EPA moves chemical reporting into the 21st century – though we’ll have to wait until mid-decade to actually get there

Richard Denison, Ph.D., is a Senior Scientist.  Allison Tracy is a Chemicals Policy Fellow.

A major initiative of EPA’s toxics office finally made it across the finish line yesterday when EPA posted a pre-publication copy of the final rule upgrading its chemical reporting system under the Toxic Substances Control Act (TSCA).  The process took over 16 months just to get from the draft of the proposed rule to yesterday’s final rule, with EPA having to endure not one but two nearly six-month regulatory reviews by the Office of Management and Budget.

The wait was largely worth it:  EPA’s new program – renamed the Chemical Data Reporting (CDR) rule – significantly advances chemical production and use reporting relative to its predecessor, the more arcane-sounding Inventory Update Reporting (IUR) rule.  Most, though not all, of the critical elements EPA proposed last year made it through to the final rule.  The catch is we’ll have to wait until 2016 for the program to reach its full potential. 

The significance of this reporting program is under-appreciated:  It is the only systematic means by which the federal government – and by extension the American public – gets any picture of which chemicals are produced in or imported into this country, by what companies, in what amounts and for what uses.  This kind of information is crucial to EPA’s efforts to carry out its mission to assess and manage the risks that chemicals may pose to human health and the environment.

Given the obvious need for such information, it is astounding that this program to collect it, in place since 1986, was so flawed as to yield not only an incomplete, but actually an inaccurate, picture of chemical production and use.  Changes made to the program in the mid-2000s in many ways made matters even worse, by reducing the frequency of reporting from one out of every four to one out of every five years, and by dramatically scaling back the number of chemicals reported by raising the reporting threshold from 10,000 to 25,000 pounds per year per site of production.

The new leadership at EPA undertook to change this situation to the extent it could.  While the final rule fails to reverse the threshold increase made in the mid-2000s, the reporting frequency has been returned to every four years – AND the rule will require reporting of production volume for every year in each cycle if the threshold is triggered for any year in the cycle.

As we noted in comments we filed on the proposed rule, the previous system of reporting volume data for only a single year in each five-year cycle yielded a very inaccurate picture of which chemicals are actually in commerce.  We’ll have to wait until the 2016 reporting cycle for that to kick in, unfortunately, although in the 2012 cycle at least we’ll get production volume data for both 2010 and 2011.  Production volumes have been shown to fluctuate enormously from year to year, so having a system that provides year-to-year production data is essential to providing a reliable picture of the magnitude of chemical commerce.

One of the few positive aspects of the mid-2000s changes – in principle – was the addition of a requirement for companies to report processing and use information – a critical gap in both government’s and the public’s knowledge base on chemicals that has severely limited our ability to understand the potential risks posed by a chemical.  But the intent was stymied by three conditions placed on such reporting.  First, it only applied to chemicals produced above a whopping 300,000 pounds per year per site – a small minority of the chemicals subject to any reporting.  Second, such information could be claimed confidential without providing any justification.  And third, a company could claim the requested information to be “not readily obtainable” and get out of having to report it at all.

EPA’s final rule addresses all three of these flaws:

• The threshold for reporting processing and use information is being lowered, to 100,000 pounds per year per site in the reporting to be done next year, and to 25,000 pounds per year per site in the 2016 cycle.
• Any confidentiality claim must be accompanied by up-front substantiation, which acts both to reduce the number of claims made and ensure those that are made are warranted.
• Finally, the “not readily obtainable” loophole – very heavily used in the last reporting cycle – has been eliminated, replaced with the more conventional “not reasonably ascertainable” standard – which means you actually have to put some effort into trying to find the requested information.

Two other positive changes to note:

• While the overall reporting threshold remains at 25,000 pounds per year per site, that threshold has been lowered to 2,500 pounds per year per site for those chemicals for which EPA has undertaken certain actions based on concerns about their risks.  These include chemicals for which EPA has issued Significant New Use Rules (SNURs), has listed as chemicals of concern (assuming OMB ever allows EPA to propose such a list), or has regulated under Section 6 of TSCA (the latter has rarely been used due to the high burden of proof EPA must carry, though EPA is considering trying to do so again).  Importantly, EPA need only have proposed, as opposed to finalized, such an action in order for the lower reporting threshold to apply.
• EPA will now require electronic reporting under the new rule.  Believe it or not, this was controversial even in 2011.  The lack of such a requirement in the last reporting cycle led to both major delays in EPA’s release of the data it collected and inaccuracies introduced by EPA being forced to manually translate information from hard copy to electronic form.

The final rule is not perfect:  the reporting threshold remains too high, wide latitude remains for industry to claim its submissions to be confidential business information (CBI), and most unfortunately, some of the key improvements made by EPA won’t hit the road until 5 years from now.

But given what the Agency had to navigate in the way of industry opposition, OMB meddling and delay and complaints from some in Congress, all in all, not a bad day’s (well, actually a couple years’) work.