.
EPA changed the reporting frequency under CDR to once every four years. If you manufacture or import a chemical substance in an amount exceeding the threshold during at any time during the four year reporting period, you will need to report the required inventory information by year for all four years. The record retention requirement under the rule is five years; companies will need to be prepared to save all four years of data, even if they did not become subject to the reporting requirement until the fourth year.
The other major change under CDR is that the threshold for having to report handling and use information has been reduced from 300,000 pounds to 25,000 pounds. Beginning in 2016, if you manufactured or produced more than 25,000 pounds of a chemical substance listed on the TSCA Inventory (and the material and company are not exempt from reporting), you will need to report both the quantity information and the more complicated handling and use information.
Companies interested in requesting confidentiality should closely review the new requirements. Notably, under the new requirements organizations must make an upfront substantiation of their claim of confidentiality for processing and use information. Further, the agency will disallow confidentiality claims for processing and use data elements identified as not "known to or reasonably ascertainable by" the submitter.
