EPA Proposes TSCA Reporting and Recordkeeping Requirements for Asbestos

On Might 6, 2022, the U.S. Environmental Safety Company (EPA) proposed reporting and recordkeeping necessities for asbestos beneath Part 8(a) of the Poisonous Substances Management Act (TSCA). 87 Fed. Reg. 27060. EPA proposes to require sure individuals that manufactured (together with imported) or processed asbestos and asbestos-containing articles (together with as an impurity) within the 4 years previous to the date of publication of the ultimate rule to report electronically sure exposure-related info. The proposed rule would lead to a one-time reporting obligation. EPA “emphasizes that this proposed requirement would include asbestos that is a component of a mixture.” In line with the discover, the data sought contains portions of asbestos (together with asbestos that could be a part of a combination) and asbestos-containing articles that had been manufactured (together with imported) or processed, varieties of use, and worker information. EPA and different federal companies will use reported info in contemplating potential future actions, together with threat analysis and threat administration actions. EPA requests public touch upon all elements of the proposed rule and additionally has recognized objects of explicit curiosity for public enter. Feedback are due July 5, 2022.

Motion EPA Is Taking

EPA proposes to require asbestos producers (together with importers) and processors to report back to EPA sure info recognized to or fairly ascertainable by these entities. EPA states that for this motion, the time period “asbestos” contains numerous types of asbestos, together with Libby Amphibole asbestos. The next is a short listing of the first information necessities being proposed:

  • Asbestos Home Producers (Asbestos Mine and Mill): The provisions within the proposed rule would require asbestos home producers to offer the amount manufactured per asbestos sort, use, and worker publicity info to EPA. This would come with conditions wherein asbestos is being mined or milled as an intentional or non-intentional impurity, similar to in vermiculite and talc.

  • Asbestos Importers: The provisions within the proposed rule would require importers of asbestos to offer the amount imported per asbestos sort, use, and worker publicity info. This contains importers of mixtures containing asbestos, articles containing asbestos elements, and impurities (in articles, bulk supplies, or mixtures, similar to in talc and vermiculite).

  • Asbestos Processors: The provisions of the proposed rule would require processors of asbestos (together with processors of mixtures or articles) to offer the amount processed per asbestos sort, use, and worker publicity info. This contains each main processors and secondary processors of asbestos. This would come with conditions wherein asbestos is showing as an intentional or non-intentional impurity, similar to in vermiculite and talc.

Chemical Substances that Would Be Reportable beneath the Rule

EPA proposes to require the reporting of knowledge on particular asbestos kinds, or if particular info shouldn’t be recognized or fairly ascertainable, reporting on “asbestos” as it’s extra usually listed on the TSCA Stock. EPA additionally proposes to require the reporting of knowledge associated to asbestos as it’s manufactured (together with imported) or processed in bulk, as a part of a combination, in an article, or as an impurity in bulk supplies or merchandise.

Asbestos Varieties

EPA proposes to acquire manufacturing (together with importing) and processing info related to the next totally different asbestos kinds, and due to this fact is proposing to require that reporting be accomplished for every of the kinds, to the extent that the data is understood or fairly ascertainable. If the precise asbestos sort is unknown, a submitter would supply info beneath the overall asbestos type (Chemical Abstracts Service Registry Quantity (CAS RN) 1332-21-4).

Asbestos — CAS RN 1332-21-4

Amosite — CAS RN 2172-73-5

Chrysotile — CAS RN 132207-32-0

Anthophyllite — CAS RN 77536-67-5

Crocidolite — CAS RN 12001-28-4

Tremolite — CAS RN 77536-68-6

Actinolite — CAS RN 77536-66-4

Libby Amphibole Asbestos — CAS RN not relevant (primarily consisting of tremolite [CAS RN 77536-68-6], winchite [CAS RN 12425-92-2], and richterite [CAS RN 17068-76-7])

Asbestos as an Impurity

EPA states that “impurity” means a chemical substance that’s unintentionally current with one other chemical substance, citing 40 C.F.R. Part 704.3. In line with EPA, asbestos might happen naturally as an impurity in different merchandise similar to talc, vermiculite, and doubtlessly different substances. These merchandise are distributed and utilized in commerce in the USA. If all different reporting situations are met, these merchandise could be topic to reporting beneath this rule. EPA proposes to gather information on asbestos as an impurity as a result of EPA might lack information on the extent to which asbestos as an impurity happens in merchandise beneath TSCA jurisdiction which can be presently being manufactured (together with imported) or processed. EPA notes that information on asbestos as an impurity may higher inform the Half 2 asbestos threat analysis the place EPA will decide and then consider the related situations of use of asbestos in talc.

Articles Containing Asbestos

The rule would require reporting on articles containing asbestos (together with as an impurity). EPA notes that an “article” is outlined in 40 C.F.R. Part 704.3 as “a manufactured item (1) which is formed to a specific shape or design during manufacture, (2) which has end-use function(s) dependent in whole or in part upon its shape or design during end use, and (3) which has either no change of chemical composition during its end use or only those changes of composition which have no commercial purpose separate from that of the article, and that result from a chemical reaction that occurs upon end use of other chemical substances, mixtures, or articles; except that fluids and particles are not considered articles regardless of shape or design.” EPA proposes to gather extra information on imported articles containing asbestos. In line with EPA, these information may inform Half 2 of the TSCA Threat Analysis for Asbestos the place EPA will decide and then consider the related situations of use of such articles containing asbestos. Articles included in Half 1 of the TSCA Threat Analysis for Asbestos included brake blocks for use within the oil trade, rubber sheets for gaskets used to create a chemical-containment seal within the manufacturing of titanium dioxide, sure different varieties of preformed gaskets, and some automobile friction merchandise (Ref. 18); EPA states that it “is interested in identifying if there are other articles or if there is information about specific forms of asbestos in these articles.”

Asbestos that Is a Element of a Combination

EPA states that beneath TSCA Part 3(10), the time period “mixture” means “any combination of two or more chemical substances if the combination does not occur in nature and is not, in whole or in part, the result of a chemical reaction; except that such term does include any combination which occurs, in whole or in part, as a result of a chemical reaction if none of the chemical substances comprising the combination is a new chemical substance and if the combination could have been manufactured (including imported) for commercial purposes without a chemical reaction at the time the chemical substances comprising the combination were combined.” EPA proposes to gather information on asbestos in circumstances the place it’s a part of a combination to tell Half 2 of the TSCA Threat Analysis for Asbestos. Within the Half 2 Analysis, EPA will decide the related situations of use of asbestos in talc; EPA will use the outcomes to judge asbestos exposures and related dangers.

Reporting Requirements for Small Companies

EPA notes that though TSCA Part 8(a)(1) gives an exemption for small producers (together with importers) and processors, TSCA Part 8(a)(3) permits EPA to require small producers (together with importers) and processors to report pursuant to TSCA Part 8(a) with respect to a chemical substance that’s the topic of a rule proposed or promulgated beneath TSCA Part 4, 5(b)(4), or 6, an order in impact beneath TSCA Part 4 or 5(e), a consent settlement beneath TSCA Part 4, or reduction that has been granted beneath a civil motion beneath TSCA Part 5 or 7. In line with EPA, six of the asbestos varieties topic to the proposed rule (chrysotile, crocidolite, amosite, anthophyllite, tremolite, and actinolite) are topic to a TSCA Part 6 rule beneath the Asbestos Ban and Phaseout rule of 1989, and due to this fact EPA is proposing that these types of asbestos will not be eligible for a small producer (together with importer) or processor exemption. EPA states that Libby Amphibole asbestos shouldn’t be topic to an relevant proposed or promulgated rule, order, or consent settlement, and shouldn’t be the topic of reduction that has been granted beneath a civil motion beneath TSCA Part 5 or 7. Subsequently, EPA proposes that Libby Amphibole asbestos proceed to be eligible for such an exemption.

EPA’s expertise with the TSCA Threat Analysis for Asbestos Half 1: Chrysotile Asbestos signifies that small companies are related to sure recognized situations of use related to asbestos. As a result of EPA has a lot much less info on the actions of small companies, it’s involved that sure situations of use for which it lacks detailed info could also be performed largely or fully by small companies. EPA states that it believes that exempting all small companies from reporting might exclude most or all the reporting for some situations of use, severely hindering EPA’s threat analysis or threat administration actions. Because of this, EPA is proposing that small companies — small producers (together with importers) and processors of asbestos and asbestos mixtures (aside from Libby Amphibole asbestos) — might want to keep data and report beneath this motion.

On the time of the proposed rule, Libby Amphibole asbestos shouldn’t be the topic of any of the actions described in TSCA Part 8(a)(3) and due to this fact producers (together with importers) and processors of that substance could also be eligible for a small enterprise exemption.

The Proposed Reporting Normal

EPA proposes to make use of the reporting customary used for sure different TSCA Part 8(a) reporting necessities, together with Chemical Knowledge Reporting (CDR). EPA states that this customary requires that producers (together with importers) and processors report info to the extent that the data is understood to or fairly ascertainable by the producer (together with importer) or processor. “Known to or reasonably ascertainable by” contains “all information in a person’s possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know.” In line with EPA, this reporting customary requires reporting entities to judge their present degree of information of their manufactured merchandise (together with imports) or processed merchandise, in addition to consider whether or not there’s further info {that a} affordable particular person, equally located, could be anticipated to know, possess, or management. This customary carries with it an train of due diligence, and EPA notes that the information-gathering actions that could be mandatory for producers (together with importers) and processors to attain this reporting customary might differ from case-to-case.

Underneath this customary, submitters conduct an inexpensive inquiry throughout the full scope of their group (not simply the data recognized to managerial or supervisory staff). This will additionally entail inquiries outdoors the group to fill gaps within the submitter’s information. In line with EPA, examples of the varieties of info which can be thought of to be in a producer’s (together with importer’s) or processor’s possession or management, or {that a} affordable particular person equally located could be anticipated to own, management, or know embody: recordsdata maintained by the producer (together with importer) or processor similar to advertising and marketing research, gross sales reviews, or buyer surveys; info contained in customary references exhibiting use info or concentrations of chemical substances in mixtures, similar to a security information sheet (SDS) or a provider notification; and info from CAS or from Dun & Bradstreet (D-U-N-S). It might additionally embody information gained by discussions, conferences, and technical publications.

EPA states that it “acknowledges that it is possible that a manufacturer (including importer) or processor, particularly an importer of articles containing asbestos (including as an impurity), may not have knowledge that they have imported asbestos and thus not report under this rule, even after they have conducted their due diligence under this reporting standard as described previously.” In line with EPA, such an importer ought to doc its actions to help any claims it’d must make associated to due diligence. Within the occasion {that a} producer (together with importer) or processor doesn’t have precise information (e.g., measurements or monitoring information) to report back to EPA, the producer (together with importer) or processor could be required to make “reasonable estimates” of such info. “Reasonable estimates” might rely, for instance, on approaches similar to mass steadiness calculations, emissions components, or greatest engineering judgment.

Timing of Reporting

The proposed rule would lead to a one-time reporting obligation. EPA proposes reporting for individuals who’ve manufactured (together with imported) or processed asbestos at any time throughout the 4 full calendar years previous to the efficient date of the ultimate rule. EPA anticipates that the 4 calendar years could be 2019 to 2022. EPA states that these entities would report throughout a three-month submission interval that EPA proposes would start six months following the efficient date of the ultimate rule. Subsequently, in line with EPA, producers (together with importers) and processors would have as much as 9 months following the efficient date of the ultimate rule to gather and submit all required info to EPA.

EPA states that it believes that offering six months between the efficient date of the rule and the beginning of the submission interval permits enough time for each EPA to organize the ultimate reporting software and for submitters to familiarize themselves with the rule and compile the required info. Since this TSCA Part 8(a) reporting rule would outcome within the assortment of comparable info to that collected beneath CDR, EPA anticipates some submitters could be aware of the varieties of info requested and learn how to report. EPA “believes that three months would be adequate time for submissions, in addition to the six-month period between the effective date and the start of the submission period.” EPA requests public touch upon the submission interval begin date and length, in addition to various compliance timelines for small companies.

Reporting of Info

EPA proposes totally different reporting necessities primarily based on a two-part knowledge-based reporting strategy to acquire as full an image as doable of the manufacturing (together with importing), processing, and use of asbestos. EPA notes that as a result of asbestos will be included in small portions in some merchandise, it expects that utilizing a threshold focus for reporting would remove a lot of the data that could be helpful to help EPA’s TSCA threat analysis and threat administration efforts. Subsequently, EPA proposes that reporting could be required each time the presence of asbestos is understood or fairly ascertainable. EPA states that additionally it is conscious that there could also be circumstances beneath which a producer (together with importer) or processor is unable to offer a dependable amount of the asbestos of their merchandise as a result of the proportion of asbestos of their merchandise shouldn’t be recognized or fairly ascertainable by them. For these conditions, EPA proposes a brief type (Kind A) for attestation functions. For different conditions, submitters that may decide or estimate the amount would supply extra detailed info within the full type (Kind B). EPA anticipates that almost all submitters would know or be capable of estimate the amount of the asbestos and would full the total type.

Request for Feedback

EPA requests touch upon the content material of the proposed rule and the Financial Evaluation ready in help of it. As well as, EPA gives a listing of points on which it’s particularly requesting public remark. EPA encourages all individuals to submit feedback on these points, and to determine every other related points as nicely. EPA requests that commenters making particular suggestions embody supporting documentation the place applicable. The listing of points EPA has recognized embody:

  • EPA solicits touch upon the overall variety of manufactures (together with importers) and processors that can be impacted by the promulgation of the rule, and on the associated burden and prices for reporting. As well as, because of the lack of awareness on the extent to which asbestos happens as an impurity, EPA states that it was unable to find out the variety of potential producers (together with importers) or processors of asbestos as an impurity that may report beneath this rule. EPA requests touch upon the variety of producers (together with importers) and processors that could be topic to the proposed rule because of the presence of impurities of their merchandise, and on the associated burden and value for reporting.

  • As a result of there isn’t any present small processers definition that may be relevant beneath TSCA Part 8(a), EPA requests touch upon how greatest to offer steering for small processors of Libby Amphibole asbestos.

  • EPA seeks touch upon what further steering, if any, could be helpful for serving to entities, together with small companies, perceive the reporting customary, in addition to how the reporting customary would apply to impurities. EPA requests public touch upon the submission begin date and length, together with for small companies.

  • EPA requests touch upon whether or not there needs to be a threshold for reporting utilizing Kind B and, in that case, whether or not the brink needs to be concentration-based (e.g., a sure proportion) or annual volume-based. As well as, EPA requests touch upon whether or not any submitter beneath the brink ought to alternatively report utilizing Kind A. In line with EPA, having a threshold for Kind B might lower burden on sure submitters whereas nonetheless permitting EPA to acquire info on all bulk supplies, mixtures, and articles with recognized asbestos content material. The substances topic to the rule can happen naturally as impurities in different merchandise that could be dealt with in very massive volumes, similar to talc, vermiculite, and doubtlessly different substances. EPA notes {that a} de minimis focus may cut back the compliance dedication and reporting burdens. Feedback suggesting threshold ranges ought to embody the justification for that exact degree.

  • EPA requests touch upon whether or not there needs to be different finish product varieties listed in Desk 4 in proposed 40 C.F.R. Part 704.180(e)(4)(iv)(B). As well as, EPA is fascinated by whether or not the models of measure listed with the product varieties are applicable.

  • EPA identifies further information parts associated to worker information, wastewater discharge and waste disposal, air emissions information, and buyer websites information thought of for this proposed rule and solicits public touch upon whether or not any of the extra information parts needs to be included within the motion. Whereas EPA believes the proposed information parts present enough info for use by EPA and different federal companies in potential actions involving asbestos, EPA seeks touch upon whether or not any further information parts needs to be included on this motion.

  • EPA seeks touch upon what further steering, if any, could be helpful.

Commentary

As EPA did in its proposed per- and polyfluoroalkyl substances (PFAS) Part 8(a) reporting rule, EPA is narrowing the exemptions obtainable. On this case, EPA is voiding the article exemption (40 C.F.R. § 711.10(b)), the impurity exemption (40 C.F.R. § 711.10(c) by reference to 40 C.F.R. § 720.30(h)(1)), and the naturally occurring substance exemption (40 C.F.R. § 711.6(a)(3)) to CDR reporting. As proposed, the analysis and growth (R&D) exemption could be obtainable. As EPA argues, the present Part 6 rule on asbestos already voids the small enterprise exemption (40 C.F.R. § 711.9).

Whereas looking for info on asbestos that could be current in articles or could also be current as an impurity, EPA should acknowledge that looking for the data retrospectively will doubtless yield little totally different info than if EPA had been to hunt the data prospectively.

EPA oddly asserts that this rule will garner info that has not been reported beforehand beneath CDR, particularly from entities that haven’t needed to report, and that reporters can be aware of the CDR reporting software. Bergeson & Campbell, P.C. (B&C®) expects that there can be many potential reporters, not less than lots of, if not hundreds, which have by no means needed to report as a result of the merchandise they manufacture, import, or course of have been exempt, due to both the article or the impurity exemption. These new reporters won’t be aware of the CDR reporting software or the CDR insurance policies and steering. Stakeholders, together with particular person corporations, commerce associations, and different non-governmental organizations (NGO), and EPA will handle these points to make sure non-traditional reporters are engaged. Steerage from EPA can be critically essential: What’s EPA’s expectation of the extent of due diligence to doc that an importer (of an article or a substance) has met its obligation to find out if asbestos is current in a product or article and doc that reporting shouldn’t be required or if reporting is required {that a} explicit information factor shouldn’t be recognized or fairly ascertainable?

Stakeholders are strongly urged to touch upon whether or not a de minimis threshold (both as a amount or a proportion, or each) is acceptable, both for neat asbestos, asbestos as a part of a combination, or asbestos as a part of an article. For instance, if an organization imports 100 grams of asbestos, ought to that be a reportable occasion? Or if an importer is aware of that asbestos shouldn’t be current above 100 components per million in, for instance, talc, however doesn’t know if asbestos is or shouldn’t be current under that threshold, ought to that import be reported? Equally, what extent of information is anticipated for imported articles? Suppliers might not be prepared to certify that no asbestos is current at any degree, particularly in complicated items. Ought to an importer that receives that response report the presence/absence of asbestos as not recognized or fairly ascertainable or not report in any respect?

We don’t query that EPA has a reliable want for info associated to manufacturing, import, or processing of asbestos and asbestos-containing merchandise and articles. We hope that stakeholders touch upon the steadiness between the burden that EPA imposes beneath the proposal on potential reporters and the probability of such burden garnering significant info that may truly contribute to EPA’s threat analysis and threat administration. We hear stakeholders state that “EPA needs to know what is in products.” Whereas true, it’s affordable to take the place that potential reporters “should have known” what was in merchandise when there was no requirement to develop and doc such information till EPA proposed this rule. Now EPA asks for such potential reporters to return in time and see what info might need been obtainable, and provides the choice to report that the data was not recognized or fairly ascertainable with out acknowledging that the numerous burden shouldn’t be filling out the shape, it’s researching the data that may should be included within the type. Think about if EPA imposed this burden on people — that every particular person must search data of every product bought on-line in a four-year interval to see if there was any info supplied by the provider whether or not asbestos was current or not and, if current, at what degree. The search would doubtless flip up little that’s significant, so there could be little to report, however it’s the search that may be the best burden.

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