On May 6, 2022, the U.S. Environmental Protection Agency (EPA) proposed reporting and recordkeeping requirements for asbestos under Section 8(a) of the Toxic Substances Control Act (TSCA). Unsurprisingly, the proposed requirements are extensive and tough. Here is a summary.
The EPA proposes asbestos manufacturers, including importers and processors, must report information known to or reasonably ascertainable by those entities. The term “asbestos” comprises various forms of asbestos, including Libby Amphibole asbestos, native to Libby, Montana, and considered “carcinogenic to humans.” The following is a brief list of the proposed primary data requirements:
• Asbestos domestic manufacturers (asbestos mine and mill) must provide the quantity manufactured per asbestos type, use, and employee exposure information.
• Asbestos importers must provide the quantity imported per asbestos type, use, and employee exposure information. This includes importers of mixtures containing asbestos, articles containing asbestos components, and impurities (in articles, bulk materials, or mixtures, such as in talc and vermiculite).
• Asbestos processors (including processors of mixtures or articles) must provide the quantity processed per asbestos type, use, and employee exposure information, including primary processors and secondary processors of asbestos, and situations in which asbestos appears as an intentional or non-intentional impurity, such as in vermiculite and talc.
Chemicals Reportable Under The Proposal
The EPA suggests mandatory reporting of information on specific asbestos forms, or if specific information is not known or reasonably ascertainable, reporting on “asbestos” as it is listed on the TSCA Chemical Substance Inventory. Reporting would be required related to asbestos as it is manufactured or processed in bulk, as a mixture component, in an article, or as an impurity in bulk materials or products.
The EPA proposes to obtain manufacturing and processing information associated with the different asbestos forms identified, and mandate reporting be completed for each of the forms, to the extent the information is known or reasonably ascertainable. If the specific asbestos type is unknown, a submitter would provide information under the general asbestos form (Chemical Abstracts Service Registry Number (CAS RN) 1332-21-4).
The rule would necessitate reporting on articles containing asbestos (including as an impurity). These data could inform Part 2 of the TSCA risk evaluation for asbestos, where the EPA will determine and then evaluate the relevant conditions of use of such articles containing asbestos. Articles required to report in Part 1 of the risk evaluation include brake blocks for use in the oil industry, rubber sheets for gaskets used to create a chemical-containment seal in the production of titanium dioxide, certain other types of preformed gaskets, and some vehicle friction products.
The proposed rule would result in a one-time reporting obligation. The EPA suggests reporting for persons who have manufactured, including imported, or processed asbestos at any time during the four complete calendar years prior to the effective date of the final rule. The agency anticipates the four calendar years would be 2019 to 2022.
The EPA is voiding the article, impurity, and naturally occurring substance exemptions to Chemical Data Reporting (CDR). The agency did this also under the proposed TSCA Section 8(a)(7) PFAS reporting rule, so we may see this more frequently in the future. As the EPA notes, the existing Section 6 rule on asbestos voids the small business exemption. Stakeholders may wish to comment on all aspects of the proposal, and specifically whether a de minimis threshold is appropriate, as the EPA providing one would help greatly to lessen the reporting burden. Any stakeholder implicated needs to understand the proposal and monitor this space. When a final rule is issued, expect the EPA to take compliance very seriously.
Some expect there will be many potential “first” reporters. These are entities that never had to report because the products they manufacture, import, or process fell under either the article or the impurity exemption. These new reporters will not be familiar with the CDR reporting tool or CDR policies and guidance. Stakeholders, including individual companies, trade associations, non-governmental organizations, and the EPA will need to address these issues to ensure non-traditional reporters are engaged and able to provide information useful to the EPA’s analysis.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.