CHEMICAL PROCESSING UNDER TSCA (August 26, 1992) Background Information Document Office of Pollution Prevention and Toxics Office of Prevention, Pesticides and Toxic Substances U.S. Environmental Protection Agency Washington, D.C. 20460 NOTE: In creating this compilation, EPA has attempted to locate and include all relevant documents prepared by the Agency since January 1, 1977, the effective date of TSCA. EPA acknowledges the possibility that there may be some relevant materials inadvertently overlooked by EPA staff and welcomes the submission of such missing documents. ------- DEFINITIONS OF CHEMICAL "PROCESS," "PROCESSOR" MUD "PROCESSING" UNDER TSCA AND TSCA REGULATIONS BACKGROUND DOCUMENT (1/77 THROUGH 10/90) ------- INDEX TSCA Legislative History 3 §2 Statutory Findings, Policy and Intent 9 §3 Definitions 10 §4 Testing 12 §5 PMNs 19 SNURs .,, 29 §6 Regulation 31 PCBs 33 CFCS ^ . . . 41 Asbestos 43 §7 Imminent Hazard 48 §8 Recordkeeping and Reporting 49 §8(a) Chemical Specific 51 §8 (a) CAIR 55 §8 (a) Inventory 91 §8 (a) PAIR ., 95 §8 (a) Asbestos 154 §8 (b) Inventory 159 §8 (c) Allegations 160 §8 (d) Health & Safety Studies 170 §8(d) Asbestos 176 §8 (e) Substantial Risk 182 §8(f) Definitions 183 8/92 Supplement to 10/90 Background Document 184 Contents 185 ------- THE LEGISTLATIVE HISTORY OF TSCA The Legislative History of TSCA contains practically no discussion of what constitutes "processing" under section 3 of TSCA. In an effort to be inclusive, the following are a few passages that vaguely relate to the definition, but none of them are more clear than the statutory definition itself. They are not presented in any particular order. The Conference Report discussion of TSCA section 8 states: "... The conference substitute provides an illustrative list of the kinds of activities for which recordkeeping and reporting may be required. The list includes such information as the identity of the chemical, categories of use, amounts manufactured or processed, by products, existing data, employees exposed, and the manner or method of disposal. The information specified may be required by the Administrator 'insofar as known to the person making the report or insofar as reasonably ascertainable'. The conferees intend that 'reasonably ascertainable1 standard be an objective, rather than a subjective one. Thus, the manufacturer or processor must provide information of which a reasonable person similar- ly situated might be expected to have knowledge. The conference substitute retains the exemptions in the House amendment relating to reporting by small businesses. The intent of the conferees is to protect small manufacturers and processors from unreasonably burdensome reporting requirements. However, the conferees do not intend to deny the Administrator access to information which may be necessary either to enforce a final rule or order. Therefore, the conferees have specifically authorized the Administrator to obtain reports from small manufacturers and processors of a chemical substance or mixture with respect to which a rule has been proposed or promulgated under section 4, 5(b)(4), or 6, or with respect to which an order or rule is in effect under section 5(e) or 5(f) . Thus, once a rule has been proposed, the Administrator may, by rule, issued in accordance with the informal rulemaking procedures of section 553 of Title 5, United States Code, require reporting from small manufacturers and processors . . . ." [H.R. Rep. No. 1679, 94th Cong., 2d Sess. (1976), at 80, reprinted in. Environmental and Natural Resources Policy Division of the Library of Congress, 94th Cong. 2d Sess., A Legislative History of the Toxic Substances Control Act. (Com. Print 1976) ("Leg. Hist.") at 693.] As part of the Senate Consideration of the Conference Report, Senator Magnuson stated: ------- "A vital provision of the conference substitute is section 8, which describes the authority of the [EPA] Administrator to require recordkeeping and reports from manufacturers and processors, and in some cases other persons, with respect to information concerning chemical substances. The authority will be vital in determining what substances are being produced, what they are being produced for, and other information. The general reporting requirements generally reach manufacturers or processors of chemical substances. ..." "Leg. Hist." at 726. The Senate Report on the Senate version of TSCA states: "There are mixtures such as adhesives, paints and inks, which can produce chemical substances upon end use. Chemical substances produced upon end use of such mix- tures should not be considered new chemical substances automatically subject to the premarket notification provisions of this section. Manufacture is defined under section 3(a)(7) to mean to 'import, produce, or manufac- ture for commercial purposes.' These types of substances would not be covered under the premarket notification provisions because they are not manufactured for com- mercial purpose, per se. Similarly, minor reactions occurring incidental to the mixing process or upon storage of such a mixture, such as the cross-linking of polymers, would not constitute a basis for subjecting such mixtures to the premarket notification provisions intended for new chemical substances because the resulting substances are not manufactured for commercial purpose. "Such chemical substances arising during the formulation, storage or use of such mixture should be considered as byproducts of the precursor substance or substances. The responsibility for reporting and testing such byproducts under the provisions of this legislation would then fall upon the manufacturer of the precursor substance. Of course, the Administrator may specifically subject any mixture to the premarket notification provisions." H.R. Rep. No. 689, 94th Cong. 2d Sess., (1976) at 19, reprinted in. Legis. Hist, at 175. Regarding TSCA section 8: "This subsection also contains an illustrative list of the kind of information which the Administrator may ------- require of manufacturers or processors of chemical substances. Included are the identity of substances, categories or proposed categories of use, estimates of the amount to be produced, and estimates of the amount which will be produced for each of its categories or proposals of use, a description of byproducts, all existing data concerning the environmental and health effects of the substance or mixture, and estimates of the number of workers who will be exposed to the chemical substance." H.R. Rep. No. 689, 94th Cong. 2d Sess., (1976) at 22, reprinted inf Leqis. Hist, at 178. Additional Views of Mr. Baker: . . . "This bill permits regulation of toxic chemicals-at points in the chain of manufacture and use that are impossible to reach under existing laws." H.R. Rep. No. 689, 94th Cong. 2d Sess., (1976) at 89, reprinted in. Leais. Hist, at 205. Senate Consideration of Senate Bill: . Mr. Tunney: "S. 3149 will close major gaps in the law that leave the public inadequately protected against the unregulated introduction of hazardous chemicals into the environment. S. 3149 will assure that chemicals will receive careful premarket scrutiny before they are manufactured or distributed to the public." H.R. Rep. No. 689, 94th Cong. 2d Sess., (1976) at 91, reprinted in. Legis. Hist, at 207. ------- "... [The] Passage of S. 3149 would provide a means by which the public interest would be protected by assuring that safe and beneficial chemicals continue to be intro- duced into the marketplace while insuring that these chemical substances that have unacceptable health and environmental costs associated with them are properly restricted. Existing Federal legislation simply does not provide the means by which adverse effects on human health and the environment can be ascertained and appropriate action taken before chemical substances are first manufactured and introduced into the marketplace." H.R. Rep. No. 689, 94th Cong. 2d Sess., (1976) at 99, reprinted in. Legis. Hist, at 215. The House Committee Report states in its discussion about the basis for the legislation, . . ."Further, tris 2,3-dibromopropyl phosphate, a fire retardant widely used in such items as children's pajamas, has been shown to have mutagenic effects in microbial systems. And there are, unfortunately, numerous other examples of harm resulting from the industrial uses of chemicals. . ." H.R. Rep. No. 1341, 94th Cong., 2d Sess. (1976), at 5, reprinted in. Environmental and Natural Resources Policy Division of the Library of Congress, 94th Cong. 2d Sess., A Legislative History of the Toxic Substances Control Act. (Com. Print 1976) ("Leg. Hist.") at 413. The House Committee Report says: "Although the term chemical substance excludes mixtures of chemical substances, mixtures are not excluded from regulation under the bill. However, mixtures are regu- lated in a different manner than chemical substances - they are not subject to the manufacturing and processing notices for new chemical substances under section 5 and special findings are required before testing of them may be required or before the can be subject to rules under section 8 (a) requiring recordkeeping and reporting for them." H.R. Rep. No. 1341, 94th Cong., 2d Sess. (1976), at 12, reprinted in. "Leg. Hist.") at 420. ------- There is also some discussion of "end user" v. "manufacturer" in the House Report: "For example, there are certain substances or mixtures, such as adhesives, paints, inks, and drying oils, which during storage or upon end use, when exposed to environ- mental factors such as air, moisture, or sunlight, undergo a chemical reaction which produces a different substance or mixture. . . .In such cases, the chemical reaction is merely incidental to the end use or storage of the original substance or mixture. The substance or mixture produced is not used as a chemical substance or mixture, per se. It is not the Committee's intent that a person, such as a painter, who is engaged in the end use or storage activity in which such a chemical reaction occurs is to be considered a manufacturer because of the reaction. Thus, such a person would not be subject to the notification requirements of section 5 even though a chemical substances resulting from the reaction is not included in the inventory under section 8(b)." H.R. Rep. No. 1341, 94th Cong., 2d Sess. (1976), at 13, reprinted in, "Leg. Hist.") at 421. The House Committee Report states that: "Subsection (j) provides that for purposes of section 5, the terms "manufacture" and "process" means to manu- facture or process for commercial purposes. Since the term "manufacture" is defined to include "import", persons who intend to import substances for commercial purposes will be treated the same as a domestic manufacturer under section 5. "By the use of the term "for commercial purposes" the Committee does not intend to restrict coverage to substances manufactured or processed "for sale". Any commercial purpose, such as use as a chemical inter- mediate in a manufacturing process, is sufficient to bring the manufacturing or processing of a substance within the ambit of section 5. The committee realizes that there are certain minor reactions occurring incidental to the mixing process or upon storage of a mixture, such as the cross-linking of polymers. Such a minor reaction may result in what would technically be ------- considered a "new" chemical substance. However, since the "new" substance is not manufactured for commercial purposes per se it would not be subject to the notifi- cation provisions of the section." H.R. Rep. No. 1341, 94th Cong., 2d Sess. (1976), at 30-31, reprinted in. Environmental and Natural Resources Policy Division of the Library of Congress, 94th Cong. 2d Sess., A Legislative History of the Toxic Substances Control Act. (Com. Print 1976) ("Leg. Hist.'M at 437-438. U.S. SUPREME COURT RULING In Chevron U.S.A. Inc. v. Natural Resources Defense Council. the Supreme Court stated that in reviewing an agency's interpretation of a statute, the court's first task is to determine "whether Congress has directly spoken to the precise question at issue. Chevron U.S.A. Inc. v. Natural Resources Defense Council. 467 U.S. 837, 842 (1984). If it has, the agency must give effect to Congress1 intent. Chevron at 842-43. If it has not, the Court must defer to the agency interpretation if that interpretation is a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute.'" Chevron at 845 (citation omitted). Therefore, as the language of TSCA is very broad, EPA has the ability to interpret the definition broadly. If there are policy reasons to interpret the definition more narrowly, including but not limited to the need to recognize the cost of regulation on small business, EPA may as a matter of policy, rather than as a legal interpretation of the statutory definition, choose not to apply the definition to certain processors. To do so, however, may result in inconsistency among programs. ------- S2 ("FINDINGS. POLICY. AND INTENT.") TSCA (THE ACT) TSCA §2(a)(2) states that the U.S. Congress found that "among the many chemical substances and mixtures which are constantly being developed and produced, there are some whose manufacture, processing, distribution in commerce, use, or disposal may present an unreasonable risk of injury to health or the environment. . ." Further, §2(b)(l) of TSCA states that it is the policy of the United States that "adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and mixtures." ------- 10 S3 ("DEFINITIONS.") T8CA (THE ACT) According to §3(10) of TSCA, "The term 'process' means the preparation of a chemical substance or mixture, after its manu- facture, for distribution in commerce- " (A) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so pre- paring such substance or mixture, or "(B) as part of an article containing the chemical substance of mixture." According to §3(11) of TSCA, "The term 'processor' means any person who processes a chemical substance or mixture." According to §3(4) of TSCA, "The term 'distribute in commerce1 and 'distribution in commerce1 when used to describe an action taken with respect to a chemical substance or mixture or article containing a [chemical] substance or mixture, mean to sell, or the sale of, the substance, mixture, or article in commerce; to intro- duce or deliver for introduction into commerce, or the introduction or delivery for introduction into commerce of, the substance, mix- ture, or article; or to hold, or the holding of, the substance, mixture, or article after its introduction into commerce." It is important to note that §3 of TSCA does not define the term "article." QUESTION AND ANSWER DOCUMENTS A July 25, 1986 "Question and Answer Summary" prepared by EPA following a June 10, 1986 Agency-sponsored seminar on the industry obligations under TSCA presents the following with regard to the term processor: "Question: How are 'processors' of chemical substances defined? When does a person become a processor and thus subject to reporting and recordkeeping requirements? What about a situation where a person controls all distribu- tion of a substance manufactured by another firm? "Answer: Under TSCA, a processor prepared a chemical substance or mixture, after the substance has been manufactured or imported, for distribution in commerce in one of three forms: (1) In the same form or physical state as that in which the substance or mixture was ------- 11 received by the processing firm, (2) In a different form or physical state from that in which the substance or mixture was received by the processing firm, or (3) As part of an article containing the chemical substance or mixture. A person becomes a processor of a chemical substance or mixture by undertaking that 'preparation1 step. The definition of processing includes repackaging for commercial distribution, the manufacture of mixtures, and the production of articles. "If a person controls all distribution of a substance manufactured by another firm, and that company does not prepare, repackage, or otherwise process the substance prior to distribution, the firm is a distributor but not a processor of the substance. If,any such preparation does occur, the firm is considered by EPA to be [both] a processor and a distributor. "Persons should refer to TSCA section 3 and the general definition sections of specific regulatory requirements for definitions of key regulatory terms. The following sections in Title 40 of the Code of Federal Regulations (CFR) contain definitions for some of EPA's regulatory actions with regard to existing chemical substances: §§ 704.3 and 712.3 (section 8 (a) reporting and recordkeeping rules); § 716.3 (section 8(d) health and safety data rules); §§ 721.3 and (by reference) 720.3 (section 5(a)(2) significant new use rules (SNURS)); § 717.3 (section 8(c) recordkeeping requirements); and § 707.63 (export notification requirements)." The OTS Existing Chemicals Program (ECP) "QUESTION AND ANSWER SUMMARY" prepared following the May 5, 1987 Agency-sponsored TSCA seminar on industry obligations under TSCA presents the following information regarding process: "Q.29. Summarize small business exemptions under TSCA. "A.29 The Agency has defined 'small processor' on a rule-by-rule basis and intends to continue to do so for the foreseeable future " ------- 12 S4 ("TESTING OF CHEMICAL SUBSTANCES AND MIXTURES.") T8CA (THE ACT) According to §4(b) (3) (B) of TSCA, "The following persons shall be required to conduct tests and submit data on a chemical sub- stance or mixture subject to . . . [a §4 test rule]: ... 11 (ii) Each person who processes or intends to process such chemical substance or mixture if the Administrator makes a [proscribed] finding . . . with respect to the processing of such substance or mixture. "(iii) Each person who . . . processes or intends . . . to process such substance or mixture if the Administrator makes a [proscribed] finding . . . with respect to the distribution in commerce, use, or disposal of such chemical substance or mixture." PROPOSED S4 TEST RULES Part III E. ("Responsibility for Testing") of a July 18, 1980 proposed TSCA §4 test rule (45 FR 48524-48566) on chloromethane and chlorinated benzenes gives the following information on pages 48534 and 48535 about chemical processing and processors: "In most cases, EPA expects that other activities besides manufacturing may present exposure opportunities and, therefore, an exposure risk, so that processors will usually be required to test along with manufacturers. This may present practical problems, however, because the statutory definition of processing is quite broad . . . . [(the full TSCA §3 definitions of both processor and process is quoted in the FR at this point)]. It should be noted that the term 'processor1 under TSCA has a much broader meaning than the common or industry's meaning. The following examples illustrate activities that would cause a person to be considered a processor under TSCA. "Example 1. A person reacts chemicals X and Y to produce a new chemical substance, Z. This person is a processor of X and Y and a manufacturer of Z. This example is the closest to industry's meaning of the term. "Example 2. A person who purchases or manufactures chemicals and then mixes or reacts them is a processor of each chemical if the mixtures or compounds are dis- tributed in commerce. Processors that fall within this example include producers of paints, automotive products (e.g., antifreeze, oil additives, etc.) and specialty ------- 13 cleaners and floor wax preparations. This example covers a large segment of the processor class. "Example 3. A person who heats and mixes powdered resins, fillers, pigments, and plasticizers to form a homogeneous mix which is then formed into sheets of a desired thickness would be a processor of each component because the components are distributed in commerce as part of an article. Tire manufacturers and producers of rubber and plastic articles would fall within this example. [The] processors [cited] in this example are similar to those in example 2. except that the products that are distributed in commerce are articles rather than chemicals. "Example 4. A person who purchases steel cans and then coats the cans with a resin would be a processor of the resin, since the resin is now a part of an article which is distributed in commerce. Similarly, a person who purchases printing ink and then applies the ink to paper or boxes would be a processor of the ink which has become a part of an article. Also tanneries and textile mills would be processors of the dyes used to color the leather and fabric. Persons in these examples add chemicals to previously produced articles. The above examples are not meant to be inclusive. They are only provided to illustrate the breadth of the TSCA definition of processor and assist persons in determining whether their activities fall within the TSCA meaning of •process.' The 1977 Census of Manufacturers indicates that there are approximately 11,000 establishments in the Standard Industrial Classification (SIC) 28, Chemicals and Allied Products. Examples 1 and 2 would fall within SIC 28. Processors in example 3 are in SIC 30, Rubber and Miscellaneous Plastic Products, and number approxi- mately 12,000 establishments. The types of processors [cited] in example 4 are in SIC 27, Printing and Publishing; SIC 226, Textile Finishing; and SIC 3479, Metal Coating and Allied Services, and account for approximately. 45,000 establishments. "The Agency is concerned that, if all processors covered by the Act were subject to a [§4] test rule, there would be difficulties experienced by EPA and the industry in administering the exemption and reimbursement provisions of TSCA Section 4. Consequently, EPA has examined various alternatives for exempting certain kinds of processors from all [§4] test rules or specific ones. Examples of them are (1) excluding some processors from coverage on the basis that their principle activity is not of a nature that has traditionally been considered processing ------- 14 within the chemical industry, (2) restricting coverage of the [§4] rule to members of the chemical industry, e.g., SIC 28, (3) excluding processors who incorporate the substances or mixtures into an article in commerce, (4) excluding all processors downstream of the point at which the subject chemical is reacted or formulated into a substance or mixture with a new identity, and (5) excluding those processors who are small businesses. "Each of these [alternatives] has substantial advantages and disadvantages, and EPA does not attempt to resolve them in this proposal. At a public meeting [held] on September 25, 1979, and in subsequent conversations, members of the chemical industry expressed an interest in deciding how to allocate costs and testing responsi- bilities most fairly. Although the comments recently submitted by the Chemical Manufacturers Association on the advance notice of proposed rulemaking [(44 FR 54284; September 19, 1979)] on data reimbursement deal with this question, they do not offer a solution to the problem of who is subject to the [TSCA §4] rule. EPA is requesting comments on the approach it should take under §4 with respect to processors, including comments on the five alternatives listed above and any other approaches which would limit the applicability of §4 test rules, yet be equitable and provide flexibility." Part III C. ("Persons Required to Test") of a May 20, 1987 proposed TSCA §4 test rule (52 FR 19107) for cyclohexane presents the following statements regarding chemical processors: 11.. . Processors are required to test if the findings are based on processors ("process" is defined in section 3(10) of TSCA as the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce)..." CORRESPONDENCE A September 13, 1979 letter from Warren Muir, DAA for the Office of Testing and Evaluation (OTE) of OTS/EPA to Karim Ahmed of the Natural Resources Defense Council (NRDC) contained a "Discussion Issue" paper which that presents a discussion of the subject: "How should the term "processor" be defined for purposes of TSCA section 4 rules?". This processor-related discussion is quoted below: "The term 'process1 as defined in section 3(10) of TSCA means "the preparation of a chemical substance or mixture, after its manufacturers, for distribution in commerce— ------- 15 11 (A) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or 11 (B) as part of an article containing the chemical substance or mixture. "Under that definition, many persons could be required to test a chemical, including people who might not normally be considered processors as that term is used by the chemical industry. It appears clear, for instance, that Company X is a processor of chemicals A and B if it mixes A and B to make a mixture A/B, and that Company Y is a processor of a resin if it uses the resin to coat the inside of the cans it distributes. Under the statutory definition, distributors who repackage bulk chemicals in smaller containers for consumer use, merchants who tint and mix paints, printers, firms that extrude plastics or other materials, and firms that paint or coat materials prior to sale could be required to test as processors or seek an exemption from testing. "This result suggests substantial practical problems because many thousands of people could be required to test, including many persons who are not connected to the chemical industry. Should EPA therefore limit the number of type of "processors" subject to a §4 test rule? If so, how should this be done? What ^are the implications for test rules, exemptions, and reimbursement?" A December 19, 1979 letter from EPA to Melvin C. Laracey, Esq., Consumers Power Company of Jackson, Michigan provides the following processor-related information: "We interpret the term 'use for commercial purposes' to cover potentially any use by a person who is involved in a commercial activity as opposed to a charitable or private and personal activity. In the context of section 15 of the Act, the term would cover, among other things, activities which meet the definition of 'processing1 as well as activities which result in the ultimate 'consumption' of the chemicals. 11 ... An example of "using for a commercial purpose" that is also "processing" within the meaning of the Act is incorporation of a chemical substance into a mixture or article. . . " [The remaining page(s) of this EPA letter was not found.] ------- 16 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 August 2, 1989 Patrick J. Kurd Keller and Heckman 1150 17th Street N.W. Suite 1000 Washington, D.C. 20036 Dear Mr. Kurd: I have received your June 15, 1989 letter: requesting clarification of the application of Section 4 of the Toxic Substances Control Act (TSCA) to certain activities of National Paint and Coatings Association (NPCA) members and whether they are treated as "processing" under this section. Processors along with manufacturers are specified in section 4(b)(3)(B) as classes of persons potentially covered by section 4. According .to section 4(b)(3)(B), the applicability of a specific test rule to either "manufacturers" or "processors" depends on the findings on which the test rule is based. Manufacturers are covered if the test rule finding is based on manufacturing opera- tions, processors are covered if the test rule finding is based on processing activities, and both manufacturers and processors are covered if test rule findings are based on distribution in commerce, use, or disposal of the substance or mixture. The terms "manufac- turer" and "processor" are defined by TSCA and its regulations. The term "process" is defined in section 3 of TSCA as; ". . . the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce- (A) in the same form or physical state as, or in a different form or physical state from, that in which it is received by the person so preparing such substance or mixture, or (B) as part of an article containing the chemical substance or mixture." Using this definition, we can evaluate the three examples presented in your letter as to their status as "processors". To evaluate whether an activity constitutes processing under TSCA, EPA looks at whether there is "preparation" of a chemical substance or mixture and whether that preparation is "for distribution in commerce." Application of a coating constitutes "preparation" and may constitute distribution in commerce under some circumstances. Both elements must be present to be considered processing. ------- 17 In the first example in your letter, the addition of a tint or colorant to containers of paints containing a substance subject to a section 4 test rule at a retail store would make the retail store a "processor" under TSCA. Clearly in this case there is a "prepara- tion" of a chemical substance or mixture, by further addition of ingredients, for distribution in commerce (i.e. sale to consumers) in the same form or physical state as that in which it is received by the person preparing the substance or mixture. I will address the third example before addressing the second example. The application of finished industrial coatings in original equipment manufacturing facilities to appliances, automobiles, or heavy equipment is clearly processing. The equipment in question is being prepared for distribution in commerce. The application of coatings to that equipment is part of the preparation for distribu- tion in commerce. Thus the substances in such coatings are prepared for distribution in commerce as part of the equipment. The form or physical state of the substances in the coatings is likely to change during such processing, i.e. during curing or drying (any substance in the coating which evaporates upon application and therefore does not remain in the coating or on the equipment would not be distri- buted in commerce with the equipment and therefore would not be processed). With respect to the second example, the spray application of an automotive refinish coating containing a substance subject to a section 4 test rule may constitute processing depending upon the circumstances. EPA has identified three circumstances in which a person would be applying automotive refinish coatings. In one circumstance an individual is applying the refinish coatings in the course of repairing or repainting the individual's own car. In the second circumstance a person is in the business of applying such coatings in the course of repairing or repainting cars owned by individuals. In the third circumstance, a person is in the business of repairing or repainting cars for resale purposes (the cars may be owned by the person or another person). First, with respect to individuals applying such coatings to their own cars, there is no processing as that term is used in TSCA, because whether or not the individuals are preparing the coating, they are not preparing the cars for distribution in commerce. Because they already own the cars, the cars are not being further distributed in commerce. Thus, even if the individual mixes the coating in some fashion before application,the individual is not engaged in preparation for.distribution in commerce. Second, with respect to a person engaged in the business of applying such a coating in the course of repairing or repainting a car owned by an individual, whether the person is a processor depends on the circumstances of the coating application. A person engaged in the business of applying coatings to cars is distributing such coatings in commerce just as a person who sells coatings ------- 18 without the additional service of applying them would be. The person would be a processor of the substance in the coating if the person engages in preparing the coating material (for example, adding pigments or solvents, but not stirring the coating or transferring the coating from its container to the spray equipment) before applying it, because such activities would constitute preparation for distribution in commerce. However, the person would not be (a processor if the person only applies a coating which the person obtains from another (without further preparation of the coating on of the coating other than stirring or placing it into spray equip- ment) because there is no preparation of the coating by the person before it is distributed in commerce (i.e. the act of sale to the individual car owner) . In this circumstance, the car is owned by the end user and is not being further distributed in commerce. Thus, the coating is not being prepared for distribution in commerce as part of the car as is the case in the circumstances discussed below and in response to your third example. Third, with respect to a person engaged in the business of applying such coatings in the course of repairing or repainting cars for resale, this would be the same situation as a person applying industrial coatings to original equipment discussed above. Such a person would be processing the substances in the coating by pre- paring the cars.for distribution in commerce. The substances in the coating would be prepared for distribution in commerce as part of the repainted car. The other issue presented in your letter is the impact of 40 CFR section 790.48(b). This section is clear in attributing TSCA section 15 violations to manufacturers and processors who do not submit notices of intent to test (or exemption applications) when they are required to under a test rule. I should point out that the penalties provided for in section 16 of TSCA for violations of section 4 test rules do not involve the further prohibition of manu- facture or processing of such chemicals. It has been EPA's experience under section 4 that manufacturers end up doing the testing in most test rules and seldom, if ever, seek reimbursement from processors under section 4. More likely is that the cost of testing recouped by passing the test costs on in the cost of the affected products. Thus, I do not believe that members of the National Paint and Coatings Association who are processors as described above are likely to be directly affected by section 4 rule requirements involving substances used in their paints and coatings. Sincerely yours, Charles L. Elkins Director Office of Toxic Substances ------- 19 S5 ("MANUFACTURING AND PROCESSING NOTICES."1 "PMNs" TSCA (THE ACT) According to §5(a)(l)(A) of TSCA, no person (unless otherwise exempted in accordance with §5(h)) may ". . . manufacture a new chemical substance on or after the 30th day after the date the Administrator first publisheds the list required by section 8(b)." CODE OF FEDERAL REGULATIONS (CFR) Part 720 — Premanufacture Notification Subpart A - General Provisions According to 40 CFR §720.3(c), "'Article' means 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 composition during its end use or only those changes of composition which have no commercial purpose separate from that of the article and that may occur as described in §720.36(g)(5) [sic - misprint, should be §720.30(h)], except that fluids and particles are not considered articles regardless of shape or design." According to 40 CFR §720.3(n), "'Intermediate1 means any chemical substance that is consumed, in whole or in . part, in chemical reactions used for the intentional manufacture of another chemical substance(s) or mixture(s), or that is intentionally present for the purpose of altering the rates of such chemical reactions." According to 40 CFR §721.3(r), "'Manufacture or import for commercial purposes' means: " (1) To import, produce, or manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer or importer, and includes, among other things, 'manufacture' of any amount of a chemical substance or mixture: "(i) For commercial distribution, including for test marketing. "(ii) For use by the manufacturer, including use for product research and development or as an intermediate. "(2) The term also applies to substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including byproducts ------- 20 that are separated from that other substance or mixture and impurities that remain in that substance or mixture. Bypro- ducts and impurities without separate commercial value are nonetheless produced for the purpose of obtaining a commercial advantage, since they are part of the manufacture of a chemical substance for commercial purposes." According to 40 CFR §720.3(s), "'Manufacture solely for export1 means to manufacture or import for commercial purposes a chemical substance solely for export from the United States under the following restrictions on activities in the United States: 11 (1) Distribution in commerce is limited to purposes of export or processing solely for export as defined in §721.3 of this chapter. "(2) The manufacturer or importer, and any person to whom the substance is distributed for purposes of export or processing solely for export (as defined in §721.3 of this chapter), may not use the substance except in small quantities solely for research and development in accordance with §720.36." According to 40 CFR §720.3(aa), the term "Process" means "the preparation of a chemical substance or mixture, after its manu- facture, for distribution in commerce (1) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (2) as part of a mixture or article containing the chemical substance or mixture." According to 40 CFR §720.3 (bb), the term "Processor" means any person who processes a chemical substance or mixture." Part 720 — Premanufacture Notification Subpart B - Applicability According to 40 CFR §720.30(h) , the following chemicals are not subject to the premanufacture notification requirements: "The chemical substances described below: (Although they are manufactured for commercial purposes under the Act, they are not manufactured for distribution in commerce as chemical substances per se and have no commercial purpose separate from the substance, mixture, or article of which they are a part.) "(1) Any impurity. "(2) Any byproduct which is not used for commercial purposes. "(3) Any chemical substance which results from a chemical reaction which occurs incidental to exposure of another ------- 21 chemical substance, mixture, or article to environmental factors such as air, moisture, microbial organisms, or sunlight. "(4) Any chemical substance which results from a chemical reaction that occurs incidental to storage or disposal of another chemical substance, mixture, or article. "(5) Any chemical substance which results from a chemical reaction that occurs upon end use of another chemical substance, mixture, or article such as an adhesive, paint, miscellaneous cleanser or other housekeeping product, fuel additive, water softening and treatment agent, photographic film, battery, match, or safety flare, and which is not itself manufactured or imported for distribution in commerce or for use as an intermediate. "(6) Any chemical substance which results from a chemical reaction that occurs upon use of curable plastic or rubber molding compounds, inks, drying oils, metal finishing compounds, adhesives, or paints, or any other chemical substance formed during the manufacture of an article destined for the marketplace without further chemical change of the chemical substance except for those chemical changes that occur as described elsewhere in this paragraph. "(7) Any chemical substance which results from a chemical reaction that occurs when (i) a stabilizer, colorant, odorant, antioxidant, filler, solvent, carrier, surfactant, plasticizer, corrosion inhibitor, antifoamer or defoamer, dispersant, precipitation inhibitor, binder, emulsifier, deemulsifier, dewatering agent, agglomerating agent, adhesion promoter, flow modifier, pH neutralizer, sequesterant, coagulant, chelating agent, or quality control reagent functions as intended, or (ii) a chemical substance, which is intended solely to impart a specific physiochemical characteristic, functions as intended. "(8) Any nonisolated intermediate." Part 723 — Premanufacture Notification Exemptions Subpart B - Specific Exemptions According to 40 CFR §723.175(b)(2), the term "article" means "a manufactured item (i) which is formed to a specific shape or design during manufacture, (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use, and (iii) 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 may occur as ------- 22 described in §710.2 of this chapter except that fluids and particles are not considered articles regardless of shape or design." According to 40 CFR §723.175(b) (15) , the term "'Used in the manufacturing or processing of an instant photographic or peel-apart article1 when used to describe activities involving a new chemical substance, means the new chemical substance (i) is included in the article, or (ii) is an intermediate to a chemical substance included in the article or is one of a series of intermediates used to manufacture a chemical substance included in the article." PROPOSED RULE Premanufacture Review Program Proposed Processor Requirements 45 Fed. Reg. 54642 (15 August 1980) 11 . . . 'Commercial purposes' includes the purposes of distribution in commerce and use as an intermediate . . . •Process,' 'process for commercial purposes,' and •processor' . . . include the preparation of a chemical substance or mixture in the same or a different form or physical state from that in which it was received." Id., at 54647: "There are two scenarios in which a facility treating a byproduct which is a hazardous waste under RCRA may fall under TSCA. First, if such a facility treats a byproduct containing a new chemical substance and the facility extracts the new chemical substance for sale in commerce, it would be processing the exempt substance (the by- product) for a nonexempt commercial purpose. However, in this case the facility also would be the manufacturer of the new chemical substance and thus would be required to submit a notice under TSCA section 5(a)(1)(A) (even if there is no processor notification rule). Second, if the facility treats a byproduct containing a new chemical substance and processes the byproduct to produce another chemical (not a new substance) for distribution in com- merce, it would be required to notify EPA under this proposed rule-as a processor "As proposed, this processor notification rule would require reporting by facilities treating hazardous wastes when the wastes they treat are byproducts and are processed for a nonexempt commercial purpose." Id., at 54650 "As noted above, persons who only use chemical substances for a commercial purpose and do not process or manufacture them are not themselves subject to the section 5 ------- 23 premanufacture notification requirement. However, 30 days after publication of the Revised Inventory, and prior to the promulgation of the final processor notification rule, EPA will apply TSCA section 15(2) to users of chemical substances manufactured for a nonexempt commercial purpose. (If this nonexempt substance were processed before use, the Agency would still apply section 15(2) to the users.)" OTHER ROLES PROPOSED RULE 49 Fed. Reg. 50207 (27 December 1984): "To be manufactured solely for export, a chemical sub- stance may be processed only by the manufacturer or importer. Since the substance cannot be used in the U.S. by any person, such processing is limited to processing that does not involve use. In general, export-only processing is limited to preparing the substance, either alone or as part of a mixture, for export and can include formulating a mixture and packaging the product. If the new chemical substance is an intermediate to be used in the U.S. to make another chemical intended for export, the new intermediate is not manufactured solely for export because it is used in the U.S. Other types of processing, such as dyeing fabric or incorporating a substance into an article, would also constitute use and, thus, would require a PMN before the activity could take place." FINAL RULE 51 Fed. Reg. 15100 (22 April 1986): "Section 12 (a) of TSCA exempts from PMN new chemical sub- stances which are manufactured or processed for export only and will not be used in the U.S. The proposed revision of § 720.3(s) would have limited processing to activities occurring under the control of the manufacturer or importer. In this final rule, EPA modifies the defini- tion of the term 'manufacture solely for export1 to include processing which is not under the direct control of a manufacturer or importer, as long as it occurs solely for export. (The rule cross-references the definition of •process solely for export1 in 40 CFR 721.3.) However, the manufacturer must know, by means of a contract or some other evidence, that the processing is occurring for export only. For substances to qualify as export-only chemicals, their processing must also be limited to activities which do not involve use. For example, formulating a mixture constitutes a legitimate form of processing for export-only chemicals, but their use as intermediates in chemical production does not." ------- 24 EPA CORRESPONDENCE The following is excerpted from a sanitized October 20, 1987 letter from Stephanie G. Roan (CCD/OTS) regarding the application of a new chemical finish to a fiber to enhance its qualities when the fiber is later formed into a fabric. The company argued that the finish was not "used" until the exported fiber was turned into a fabric outside the United States, because the qualities imparted by the finish were not utilized until then. The Agency disagreed, con- cluding that the application process itself constituted a 'use1 of the finishing chemical, and that a PMN would be required for the chemical. The letter states as follows: "The statute and regulations do not define 'use.1 How- ever, Merriam Webster's Ninth Collegiate Dictionary defines 'use1 as 'the act or practice of employing something: EMPLOYMENT, APPLICATION . . . [,] a method or manner of employing or applying something . . . [,] a particular service or end.' Throughout your letter, in describing the process at issue here, you employ the words 'apply,' 'applied,' and 'application,1 which, according to Webster's Dictionary, are synonyms for 'use.1 In applying the [CBI] to the [CBI] fibers, [CBI] would be using the substance for a commercial purpose to increase the marketability of the product in order to obtain financial benefit. Therefore, we believe that the process that you describe in your letter constitutes 'use in the United States' which, according to the above provisions, is ineligible for the export exemption." Letter from Stephanie G. Roan to Anne B. Sayigh of Parexel International Corporation, 11 December 1987: "This replies to your September 25, 1987 letter to Mr. Dayton Eckerson regarding the premanufacture notification (PMN) requirements for a new chemical substance in a coating of thermal transfer film ribbon which is imported into the United States. You state your opinion that the new chemical substance is imported 'as part of an article' (i.e., the ribbon) and therefore is not subject to the PMN requirements. "According to your letter, the ink coating, which contains the new chemical substance, is deposited onto paper during use. It is the Agency's policy that a chemical substance is not 'part of an article1 where (1) the article is a container of "the substance used to transport, contain, and/or dispense it, and/or (2) the substance is intended to be removed (or released) from the article and has an end use or commercial purpose separate from the article. A substance which is intended to be removed or released from its article/container, and serves a function during ------- 25 use related to the removal/release of the substance, is considered to have an end use or commercial purpose separate from the article. Since the new chemical substance is intended to be released from the ribbon and serves a function during use related to the release, it is not 'part of an article1 and would not be excluded from the PMN requirements. The question of whether or not a chemical reaction occurs during deposition of the ink onto the paper is not the determining factor here, since the ink containing the new chemical substance is clearly intended to be released from the ribbon." Letter from Stephanie G. Roan to Braden R. Allenby of AT&T, 3 May 1988: "This replies to your January 12, 1988 letter regarding the applicability of the Toxic Substances Control Act section 5(h)(3) research and development (R&D) exemption for a new chemical substance which is used as a quality control indicator to test the integrity of circuit boards. "You correctly conclude that the R&D exemption from the premanufacture notification (PNM) requirements is applicable to the new chemical substance since AT&T produces the quality control indicator solely to test the performance characteristics of the circuit board and complies with all the requirements of the R&D rule (40 CFR 720.36 and 720.78) . Further, I agree that AT&T is free to distribute the circuit boards (articles) incorporating the quality control indicator in commerce after the R&D activity is completed, without submitting a PMN for the new chemical substance, in accordance with 40 CFR 720.36 (d) and (f)." Letter from Stephanie G. Roan to Braden R. Allenby of AT&T, 13 May 1988: "This replies to your February 17, 1988 letter seeking confirmation of AT&T's understanding of the Agency's policy regarding the applicability of the Toxic Substances Control Act section 5 premanufacture notification (PMN) requirements to chemical substances imported 'as part of an article.' "In your letter,, you correctly conclude that 'a substance must not be intended to be removed from the article as a result of anticipated use, and the substance cannot have a commercial end use function separate from the article,' in order to be considered 'part of an article.' Further, I agree that the material in a vented capacitor, the mercury compound in a relay switch, and the electrolytes contained in wet cell batteries, as described in your ------- 26 letter, are not subject to the PMN requirements, since the chemical substances are not intended to be released from the articles during normal use and have no function separate from their function in the articles. Although the chemical substances may be removed or released from the articles during use, the removal or release serves no end use function. The chemical substances are considered to be 'part of the article, and therefore are excluded from the PMN requirements at 40 CFR 720.22(b)(1)." Letter from Carol Hetfield to Daniel J. Manelli of Graham & James, copy undated (late 1988 or early 1989): "In your letter, you ask for a clarification of whether the Environmental Protection Agency (EPA) would consider brake linings, brake disc pads, drum brakes, automobile bumpers, clutch facings, and automobiles as articles for purposes of the Toxic Substances Control Act (TSCA). Referring to comment 21 of the Inventory Reporting Requirement (42 FR 64583) , EPA responded to the issue of the importation of chemical substances as part of articles by stating: "'Chemical substances or mixtures which are imported within articles, such as in drums, barrels, or other containers used for purposes of transportation or containment are considered to be chemical substances imported in bulk and are subject to these reporting requirements. Chemical substances or mixtures will be considered to be imported as part of an article, if the substance or mixture is not intended to be removed from that article and has no end use or commercial purpose separate from the article of which it is a part.' "In other words, even particles such as those found in brake linings are exempt from Inventory or PMN reporting when imported as components of articles, provided the articles which they accompany in commerce are not solely containers for them, and they are not intended to be released during use, and do not serve a function during use that is related to their release. Therefore, EPA would agree that all the above manufactured items would meet the definition of article at 40 CFR Part 720.3 (c) and would not be subject to Premanufacture Notification reporting requirements. In addition, importers of articles are not required to certify their shipment according to section 13 of TSCA unless a rule under TSCA specifically requires them to do so." ------- 27 Letter from Mary E. Cushmac to Hiroshi Uyama of Japan Technical Information Center Inc., 2 May 1989: "This responds to your letter, dated February 28, 1989, regarding the applicability of the premanufacture notification (PMN) requirements to a new polymer used to coat magnetic carriers that carry toner particles in photocopying operations. You also inquired about the PMN status of constituents of a laundry detergent that is imported in retail packages. "According to your letter, the magnetic carriers coated with the polymer release the toner particles and are recycled and not released from the photocopying system. It is not clear from the information provided in your letter whether or not the carriers are 'part of an article1 and you may wish to provide a more complete description for our review. However, it appears that the magnetic carriers themselves would be viewed as 'particles' rather than as 'articles' because of their size (100 microns) and the lack of evidence that they meet the specific criteria set forth in the definition of an article at 40 CFR 720.3(c). Consequently, the polymer would not be viewed 'as part of an article' and would therefore be subject to the PMN requirements if it is not included in the TSCA Inventory. "Further, any new chemical substance in the laundry detergent would be subject to the PMN requirements, since the laundry detergent would be viewed as a mixture. Any chemical substance that is manufactured (imported) solely for a use that comes under the authority of the Food and Drug Administration, would not be subject to TSCA." Letter from Lawrence W. Culleen to John H. Gray of Dow Chemical Corporation, 28 June 1989: "This responds to your two letters . . . regarding the applicability of the Toxic Substances Control Act (TSCA) to Dow's proposed large-scale recycling of rigid plastic containers to recover polyethylene and polyethylene terephthalate (PET) . . . "For both sources identified above, Dow intends to grind the containers into granules and recover polyethylene and PET through a number of physical separations and cleaning operations. No chemical reactions would occur. EPA agrees that these operations constitute 'processing' for purposes of TSCA." ------- 28 Letter from Mary E. Cushmac to James R. Keith of Dow Chemical Company, 12 December 1989: "This responds to your letter, dated September 28, 1989, seeking additional guidance regarding the applicability of the Toxic Substances Control Act (TSCA) premanufacture notification (PMN) requirements to Dow1 s proposed plastics recycling activities. . . In this letter, you describe Dow's proposed recycling of plastic parts made from thermoset plastic-like polyurethanes. As an example, Dow plans to grind off-spec parts or scrap from an automotive molding operation into a powder and use it as a filler in the injection molding of other articles. "Based on our analysis of the information provided in your letter and the Office of Toxic Substances' previous guidance, the off-spec material/scrap which was lawfully manufactured during the manufacture of articles can be processed and used as a filler without the submission of a PMN. As you were previously advised, OTS agrees with Dow's rationale that section 15(2) of TSCA says that processors are not in violation unless a chemical sub- stance was actually illegally manufactured." ------- 29 "SNURs1 TSCA (THE ACT) According to §5(a)(1)(B) of TSCA, no person (unless otherwise exempted in accordance with §5(h)) may "... process any chemical substance for a use which the Administrator has determined ... is a significant new use ..." According to TSCA §5(i) ["DEFINITION."], the term "process" means "processing for commercial purposes." §5 of TSCA does not provide a separate definition for the term "process(ing) for commercial purposes." CODE OF FEDERAL REGULATIONS (CFR) Part 721 — Significant New Uses of Chemical Substances Subpart A - General Provisions According to 40 CFR §721.3, the term "Process for commercial purposes" means "the preparation of a chemical substance or mixture containing the chemical substance, after manufacture of the sub- stance, for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture con- taining the chemical substance is included in this definition. If a chemical substance or mixture containing impurities is processed for commercial purposes, the impurities also are processed for commercial purposes." According to 40 CFR §721.3, the term "Process solely for export" means "to process for commercial purposes solely for export from the United States under the following restrictions on activity in the United States: Processing must be performed at sites under the control of the processor; distribution in commerce is limited to purposes of export; and the processor may not use the chemical substance except in small quantities solely for research and development." QUESTION AND ANSWER DOCUMENTS A July 25, 1986 "Question and Answer Summary" prepared by EPA following a June 10, 1986 Agency-sponsored seminar on the industry obligations under TSCA presents the following with regard to the term processor under a significant new use rule (SNUR) issued by the Agency under §5(a)(2) of TSCA: ------- 30 "Question; To what extent are the [§5] SNUR requirements applicable to manufacturers of inadvertently generated ingredients (e.g., a particular ingredient is an inactive ingredient as part of the major product component)? "Answer; SNUR requirements apply to ... processors of specific chemical substances listed in the SNUR. If a company intends to ... process for commercial purposes a chemical substance listed in a SNUR for a significant new use designated in that rule, the company is subject to the SNUR. EPA has established certain exemptions to SNURs, codified at 40 CFR § 721.19, including the . . . processing of a SNUR chemical solely as an impurity or byproduct (see §721.19 for exact language) " ------- 31 S6 ("REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES."1 TSCA (THE ACT) According to §6(a) of TSCA ("SCOPE OF REGULATION"), "If the Administrator finds that there is a reasonable basis to conclude that the . . . processing ... of a chemical substance or mixture . . . presents or will present an unreasonable risk of injury to health or the environment, the Administrator shall by rule apply one or more of the following requirements to such substance or mixture to the extent necessary to protect adequately against such risk using the least burdensome requirement: "(1) A requirement (A) prohibiting the . . . processing . . . of such substance or mixture, or (B) limiting the amount of such substance or mixture which may be ... processed ... "(2) A requirement (A) prohibiting the . . . processing . . . of such substance or mixture for (i) a particular use or (ii) a particular use in a concentration in excess of a level specified by the Administrator in the rule imposing the requirement, or (B) limiting the amount of such substance or mixture which may be ... processed . . . for (i) a particular use or (ii) a particular use in a concentration in excess of a level specified by the Administrator in the rule imposing the requirement. "(3) A requirement that such substance or mixture or any article containing such substance or mixture be marked with or accompanied by clear and adequate warnings and instructions . . . prescribed by the Administrator. " "(4) A requirement that . . . processors of such substance or mixture make and retain records of the processes used to ... process such substance or mixture and monitor or conduct tests which are reasonable and necessary to assure compliance with the requirements of any rule under this subsection "(6)(A) A requirement prohibiting or otherwise regulating any manner or method of disposal of such substance or mix- ture, or any article containing such substance or mixture by its . . . processor "(7) A requirement directing . . . processors of such sub- stance or mixture (A) to give notice of such unreasonable risk of injury ... [to distributors and others in pos- session of or exposed to the substance or mixture], (B) to give public notice of such risk of injury, and (C) to replace or repurchase such substance or mixture as elected by the person to which the requirement is directed." ------- 32 According to §6(b) of TSCA ("QUALITY CONTROL"), "If the Administrator has a reasonable basis to conclude that a particular . . . processor is manufacturing or processing a chemical substance or mixture in a manner which unintentionally causes the chemical substance or mixture to present or which will cause it to present an unreasonable risk of injury to health or the environment — 11 (1) the Administrator may by order require such . . . processor to submit a description of the relevant quality control procedures followed in the manufacturing or processing of such chemical substance or mixture; and "(2) if the Administrator determines — (A) that such quality control procedures are inadequate to prevent the chemical substance or mixture from presenting such risk of injury, the Administrator may order . . . the processor to revise such quality control procedures to the extent necessary to remedy such inadequacy; or (B) that the use of such quality control procedures has resulted in the distribution in commerce of chemical substances or mixtures which present an unreasonable risk of injury to health or the environment, the Administrator may order the . . . processor to to (i) give notice of such risk to processors or distributors in commerce of any such substance or mixture, or to both, and, to the extent reasonably ascertainable, to any other person in possession of or exposed to any such substance, (ii) to give public notice of such risk, and (iii) to provide such replacement or repurchase of any such substance or mixture as is necessary to adequately protect health or the environment. "A determination under subparagraph (A) or (B) of paragraph (2) shall be made on the record after opportunity for hearing in accordance with section 554 of title 5, United States Code. Any . . . processor subject to a requirement to replace or repurchase a chemical substance or mixture may elect either to replace or repurchase the substance or mixture and shall take either such action in the manner described by the Administrator." ------- 33 POLYCHLORINATED BIPHENYLS (PCBs) CODE OF FEDERAL REGULATIONS (CFR) Part 761 — Polychlorinated Biphenyls (PCBs) Manufacturing. Processing. Distribution in Commerce, and Use Prohibitions Subpart A - General According to 40 CFR §761.3, a "PCB Article" means "any manufactured article, other than a PCB Container, that contains PCBs and whose surface(s) has been in direct contact with PCBs. "PCB Article" includes capacitors, transformers, electric motors, pumps, pipes, and any other 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 PCB Article." 40 CFR §761.3 states further that the term "Process" means "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce: (1) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (2) as part of an article containing thehemical substance or mixture." WORDING FROM THE ACT § 6 REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES. (e) POLYCHLORINATED BIPHENYLS Section 6(e) of TSCA requires that within six months after the effective date of the Act the Administrator shall promulgate regulations to — (1)(B) Provide "... instructions with respect to their processing, distribution in commerce, use, or disposal or with respect to any combination of such activities." (2) (A) "... effective one year after the effective date of this Act no person may manufacture, process, or distribute in commerce or use any polychlorinated biphenyl in a manner other than in a totally enclosed manner." ------- 34 (B) "The Administrator may by rule authorize the manufacture, processing, distribution in commerce or use (or any combination of such activities) of any polychlorinated biphenyl ..." if he finds that it will not present an unreasonable risk to human health or the environment. (3)(A) "Except as provided in subparagraphs (B) and (C) — (ii) no person may process or distribute in commerce any poly- chlorinated biphenyl after two and one-half years after such date." The Act allows any person to petition the Administrator for an exemption from the above requirements. The Administrator may grant or deny this petition by rule. WORDING FROM FEDERAL REGISTER NOTICES ?? FR June 7. 1978 - Proposed Rule (40 CFR Part 761) Polychlorinated Biphenyls (PCBs); Manufacturing, Processing, Distribution in Commerce, and Use Bans Preamble, page 24805 "Manufacture and Process for Commercial Purposes. The proposed rule applies to manufacturing (including importation) and pro- cessing which is performed for commercial purposes. *Commercial Purposes' means for distribution in commerce, including for test marketing purposes, and for use by the manufacturer, including for use as a chemical precursor. By restricting the scope of the definitions of * manufacture' and ^processing' found in TSCA to apply to only those activities that are considered *for commercial purposes', EPA would not regulate certain activities such as the manufacture of a chemical that results in an unintentional PCB impurity. However, because the proposed rule prohibits the distribution in commerce of PCB mixtures, the product would have to be processed to reduce the PCB concentration to below 50 ppm before distribution in commerce. The proposal would also permit the processing of products and plant wastes to concentrate PCBs if the purpose is to dispose of the PCBs and reduce the PCB concentration in the final product." Preamble, page 24807 (column 1) "According to section 6(e) of TSCA, disposal is an activity separate from processing and distribution in commerce. Any prepara- tion or processing for disposal is considered to be disposal and not distribution in commerce or processing. Therefore, any such activity, if in the course of compliance with pertinent disposal ------- 35 requirements, is not subject either to the January 1, 1978, totally enclosed manner requirements or to the July 1, 1979, bans." Preamble, page 24807 (column 2) "NOTE: - The term *distribution in commerce1 is used to refer to the sale of a PCB. However, it also means the delivery of a PCB in conjunction with a sale for purposes of resale. An example of the latter is a distributor who buys from the manufacturer and then resells to retailers; while the PCBs are in his inventory, they are being held for further distribution in commerce. However, distribution in commerce does not include the holding of PCBs for purposes solely of use by the holder. For purposes of TSCA, xprocessing' is limited to that processing which takes place after manufacture of the PCB in preparation for distribution in commerce. xProcessing1 does not include processing performed by the owner of the PCB subsequent to distribution in commerce for his own use. The servicing of a PCB transformer is an example of how all these concepts fit together. If a PCB transformer is removed from service and returned to the owner's own service shop where the PCB dielectric fluid is added to it, the servicing could be covered by a use authorization. However, if that same transformer was sent to a transformer service company that added PCBs to the transformer, the servicing would be both processing and distribution in commerce since the PCB dielectric fluid would be sold by the service company to the transformer owner (thus the title to the PCBs would have passed from one owner to another). To continue this activity, the transformer service company would need authorizations for both processing and distribution in commerce. In addition, the service company would have to petition for, and receive, an exemption each year to continue this activity after June 30, 1979. Even though the actions performed in each shop are the same, the transformer service company is subject to much more rigorous requirements than the transformer owner. As in the transformer servicing example above, a person servicing a computer who does not own that computer is considered to be processing and distributing in commerce if he installs a PCB capacitor in the computer. To continue that practice after July 1, 1979, an exemption will be required. Finally, a person who leases a computer may not sell that computer after July 1, 1979, unless the computer has been leased for no less than one year. A person could apply for an exemption so that he could sell a computer which has been leased for less than one year." ------- 36 FR Mav 31. 1979 - Final Rule (40 CFR Part 761) (Polychlorinated Biphenyls (PCBs) Manufacturing, Processing, Distribution in Commerce, and Use Prohibitions) Preamble, page 31525 "Manufacturing" Versus "Processing" of PCB Items "After considering the comments, EPA reexamined the ^manufacturing' versus *processing1 issue and concluded that PCB Article and PCB Equipment production is 'processing* of PCBs» not 'manufacture* of PCBs. This conclusion is based on an analysis of the activities of manufacturing, processing, distribution in commerce, and use with respect to chemical substances. EPA determined that *manufacturing1 a chemical substance involves only the actual creation of the chemical substance (or of a substance contaminated with PCBs). The other activities are distinguished from xmanufacturing' because they involve the use of the already existing substance. *Processing1 PCBs includes activities such as placing previously manufactured PCBs into capac i tor s or transformers. While these activities may be referred to as xmanufacturing' of PCB Articles, they do not involve the Manufacture1 of the PCBs, only the * processing1 of PCBs. The ^distribution in commerce1 and *use' of PCBs generally coincides with the distribution and use of the PCB Articles and PCB Equipment. Thus, the ban of PCB ^manufacture1 applies solely to the manufacture of PCBs, as defined in §761.2 (a). Bans of all other activities, namely processing, distribution in commerce, and use, apply both to PCBs as a substance and PCB Items. This interpretation of the terms ^manufacture' and ^process' also accords with the manner in which Congress intended the requirements of section 6(e)(3) of TSCA to be %phased-in' over time. The change in EPA's use of the terms xmanufacturing' and ^processing', is reflected in the definition of PCBs. The proposed definition of ^PCB* and xPCBs' is included in both PCB Article and PCB Equipment (see § 761.2 (q) at 43 FR 24813). The final rule changes the definition of *PCB' and *PCBs' in § 761.2 (s) by applying these terms only to chemical substances (see preamble II.A. for more detailed discussion). PCB Equipment and PCB Articles are no longer included in the definition of XPCB' and 'PCBs' but are included in a separate term, XPCB Items,1 which is defined in § 761.2(x)." ------- 37 FR May 31. 1979 - Interim Procedures (40 CFR Part 750) (Procedures for Rulemaking Under Section 6 of the Toxic Substances Control Act; Interim Procedural Rules for Exemptions From the Polychlorinated Biphenyl (PCB) Processing and Distribution in Commerce Prohibitions) Preamble, page 31558 "Unless EPA grants exemptions, all PCB processing and distri- bution in commerce will be banned after July l, 1979 pursuant to section 6(e)(3)(A)(ii) of TSCA. These activities include, but are not necessarily limited to: the processing and distribution in commerce of dielectric fluid for PCB Transformers, PCB-Contaminated Transformers, PCB Railroad Transformers, and PCB Electromagnets; the distribution in commerce of PCB Articles (such as small PCB Capacitors); the processing (i.e., building) and distribution in commerce of PCB Equipment (including the manufacture of fluorescent light ballasts, television sets, air conditioners and microwave ovens and the sale of such PCB Equipment) ; the processing and distribution in commerce of PCBs for servicing mining equipment; the processing and distribution in commerce of chemical substances and mixtures that contain 50 ppm or greater PCB as impurities or contaminants (including diarylide and phthalocyanine pigments, some aluminum chloride, and some phenylchlorosilanes)." Preamble, page 31559 "Petitions concerning the manufacture (i.e., processing) of PCB Equipment involving incorporation of PCB Articles into equip- ment must be submitted on an individual basis. Although this activity in itself may present a low potential risk, the activity results in the wide dissemination of small PCB Capacitors. The disposal of such capacitors is not controlled once the capacitors are processed into PCB Equipment. Since most PCB Equipment manu- facturers have converted to non-PCB Capacitors, the number of potential petitioners for exemptions to manufacture PCB Equipment should be small." Codified (40 CFR 750.31fan. Page 31560 "(7) Processing of PCB Articles into FOB Equipment. A person who processes (incorporates) PCB Articles (such as small PCB Capacitors) into PCB Equipment may submit a petition on behalf of himself and all persons who further process or distribute in commerce PCB Equipment built by the petitioner. For example, a builder of motors who places small PCB Capacitors in the motors may submit a petition on behalf of all persons who process or incorporate motors built by the petitioner into other pieces of PCB ------- 38 Equipment: and all those who sell the equipment. Such a petition is not required to identify the persons who distribute in commerce or further process the PCB Equipment. A separate petition must be filed, however, by each processor of PCB Articles into PCB Equipment." "(8) Processing of PCB Equipment into Other PCB Equipment. A person who processes (incorporates) PCB Equipment into other PCB Equipment may submit a petition on behalf of himself and all persons who further process or distribute in commerce PCB Equipment built by the petitioner. Such a petition is not required to identify the persons who distribute in commerce or further process the PCB Equipment. If a petition has been filed under subparagraph (a) (7) by the builder of the original PCB Equipment, no other petition is required." FR September 26. 1988 - Proposed Rule (40 CFR Part 761) (Polychlorinated Biphenyls; Notification and Manifesting for PCB Waste Activities) Preamble, page 37438 "... PCB waste may also be * generated1 by those who ... process or distribute in commerce PCB wastes in a form other than previously manifested, ..." FR December 21. 1989 - Final Rule (40 CFR Part 761) (Polychlorinated Biphenyls; Notification and Manifesting for PCB Waste Activities) Preamble, page 52717 "... an owner of the PCB material would be the generator when the owner: "... (3) Causes PCB-containing treatment residuals to be generated on-site during servicing or processing for disposal operations conducted on-site by the owner or by a contractor." ------- 39 WORDING FROM THE CODE OF FEDERAL REGULATIONS 40 CFR PART 750 750.31 (Filing of petitions for exemption.) 11 (a)(2) Contaminated substances and mixtures — processing. . . . For example, persons who process a PCB-contaminated pigment into printing inks may combine their petitions into one petition. it • • • [(a)(7) and (a)(8) are the same as above] 40 CFR PART 761 761.3 (Definitions) "xProcess1 means the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce: (1) In the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (2) As part of an article containing the chemical substance or mixture." 11 xRecycled PCBs1 means all those PCBs which appear in the processing of paper products or asphalt roofing materials from PCB- contaminated raw materials. Processes which recycle PCBs must meet the following requirements:" [the requirements are effluent limitations]. 761 .--20 (Prohibitions) (c)(2) "PCBs at concentrations of 50 ppm or greater, or PCB Items with PCB concentrations of 50 ppm or greater may be processed and distributed in commerce in compliance with the requirements of this Part for purposes of disposal in accordance with the requirements of § 761.60." (c) (4) "PCBs at concentrations of less than 50 ppm, or PCB Items, with PCB concentrations of less than 50 ppm, may be processed and distributed in commerce for purposes of disposal." ------- 40 761.30 (Authorizations) GENERAL — Processing and distribution in commerce for purposes of servicing PCB electrical equipment, research and development, and use as a mounting medium in microscopy is permitted only for persons that are granted an exemption under TSCA 6(e)(3)(B). 761.60 (Disposal requirements) "NOTE: Except as provided in § 761.75(b) (8) (id.).,., liquid PCBs shall not be processed into non-liquid forms to circumvent the high temperature incineration requirements of § 761.60(a)7" 761.185 (Certification program and retention of records by importers and persons generating PCBs in excluded manufacturing processes) "(a) ... manufacturers with processes inadvertently generating PCBs and importers of products containing inadvertently generated PCBs must report to EPA ... " WORDING FROM SUPPORT DOCUMENTS PCB Q & A 11 ... Also, PCBs at any concentration may be processed (i.e., prepared and/or packaged for distribution in commerce) for purposes of disposal [§761.20(c) (2)]." TSCA COMPLIANCE PROGRAM POLICY No. 6-PCB-2 "EPA reviewed its interpretation of the PCB regulations regarding physical separation and found that the original PCB rules clearly do not exempt PCB processing activities (including physical separation techniques) from the disposal requirements. While activities which process or distribute in commerce PCBs for purposes of disposal are not subject to processing and distribution in commerce bans, such activities are subject to disposal regulations." "... Filtering PCBs from the dielectric fluid of transformers and returning that fluid to the transformer is an example of this type of activity. Because the processed liquids and solids are returned or reused in regulated equipment, EPA controls the ultimate disposition of all the processed materials and no disposal requirements are circumvented." ------- 41 "CHLOROFLUOROCARBONS" FINAL RULE [43 Fed. Reg. 11318, (17 March 1978)] "... The economic effects will be felt by three major groups in the chlorofluorocarbon industry: manufacturers, processors (fillers), and distributors (marketers). . . . Fillers, on the other hand, will be significantly affected ..." "Proposed § 762.12 did not prohibit processing of chlorofluorocarbon propellants for use in pesticide products. EPA requested comments on whether TSCA section 3(2) (B) (ii) permits EPA to regulate under TSCA the pro- cessing of chlorofluorocarbons which may take place as part of the manufacture of pesticide products (42 FR 24545). No comments on this point were received. Having considered the issue further, both in connection with this regulation and the TSCA section 8 (a) inventory reporting regulation, EPA has concluded that there is sufficient authority under TSCA to ban the processing of chlorofluorocarbons for use in pesticides (i.e., incor- poration of chlorofluorocarbons into aerosol pesticides) . * • • "The change in § 762.12 does not significantly alter the practical impact of this regulation because a ban on manufacturing for pesticide uses was previously proposed (§ 762.11). It will, however, greatly aid the Agency in its enforcement efforts since the enforcement emphasis will be on processors." "The definitions for . . . 'processor1 . . . have been deleted from the rule. These words have the exact definitions given to them in TSCA (15 U.S.C. 2602), and there is no need to repeat the definition in the rule. "The definitions for 'manufacture,' 'processing,' •distribute in commerce, ' and 'distribution in commerce' have also been omitted. The deletions of the special provisions relating to exports which were included in the proposed rule now make these definitions identical to the ones appearing in TSCA." OTHER DOCUMENTS EPA Enforcement Facts and Strategy; Chlorofluorocarbons (CFCs). 15 November 1979 [released by Pesticides and Toxic Substances Enforcement Division]: "Any manufacturer, bulk distributor, bulk importer, or processor (filler) of chlorofluorocarbons is subject to ------- 42 the rule, as are importers and exporters of aerosol products." "There are five CFC manufacturers and approximately 800 aerosol fillers in the United States. . ." "Enforcement efforts will focus on accounting for CFCs purchased by fillers. The Agency will try to make sure that all CFCs purchased for aerosol propellant uses are being employed in exempt products, and that the exemp- tions given are not being abused. • •-,/„. "Inspections will be limited to those fillers currently buying CFCs. Violations by manufacturers and distributors can only occur if there are associated filling (processing) violations. . ." "There are approximately 800 aerosol fillers. ('Filler1 is the term used in the trade; 'processors' is the term used in the rule and in TSCA.) About one quarter of them have purchased CFCs since the ban or have provided manu- facturers with a certification. About half of all fillers are custom fillers, i.e., they fill for others under contract. Many fillers are small businesses." "Every person who processes fully halogenated chloro- fluoroalkanes for aerosol propellant uses subject to TSCA after December 15, 1978 must submit an annual report. A separate report must be submitted for each processing facility." ------- 43 "ASBESTOS" (BAN AND PHASE-OUT RULE) FINAL RULE [54 Fed.Reg. 29460, 29463 (12 July 1989)] "The rule's distribution in commerce ban does not cover all actions taken with respect to asbestos-containing products. For purposes of the rule, the term 'distribution in commerce1 does not cover end use activities, for example, sale, resale, holding, or delivery, with respect to asbestos products by persons who use the product after it is manufactured, imported, or processed. For example, the term 'distribution in commerce' does not include the resale of homes or motor vehicles that contain asbestos-containing parts or products or the installation of asbestos-containing brake pads in a person's automobile after the distribution in commerce of such brake pads is banned. (However, it is a violation of this rule for a person to engage in selling brake pads to anyone.) This provision also does not cover the disposal of asbestos-containing products." ... "For example, this rule's bans do not cover the manufacture, importation, processing and distribution in commerce of high-grade electrical paper, a product which may be similar in some cases to millboard or other asbestos paper products. Persons might try to manufacture or distribute the excluded products for uses that are banned. Such activities would violate this rule's bans because this conversion of use will be interpreted by EPA to be processing or distribution in commerce of the banned products. The defini- tions of processing and distribution in commerce are broad and will be interpreted by EPA to cover activities which involve the con- version of excluded asbestos-containing products in this manner." fNOTE; Elsewhere in the final Asbestos "Ban and Phase-Out Rule," processing is defined simply by reference to the TSCA Section 3 language, and no further examples are given.] EPA CORRESPONDENCE Letter from John W. Melone to David M. Wassum of the Institute of Scrap Recycling Industries, Inc., 23 February 1990: "This is in response to your letter of September 21, 1989 to John Rigby. In that letter, you requested confirmation that the impending bans on processing and distribution in commerce of designated asbestos-containing products do not apply to the collection, transfer, and processing of obsolete products for recycling. "You state that members of the Institute of Scrap ------- 44 Recycling Industries, Inc. (ISRI) process, prepare, and recycle various materials, such as ferrous and nonferrous metallic scrap, paper, glass, and plastics. They pre- dominantly handle metallic scrap in its various forms. Major sources of metallic scrap include obsolete consumer products such as automobiles and household appliances, as well as industrial and commercial machinery and equipment. Some of these items may contain asbestos. The scrap is baled, shredded, or sheared. "We conclude that the recycling of asbestos-containing material, as described in the letter, is not covered by the asbestos ban and phaseout rule (40 C.F.R. 763.160- .179). While the recycling of asbestos-containing products to recover metals or other materials is con- sidered processing, the products that result from that processing are scrap metal (or a similar scrap paper or plastic products) which will be available for reuse after further smelting or other processing and waste materials, such as "fluff", which will be disposed of. Scrap metal (or another scrap product) is not included within the ban. Thus, even though recycling is considered pro- cessing, the product being processed is not a banned product. "Further, the movement of a product subject to the rule (e.g. asbestos brakes or asbestos gaskets in an obsolete motor vehicle) to a recycling facility at any time would not violate the distribution in commerce ban. The definition of distribution in commerce in the rule 'does not include actions taken with respect to an asbestos- containing product (to sell, resell, deliver, or hold) in connection with the end use of the product by persons who are users (persons who use the product for its intended purpose after it is manufactured or processed).' Since recycling is not prohibited, the movement in commerce to recycling facilities would not be considered a violation of the distribution in commerce ban. Generally, the rule limits the introduction of new asbestos products into the chain of commerce, rather than reducing exposure from products already in commerce. "Note, if a person makes a product from scrap metal (or other scrap material) that results from recycling and that product meets the criteria of 'asbestos-containing product' as defined in the rule (i.e., contains more than one percent asbestos by weight or area, or contains any intentionally added asbestos), and is in a product category banned under the rule, then that product would be subject to the asbestos ban and phaseout provisions." ------- 45 Letter from John W. Melone to Marc L. Fleischeker of Arent, Fox, 15 March 1990: "The rule prohibits the importation into the United States of asbestos beater-add and sheet gaskets (except specialty industrial gaskets) for installation into export-bound engines or vehicles. While the rule does not prohibit the importation of 'products imported solely for shipment outside the customs territory of the United States, unless repackaging or processing of the product is performed in the United States,' the installation of imported gaskets in engines for export constitutes both 'repackaging1 and 'processing'." Letter from John W. Melone to Alex R. Cunningham of the State of California Department of Health Services, 29 March 1990: "EPA believes that processing for commercial purposes asbestos-containing material by vitrification, or other transformation processes, is 'new' withing the meaning of the rule. "The rule does not regulate disposal activities. Although the actions taken under this rule are based on lifecycle risks of asbestos products, the risk associated with various disposal methods was not addressed under this rule. With respect to the rule's distribution in commerce ban, the preamble states that this provision does not cover the disposal of asbestos-containing products. Under section 763.163, Definitions. •Distribution in Commerce1 does not include distribution by manufacturers, importers, and processors, and other persons solely for purposes of disposal of an asbestos- containing product. "Operations that transform asbestos-containing materials, as defined in 40 CFR 61.141, into nonasbestos material solely for disposal, (as an alternative disposal method under the asbestos NESHAP regulations), would be subject to the disposal requirements at 40 CFR 61.151 or 61.152, or any final standards revising the asbestos NESHAP under 40 CFR, part 61.155." Letter from John W. Melone to Lawrence G. Wylie of Omega Phase Transformations, Inc., 30 March 1990: "This responds to your request for clarification of the final Asbestos Ban and Phaseout Rule as it applies to vitrification processes which transform asbestos into asbestos-free material. You asked for an affirmation ------- 46 that the Asbestos Ban and Phaseout Rule is inapplicable to your asbestos vitrification and detoxification process. For the reasons discussed below, the Agency disagrees with your conclusion. "EPA is not aware of any firm that processed and sold glass made from asbestos-containing waste material before August 26, 1989. EPA therefore considers 'processing for commercial purposes' asbestos-containing material by vitrification as 'new' within the meaning of the rule. "The rule is not intended to cover asbestos disposal activities. While 'processing for disposal' is not addressed under section 763.167, Processing Prohibitions, the rule specifically excludes disposal from prohibitions against 'distribution in commerce1. Under the definition of 'Distribute in Commerce1 (section 763.163), the rule states that the term does not include distribution by manufacturers, importers, and processors, or other persons solely for purposes of disposal of an asbestos- containing product. Furthermore, the Agency did not address 'processing for disposal1 in the preamble to the rule, nor in other analyses supporting the rule. "Operations that transform asbestos into non-asbestos material solely for disposal, as an alternative to NESHAP regulations for traditional land dispersal, would be subject to any final standards adopted in connection with the proposed revision to the asbestos NESHAP under 40 CFR, part 61.155." Letter from John W. Melone to Steve Suber of EIS Brake Parts, 25 April 1990: "The rebuilder must dispose of old asbestos-containing brake shoes returned for rebuilding. Disassembly, or relining (including replacement , with non-asbestos material), of asbestos brakes is 'processing' within the meaning of the term under the Toxic Substance Control Act (TSCA). The term, 'process' means the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce, (a) in the same form or physi- cal state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (b) as part of an article containing the chemical substance or mixture (See TSCA section 3, Definitions.) Under the Asbestos Ban and Phaseout Rule, 'processing' will be prohibited as of the effective dates of the 'processing bans' noted above." ------- 47 Letter from John W. Melone to R. Scott Lang of Spilman, Thomas, Battle & Klostermeyer, 23 May 1990: "Asbestos-containing wire and cable is not addressed by the Asbestos Ban and Phaseout Rule (ABPO), and conse- quently, its manufacture and processing is not restricted per se by the Rule. However, the processing of certain materials into wire and cable will be banned." ------- 48 57 ("IMMINENT HAZARDS.") TSCA (THE ACT) According to §7 (a) of TSCA, the EPA Administrator may commence a civil action . . . "(B) for relief . . . against any person who . . . processes ... an imminently hazardous chemical substance or mixture or any article containing such a substance or mixture . . ------- 49 SB ("REPORTING AND RETENTION OF INFORMATION."! S8fa) ("REPORTS.") TSCA (THE ACT) According to TSCA §8(a)(l), the Administrator "shall promulgate rules under which - (A) each person (other than a small . . . processor) who . . . processes or proposes ... to process a chemical substance (other than a chemical substance described in subparagraph (B)(ii) shall maintain such records and shall submit to the Administrator such reports, as the Administrator may reasonably require, and (B) each person (other than a small . . . processor) who . . . processes or proposes ... to process (i) a mixture, or (ii) a chemical substance in small quantities (as defined by the Administrator by rule) solely for the purposes of scientific experimentation or analysis or chemical research on, or analysis of, such substance or another substance, including any such research or analysis for the development of a product, shall maintain records and submit to the Administrator reports but only to the extent that the Administrator determines the maintenance of records or submission of reports, or both, is necessary for the effective enforcement of this Act. The Administrator may not require in a rule promulgated under this paragraph the maintenance of records or the submission of reports with respect to changes in the proportions of the components of a mixture unless the Adminis- trator finds that maintenance of such records or the submission if such reports, or both, is necessary for the effective enforcement of this Act " According to §8(a)(2) of TSCA, "the Administrator may require under paragraph (1) maintenance of records and reporting with respect to the following insofar as known by the person making the report or insofar as [is] reasonably ascertainable: . . . "(C) The total amount of each such substance . processed, reasonable estimates of the total amount to be . . . processed, the amount . . . processed for each of its categories of use, and reasonable estimates of the amount to be•. . . processed for each of its categories of use or proposed categories of use. "(D) A description of the byproducts resulting from the . . . processing ... of each such substance or mixture. TSCA §8(a) (3) (A) (i) states that "The Administrator may by rule require a small . . . processor of a chemical substance to submit to the Administrator such information respecting the chemical substance as the Administrator may require for publication of the first list of chemical substances required by subsection (b) [(i.e., the initial TSCA Chemical Substances Inventory)]." ------- 50 TSCA §8(a)(3)(A)(ii) states that "The Administrator may by rule require a small . . . processor of a chemical substance or mixture . . . [subject to proposed and/or final rules promulgated under certain sections of TSCA or for which injunctive relief has been granted by civil action under sections 5 or 7 of TSCA] to maintain such records on such substances or mixture, and to submit to the Administrator such reports on such substance or mixture, as the Administrator may reasonably require " According to §8(a)(3)(B) of TSCA, "The [EPA] Administrator, after consultation with the Administrator of the Small Business Administration [(SBA)] shall by rule prescribe the standards for determining the . . . processors which qualify as Ismail . . . processors for the purposes of this paragraph and paragraph (1)." QUESTION AND ANSWER DOCUMENTS A July 25, 1986 "Question and Answer Summary" prepared by EPA following a June 10, 1986 Agency-sponsored seminar on the industry obligations under TSCA presents the following with regard to the term processor under §8(a) of TSCA: "Question: Are processors covered by section 8(a)? "ANSWER: Yes. Section 8(a) authorizes EPA to require reporting and recordkeeping by chemical manufacturers, importers, and/or processors. EPA establishes these requirements for specific chemical substances by means of specific regulatory actions (generally referred to as •rules'). Thus, processors are only subject to the requirements of a section 8(a) regulation if that rule expressly requires processors to report data and/or keep records. "Question; Is there a small business exemption for. . . processors of regulated chemicals under section 8(a)? "Answer; Generally, yes. Section 8(a) exempts small . . . processors from the requirements of section 8 (a) rules (with certain limited statutory exceptions). Note that TSCA authorizes EPA to establish the standards for defining small businesses for purposes of this section 8(a) exemption; the Agency must do so by rule "The Agency has defined 'small processor' on a rule-by- rule basis and intends to continue to do so for the foreseeable future. All . . . processors subject to section 8 (a) rules should check the small business exemption standards in those rules to determine and/or verify their exemption status." ------- 51 "CHEMICAL-SPECIFIC RULES" CODE OF FEDERAL REGULATIONS (CFR) Part 704 - Reporting and Recordkeeping Requirements Subpart A - Section 8(a) Information-Gathering Rules According to 40 CFR §704.3, the term "Article" is defined 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." 40 CFR §704.3 defines the term "Process" to mean "to process for commercial purposes." The term "to process for commercial purposes" is defined in 40 CFR §704.3 to mean "the preparation of a chemical substance or mixture after its manufacture for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical sub- stance or mixture is included in this definition. If a chemical substance or mixture containing impurities is processed for com- mercial purposes, then the impurities also are processed for commercial purposes." 40 CFR §704.3 also defines the term "Processor" to mean "any person who processes a chemical substance or mixture." Part 704 — Reporting and Recordkeeping Recruirments Subpart B - Chemical Specific Reporting/Recordkeepinq Rules HEXACHLORONORBORNADIENE (HEX-BCH) According to §704.102(a) ("Definitions."), a "Small business" means "any manufacturer, importer, or processor who meets either paragraph (a)(4)(i) or (ii) of this section: 11 (i) A business is small if its total annual sales, when combined with those of its parent (if any) , are less than $40 million. However, if the annual manufacture, importa- tion, or processing volume of a particular chemical substance at any individual site owned or controlled by the business is greater than 45,400 kilograms (1OO,OOO ------- 52 pounds), the business shall not qualify as small for purposes of reporting on the manufacture, importation, or processing of that chemical substance at that site, unless the business qualifies as small under paragraph (a)(4)(ii) of this section. "(ii) A business is small if its total annual sales, when combined with those of its parent company (if any), are less than $4 million, regardless of the quantity of the particular chemical substance manufactured, imported, or processed by that business. (iii) For imported and processed mixtures containing HEX-BCH, the 45,400 kilograms (100,000 pounds) standard in paragraph (a) (4)(i) of this section applies only to the amount of HEX-BCH in a mixture and not the other components of the mixture. According to 40 CFR §704.102(b) ("Persons who must report."), "Reports must be submitted by (1) : 11 (i) Persons who are manufacturing, importing, or pro- cessing HEX-BCH for use as an intermediate in the pro- duction or isodrin or endrin on or after January 2, 1986; and "(ii) Persons who propose to manufacture, import, or pro- cess HEX-BCH for use as an intermediate in the production of isodrin or endrin, on or after January 2, 1986." According to 40 CFR §704.102 (b) (2) , reports must also be submitted by "Persons described in paragraph (b)(1) of this section who engage or propose to engage in more than one ac€l'vity (i.e., manufacture and processing) must report the information required in paragraph (d) separately for each activity." 40 CFR §704.102(c) states that the following persons are exempt from reporting "(1). Small businesses." and "(2) Persons described in § 704.5(a) and (c)." HEXAFLUOROPROPYLENE OXIDE (HFPO) According to 40 CFR §704.104(a) ("Definitions."), an "Enclosed process" is "a process that is designed and operated so that there is no intentional release of any substance present in the process. A process with fugitive, inadvertent, or emergency pressure relief releases remains an enclosed process so long as measures are taken to prevent worker exposure to and environmental contamination from the releases." ------- 53 40 CFR §704.104(a) defines the term "Small processor" to mean a processor that meets either the standard in paragraph (a)(3)(i) of this section or the standard in paragraph (a) (3) (ii) of this section. "(i) First standard. A processor of a chemical substance is small if its total annual sales, when combined with those of its parent company, if any, are less than $40 million. However, if the annual processing volume of a particular chemical substance at any individual site owned or controlled by the processor is greater than 45,400 kilograms (100,000 pounds), the processor shall not qualify as small for purposes of reporting on the processing of that chemical substance at that site, unless the processor qualifies as small under paragraph (a)(3)(ii) of this section. "(ii) Second standard. A processor of a chemical substance is small if its total annual sales, when combined with those of its parent company (if any), are less than $4 million, regardless of the quantity of the particular chemical substance processed by that company. "(iii) Inflation index. EPA will use the Inflation Index described in the definition of 'small manufacturer1 that is set forth in § 704.3 for purposes of adjusting the total annual sales values of this small processor defini- tion. EPA will provide FEDERAL REGISTER notification when changing the total annual sales values of this definition." According to 40 CFR §704.104(b) ("Persons who must report.)/ "Except as provided in paragraph (c) of this section, the following persons are subject to this section: "(3) Persons who process or propose to process HFPO as an intermediate in the manufacture of fluorinated substances in an enclosed process." 40 CFR §704.104(c) ("Persons not subject to this rule.") states that the following persons are not subject to this rule: "(1) Small processors. "(2) Persons described in § 704.5 (a) through (d). "(3) Persons who have already submitted to EPA a completed copy of the Preliminary Assessment Information Manufacturer's Report (EPA Form 7710-35, as described at § 712.28 of this ------- 54 chapter) for HFPO, as required by § 712.30(d) of this chapter are not required to report under this section with respect to activities previously reported on." ------- 55 "CAIR" Part 704 — Reporting and Recordkeeping Requirements Subpart C - CAIR: Comprehensive Assessment Information Rule According to 40 CFR 204.203, "all definitions as set forth in section 3 of TSCA and §704.3 [(Subpart A - Definitions)] apply" to Subpart C. Also, 40 CFR 204.3 provides definitions for a number of additional process-related terms as follows. According to 40 CFR §704.203, the term "Processing activities" means "all those activities which include (1) preparation of a substance identified in Subpart D of this Part after its manufac- ture to make another substance for sale or use, (2) repackaging of the identified substance, or (3) purchasing and preparing the identified substance for use or distribution in commerce." 40 CFR §704.203 defines a "Repackager" to be "a person who buys a substance identified in Subpart D of this Part or mixture, removes the substance or mixture from the container in which it was bought, and transfers this substance, as is, to another container for sale." Finally, 40 CFR §704.203 states that a "Small processor" means "a processor that meets either of the following standards: "(1) First Standard. A processor of a substance is small if its total annual sales, when combined with those of its parent company (if any), are less than $40 million. However, if the annual processing volume of a particular substance at any individual site owned or controlled by the processor is greater than 45,000 kilograms (100,000 pounds), the processor shall not qualify as small for purposes of reporting on that substance at that site, unless the processor qualifies as small under standard (2) of this definition. "(2) Second Standard. A processor of a substance is small if its total annual sales, when combined with those of its parent company (if any) , are less than $4 million, regardless of the quantity of substances processed by that processor." FINAL RULES CAIR FINAL RULE PREAMBLE (53 FR 51698; December 22. 1988) The preamble to the final TSCA §8(a) CAIR rule states that ". . . under the CAIR, all of the steps involved in making a CAIR listed substance, including adding stabilizers and additives, which ------- 56 are necessary to get the substance "out the door" or ready for use, are considered part of manufacturing." CAIR FORM INSTRUCTIONS - PART 5; GLOSSARY Part 5 ("Glossary) of the publicly available TSCA §8(a) "CAIR FORM" provides the following process-related definitions: "Article producer; A processor who processes the listed substance with another substance to form an article for subsequent distribution in commerce or for use on-site. The listed substance may or may not be chemically altered or consumed in this process. For example, Company A buys chemical Y, a plastic additive, and mixes it with: molten plastic to form plastic parts."* "Chemical producer: A processor who processes the listed subatance as a raw material or as an intermediate in the manufacture of other substances for subsequent distribu- tion in commerce or for use on-site. The listed substance is chemically altered or otherwise consumed during this operation. For example, Company a buys Chemical X, which is reacted with Chemical Y to manufacture Chemical Z." "Commercial distribution or Distribution in commerce; The sale of the listed substance, mixture or article in commerce; the introduction or delivery of the listed substance, mixture, or article into commerce; or the holding of the listed substance, mixture, or article after its introduction into commerce. This term includes test marketing the listed substance." "End users; An individual or organization that uses or consumes a chemical substance, mixture, or article with no further intentions of manufacturing or processing the substance, mixture, or article. Includes consumers and commercial, industrial and retail users." "Mixture producer; A processor who processes the listed substance with another substance or mixture to produce a mixture for subsequent distribution in commerce or for use on-site. The listed substance or mixture is not con- sumed or chemically altered during this operation. For example, Company A buys Chemical X, which is a pigment, and adds this to a paint base to color the paint." "Process: To process for commercial purposes." "Process for commercial purposes; The preparation of a chemical substance or mixture after its manufacture for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the ------- 57 processor. Processing of any amount of a chemical substance or mixture is included in this definition. If a chemical substance or mixture containing impurities is processed for commercial purposes, then the impurities are also processed for commercial purposes." "Processor: Any person who processes a chemical substance or mixture." QUESTION AND ANSWER DOCUMENTS Comprehensive Assessment Information Rule QUESTION AND ANSWER DOCUMENT December, 1988 Q16. I am confused as to how to report concerning my manufacturing and processing activities. If I both manufacture and process a CAIR listed substance at the same plant site, how do I determine when my manufacturing process type ends, and my processing process type begins? A16. EPA has developed some general guidelines to assist respondents in this determination. It is important to examine all manufacturing and processing activities together to determine how these activities should be reported^ However>~ each plant site must report for its activities oiigje::separate CAIR form. Note that unit operations need not be in the same vicinity of the plant site to be considered part of the same process type. For all of the guidelines given below, assume "X" is the CAIR listed substance. Manufacturing: (1) Manufacture of a CAIR listed substance from raw materials: Raw Materials X ------- 58 (2) Purification of a CAIR listed substances: X10% or Raw Material X/Y i or Y If both "X" and "Y" are CAIR listed substances, respondent must list the process type twice, once for each CAIR listed substance, on separate reporting forms. A person would include as part of his manufacturing process type all steps that lead up to the production of a final product for distribution in commerce. This includes those steps that might be considered processing steps if such steps are necessary "to make [the final product] ready for sale or use." For example, a CAIR listed substance may not be ready for sale or use until the required additives or stabilizers have been added, or the final product has been loaded or packaged into salable containers. Processing: (1) Addition of additives or stabilizers to a CAIR listed substance: X/additives or stabilizers (2) Processing a CAIR listed substance to manufacture a new substance (article or chemical producer): X Y (which contains no X) If both "X" and "Y" are CAIR listed substances, the respondent must report as both a processor of "X" and as a manufacturer of "Y." (3) Processing a CAIR listed substance to manufacture a mixture (mixture producer): X Y Mixture X/Y A person who dilutes a CAIR listed substance with a solvent is also classified as a mixture producer. ------- 59 The following steps are a guide to determine whether a person is a manufacturer or a processor: (1) Do you purchase raw materials and manufacture final products that contain a CAIR listed substance? o If yes, you are a manufacturer of all final products that are produced using that process type. o If no, go to (2). (2) Do you import a CAIR listed substance from outside the territorial United States? o If yes, you are a manufacturer of both the imported CAIR listed substance and all final products that are produced using the imported CAIR listed substance as a raw material. o If no, go to (3) . (3) Do you purchase a CAIR listed substance from a domestic supplier and purify the CAIR listed substance to a higher grade of purity? o If yes, you are a manufacturer of the higher purity grade CAIR listed substance, and all final products that are produced using the higher purity grade CAIR listed substance. o If no, go to (4). (4) Do you purchase a raw material that contains a CAIR listed substance from a domestic supplier and "purify" the CAIR listed substance by separating out the CAIR listed substance from the raw material? o If yes, you are a manufacturer of the CAIR listed substance that was separated out from the raw material, and all final products that are produced using the separated out CAIR listed substance. o If no, go to (5). (5) If you purchase a CAIR listed substance from a domestic supplier, do not fall within any of the above guidelines, and use the CAIR listed substance in a process type (i.e., not as an end user); o You are a processor of the CAIR listed substance. ------- 60 (6) If you have a process type that does not fit within any of the guidelines set forth above, contact the TSCA Assistance Office at (202) 554-1404 for further assistance. Q17. We buy chemical X (a CAIR listed substance) as a raw material from a supplier at 80% purity. We purify this raw material to make 90% pure Chemical X, and then sell it to our customers. Since we do not actually "manufacture" any more Chemical X than we buy, must we report as a manufacturer of Chemical X? A17. Yes. "Manufacture" of a substance includes, by definition, the purification of that substance (40 CFR sec. 704.3). Q18. Once we have produced a CAIR listed substance, we add stabilizers to make the final product ready for shipment. Does the addition of these stabilizers constitute processing or manufacturing? A18. If the company manufactures a CAIR listed substance from raw materials and adds additives or stabilizers to aid in the transportation of the final product, the addition of additives or stabilizers contributes to making the final product ready for sale or use. Therefore, this activity is considered manufacturing, not processing. If, however, a company purchases a CAIR listed substance from a domestic supplier and adds additives or stabilizers to make a new final product for a new end use, this would be considered processing. Q19. In the process of manufacturing Chemical X, we manufacture a small quantity of Chemical Y (a CAIR listed substance) . Prior to selling Chemical X, we distill out Chemical Y and burn it in our plant boiler to heat our plant. Do we have to report? A19. Yes. In the process of manufacturing Chemical X, the company has manufactured Chemical Y (a CAIR listed substance). Because the company utilizes Chemical Y for a commercial purpose (as a fuel in a boiler to generate heat or energy). Q65. I manufacture a process stream which contains varying amounts of X, Y and Z. As far as I know, the only commercially feasible method for producing X, Y or Z is to fractionate the stream I produce. If I sell, process or use the original stream (Mixture X/Y/Z) as is, how do I report? If I fractionate part of Mixture X/Y/Z into X, Y and Z, what is the status of Mixture X/Y/Z under the CAIR? A65. The process type described in the question can be diagrammed as follows (assuming X is the CAIR listed substance): ------- 61 Raw Materials #1 Mixture X/Y/Z #2 X Y Z Sale to Customers The manufacturing process type in this example results in four product types: Mixture X/Y/Z, X, Y, and Z. Unit operation #2 is part of the manufacturing process type because it results in a final product ("X") which contains the CAIR listed substance. Although Mixture X/Y/Z is an intermediate in the manufacture of X, it is also a final product since it is distributed in commerce to customers. If the respondent manufactures only Mixture X/Y/Z (i.e., the manufacturing process type does not include unit operation #2) and uses (i.e., consumes) all of this manufactured mixture on site, the respondent must still report under the CAIR, since the use of Mixture X/Y/Z on site provides an "immediate commercial advantage" to the respondent. Note that if both "X" and "Y" are CAIR listed substances, respondent would report the same process type for both final products, each on its own form. Assume that the respondent processes CAIR listed substance "X" into Mixture X/Y/Z instead of manufacturing Mixture X/Y/Z from raw materials (i.e., the respondent is a mixture producer). If the respondent uses or consumes all of this processed material on site, the respondent need not report under the CAIR. This is because only those processors who process a CAIR listed substance "for distribution in commerce" must report under the CAIR. ------- 62 Comprehensive Assessment Information Rule QUESTION AND ANSWER DOCUMENT March, 1989 MANUFACTURING/PROCESSING SCENARIOS ' [Assume "Z" is the CAIR Listed Substance] Following is a list of scenarios that describe whether a person is a manufacturer or processor under the Comprehensive Assessment Information Rule (CAIR). Note first that there is a difference in the requirements that a person must meet to be a "manufacturer" versus a "processor" under the CAIR. To qualify as a manufacturer, a person must gain a commercial benefit from the production of the CAIR listed substance, but need not distribute the CAIR listed substance in commerce. A processor, however, must distribute in commerce either the CAIR listed substance or another substance produced using the CAIR listed substance as a reactant (a chemical producer). Therefore, if a company "uses" 100% of his processing capacity on- site as a final product or as an end-use product, that person is not a processor. "Use" of a CAIR listed substance as a reactant or as a chemical intermediate to manufacture a completely different substance which is distributed in commerce, however, is considered processing of a CAIR listed substance (chemical producer). 1. Company A reacts X with Y to make Z. Z is sold. o Company A must report as a manufacturer of Z. 2. Company A reacts X with Y to make Z. Z is used on site. o Company A must report as a manufacturer of Z. 3. Company A reacts X with Y to make Z. Z is "sold" to another plant site owned or operated by Company A. o Company A must report as a manufacturer of Z. The second plant site is the "customer" of the first plant site. 'This Question and Answer document supplements the following CAIR Question and Answer documents: December, 1988. ------- 63 4. Company A reacts X with Y to make Z. Company A sends the z to Company B, who adds additives and stabilizers under a service agreement with Company A. Company B returns 100% of the Z to Company A, who distributes the Z in commerce. o Company A must report as a manufacturer of Z. o Company B is a service manufacturer of Z, even though the addition of additives and stabilizers is technically processing. o As a service manufacturer of Z, Company B is not required to report. Company A must report for both its activities, as well as Company B's activities. Note that for convenience, Company B may report on behalf of Company A, but Company A is still liable for any errors in reporting made by Company B. o Rationale: Since Company A manufactures Z, Company B's activities under a service agreement become an integral part of Company A's manufacturing process type, and therefore must be reported as such. 5. Same as Number 4, except Company B returns only part of the Z to Company A, and distributes the remainder in commerce under Company A's label. o Company A must report as a manufacturer of Z. o Company B is still a service manufacturer of Z, since Company B's activities are still an integral part of Company A's manufacturing process type. Distributing Z in commerce under Company A's label is considered part of the service agreement between Company A and Company B. o As a service manufacturer of Z, Company B is not required to report. Company A must report for both its activities, as well as Company B's activities. Note that for convenience, Company B may report on behalf of Company A, but Company A is still liable for any errors in reporting made by Company B. 6. Same as Number 4, except Company B returns only part of the Z to Company A, and distributes the remainder in commerce under its own (Company B's) label. o Company A must report as a manufacturer of Z. o Company B must report as a processor of the Z that is distributed in commerce under its own label. ------- 64 o Company B is still a service manufacturer for the Z that Company B processes under the service agreement with Company A. This is because these activities are still an integral part of Company A's manufacturing process type. o Company B is not required to report on its activities that fall under the service agreement with Company A. Company A must report for both its activities, as well as that portion of Company B's activities that fall under the service agreement. Note that for convenience, Company B may report on behalf of Company A for that portion of Company B's activities that fall under the service agreement, but Company A is still liable for any errors in reporting made by Company B. 7. Same as Number 4, except Company B also purchases Z from Company C; i.e., Company B adds additives and stabilizers to the Z received from Company A under a service agreement, and processes the Z it purchases from Company C. Company B distributes only the Z it purchases from Company C in commerce under its own (Company B's) label. o Company A must report as a manufacturer of Z. o Company B must report as a processor of the Z purchased from Company C. o Company B is still a service manufacturer for the Z that Company B processes under the service agreement with Company A. This is because these activities are still an integral part of Company A's manufacturing process type. o Company B is not required to report on its activities that fall under the service agreement with Company A. Company A must report for both its activities, as well as that portion of Company B's activities that fall under the service agreement. Note that for convenience, Company B may report on behalf of Company A for that portion of Company B's activities that fall under the service agreement, but Company A is still liable for any errors in reporting made by Company B. 8. Company A purchases Z only from Company C (Company C is a manufacturer of Z) . Company C ships the Z directly to Company B, who adds additives and stabilizers under a service agreement with Company A. Company B sends the Z either to Company A, who processes the Z, or directly to Company A's customers under Company A's label. o Company C must report as a manufacturer of Z. ------- 65 o Company B must report as a processor of Z. The service agreement between Company B and Company A does not make Company B a service manufacturer of Z in this instance, since Company B's activities are not an integral part of Company A's manufacturing process type. This is because Company A does not manufacture Z. o Company A must report only on its processing activities. If Company B does not ship any Z to Company A, Company A is not required to report. 9. Company A contracts with Company B to have Company B manufacture Z for Company A. Company B does not distribute Z to anyone except Company A under the contract. Company A processes Z and distributes the final product in commerce. o Company B must report as a manufacturer of Z (a toll manufacturer), since Company B actually manufactures the Z. This scenario differs from Number 4, where Company B operates under a service agreement with Company A. As a toll manufacturer of Z, Company B operates under a sales contract to manufacture and sell Z to Company A. o Company A must report only on its processing activities. 10. Same as Number 9, except Company B sends only part of the Z it manufactures to Company A. Company B also distributes Z in commerce under its own (Company B's) label. o Company B must report as a manufacturer of Z. o Company A must report only on its processing activities. 11. Company A reacts X with Y to make Z. Part of the Z is sold, and part continues on in the process type. During the continuation, additives are added to Z to make Zl. Z, is sold. This process type is described by the following diagram: Step #1 Step #2 X + Y > Z > Chemical Z, for #11 j (Chemical D for #12) i Sale to Customers o Step i: Manufacturing. o Step 2: Manufacturing, even though the addition of additives is technically processing. ------- 66 o Rationale: Both Z and Zt are final products that contain a CAIR listed substance (Z) , and are manufactured using the same raw materials (X & Y) at the same site. Step #2 is therefore a continuation, or extension, of Step #1. This is an example of the manufacture of two different "grades" of a final product containing the same CAIR listed substance. o Company A must report as a manufacturer of Z, and include both Step #1 and Step #2 as part of its manufacturing process type. 12. Same as Number 11, except the Z that is not sold is reacted with Chemical W to make D. D does not contain Z (except as an impurity). D is sold. o Step 1: Manufacturing up to Step #2 (i.e., up to the manufacture of Z). o Step 2: Processing. Step #2 is not part of Company A's manufacturing process type since D does not contain Z. o Company A must report as a manufacturer of Z and as a processor of Z (i.e., a manufacturer of D) on the same CAIR reporting form. 13. Company A manufactures Z only as a waste and disposes it on site. o Company A is a manufacturer of a "byproduct," and is therefore exempt from reporting. 14. Same as Number 13, except Company A sells the waste to another company that uses the waste as a final product. o Company A must report as a manufacturer of a "coproduct" that contains Z. 15. Same as Number 13, except Company A burns the waste in a boiler on site to generate heat for the plant. o Company A must report as a manufacturer of a "coproduct." Company A "uses" the waste for a commercial purpose (and therefore obtains a commercial benefit) when it burns the waste in its boiler to generate heat. 16. Company A purchases Z in a solution, and uses Z as a solvent (or a catalyst) in the manufacture of Chemical D. D is eventually extracted out and sold. Company A recycles the Z and reuses it in the manufacture of D. ------- 67 o Company A is an end-user since Company A J'uses" Z as a final product. Company A is therefore not required to report. 17. Company A purchases Z and processes Z by mixing it with a pigment to manufacture an ink, Mixture I,. I, is sold. o Company A must report as a processor of Z (mixture producer). Company A must report since the final product (Ii) is distributed in commerce. 18. Same as Number 17, except that, once I, is produced, Company A further processes. I, on site to print plastic bags which are sold. o Company A must report as a processor of Z (article producer). This is because I, is distributed in commerce as a component part of an article (the plastic bags). o Note that if the Z is removed from It before the printed plastic bags are distributed in commerce (e.g., Z vaporizes off when II is applied to the bags) , Company A would be an end-user of Z, since neither Z nor a final product produced utilizing Z as a reactant is distributed in commerce. 19. Same as Number 18, but extended to Company A's customer, Company B. Company B buys the plastic bags from Company A and further processes the plastic bags before distributing them further in commerce. Must Company B report as a processor of Z? o Company B purchases Z as part of an article (plastic bags), and therefore is exempt from reporting. 20. Same as Number 17, except Company A buys It and processes I, on site to print plastic bags which are sold. Company A buys I, as either "I^" "Ink," or "Z." o Company A must report as a processor of Z (article producet). This is because II is distributed in commerce as a component part of an article (the plastic bags). o Note that if the Z is removed from It before the printed plastic bags are distributed in commerce (e.g., Z vaporizes off when I, is applied to the bags) , Company A would be an end-user of Z, since neither Z nor a final product produced utilizing Z as a reactant is distributed in commerce. ------- 68 21. Same as Number 20, except Company A uses the I1 it purchases on site to print newsletters which are not sold. o Company A is an end-user since Company A "uses" It as a final product. Company A is therefore not required to report. 22. Company A purchases Z and processes Z by reacting it with Y to make Chemical D. D does not contain Z (except as an impurity) . D is sold. o Company A must report as a processor of Z (chemical producer) . Company A must report since the final product (D) is distributed in commerce. 23. Same as Number 22, except D is used 100% on site as a final product (i.e., in an end-use capacity). o Company A is not a processor of Z since D is not distributed in commerce. 24. Company A purchases Z and processes Z by reacting it with Y to make Chemical D. D does not contain Z (except as an impurity) . D is not sold, but is processed on site by reacting D with E to make Chemical F. F is sold. This process type is described by the following diagram: Step #1 Step #2 z + Y ---------- > D + E ---------- > F o In those instances in which Company A can be classified as both a chemical producer and some other type of processor, that Company A must engage in a 2 -stage analysis: o Stage 1: Company A must first determine whether any final product manufactured using Z as a-reactant is distributed in commerce. If no, Company A is not required to report. If yes, Company A must proceed to stage 2 . o Stage 2: Since a final product that was manufactured using Z as a reactant is distributed in commerce, Company A must report as a processor of Z. Company A would report on the process type up to the point that Z no longer exists. o A CAIR listed substance no longer exists when it cannot be identified by its CAS Number, or it exists in the process stream or final product only as an impurity. ------- 69 o In this instance, Company A would only report as a processor of Z through Step #1. If Z exists (other than as an impurity) until D reacts with E to manufacture F, Company A would report as a processor of Z through both Step #1 and Step #2. 25. Same as Number 24, except that only a portion of the manufactured D is processed on site. The other portion is sold. o Company A must still report as a processor of Z (chemical producer). o If Z ceases to exist during Step #1, Company A must report as a processor of Z only through Step #1. If Z exists (other than as an impurity) until D reacts with E to manufacture F, Company A would report as a processor of Z through both Step #1 and Step #2. 26. Company A uses a spray nozzle to paint cars which are distributed in commerce. The spray nozzle "processes" two streams to "manufacture" a paint, Chemical P,. One stream contains Z and the other contains a pigment. These two streams are processed by combining the two streams from two separate hoses as they pass through the spray nozzle. The two streams react on contact to create P,. P, does not contain Z. o Because Company A is both a chemical producer and an article producer, Company A must utilize the 2-stage analysis set forth in Number 24. o Stage 1: Company A must first determine whether any final product manufactured using Z as a reactant is distributed in commerce. In this instance, Company A manufactures P,, which is distributed in commerce as a component part of an article (the painted automobiles). Therefore, Company A must proceed to stage 2 of the analysis. o Stage 2: Company A must report up to the point that Z no longer exists. In this instance, Company A must report as a processor of Z only up through the production of Chemical P,. This is because Z does not exist in P,. 27. Company A operates a two-step process type. In Step #1, Company A purchases Z and reacts Z with Y to make D. D contains Z, but not as an impurity. Part of the D that is manufactured is sold, and part continues onto Step #2, in which the D is further processed into articles. This process type is described by the following diagram: ------- 72 o Gasoline is a chemical substance under the TSCA Inventory, and is not listed on the CAIR. Therefore, Company A is not required to report under the CAIR. A*******************************: Comprehensive Assessment Information Rule QUESTION AND ANSWER DOCUMENT June, 1989 Q8. Company A purchases a CAIR listed substance, repackages it, and distributes it in commerce. Before distributing the CAIR listed substance in commerce, Company A samples the CAIR listed substance to determine whether it meets Company A's customer's required purity specifications. If not, the CAIR listed substance is not distributed. Does Company A still qualify as solely a repackager? A8. Yes. Testing for purity is not classified as processing. Therefore, Company A still qualifies as solely a repackager, and is exempt from reporting under the CAIR. Q22. What is the difference between the term "end-use" and the term "consumed on-site?" A22. The term "consumed on-site" is misleading and should never be used. A person should focus on whether a CAIR listed substance is used on-site in its end-use capacity (i.e., as an end-use) . If it is not, that person is a processor. The term "consumed on-site" was intended in the December. 1988 CAIR Question and Answer document to mean "use on-site in its end- use capacity." Some chemical processors incorrectly defined the term "consumed on-site" to mean "use of a CAIR listed substance as a raw material in a "processing" process type in which the CAIR listed substance is totally reacted (i.e., as a chemical producer)." This definition is incorrect. "Chemical producers" are classified as processors, and are therefore required to report under the CAIR. Q24. Company A uses a CAIR listed substance to manufacture a polyurethane foam that does not contain a CAIR listed substance except as an impurity. Must Company A report as a processor under the CAIR? ------- 73 A24. Yes. Company A is classified as a processor (chemical producer). Q25. Company A processes a CAIR listed substance to produce a final product that does not contain the CAIR listed substance using a 2-step "processing" process type. The process type consists of two batch reactors operated in sequence. The CAIR listed substance is completely reacted in the first reactor. Must Company A report on both steps of the process type or just the first step? A25. Company A's "processing" process type can be diagramed as follows: Raw |_ Step Materials ! # 1 No listed substance Step # 2 Final "Product Since the CAIR listed substance is completely reacted during Step #1, Company A is only required to report on Step #1 (i.e., up to the point that the CAIR listed substance ceases to exist except as an impurity). Q26. Company A purchases a CAIR listed substance and processes it to manufacture polyurethane. In the process type, Company A recaptures that portion of the CAIR listed substance that is unreacted and sells it as a final product. How should Company A report under the CAIR? A26. Company A processes a CAIR listed substance in a single process type to manufacture a final product (the polyurethane) and a coproduct (the unreacted CAIR listed substance). Company A should report for both of these final products on the same reporting form. Q27. Company A uses a CAIR listed substance as an initiator to start a chemical reaction. This is the only purpose of the CAIR listed substance. The CAIR listed substance is not a component of the final product other than as an impurity. Must Company A report as a processor under the CAIR? A27. No. Use of a CAIR listed substance as an initiator of a chemical reaction is considered an end-use. Therefore, Company A is not required to report under the CAIR. Q28. Company A manufactures a polymer final product. In the process type, Company A uses a CAIR listed substance as a chain terminator to limit the length of the polymer chain in the final product to a predetermined length. Must Company A report as a processor under the CAIR? ------- 74 A28. Yes. Company A is classified as a processor since use of a CAIR listed substance as a chain terminator is a necessary step in the manufacture of the polymer final product, and has a direct effect on the types of end-uses the final product can be used for. Q29. Company A purchases a CAIR listed substance and places it in a hopper above a reactor. The CAIR listed substance is used as a reaction terminator designed to stop the reaction if the reactor goes out of control. Must Company A report as a processor under the CAIR? A29. No. Use of a CAIR listed substance as a reaction terminator is not a necessary step in the manufacture of a final product. Therefore, Company A is classified as an end-user, and is not required to report under the CAIR. Q30. Company A purchases a paint which contains a CAIR listed substance and uses it to stencil Company A's logo on the side of galvanized metal bins which Company A distributes in commerce. Must Company A report as a processor under the CAIR? A30. Analysis of this question requires a three step analysis: (1) If a CAIR listed substance remains in the paint when the metal bin is distributed in commerce, Company A is a processor (article producer) and is required to report under the CAIR. (2) If a CAIR listed substance reacts or polymerizes after it is applied to the metal bins so that the paint no longer contains the CAIR listed substance when the metal bin is distributed in commerce, Company A is still a processor (an article producer and a chemical producer) and is required to report under the CAIR. (3) If, however, a CAIR listed substance evaporates when it is applied, Company A is an end-user of the CAIR listed substance and is not required to report under the CAIR. Q31. Company A is a paint contractor who paints industrial equipment on its customer's facilities using paint that contains a CAIR listed substance. Must Company A report as a processor under the CAIR? A3l. No. Company A is not distributing the equipment that it paints in commerce. Rather, Company A is selling its services, not the paint which contains a CAIR listed substance. Therefore, Company A is an end-user and is not required to report under the CAIR. ------- 75 Q32. Company A uses a CAIR listed substance in its quality control lab as an analytical reagent. The CAIR listed substance is not included in or handled by Company A's process type, nor is the CAIR listed substance in Company A's final product. Must Company A report as a processor under the CAIR? A32. No. Use of a CAIR listed substance in a quality control lab as an analytical reagent is classified as an end-use. Therefore, Company A is not required to report under the CAIR. ------- 76 CORRESPONDENCE Chemical Manufactures Association December 22, 1988 Barbara Ostrow Section Chief Chemical Assessment Rule Section Chemical Screening Branch Office of Toxic Substances 401 M Street, S.W. Room 447 - East Tower Washington, D.C. 20460 Re: Clarification of CAIR Requirements Dear Ms. Ostrow: As you are aware, the Chemical Manufacturers Association (CMA) has a continuing interest in the Comprehensive Assessment Information Rule (CAIR). Consequently, CMA and its member companies have been closely examining the prepublication draft of the CAIR which you provided to us. Two questions have been raised by some CMA members about the scope of CAIR reporting requirements. Because of the practical importance of these issues, we are requesting that EPA address them as soon as possible. Definition of "Processing" Activities The CAIR requires "processors" to report on certain chemicals covered by the Rule. In such cases, respondents must complete the portions of the CAIR form which seek information about "processing activities." Section 3(10) of TSCA defines "process" [as] "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce— (A) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (B) as part of an article containing the chemical substance or mixture." 15 U.S.C., Section 2602(10) (emphasis added). Under this definition, the key attribute of "processing" is "preparation" of a substance, either in its original or an altered state, for distribution in commerce. ------- 77 At 40 C.F.R., Section 704.3, the CAIR provides a defini- tion of "process for commercial purposes" which closely parallels the statutory definiiton. However, 40 C.F.R., Section 704.203 than defines "processing activities" in terms that seem broader than the definition of "process": "All those activities which include (1) preparation of a substance identified in Subpart D of this Part after its manufacture to make another substance for sale or use. (2) repackaging of the identified substance, or (3) purchasing and preparing the identified substance for use or distribution in commerce." This definition suggests that persons who prepare a substance for use, rather than for distribution in commerce, would be engaged in "processing activities" and therefore must report undr CAIR. For example, if a company uses a CAIR chemical to clean equipment or as an unreacted catalyst, these activities would seen to trigger CAIR reporting requirements. In the past, CMA members have assumed that chemicals which-are consumed during their operations, but are not themselves offered for sale or converted into other products that are offered for sale, are outside the TSCA definition of "processing." Because the CAIR seem to embody a different approach, EPA should clarify the type of activities that will trigger processor reporting requirements. Specifically, EPA should explain whether use activi- ties that do not involve distribution in commerce are subject to reporting. EPA should also address whether the term "process" and "processing1 activities" are intended to have different meanings and, if so, how these term function in the CAIR reporting scheme. Reporting on Toluene Diisocvanate (TDI1 The CAIR requires reporting on four different versions of toluene diisocyuate (TDI). The four listed substances are: Cas Number Chemical Name 91-08-7 Benzene, l-3-diisocyanato-2-methyl- (2,6-Toluene diisocyanate) 584-84-9 Benezene, 2,4-diisocyanato-l-methyl- (2,4,-Toluene diisocyanate) 1321-38-6 Benezene, diisocyanatemethyl- (unspecific toluene diisocyanate) 26471-62-5 Benezene, l-3-diisocyanatomethyl- (2,4-2,6-Toluene diisocyanate) ------- 78 Typically, TDI is sold and processed as an 80/20 percent mixture of the 2,4 and 2,6 isomers. This blend falls within CAS No. 26471-62-5. According to the TDI producers, 2,4-TDI is occassionally sold separately as a commercial product, but 2,4-TDI and unspecific TDI are not available as items of commerce. As EPA's Rule is now framed, it is theoretically possible that manufacturers and processors of the mixed isomer blend would have to submit four different reports—one for the mixture of 2,4 and 2,6 isomers, one for each individual isomers and a fourth report for the unspecific TDI. The preparation of such multiple reports would impose significantly increased burdens on TDI manufactures and processors without yielding any additional information of value to EPA. A more efficient approach would be for manufacturers and processors of the mixed isomer product to report once, under Gas No. 26471-62-5. Reporting under the other CAS numbers would be unnecessary unless a firm manufactures or processes 2,4-TDI as a separate product. In this event, reports would be submitted under Gas No. 584-84-9. Repots for the other two listed substances would not be required because they are both available as commercially discrete products. We ask that EPA confirm the above interpretation of CAIR as it applies to TDI products as soon as possible. Please call Tim O'Leary of my staff at 202/887-1278 concerning this matter. Sincerely yours, Geraldine V. Cox Vice President-Technical Director CC: Richard Sigman Environmental Protection Agency ------- 79 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 Jan 18, 1989 Geraldine V. Cox Vice President-Technical Director Chemical Manufacturers Association 2501 M Street, NW. Washington, DC 20037 Dear Dr. Cox, This letter is in response to your inquiry of December 22, 1988, which outlined two concerns raised by your member companies relating to the Comprehensive Assessment Information Rule (CAIR). The first concern relates to the difference between the definitions "processing activities" and "process for commercial purposes," and which of these definitions should be used to deter- mine whether a person is a "processor" under CAIR. Specifically, your member companies wish to know whether the preparation of a substance identified in the CAIR "for sale or use" under the definition of "processing activities," or the preparation of a chemical substance "for distribution in commerce" under the definition of "process for commercial purposes" should be used to determine whether a person is a processor under the CAIR. A person is a processor under the CAIR if he prepares a CAIR listed substance "for distribution in commerce." The CAIR reporting form uses the term "process" in its questions. This term is defined in the glossary of the CAIR reporting form Instructions as "process for commercial purposes." The CAIR reporting form does not use the term "processing activities." The term "processing activities" is used to describe when a final product is "prepared" for distribu- tion in commerce. For example, a substance is not prepared for distribution in commerce until it is ready for "sale or use." If a substance is completely consumed on site (i.e., not prepared for distribution in commerce), then the person processing that sub- stance need not report under the CAIR. Note that a manufacturer or importer who completely consumes a CAIR listed substance on site must report under the CAIR, since that person manufactures a CAIR listed substance "for an immediate or eventual commercial advantage." This distinction is outlined in the CAIR Question and Answer document, which will be mailed out with the CAIR reporting form and Instructions. The second concern raised by your member companies relates to three of the four CAS Numbers of toluene diisocyanate (TDI) listed in the CAIR. Specifically, how should a respondent report if he ------- 80 manufactures, imports, or processes a blend of the 2,4 isomer (CAS No. 91-08-7) and 2,6 isomer (CAS No. 584-84-9), since this blend is identified as CAS No. 26471-62-5, and is also a CAIR listed substance. CAS No. 26471-62-5 is classified in the TSCA Inventory as a chemical substance that is composed of varying concentrations of CAS Nos. 91-08-7 and 584-84-9. Therefore, if a person manufactures, imports or processes CAS No. 26471-62-5, that person would report for CAS No. 26471-62-5. If, however, a person manufactures, imports or processes either CAS No. 91-08-7 or CAS No. 584-84-9 by itself, that person would report as a manufacturer, importer or processor of that particular CAS Number. This response is also outlined in the CAIR Question and Answer document. I hope that this response satisfies your member companies' concerns. If you have any further questions, feel free to contact my office. Sincerely yours, Joseph J. Merenda, Director Existing Chemical Assessment Division ------- 81 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 Mar 14, 1989 Geraldine V. Cox Vice President-Technical Director Chemical Manufacturers Association 2501 M Street, NW. Washington, DC 20037 Dear Dr. Cox, On December 22, 1988, the Chemical Manufacturers Association (CMA) sent a written request to the Environmental Protection Agency (EPA) (enclosed) asking EPA to clarify two questions raised by some CMA members about the Comprehensive Assessment Information Rule (CAIR) . EPA responded to this request on January 18, 1989 (enclosed). One response given by EPA, however, was misinterpreted by some CMA members. CMA members requested during a meeting with EPA staff members on February 7, 1989, that EPA clarify its use of the phrase "consumed on site," as it is used in EPA's January 18 response letter. This letter is in response to that request. In the third paragraph of its response letter, EPA stated that "[ijf a substance is completely consumed on site (i.e., not prepared for distribution in commerce), then the person processing that substance need not report under the CAIR." CMA members interpreted the phrase "consumed on site" to include the consumption of a CAIR listed substance as a raw material in the production of a completely different chemical substance (i.e., one that doesn't contain the CAIR listed substance) via a chemical reaction. This interpretation is incorrect. Under the CAIR, this type of activity is considered processing under the "chemical producer" guidelines set forth in question number 16 of the December, 1988 CAIR Question and Answer Document. The phrase "consumed on site" is intended to mean that a CAIR listed substance is used on site as a final product (i.e., as an end-use product versus as a raw material in a processing process type). In order to further assist CMA members in determining whether they are a manufacturer or a processor under the CAIR, EPA is developing a second Question and Answer document that summarizes how a person would report under various scenarios. This second Question and Answer document will be completed in the near future, and will be sent to CMA at that time. ------- 82 I hope that this clarifies EPA's use of the phrase "consumed on site" as used in its January 18 repsonse letter. If you have any further questions, please contact my office. Sincerely yours, Joseph J. Merenda, Director Existing Chemical Assessment Division Enclosure cc: D. Stangel A. Gordon F.F. Stiehl ------- 83 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 April 18, 1989 Ms. Sandy Cochran Assistant to the Executive Vice President Edward Fields, Inc. Box 4009 128-28 25th Avenue College Point, NY 11356-4009 Dear Ms. Cochran, This letter is in response to your April 6 inquiry (a copy of which is enclosed) concerning the Comprehensive Assessment Information Rule (CAIR). In your letter you requested written confirmation that your company is not required to report under the CAIR. To summarize the facts outlined in your April 6 letter, Edward Fields "processes" hydroxylamine sulfate 2:1 as a mild reducing agent in the manufacture of carpets. Edward Fields' annual sales are approximately $ 8.0 million, and the company handles less than 10,000 Ibs of hydroxylamine sulfate per year. Based on the information as summarized in this letter, Edward Fields is a "small" processor of hydroxylamine sulfate, and is therefore exempt from reporting under the CAIR. If you have any further questions concerning the CAIR, please contact either the TSCA Assistance Office at (202) 5541404 or the CAIR Technical Assistance Office at 1-800-658-8823. Sincerely yours, Joseph J. Merenda, Director Existing Chemical Assessment Division Enclosure cc: C.L. Elkins A.E. Conroy F.F. Stiehl Interpretive Guidance File ------- 84 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON/ D.C. 20460 April 18, 1989 Ms. Elizabeth A. Treanor Organization Resources Counselors, Inc. 1910 Sunderland Place, NW. Washington, DC 20036 Dear Ms. Treanor, This letter is in response to your March 20 inquiry (a copy of which is enclosed) concerning the Comprehensive Assessment Information Rule.(CAIR). In your letter you requested responses to three questions. I have enclosed a copy of the March, 1989 CAIR Question and Answer document, and have detailed the scenarios that respond to your questions below. The first question relates to whether a manufacturer who applies a sealant or paint containing a CAIR listed substance to an article which is distributed in commerce is subject to the CAIR. Scenario Numbers 18 through 22, and Numbers 26 through 27 in the March, 1989 Question and Answer document respond to this question. The second question relates to whether a "marketer" or a "refiner" of a final product which contains a CAIR listed substance (e.g., gasoline) is subject to the CAIR. Only manufacturers, importers and processors are subject to the CAIR. Therefore, if by a "marketer" you mean a "distributor," then the person is not sub- ject to CAIR. Further, if by a "refiner" you mean a manufacturer of a final product from a naturally occurring substance (i.e., a "refiner" of crude oil to manufacture gasoline), then Scenario Numbers 28 through 32 in the March, 1989 Question and Answer document respond to "refiners" in general, while Scenario Number 33 in the March, 1989 Question and Answer document responds specifically to a refiner who manufactures gasoline. The third question relates to whether a CAIR listed Substance that is present as a solvent and disperses is subject to the CAIR. If your question relates to a CAIR listed substance that acts as a solvent to keep a final product in solution; i.e., the CAIR listed substance [??] of a final product which is distributed in commerce, then Scenario Number 17 in the March, 1989 Question and Answer document responds to this question. If your question relates to a CAIR listed substance that is "used" as a solvent in a process type, but is not a component of a final product which is distri- buted in commerce, then Scenario Number 16 in the March, 1989 Question and Answer document responds to this question. ------- 85 If you have any further questions concerning the CAIR, please contact either the TSCA Assistance Office at (202) 5541404 or the CAIR Technical Assistance Office at 1-800-658-8823. Sincerely yours, Joseph J. Merenda, Director Existing Chemical Assessment Division Enclosure cc: C.L. Elkins A.E. Conroy F.F. Stiehl Interpretive Guidance File ------- 86 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY File copy June 8 1989 Mr. Raymond W. Kenney Uniroyal Chemical Company, Inc. 720 Fairport Nursery Road Painesville, Ohio 44077 Dear Mr. Kenney, This letter is in response to your May 16 inquiry (a copy of which is enclosed) concerning the Comprehensive Assessment Information Rule (CAIR). In your letter you requested a written verification that Uniroyal Chemical is exempt from reporting for your use of hydroxylamine sulfate (CAS Number 10039-54-0). The facts outlined in your May 16 letter indicate that Uniroyal Chemical Company manufactures a synthetic nitrile rubber using hydroxylamine sulfate as a shortstop (i.e., as a chain terminator) in the polymerization process. The CAIR Technical Assistance Office's statements made on May 15, 1989, that the use of some terminators is classified as an end-use activity, is true. When the purpose of a terminator is to limit the length of a polymer chain, however, this activity is classified as a processing activity, not an end-use. This is because the use of a chain terminator is a necessary step in a polymerization reaction and has a direct effect on the possible end-uses of a polymer final product. Therefore, Uniroyal Chemical Company is subject to the reporting requirements of 40 CFR Part 704 Subpart C as a "chemical producer" of hydroxylamine sulfate. EPA regrets that Uniroyal was given incorrect information and apologizes for the inconvenience. Due to the incorrect response given to you by the CAIR Technical Assistance Office on May 15, 1989, EPA is granting an automatic thirty day extension to Uniroyal Chemical's reporting deadline for the processing activities outlined in this letter. Uniroyal Chemical's new reporting deadline for these activities is July 7, 1989. [No further page(s) found] ------- 87 [DATE/SOURCE?] QUESTIONS AND ANSWERS RESPONDING TO THE FEBRUARY 16. 1989 LETTER FROM 3M Ql. 3M is not a manufacturer or importer of TDI, but in some cases does react TDI completely to a polymer wherein no intentional TDI remains. The TDI is entirely consumed on-site. The polymer is then used in the production of various articles by 3M which are then distributed in commerce. A letter from J. J. Merenda, Director ECAD, to Geraldine V. Cox of the Chemical Manufacturers' Association, dated 1/18/89, states the following: If a substance is completely consumed on-site (i.e., not prepared for distribution in commerce), then the person processing that substance need not report under the CAIR. Answer 65 of the CAIR Q&A, final paragraph, makes a similar statement. These lead us to conclude that we do not need to report on this process. However, page 8 of the same CAIR Q&A, (2) under Processing, suggests that if we entirely react the TDI we must report as a processor. This appears to be in conflict with Mr. Merenda's letter. Therefore, we would appreciate your clarifying whether we must report as a processor where we completely react the TDI to a polymer. Al. This misinterpretation by CMA and its member companies of the January 18, 1989 letter from Joe Merenda to Geraldine Cox was clarified in a subsequent letter from Joe Merenda to Geraldine Cox, dated March 14, 1989 (a copy of which is enclosed). Under the facts outlined in this question,. 3M is classified as a "chemical producer," since 3M processes TDI by reacting it to produce a polymer that is then incorporated in an article which is distributed in commerce. This scenario is outlined in Number 24 of the March, 1989 CAIR Question and Answer document (a copy of which is enclosed). Section 1 Q2. Question 1.03: Does this question refer to the Federal Register notice that lists trade names? If 3M chooses to respond to the form prior to this notice or notice from our suppliers, are we required to fill out this question? A2. This question refers to either the December 22, 1988 CAIR rule or the Federal Register notice that lists trade names, whichever notice imposes a requirement that a person report. If 3M wishes to respond to the form prior to the publication of tradenames in the Federal Register or prior to being notified by 3M's suppliers, 3M must contact its suppliers and determine how they intend to notify 3M, and answer Question 1.03 through Question 1.05 appropriately. ------- 88 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 June 30, 1989 Mr. James W. Wiersma Director of Human and Financial Resources Sparks Belting Company 3800 Stahl Drive, SE Grand Rapids, Michigan 49506 Dear Mr. Wiersma, This letter is in response to your June 6 inquiry (a copy of which is enclosed), and your June 23 telephone conversation with one of my staff, Robert Thompson, concerning the Comprehensive Assessment Information Rule (CAIR). In your letter you requested an extension of your reporting deadline, and noted that you believed that Sparks Belting was exempt from reporting under the CAIR. Your telephone conversation with Robert Thompson confirmed the fact that Sparks Belting's use of MBOCA as a catalyst is an end-use activity; and that Sparks Belting is therefore not required to report under the CAIR. i I am glad my staff was able to assist you in this matter. Sincerely yours, Joseph J. M rector Existing Chemical Assessment Division Enclosure cc: C.L. Elkins A.E. Conroy F.F. Stiehl Interpretive Guidance File ------- 89 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTION, D.C. 20460 Oct 24, 1989 Mr. Thomas B. Johnston McKenna, Conner & Cuneo 1575 Eye Street, N.W. Washington, D.C. 20005 Dear Mr. Johnston: This letter confirms the information you received from Mr. Michael Lease of SAIC concerning the definition of processing activities under the Comprehensive Assessment Information Rule (CAIR). EPA's interpretation of that definition under CAIR classifies the activities described in your letter of September 20, 1989 [*] to the CAIR Office as an end-use and therefore not requiring reporting under CAIR. Very truly yours, Charles M. Auer, Acting Director Existing Chemical Assessment Division cc: Interpretive Guidance File [*] copy follows ------- 90 LAW OFFICES MCKENNA, CONNER & CUNEO 1575 EYE STREET, N.W. WASHINGTION, D. C. 20005 September 20, 1989 CAIR Office c/o SAIC 8400 West Park Drive McLean, VA 22102 Attention: Michael Lease Re; CAIR Definition of "Processing Activities" Dear Mr. Lease: This letter follows up on our telephone conference earlier today. We request that you arrange for the U.S. Environmental Protection Agency to confirm in writing your interpretation of the definition of "processing activities" under the Comprehensive Assessment Information Rule (CAIR). 53 Fed. Reg. 51,698, 51,718 (December 22, 1988) (to be codified at 40 C.F.R. SS 704.203). The CAIR defines "processing activities" to mean "all those activities which include (1) . . . , (2) repackaging of the identi- fied substance. Id. (emphasis added). We request confirmation that "processing activities" does not include purchasing a chemical substance in bulk containers and transferring it to smaller con- tainers if the chemical is not distributed in commerce thereafter, but merely used on-site. This is a common practice in many types of industries, and placing CAIR reporting obligations on such companies, which are merely users of the chemicals, does not appear to be authorized by the applicable sections of the Toxic Substances Control Act. Thank you for your attention to this matter. Sincerely, Thomas B. Johnston TBJ:gj ------- 91 "TSCA INVENTORY" Part 710 — Inventory Reporting Regulations Subpart A - Compilation of the Inventory 40 CFR §710.2(f), "article" is defined 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 may occur as described in §710.4(d)(5); except that fluids and particles are not considered articles regardless of shape or design." 40 CFR §710.4(d) provides the following information regarding chemical substances excluded from the directory: "The following chemical substances are excluded from the inventory. Although they are considered to be manufactured or processed for a commercial purpose for the purpose of Section 8 of the Act, they are not manufactured or processed for distribution in commerce as chemical substances per se and have no commercial purpose separate from the substance, mixture, or article of which they may be a part: . . . (5) Any chemical substance which results from a chemical reaction that occurs upon end use of other chemical substances, mixtures, or articles such as adhesives, paints, miscellaneous cleansers or other housekeeping products, fuels and fuel additives, water softening and treatment agents, photographic films, batteries, matches, and safety flares, and which is not itself manufactured for distribution in commerce or for use as an intermediate." According to 40 CFR §710.2(t), the term "Process" is defined to mean "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce (1) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or (2) as part of a mixture or article containing the chemical substance or mixture." 40 CFR §710.2(u) defines the term "Process for commercial purposes" to mean "to process (1) for distribution in commerce, including for test marketing purposes, or (2) for use as an intermediate." 40 CFR §710.2(n) defines the term "Intermediate" to be "any chemical substance: (1) Which is intentionally removed from the equipment in which it is manufactured, and (2) which either is consumed in whole or in part in chemical reaction(s) used for the intentional manufacture of other chemical substance(s) or mix- ture (s), or is intentionally present for the purpose of altering the rate of such chemical reaction(s)." ------- 92 40 CFR §710.2(v) defines a "Processor" to be "any person who processes a chemical substance or mixture." FEDERAL REGISTER NOTICES EPA Responses to Comments 4 and 5 in the Notice entitled "Availability of TSCA Initial Inventory; Beginning of 210-Day Reporting Period for Revised Inventory" (44 FR 28563): "Comment 4; EPA should recognize that the terms •processor1 and 'user1 are not synonymous. If the definition of 'user'is restricted to one who 'processes' a chemical substance for commercial purposes, a: person who uses a chemical substance to lubricate or clean machinery, for example, would be prevented from adding the substance to the Inventory, and would risk having his supply of the substance interrupted. "Response; EPA recognizes that there is a distinction between processors and users of chemical substances. This distinction, however, is irrelevant for purposes of Inventory reporting. Under Section 8(b) of TSCA, the Inventory is to include substances which have been manufactured (including imported) or processed for commercial purposes in the United States since January 1, 1975. The Inventory reporting regulations permit users of chemical subsances to report substances that have been manufactured or processed for commercial purposes since 1975, regardless of whether the user of the substance also manufactures or processes the substance. An eligible substance that is used to lubricate or clean equipment may be reported for the Inventory by a user if it has been manufactured or processed since 1975." "Comment 5: If a substance reported by a processor during the 210-day period cannot be manufactured until it is included on the Inventory, the processor risks an interruption in his supply of the substance until the Revised Inventory is published in 1980. "Response: EPA does not wish to impose eceonomic hard- ships on processors by contributing to the interruption of supplies of chemical substances. Therefore, once a processor reports a substance and receives the postcard from EPA acknowledging receipt of the report form, his supplier may continue to manufacture the substance. However, EPA intends to survey reports from processors to determine whether the supplier is a manufacturer who should have reported the substance for the Initial Inventory. ------- 93 "Although manufacture of the substance may continue once the acknowledgement postcard is received, this does not mean that the substance is included on the Inventory at that time. EPA must first determine whether the sub- stance was reported in accordance with the Inventory reporting regulations, i.e., the substance is eligible for inclusion on the Inventory. If there are any problems with the report, EPA will notify the submitter, who will be given an opportunity to make necessary corrections to the report. If the submitter does not make the appropriate amendments to the report, EPA cannot process the form and the substance will not be added to the Inventory unless it is reported by someone else. Thereafter, manufacture of the substance for a use sub- ject to premanufacture notification requirements would be illegal." In the same FR Notice cited above, under "Reporting for Revised Inventory. I. Who May Report" (44 FR 28561): "1. a person who has processed or used a chemical sub- stance (including use in the manufacture of a mixture or article containing that chemical substance) for a com- mercial purpose since January 1, 1975, or "2. a person who has imported a chemical substance as part of a mixture or article for a commercial purpose since January 1, 1975." From the Inventory Reporting Regulations (December 23, 1977), the following paragraph concerning DEFINITIONS appears in the Preamble (42 FR 64574): "EPA wishes to emphasize that the terms used in these regulations may not be wholly consistent with the ordinary usage of such terms. For example, the term 'manufacturer1 includes importers. As used in these regulations, the terms 'manufacturer1 and 'processor' may both apply to a person who normally would consider him- self one or the other. "Intermediate" refers only to those intermediates which are isolated or removed from the equipment in which they are manufactured. Persons should be sure they understand the special meanings of the terms used for purposes of these regulations. In Part 710. 3 (c) of the Inventory Reporting Regulations (42 FR 64577) : "(c) Persons not subject to the initial Inventory. Persons who have only processed or used a chemical sub- stance for a commercial purpose are not subject to the initial Inventory requirements." ------- 94 In the Instructions For Reporting for the Revised Inventory (June 1979), on page 5, the following passage describes who may report: "A. Who May Report "The following persons may report a chemical substance that is not included on the published Initial Inventory for inclusion on the Revised Inventory: "(1) a person who has processed or used a chemical substance (including use in the manufacture of a mixture or article containing that chemical substance),, for a commercial purpose since January 1, 1975." On page 9 of this June, 1979 instructions manual for the Revised Inventory is a paragraph under part D: How to Determine Whether to Report: "In general, if a processor has received written certification from his suppliers that all component chemical substances in the product(s) he processes have been reported for the Inventory, the processor should not be concerned about reporting." ------- 95 "PAIR" CODE OF FEDERAL REGULATIONS (CFR) Part 712 — Chemical Information Rules Subpart A - General Provisions According to 40 CFR §712.3, all definitions that are given in section 3 of TSCA apply to this part. In addition, 40 CFR §712.3 provides the following definitions. 40 CFR §712.3(m) defines "Process for commercial purposes" as "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes." PROPOSED RULE Federal Register / Vol. 45, No. 42 / Friday, February 29, 1980 / Proposed Rules / Starting Page 13646 40 CFR Part 712 [OTS-082004b; FRL 1385-4] Pesticides and Toxic Substances; General Recordkeeping and Reporting Requirement: Preliminary Assessment Information ACTION: Proposed rule; notice of opportunity to comment. SUMMARY: This rule, proposed under the authority of section 8(a) of the Toxic Substances Control Act (TSCA), would require chemical manufacturers (including miners and importers) and, in some cases, processors to report production and exposure-related data on approximately 2300 chemicals to the EPA. This information will be used both for ranking chemicals for investigation and for preliminary risk assessments Additional chemicals may be added to this rule in the future; therefore, any chemical manufacturer or processor is potentially subject to the proposed requirement. Comments are requested on both the general procedures of this rule and the chemicals proposed at this time ------- 96 l . Background A. Legal Authority Section 8 (a) of the Toxic Substances Control Act (TSCA) , 15 U.S.C. 2607(a), authorizes the Administrator to promulgate rules "under which . . . each person . . . who manufactures or processes or proposes to manufacture or process a chemical substance . . . shall maintain such records, and shall submit to the Administrator such reports, as the Administrator may reasonably require." [emphasis added]. See TSCA section 8(a)(l)(A). In the case of manufacturers or processors of mixtures or of small quantities of research and development chemicals these rules may require maintenance of records and submission of reports "to the extent . . . necessary for the effective enforcement of this Act." [emphasis added] . See TSCA section 8 (a) (1) (B) . Section 8 (a) rules may require a manufacturer or processor to submit any applicable data "insofar as known to the person making the report or insofar as reasonably ascertainable [emphasis added] . See TSCA section 8 (a) (2) . Thus, the standards governing EPA's information gathering authority under section 8 (a) are that reporting and recordkeeping requirements be "reasonable" (or "necessary for effective enforcement of this Act") and that the information required in the report be "known to" or "reasonably ascertainable" by the reporting person. Section 8, also, imposes certain limitations on the Agency's information gathering authority. To the extent feasible EPA is not to require any unnecessary or duplicative reporting. See TSCA section 8 (a) (2). For purposes of section 8 (a), manufacturers and processors are persons who manufacture or process chemicals "for commercial purposes" (see TSCA section 8(f)) . Furthermore, section 8 (a) generally exempts small manufacturers or processors from the provisions of section 8 (a) rules, although these persons may be subject to 8 (a) under certain circumstances. See TSCA section D. Comments Somght The Agency urges all manufacturers, importers, and processors of chemical substances and mixtures to comment on this proposal whether or not they are associated with the chemicals proposed now. It should be assumed that any chemical substance or mixture may in the future become subject to the promulgated rule. The reporting and recordkeeping provisions of the rule will remain the same once the rule is promulgated, but the list of chemicals subject to these requirements will be increased by amendment. Comments will be solicited in the future on the chemicals to be added. Comments on the requirements and procedures of the rule should be submitted now. ------- 97 On June 27,1979, EPA published an Advance Notice of Proposed Rulemaking (ANPR), 44 FR 37517, soliciting comment on proposing this type of rule. Many informative comments were received in response. In addition, EPA staff have met with interested persons from public interest groups and from the chemical industry. Comments received and minutes of meetings are available in the public record of this rulemaking. 2. Contents of the Rule A. Summary This proposal consists of a rule with a reporting form. The proposal contains two phases of reporting. First manufacturers and importers of specified chemical substances would be required to answer general questions concerning production, use, and methods of processing with regard to those chemicals, including use of the chemicals by their customers. Second, if manufacturers or importers have been unable to report customer uses, their customers may be required to submit this information to EPA. This subsequent customer reporting would not be required unless the aggregated data from the initial reports on a particular chemical are insufficient for evaluation C. Who Must Report The proposed rule would require the manufacturers, including importers, of the chemicals listed in section 712.18(a) to complete and submit the proposed EPA form (see Appendix I of the proposed rule) within 60 days of the effective date of the rule. The direct customers of manufacturers would be subject to subsequent reporting of the information requested in Part B of the form, but only if manufacturers cannot supply sufficient information. The customers required to report would be processors or manufacturers. Persons who mine chemical substances are manufacturers and are subject to initial reporting. Customers could include repackagers, persons who incorporate chemical substances into mixtures or articles,and persons who react chemical substances. The following manufacturers and importers would be excluded from the initial•requirement to submit the form. Each proposed exclusion will be reconsidered in response to public comment. The final rule may include some persons covered by the proposed exclusions. Therefore, commenters should address these exclusions with this possibility in mind (2) Small manufacturers and importers. (See section 7 of this preamble, "Small Manufacturers and Processors".) (7) Manufacturers and importers of mixtures. Unless they also manufacture the chemical substance(s) they mix, mixture manufacturers are only subject to subsequent customer reporting. ------- 98 Further, this subsequent report would not be required if their activities are adequately described by the manufacturers of the chemical substance(s) in the initial reporting under the rule. Manufacturers of mixtures are processors of the chemical substances they mix. (A person may both manufacture a chemical substance and formulate a mixture containing that substance; in which case, he would be subject to the initial reporting requirement.) While this rule is not directed to information about mixtures per se, it will under the customer reporting requirements (see section 3 of the preamble) require submission of information by persons who manufacture or process mixtures. To the extent that information is required from such persons, such information will be necessary to establish exposure and use information that will aid the Administrator in invoking the provisions of TSCA. Accordingly, the Administrator finds that it is necessary for effective enforcement of TSCA to obtain limited information on mixtures under this rule In general, having the persons listed above report initially would result in a burden that may not be justified for the purposes of this rule. Information that might be provided by those excluded can be obtained as needed either through customer reports under this rule or, for fewer chemicals, under subsequent section 8 rules. Since the purpose of the rule is to identify chemicals with major exposure potentials, the Agency believes the general information that can be provided by primary manufacturers and importers and a few selected customers will be sufficient. Commenters should address this view when commenting on the exclusions. For chemicals that might indirectly present exposure risks (e.g., via impurity contamination or as components of articles) additional, more detailed information will be obtained under the General and Detailed Assessment Information Rules—after a significant suspicion of toxicity hazards has been identified. The Agency requests comments on the appropriateness of the proposed exclusions. D. Content of the -Reporting Form The proposed form would require reports of the quantities of a chemical that are being handled in various ways by both industrial workers and the general population. It would also indicate how much of the chemical is released to the environment. For details of the- form, see "Preliminary Assessment Information Report", with instructions, which appears in Appendix I. ------- 99 Form Part A; Manufacturers' Activities Part A of the form requires the chemical manufacturing company to answer questions describing its methods of manufacturing and its own uses of the reported chemical after manufacture. The parent company is to report the data on one form for all plant sites it owns or controls. The parent company owns or controls another company if the parent owns or controls 50% or more of the other company's voting stock. Companies must report how much of the chemical was made and how much was lost to the environment for the previous calendar year. Respondents must identify the general manufacturing process types employed (open, controlled release, or enclosed), the number of workers involved, how much of the chemical was used and over what period of time. The headquarters or parent company then must report on its own plants' and subsidiaries' uses in three broad categories of use: (1) "Use as a Reactant", where the chemical is reacted and therefore no longer exists as such; (2) "Use Other Than as a Reactant", where the chemical is not changed; and (3) "Consumer Products", where the company also produces a consumer product containing the chemical.2 The Agency requests comments on whether reporting should be by headquarters, as proposed, or by individual plant sites. In question 4, the form asks the manufacturer to identify by process type the total quantity of the chemical manufactured, the number of workers and the length of time they work with the chemical. So that total worker exposure at manufacturing plant sites is not underestimated, the submitter should report total chemical production, regardless of its ultimate use. All other questions refer only to chemical production regulable under TSCA. (See the discussion under section 4, part D "Information on Non-TSCA Uses".) For use in consumer products, question 7, persons must identify the type of exposure potential possible to the consumer simply by describing the chemical as being part of an article that does or does not release the chemical during normal use, or as being a substance or a mixture that is itself used by the consumer. This section also asks how much of the chemical the manufacturer sells to persons who only distribute the chemical. Use of the chemical by customers is to be reported under Part B. Form Part B; Use of the Chemical by Others In many cases a manufacturer or importer sells a chemical to another company that, in turn, manufactures another chemical substance, makes a mixture, or otherwise prepares a substance for 2Note: The "use" to which a manufacturer or a manufacturer's customer puts a chemical may technically be described as "processing" as defined in section 3 of TSCA. ------- 100 distribution. In Part B of the form manufacturers are to report on their customers' use of the chemical. Manufacturers are asked to specify how much of the chemical is reacted or not reacted by the customers, what process types they use, and how much of the chemical is incorporated into articles. Manufacturers are also asked if their customers incorporate the chemical into consumer products and, if so, how much goes into articles or is used directly by consumers. Question 12 asks for the quantity of the chemical that is exported in bulk. This quantity subtracted from the total production will aid in estimating the amount of the chemical that is used in the United States that may be released in this country. The Agency has explored other sources for this information in developing regulations under TSCA section 12, notice of exportation (see proposed rule, 44 FR 56857). While the Census Bureau does monitor exports, this information is not chemical-specific (i.e., figures are kept on broad categories of chemicals). E. Reporting Schedule and Procedure The proposed rule contains two rounds of reporting: (1) initial reports on the form by manufacturers and importers of specified chemicals and (2) subsequent reports for Part B of the form by certain customers of those initial respondents. The proposal requires manufacturers and importers to maintain records of their customers. The records of customers using a particular chemical would be submitted to the EPA if, after aggregation and evaluation of the forms received in the initial reporting, the Agency determines that the manufacturer reported significant quantities of customers use or exposure as "unknown". The records then would be used to identify the customers who must report under the subsequent reporting requirement. EPA would contact the customers by letter instructing them to supply the information in Part B of the form. Customers would be subject to this reporting for a period of two years after the effective date of the rule. Customers who may have to report will be the immediate customers of the manufacturers or importers filing initial reports. Such customers could include makers of mixtures, other chemical substances, and articles, and repackagers. The Agency has authority to require subsequent reports from chemical manufacturers and processors further down the commercial chain, e.g., from the customers of the mixture maker or repackager. However, this could require a very large number of time-consuming rounds of reports, letters for customer lists, and letters to the appropriate customers. The issue of who should report is discussed more fully in section 3 of this preamble. ------- 101 F. Customer Lists As described above, manufacturers and importers must maintain customer records for a period of two years. EPA could, under the rule, send a certified letter to a company requiring submission of a list of customers for which that company did not report uses or exposures (the complete customer records would also be subject to inspection under section 11 of TSCA). EPA would use this list to decide which customers should submit subsequent reports. Submission of customer lists would be required only when significant quanti- ties for customer activities were reported as unknown in the initial manufacturer reports and the toxicity of the chemical is either significant or unknown. The amount of this unknown infor- mation would also have to be great enough to make it impracticable to complete evaluation of the chemical. Section 712.18(b) of the rule is reserved for a separate list of chemicals for which customer lists would be submitted at the same time as the form. At present EPA has not identified any chemicals for this list. However, in the future, chemicals for which immediate customer identification is necessary may be pro- posed. The Agency will propose for comment the chemical substances for which customer lists are to be submitted immediately and the reasons they are needed. Industry comments have expressed much concern over providing customer lists to EPA because of their competitive value. However, EPA will safeguard any information determined to be confidential business information as provided in 40 CFR Part 2, as amended on September 8, 1978 (43 FR 39997) and March 23, 1979 (44 FR 17673). The Agency is also considering the alternative of a general requirement for all customers to report for those chemicals whose uses are unknown to their manufacturers. As described above, the Agency would review the manufacturers' forms and would identify chemicals where significant quantities were reported as unknown with respect to customer uses. OPTS would then issue, under this rule, a Federal Register notice that would be effective without further comment for those chemicals. The requirement would state that all persons who purchase any one of the specified chemical substances from its manufacturer must report the use information for Part B of the form. This alternative, because it would not be as selective as the proposed contact of listed customers, would increase the number of customers who have to report; however, it would avoid the problem of submission of sensitive customer lists to EPA. One difficulty may be that some customers who buy trade- name products would not know they are subject to reporting, unless specifically notified by the manufacturer or EPA. 3. Issues and Comments Received on the Reporting of Uses and Exposures ------- 102 A. Knowledge of Customers' Uses The Advance Notice of Proposed Rulemaking requested comments on the sufficiency of manufacturers' and importers' knowledge of their customers' uses and methods of processing. Most industry commenters said that only their customers would have..specific use information. Many industry commenters said they would not have exposure-related information for their customers. Nonetheless, many also agreed that manufacturers do know general information of the kind appearing in this proposed rule. This knowledge could be significantly limited, they said, depending on the following factors: (1) Production volume — Large volume manufacturers can identify the major uses for the chemical which account for a large percentage of their production, but may not know minor uses. (2) Use of distributors — If the manufacturer sells to a distributor, he may or may not know the chemical's uses. (3) Specialty chemicals and proprietary products — Uses of specialty chemicals may be proprietary and may not be revealed to a manufacturer since he is a potential competitor. For (1) and (3), where manufacturers do not know their cus- tomers' uses, EPA will contact the customers as needed. For sale to distributors, however, under section 8(a) of TSCA, the Agency cannot require reports from distributors. The proposal does include a provision to report how much was sold to distributors and to record them as customers. EPA could then request the distri- butors to voluntarily supply information. If significant quantities are sold to distributors and information is not given voluntarily, it may be necessary to require reports under another rulemaking from all processors who buy from distributors. One of the points made by industry commenters was that they do not generally know exposure related information for their customers' plant sites or products. The form does not directly ask manufacturers to describe exposure as such. Instead, it asks for the types of processes used by the customers and whether consumer articles or mixtures are made by them. EPA will then arrive at exposure potentials from this information. Some industry comments have indicated that this information is often known. Perhaps the most significant issue raised by industry representatives is that while a company knows how its customers use a chemical, such information may be subject to formal or informal agreements to keep the information confidential. EPA has the authority to obtain such information insofar as it is known or reasonably ascertainable, regardless of any secrecy agreements. However, this rule does not propose requiring reporting of this information for the following reasons: (1) for the most part, ------- 103 manufacturers can describe their customers' uses in the general categories provided without revealing significant trade secrets and (2) the rule provides customers the opportunity to make and substantiate claims of confidentiality to EPA. The rule instead allows manufacturers to report uses and exposures that are either truly unknown or subject to secrecy agreements as "unknown". EPA would then have the option of obtaining a report, together with the confidentiality claims, directly from the customer C. Subsequent Reports by Customers As proposed, the rule would require reports from customers upon notification by certified letter from EPA. Customers would provide the information the manufacturers were unable to provide in Part B of EPA Form No. 7710-35. The Agency may use the same form or develop a slightly modified form for customer reports. Customers would only have to report information on their own activities. The required accuracy of reported quantities would be the same as it is for manufacturers making initial reports on their own activities. "Small" manufacturers and processors would not be subject to this requirement (see section 7, below, "Small Manufacturers and Processors"). This follow-up provision would only be used when significant quantities of the chemical are reported by all manufacturers under the "unknown" category. EPA has the authority to require all manufacturers and processors to report initially; however, this approach is proposed in an effort to reduce the reporting burden. Some industry commenters have suggested that all customers be required to submit subsequent reports so that companies who have not had their activities described by manufacturers are not burdened more than those who have. However, the proposed rule was designed with an effort to minimize the overall reporting burden on industry; the result of universal follow-up would be to defeat this effort and to duplicate information that is reported by manufacturers. The Agency solicits comment on whether all customers should be required to submit subsequent reports, whether sampling is possible, or whether only customers whose activities are unknown should report. 4. Issues and Comments on Reporting Information Under Section 8(a) The Agency has received comment that it should obtain under this rule sufficient data to conduct complete risk assessments for as many chemicals as possible. While the Agency would prefer to have ready access to complete data on any chemical that may come to its attention, this is not practical or feasible. The Agency simply does not have the resources to examine in a relatively short period of time detailed data on large numbers of chemicals. EPA believes it is unnecessary to subject chemical manufacturers and ------- 104 processors to such a substantial reporting burden in order to supply EPA with information that will become significantly outdated before it can be reviewed. Because of this resource limitation and the burden on industry, OPTS has developed the assessment process and corresponding reporting rules described below B. Preliminary Assessment Process EPA has determined that it should obtain broad use-exposure data for purposes of this rule for several reasons. First, finer details would be lost and unnecessary in the process of setting relative priorities among a few thousand chemicals. Second, it is more likely that manufacturers will more accurately be able to describe their customers' activities by such categories. Third, these broad categories should obviate most problems of revealing customer trade secrets. Fourth, in developing the form, the Agency found that the alternative to this simple set of categories is a significantly more complex system. For example, in an effort to describe the possible uses of chemicals the Agency had developed a list of several thousand function and application terms ("Chemical Use List", 43 FR 32222). These in turn would have to be related to a measure of exposure for each use. Not only is such detail unnecessary for preliminary assessment, it would be highly resource intensive for both EPA and industry given the large number of chemicals involved. Such an exercise is more appropriate for the later section 8(a) rules that concentrate on fewer chemicals. The Agency thinks the proposed form will obtain valuable information for both priority-setting and preliminary assessment Information concerning process types and the number of workers involved in manufacture and industrial use (form questions 4, 5, 6, and 9) relates primarily to an assessment of occupational exposure. The information on process types can also be used for environmental release estimates. This information is thus useful for assessments of general population exposure D. Information on Non-TSCA Uses TSCA gives EPA regulatory authority over "chemical substances" and "mixtures." Section 3(2)(B) of TSCA excludes several types of chemicals from the definition of the term "chemical substance." Among these exclusions are the following: (ii) any pesticide (as defined in the Federal Insecticide, Fungicide and Rodenticide Act [FIFRA]) when manufactured, pro- cessed, or distributed in commerce for use as a pesticide, .... (vi) any food, food additive, drug, cosmetic, or device (as such terms are defined in section 201 of the Federal Food, Drug and Cosmetic Act [FFDCA]) when manufactured, processed, or distributed in commerce for use as a food, food additive, drug, cosmetic or device. ------- 105 Many chemicals subject to regulation under FIFRA or the FFDCA, however are also used as chemical substances which may be regulated under TSCA. Part of a company's production or use may be subject to TSCA and part subject to regulation under the other authorities. For EPA's interpretation on when the different statutes are appli- cable in specific circumstances see 42 FR 64585-86 (1977) and 43 FR 11115-16 (1978). On question 4 of EPA Form No. 7710-35, the Agency proposes to require a manufacturer to report the total quantity of the chemical he manufactures (including quantities not regulable under TSCA) and to report information on the number of people who work with the chemical and for how long. EPA requests total chemical production information in order to insure that the worker exposure to the chemical is not underestimated. The risk of worker exposure is independent of the statutory authority under which the chemical may be regulated. EPA believes it has the authority to obtain information on the total quantity of chemical produced by a manufacturer even though some of that production is beyond EPA's regulatory authority. Section 8(a) authorizes EPA to obtain from chemical manufacturers such information as the Agency may "reasonably require". In the very limited circumstances of this rule it is reasonable for EPA to require information on total chemical production in order to properly assess worker exposure and set priorities. Further, persons required to report will experience a negligible incremental burden in reporting total chemical production as opposed to only TSCA production. EPA realizes that its position on this issue may be contro- versial and the Agency especially solicits comments on the authority it is asserting to obtain limited production data on non-TSCA chemicals that are also regulable under TSCA. EPA also solicits suggestions on methods to properly assess worker exposure without obtaining data on total production of the chemical to which the worker may be exposed. Note that section 8 (a) (2) of TSCA specifically states that EPA may obtain data on the number of workers exposed to a chemical substance and duration of such exposure. The Agency believes that worker exposure to a particular chemical stream cannot reasonably be separated into the exposure to the TSCA and non-TSCA regulable proportions ------- 106 6. Definitions Most of the definitions in this proposal are taken, some with minor and nonsubstantive modifications, from the [TSCA] Inventory Reporting Regulations, 40 .CFR 710.2, the proposed Premanufacture Notification Rule, 44 FR 2264, and the proposed Health and Safety Study Reporting Rule, 44 FR 77470. 7. Small Manufacturers and Processors Section 8(a)(3) requires the Administrator to prescribe, by rule, standards for determining who may qualify as a small manufacturer or processor. Such small businesses are then exempt from section 8(a) rule requirements, unless the chemical substance manufactured or processed is subject to certain proposed or final actions by the Agency, including section 4 test rules. It is possible that some of the chemicals proposed for this rule will be subject to proposed test rules under TSCA section 4 when this rule is promulgated. In that case, small manufacturers and processors would be subject to reporting for those chemicals. The following small business exclusion is proposed for this rule: No manufacturing or processing company must report for a chemical substance if: (1) its total sales for all products at all sites together are less than $30 million for the reportable year, AND (2) its production volume at each site for the chemical reported was less than 100,000 pounds (45,400 kilograms) for the reportable year. The reportable year is 1979 for these proposed chemicals. Figures would be based on activities at all of the plant sites controlled or owned by the reporting parent company. The parent company owns or controls another company if the parent owns or controls 50% or more of the other company's voting stock. The Agency has done an economic analysis for this proposed rule using the reports from the Inventory Reporting Regulation (40 CFR 710) and Dun and Bradstreet data to estimate production and sales. The support document entitled "Economic Impact Analysis" is the source for the following figures. The above criteria would eliminate approximately 9.5% of the companies that manufacture the chemicals subject to this proposal. Only 10% of the reports that could be submitted by all manufac- turers for each chemical would be excluded. Given an estimated average of 5 chemicals per company, companies with sales less than $30 million could be subject to costs of approximately $2,600. This cost would only be incurred if production were greater than 100,000 Ibs. for the reportable chemical. The Agency proposes that ------- 107 this quantity is significant in its possible exposure implications and therefore is justified. The savings to small companies amounts to about $580,000 altogether. The Agency will consider comments on raising or lowering the sales or volume cut-offs of the proposed small business exclusion. One important consideration is that the cost to an individual small company could be great. This is particularly so with the require- ment to report if production is greater than 100,000 Ibs., since many companies that are "small" by virtue of their sales volume are not small with respect to their production volume. Indeed, as many as two thirds of the companies with sales under $30 million may not qualify as small because of the 100,000 Ib. cut-off. An alternative approach, that would relieve the burden on very small companies, is to totally exclude any company below a set sales value, regardless of production volume. Such a standard would be as: (1) No company with total business sales below $x must report, and (2) No company with total sales between $x and 30 million and that made less than 100,000 pounds of a reportable chemical substance at each site must report on that chemical. If x were equal to $1 million, about 16% of the companies that manufacture the chemicals subject to this rule would be eliminated, with a loss of 13% of total possible reports and a savings to small companies of about $740,000. If x were $3 million, 24% of the total firms would be eliminated and 16% of the total reports would be lost and small companies would save about $1,040,000. This second approach, while affecting a small percentage of possible reports, could eliminate significant information on uses peculiar to these smaller companies. The agency requests comments on whether the volumes and the uses of the chemicals manufactured by such small companies are apt to differ from those of larger companies. If a significant number of chemicals are made only by "small" companies as defined in this proposal it may be necessary to lower the sales and/or offer volume cut-offs. The economic impact of this proposal is discussed generally in the next section of this preamble. The total cost of the rule does not vary greatly with changes in the sales cut-off since most of the reports will be completed by larger companies (primarily those greater than $100 million in sales) and since most of the chemicals are produced in large quantities. The small business definition proposed for this rule has a relatively large sales cut-off of $30 million. This compares with previous definitions under TSCA rules of $5 million and $1 million ------- 108 (Inventory Reporting Regulations, 40 CFR 710.2 (x) , and proposed Premanufacture Notification Requirements, 44 FR 2277). The Agency proposes that, since the information is to be gathered for pre- liminary evaluations, rather than for detailed risk assessments, it is appropriate to exclude a relatively large portion of smaller firms. However, in later rules under section 8(a), e.g., the General and Detailed Assessment Information rules described above, that will apply to a fewer number of chemicals that are under scrutiny for possible control regulations, it will be necessary to obtain as complete a body of information as possible. Therefore, the definition of "small" will probably have a lower dollar value for those rules. The Agency solicits comments on the various approaches to excluding small businesses from reporting requirements under this rule. Comments should include data on the impact on small companies and the likelihood that they have significant information for the Agency. 8. Economic Impact A complete analysis of the economic impact of this proposed rule is included in the public record under the title, "Economic Impact Analysis". Copies may be requested. This section summarizes that analysis. Approximately 1200 companies will be subject to the initial manufacturer report on the chemicals listed in the proposal. Based on the average of the number of reports (chemicals) per company and the small business exclusion discussed above, the total cost of the initial report would be $6 million. The cost to any one firm is dependent on the number of listed chemicals it manufactures. This number ranges from 1 to 300, with the estimated mean at about 5. Cost estimates are based on a $480 fixed cost per company and $420 variable cost per chemical. Since the Agency does not know the extent to which manufac- turers will be able to supply customer information, it is difficult to estimate the total cost of subsequent reporting by customers. The cost to a customer for filling in information for part B of the form should be much less than the cost of the manufacturer report since less information is involved (approximately $210 per pro- cessor) . If the Agency follows up on 50 to 100 manufacturers, with 10 customers per manufacturer, the cost of customer follow-up would be about $105,000 to $210,000. These costs could change significantly if comments to this notice result in changes for the final rule. If the accuracy required in reporting is increased or the kinds of companies that must report are expanded, the cost of the final rule could be much higher. For example: ------- 109 (1) If the accuracy of reporting is changed to requiring two significant figures for manufacturer reports, the variable cost of filling in the form for one chemical could change from $420 to $1020. (2) If persons who manufacture the chemical as a byproduct or impurity are included, the number of respondents would increase greatly. This would be affected by any applicable minimum volume cut-off. The larger the cut-off, the fewer the number of respondents. (3) If processors were included in the initial report, the number of persons subject to the rule would increase at least 10-fold as there are at least 10 processors per chemical and probably more for the high volume chemicals; the cost would also increase significantly. The Agency solicits comments on the economic impact of the proposed rule and on the impact of any of the alternatives mentioned in this preamble It is proposed to revise Part 712 of Chapter I of Title 40 as follows: PART 712-GENERAL RECORDKEEPING AMD REPORTING RULES Subpart A — General Sec. 712.1-712.9 [Reserved] ..*' o . Subpart B — Preliminary Assessment Information 712.11 Scope and compliance. 712.12 Definitions. 712.13 Who must report. 712.14 Initial submission of forms: What must.,be reported. 712.15 Customer lists. 712.16 Confidentiality claims. 712.17 Reports by customers. 712.18 Chemical substances. Appendix I: Form No. 7710-35, Preliminary Assessment Information Report; Instructions. Appendix II: Substantiating Confidentiality Claims. Authority: Section 8(a), Toxic Substances Control Act, Pub. L. 94-469 (90 Stat. 2003, 15 U.S.C. 2601 et. seq.). ------- 110 § 712.11 Scope and compliance. (a) Under the general recordkeeping and reporting authority of section 8(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2607(a), this rule requires manufacturers of selected chemical substances to report production, use, and exposure information on listed chemical substances. These manufacturers are requested to report information on their own and customers' activities. Customers of the manufacturers of the selected substances may be required to report subsequently. These subsequent reports will be required when the manufacturers' responses are incomplete as to customers' activities. (b) Subsection 15(3) of TSCA makes it unlawful for any person to fail or refuse to submit information required under this rule. Section 16 provides that a violation of section 15 renders a person liable to the United States for a civil penalty and possible criminal prosecution. Under section 17, the district courts of the United States have jurisdiction to restrain any violation of section 15. § 712.12 Definitions. The definitions in section 3 of TSCA, 15 U.S.C. section 2602, apply for this rule. In addition, the following terms are defined: (a) "Byproduct" means any chemical substance or mixture produced solely without separate commercial intent during the manufacture, processing, use, or disposal of another chemical substance(s) or mixture (g) "Intermediate" means any chemical substance which is consumed, in whole or in part, in chemical reaction (s) used for the intentional manufacture of other chemical substances or mixture(s), or is intentionally present for the purpose of altering the rate of such chemical reaction(s). (h) "Manufacture for commercial purposes" means to import, produce, or manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer and include(s), among other things, such "manufacture" of any amount of a chemical substance or mixture, (1) For commercial distribution, including for test marketing, and (2) For use by the manufacturer, including use for product research and development, or as an intermediate. Manufacture for commercial purposes also applies to substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including both ------- Ill byproducts that are separated from that other substance or mixture and impurities that remain in that substance or mixture. Such byproducts and impurities may, or may not, in themselves have commercial value. They are nonetheless produced for the purpose of obtaining a commercial advantage since they are part of the manufacture of a chemical product for a commercial purpose. (i) "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 "mixture" does include (1) any combination which occurs, in whole or in part, as a result of a chemical reaction if the combination could have been manufactured for commercial purposes without a chemical reaction at the time the chemical substances comprising the combination were combined, and if all of the chemical substances comprising the combination are included in the EPA Chemical Substances Inventory after the effective date of the premanufacture notification requirement under 40 CFR 720, and (2) hydrates of a chemical substance or hydrated ions formed by association of a chemical substance with water. The term mixture includes alloys, inorganic glasses, ceramics, frits, and cements, including Portland cement. (j) "Non-isolated intermediate" means any intermediate that is not intentionally removed from the equipment in which it is manufactured, including the reaction vessel in which it is manufactured, equipment which is ancillary to the reaction vessel, and any equipment through which the substance passes during a continuous flow process, but not including tanks or other vessels in which the substance is stored after its manufacture. ...... (m) "Process for commercial purposes" means the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes § 712.13 Who must report (b) Subsequent reports by customers. Except as provided in paragraph (d) of this section, persons who processed or manufactured chemical substances for commercial purposes during the year(s) specified in § 712.18 are subject to § 712.17. (c) The following persons are not subject to § § 712.14 and 712.15: ------- 112 (1) Persons who manufactured or imported the chemical substance solely for purposes of scientific experimentation, analysis or research, including research or analysis for product deve1opment. (2) Persons who imported the chemical substance as: (i) An impurity or (ii) A component of an article. (3) Persons who manufactured the chemical substance as: (i) A byproduct that was not used or sold or that was formed as described in 40 CFR 710.4(d)(3)-(7); (ii) A non-isolated intermediate; or (iii) An impurity. (4) Persons who imported a mixture containing the substance. (5) Persons who only processed the chemical substance during the calendar year specified in § 712.18. (d) Except as provided in paragraph (d) (2) of this section, small manufacturers and processors are not subject to this rule. (1) To qualify as a small manufacturer or processor a person must meet both of the following criteria: (i) Total annual sales of all sites owned or controlled by the parent company were less than $30,000,000, based upon the manufacturer's or processor's latest complete fiscal year as of January l, 1979. (ii) The annual production (or amount processed) of the chemical substance listed in § 712.18 was less than 100,000 pounds (45,400 kilograms) during the year specified in § 712.18. This criterion applies to any plant site owned or controlled by the parent company. (2) Small manufacturers and processors will be subject to this rule if the chemical substance they manufacture or process is subject to a rule proposed or promulgated under TSCA sections 4, 5(b)(4), or 6 of TSCA, 15 U.S.C. sections 2603, 2604(b)(4), or 2605, or an order in effect under section 5(e) of TSCA, 15 U.S.C. section 2604(e), or the subject of relief that has been granted under a civil action brought under section 5 or 7 of TSCA, 15 U.S.C. sections 2604 or 2606. ------- 113 § 712.14 Initial submission of forms: what must be reported. (e) Generally, persons must report information that is known to or reasonably ascertainable by them for rules under TSCA section 8 (a). For purposes of this rule, however, a less burdensome standard shall apply. Companies shall report information that is readily obtainable by management and supervisory employees responsible for manufacturing, processing, distribution, technical services, and marketing. Extensive file searches are not required. • * • • • § 712.15 Customer lists. (a) All manufacturers and importers who are required to report under § 713.13(a) must maintain records of the customers who received the quantities of chemical substances reported on Form No. 7710-35 for a period of two years after the effective date of the addition of the substance to § 712.18. These records must contain the name, address, technical contact, phone number, and the quantity sent for each customer, and report number of the form filed. (b) In the case of chemical substances listed in § 712.18(3), if the Deputy Assistant Administrator of the Office of Program Integration and Information, Office of Pesticides and Toxic Substances, determines customer information is needed, he/she will require, by certified letter, a list of customers to be submitted. Submission of customer lists will be required only when significant quantities for customer activities have been reported as unknown in the initial reports under section 712.14, such that the amount of this unknown information makes it impracticable to complete an evaluation of the substance, and when the toxicity of the chemical is either significant or unknown. (1) The list required under this paragraph shall be submitted within 30 days of receipt of the certified letter. This list must contain each customer's name, address, phone number, technical contact, and quantity sent, for all quantities for which the use and/or process type was reported as unknown. If the customer is a person who only distributes the substance in commerce, this should be noted. The list must also reference the report number of the form filed. (2) Letter requests shall be sent under this paragraph no later than two years after the effective date of the addition of a chemical substance to § 712.18(a). (c) In the case of chemical substances listed in § 712.18(b), persons who manufactured or imported the substances must submit a list of all customers, including name, address, technical contact, ------- 114 phone number, and quantity received when they submit Form No. 7710-35 for those substances. (1) The list required under this paragraph shall be postmarked within 60 days after the chemical substance has been listed in § 712.18(b). S 712.17 Reports by customers. (a) If a list of customers is obtained under § 712.15, the Deputy Assistant Administrator of the Office of Program Integration and Information, Office of Pesticides and Toxic Substances will contact those customers by certified letter and require them to supply the information for Part B of Form No. 7710-35, with respect to their own activities. (b) Only persons who process or manufacture the chemical substance for commercial purposes and who are not "small" as defined by § 712.13(d) must report. (c) The same standards of accuracy as required of manufacturers and importers in § 712.14 (e) and (f) apply to reports by customers Appendix I - Preliminary Assessment Information Report Instructions for Filling Out the Form Form Parts A and B, General Instructions Questions 1, 2, 3, and 5-12 refer to the total quantity of a chemical substance manufactured, imported, or processed by a firm at all of its plant sites LESS the quantity that is not regulable under the Toxic Substances Control Act. Total quantity manufactured is to be reported in number 4, regardless of ultimate use. Quantities are to be reported in KILOGRAMS (1 kilogram = 2.2 pounds). Values given must be at least accurate to -within +/- 50%. If the uncertainty in the number is greater than that, answer "unknown". Part A: Manufacturer's Activities 3. Report the net quantity that is made but NOT recovered because it is lost to the environment or remains in process wastes or otherwise is not collected. If possible, fill in the quantities lost in the following three ways. If this information is not known within the required accuracy enter "Unknown". ------- 115 3a. Lost to the Environment During Production, Use, Storage, and Transfer — including intentional or accidental venting, spills, evaporation, leaks and other fugitive emissions, dust dispersal, effluents and stack emissions to the air, land or water. 3b. Process Wastes Treated to Destroy the Chemical including incineration, chemical reaction, or other means to destroy the chemical. 3c. Process Wastes Where Chemical is Not Destroyed — including any landfill, surface impoundment, municipal sewage, or storage. Questions 4, 5, and 6 Process Categories Questions 4, 5 and 6 concern handling of the chemical in the manufacturer's workplace. You are to specify how many workers are involved with how much of the chemical, and the duration of their involvement. The term "workers" for these questions includes not only those directly involved in manufacturing, but also those involved with equipment inspection and maintenance, transportation and distribution, and clean-up. Average figures may be used based on actual practice for the reportable year. You must also specify what type of process was used in handling the chemical. Three general process types are given: Enclosed Process means the entire process is designed so that there are no intentional releases of the chemical. Only fugitive or inadvertent release occurs and special measures are taken to prevent worker exposure and environmental contamination. Controlled .Release Process means the main production process is designed and operated so that deliberate or planned release of the chemical is permitted within prescribed limits. These limits will be dictated either by company guidelines or imposed by government regulations. Count workers who are only involved in controlled release processes; if they work where parts of the process are enclosed and other parts have controlled release, report quantities and workers under "Controlled Release". Open Process means the chemical is routinely in direct contact with the atmosphere and no measures are taken to prevent environmental release; e.g., reaction vessels are open, or the chemical is transported or stored in open containers. If any part of the process is open, report quantities and workers under "Open". ------- 116 Filling in the Chart Fill in the chart for the calendar year specified in 40 CFR 712.18 for each category. Enter the total quantity of the subject chemical and the total number of workers involved. Count only those workers involved with processes where the chemical is present. Columns A and B require the calculation of worker involvement according to hours/week and the number of weeks/year they are involved with the chemical. Column A is for those workers averaging 10 or less hours per week involvement. Column B is calculated in the same way as column A except that it is for those workers involved with the chemical for more than 10 hours per week. To Calculate The figure to be entered in column A or B for each process category is to be calculated as in the following example. If 5 workers are involved with a chemical each for twenty weeks and 10 workers are involved each for 1/2 week, calculate: 5 workers x 20 weeks =100 10 workers x 1/2 week = 5 and enter the total 105 4. Fill in the chart for process types used in manufacturing the chemical. Include the TOTAL quantity of chemical manufactured whether used in TSCA regulated products or not. Count the number of workers directly involved in manufacture, equipment inspection and maintenance, quality control, and cleaning. 5. Fill in the chart for use of the chemical at your plant sites as a reactant or intermediate where the molecular structure of the chemical is altered by breaking a chemical bond(s) or making new chemical bonds between the original substance and some other substances. Count the number of workers directly involved in the process using the chemical, plus inspection and maintenance workers. 6. Fill in the chart for use of the chemical at your plant sites, other than as a reactant, for uses regulable under TSCA. A chemical is considered to be a non-reactant if its molecular structure is maintained throughout the normal course of its use. The chemical may undergo physical changes (e.g., changes in state or density, physical mixing with other substances) as long as no chemical changes occur. Examples include solvents, dielectric fluids, emulsifiers, and lubricants. List catalysts under this category. Include in this chart the number of workers processing the chemical, if separate from its manufacture; this includes ------- 117 producing products containing the chemical, preparing the chemical for distribution to customers, packaging, labeling, and trans- porting products containing the chemical. 7. Specify the quantity of the chemical substance you put in consumer products. For purposes of filling out this form only, "consumer products" is defined as in the Consumer Product Safety Act, 15 U.S.C. 2052 section 3(a)(l). Three consumer product types are given: Articles With No Release are articles constructed in a way to prevent human exposure or release to the environment of the chemical substance during normal use and storage; e.g., chemicals in thermometers, in internal components, and in components inside sealed articles. Articles With Some Release are articles whose material components are made of chemicals which come in direct contact with persons using the article, the atmosphere, land or water; i.e., exposure can come from leaching, evaporation, or surface contact. This includes such articles as plastic containers, chemically treated textiles, printed paper, coated appliances, etc. If the chemical itself is sold in a bottle or other container it should be reported under "Chemical Substance or Mixture," not as an article. Only the container itself is an article for purposes of this form. Chemical Substance or Mixture is for use directly by the consumer, e.g., as cleansers, paints, inks, deodorizers and other formulations containing the chemical. 8. Specify the quantity of the chemical substance you sell to persons who are distributors only of the substance. If the chemical is used or processed in any way report this under Part B. Part B: Use of the Chemical by others This part of the form applies to use of the chemical by your industrial customers either to make consumer products or industrial products. The category "unknown" is provided when either (1) the respondent does not know or cannot reasonably ascertain the answer within the accuracy required, or (2) the respondent knows the answer only because he has promised his customer that he will not reveal it further. 9. Specify the total quantity distributed to customers. As possible, fill in the chart provided for the uses and process types applicable to those customers. 10. Specify the quantity of chemical substance manufactured by you that is used by your customers to make consumer products. If ------- 118 you know some quantity is used in consumer products but cannot make a reasonable estimate, mark Unknown". 11. If a quantity is reported in number 10, separate the total into one or more of the types of products listed APPENDIX II — Instructions For Asserting and Substantiating Claims of Confidentiality J. Categories of Claims EPA had identified five categories of information into which most confidentiality claims will fall: 1. Manufacturer's (Importer's) Identity 2. Specific Chemical Identity 3. Production Volume 4. Uses of the Chemical Substance 5. Process Information ..... TJJ. Substantiating Claims of Confidentiality In addition to asserting a claim as explained in section I and II of the instructions, form submitters must do the following to substantiate claims of confidentiality for information on the form. C. Specific Questions. — In addition to the certification, you must answer the following questions if you claim information confidential in these categories. (Note: for each category, you must answer the questions only once, regardless of the number of times you claim information confidential in that category.) Process Information 1. If you have claimed confidentiality for manufacturer's identity and EPA keeps confidential the link between your company identity and process information, your identity will not be associated in any way with this information. In this case, what harm to your competitive position would result from disclosing the process information? What is the causal relationship between the disclosure and the harmful effects? 2. If you have claimed confidentiality for chemical identity so that the chemical identity category is not associated in any way with the process information, what harm to your competitive position would result from disclosing the process information? How could a competitor use this information? What is the causal relationship between the disclosure and the harm? ------- 119 FINAL RULE Federal Register / Vol. 47, No. 120 / Tuesday, June 22, 1982 / Rules and Regulations / Starting Page 26992 40 CFR Part 712 [OPTS-82004F; FRL 2039-7] Chemical Information Rules; Manufacturers Reporting; Preliminary Assessment Information ACTION: Final rule. SUMMARY: This final Preliminary Assessment Information rule requires chemical manufacturers (including certain producers and importers) to submit information on approximately 250 chemicals. The information sought from manufacturers includes data on the quantities of chemicals manufactured, the amounts directed to certain classes of uses, and the potential exposures and environmental releases associated with the manufacturer's own and his immediate customers' processing of the chemicals. The information collected under this rule will answer a critical need for basic data that can be used in setting priorities for testing chemicals and for assessing risks associated with chemicals. EFFECTIVE DATE: This regulation becomes effective on July 22, 1982. SUPPLEMENTARY INFORMATION: I. Introduction Proposed amendments to this final rule are published elsewhere in this issue of the Federal Register. EPA proposed a rule under section 8(a) of the Toxic Substances Control Act (TSCA) to obtain general use and exposure data on 2,226 chemical substances published in the Federal Register of February 29, 1980 (45 FR 13646). More than 150 written comments were received on the proposal and several meetings were held with members of the public. The Agency also received a petition from the Chemical Manufacturers Association requesting that the Agency provide dossiers and other information on the 2,226 chemicals for purposes of public comment. EPA responded to the petition in the Federal Register of April 28, 1980 (45 FR 28173). This preamble explains the final rule's provisions and addresses by topic the changes EPA has made to simplify, clarify, and reduce the burden of the rule ------- 120 After considering comments, the Agency has changed certain provisions and significantly reduced the number of chemicals. The changes to the provisions will reduce the burden of reporting without greatly decreasing the value of the information that the rule will collect on each chemical. Also in response to comments, the Agency has added explanatory material to clarify the requirements. Because of these changes, the Agency has changed the format of the final rule. The rule is now arranged in three Subparts. Subpart A contains general provisions applicable to the entire Part. Subpart B contains reporting requirements for chemical manufacturers. Subpart C will contain the chemical processors' reporting requirements proposed separately today. This arrangement should allow manufacturers and processors to more easily identify the provisions to which they are subject. Elsewhere in this issue of the Federal Register, EPA is proposing three amendments to this final rule. One amendment is the plan for follow-up reporting by processors. Another change would require reporting automatically within 60 days on chemicals recommended for testing under section 4 of TSCA by the Interagency Testing Committee (ITC). The third change would make about 50 additional ITC-recommended chemicals subject to reporting under this rule A. Rule Design: Two Part Reporting The final rule anticipates two rounds of reporting. In the first round, manufacturers of chemicals listed in § 712.30 of the rule must submit Preliminary Assessment Information Manufacturer's Reports. The reports must be submitted to EPA within four months of the effective date of the rule. The manufacturer's report includes items on the use of a manufacturer's chemical by his customers, when the customers are also processors of the chemical. However, manufacturers may report "unknown" for their processor-customers' uses either when manufacturers do not know the customers' uses to within +/- 50 percent accuracy, or when the information is subject to a secrecy agreement between the manufacturer and customer. The Agency will aggregate the customer use data for each chemical. If manufacturers report customer uses unknown for over 20 percent of the total amount of a chemical manufactured and imported, the Agency plans to initiate a second round of reporting, this time by processors, in order to complete its assessments. As noted above, the procedures for this second round of reporting are proposed for comment in a separate notice today II. Who Must Report A. Persons Included ------- 121 l. Manufacturers. The term "manufacture" under TSCA includes importing and producing as well as manufacturing activities. Persons must report on each listed chemical substance that they manufactured for commercial purposes in the reporting period specified for the chemical. Discussion of the application of this rule to producers and importers follows. 2. Producers — Miners and oil refiners. Questions were asked during the comment period about the application of this rule to mining of chemical substances. The concern was that listed chemical substances are present in mined substances in variable or undefined concentrations and that a single chemical substance may be reported as "manufactured" more than once in the stream of commerce. Commenters felt that it must be made clear precisely at what point they are "manufacturing" a specific chemical substance that is present in a mined substance. We have provided clarification both here and in the rule. Any method of extraction, refinement, or purification of the mined substance to make it marketable as a listed chemical sub- stance is to be regarded as "manufacture of a listed chemical substance" for the purposes of this rule. An undefined or variable concentration mixture not intended for marketing as a listed chemical is not subject to this rule. In general terms, mining can be regarded as extracting a substance from the atmosphere, earth, or sea. The most common methods are digging ores and drilling oil. Many persons mine complex substances containing listed chemicals in undefined or variable concentrations, but do not refine the mined substance in order to extract a particular chemical substance for use or sale. Some of the chemicals subject to this rule may be present in and produced from these complex precursor substances. However, because EPA has excluded undefined, variable composition substances from the list of chemicals subject to this rule, production or mining of the undefined, variable composition precursor is not to be reported. Only subsequent steps devoted to production of the listed chemical are reportable. For example, persons who manufacture a chemical substance such as "sweetened naphtha, 64741-87-3," but do not refine the naphtha to produce "hexane, 110-54-3" would not report on hexane. Only the production of "hexane" as an isolated product must be reported — not previous production of more crude, complex substances such as the naphtha from which hexane is extracted B. Exemptions From Reporting Most of the comments supported the exemptions to reporting in the proposed rule. The proposed exemptions have been adopted. In addition, the final rule contains an exemption suggested by commenters to exclude reporting on the manufacture of less than 500 ------- 122 kilograms annually at a plant site. The Agency estimates that this exemption will exclude about 170 reports. Excluding reports of these small production quantities will not affect assessment of the chemicals and so will relieve an unnecessary reporting burden. III. Reporting Form for Manufacturers A facsimile of the Manufacturer's Report — Preliminary Assessment Information form appears in § 712.28. The data reporting section of the form (Section IV) has two parts: Part A: Plant Site Activities and Part B: Chemical Substance Processing by Customers. Production, processing, and use at each single domestic manufacturing site must be reported on Part A, including the number of workers, uses, and process types employed, and quantities of the chemical that are or are not recovered. Part B of the form applies to the processing of the chemical by others. Part B will account for the quantity of chemical that is distributed from the manu- facturing plant site. Altogether, the form identifies where a chemical is made and in what quantities, how many workers are potentially exposed during manufacture, processing, and use at the manufacturing plant site, what likely environmental releases exist, and what quantities are used in various categories of uses both by the manufacturer and as the chemical moves into commerce. In Part A, items 1 and 2 ask for total quantities of the chemical imported and domestically manufactured. Item 3 covers quantities lost during manufacture. Items 4, 5, 6, and 7 ask for quantities, worker-hours, and number of workers associated with enclosed, controlled release, and open process categories. Item 4 covers manufacture of the chemical; item 5 covers on-site use as a reactant; item 6 covers on-site non-reactant use; and item 7 covers on-site preparation of products. Item 8 asks how much of the chemical the manufacturer makes into products to be used by industry or by consumers; these products include the chemical itself and mixtures containing the chemical, articles with some release of the chemical possible, and articles with no release. All of the above Part A items concern the manufacturer's own activities and use of his own products. Part B concerns the activities of the manufacturer's immediate customers (processors) . Item 9 parallels item 8 of Part A; it asks how much of the chemical the customer makes into products to be used by industry or by consumers in various forms. Item 10 asks for the trade name(s) under which the manufacturer markets the chemical to his customers. This item is only to be answered if the manufacturer reports that his customers' uses are unknown for more than 20 percent of the quantity of chemical manufactured and imported. Item 11 asks the manufacturer to estimate, based upon his general knowledge of industry practices, the quantity of the chemical that is processed by his customers in enclosed, controlled, or open processes, respectively. ------- 123 A. Readily Obtainable Data The rule requires persons to report data that are readily obtainable by management and supervisory employees responsible for manufacturing, processing, distribution, technical services, marketing, and other related activities. These knowledgeable people are responsible for providing estimates and associated accuracy levels for the data elements on the form. The comments supported this standard. B. Accuracy for Reporting For Part B of the form, dealing with processor-customers' activities, quantities must be reported within +/- 50 percent. We are persuaded that manufacturers must routinely know their own production efficiencies and quantities in order to control their costs and price their products. Thus, when manufacturers report about their own activities, the best estimate from readily obtainable data would be sufficiently accurate. There is no need for the company to expend further effort to report more exactly. For example, it will be legitimate for a company to report figures based on design capabilities of a process. Thus if a process is planned to utilize or produce a certain quantity per "run" or per unit time, or is planned to produce a certain quantity of product from a defined quantity of feedstock material, then the company may assume that the design quantities are the actual quantities, and not attempt to account for variations. Most of the companies who commented favored the broadest possible limits on accuracy of quantities reported. Except for the questions relating to losses during manufacture and customer activities, companies simply endorsed broad limits without discussion. They cited no specific difficulties in reporting on quantities going into and coming out of their own production processes. One commenter in fact said, "If we do it, we know it." The Agency has concluded that reporting on the basis of readily obtainable data will not impose significant burdens Items 3a, 3b, 3c, and 3d deal with losses during manufacture of the chemical. Comments said lack of measured data presented a serious difficulty in meeting the proposed level of accuracy for quantities reported on question 3a. For the final rule, manu- facturers may calculate the total loss for question 3a by finding the differences between the quantities theoretically manufactured, and quantities actually used or sold. For items 3b, 3c, and 3d, we have decided to allow respondents to simply tell us the accuracy of the quantities reported. The following difficulties were cited for reporting the destiny of losses: many times the amounts lost are very small, on the order of parts per million, and a 10 percent or 50 percent difference would be insignificant or immeasurable; routine methods for analyzing emission or effluent amounts do not ------- 124 exist in most cases; and in some cases there are multiple sources of loss that would make calculations extremely difficult. We have concluded that by allowing companies themselves to specify the accuracy of the figures, based on readily obtainable data, we will receive the estimates we need, without imposing unnecessary burdens. Companies are not required to conduct monitoring to comply with this rule; they may answer this item by mass balance estimates. The accuracy of reporting customer activities under item 9 of the proposed form received the greatest attention from conunenters. Most commenters felt that quantities of a chemical processed by individual customers in enclosed, open, or controlled release operations would be beyond their knowledge in most cases. Further- more, the proposed item 9 asked for quantities of chemicals by customer use and process category in a combined matrix. This simultaneous accounting for quantities would have required a customer-by-customer accounting, followed by sorting and aggre- gating quantities into 16 matrix boxes. In the view of most companies, this complicated accounting together with their lack of knowledge of customer processes would have resulted in frequent reporting of quantities as "unknown." We have changed the reporting of customer activities in response to difficulties described in comments. The final form has two items, 9 and 11, to cover customer activities. Item 9 now asks for quantities by customer use within +/- 50 percent accuracy. Commenters indicated that this could be done. Where respondents cannot report within +/- 50 percent, or where they have a secrecy agreement with the customer, they may report "unknown." Item 11 now asks for the respondent's estimate of the kinds of processes generally used for the chemical. In general, manufacturers should report information on their customers' uses to the extent that this information is known. Manufacturers are not required to obtain additional information from customers for this rule. C. Reporting Worker-Hours, Number of Workers, and Quantities: Items 4-7 As a result of comments, EPA has simplified reporting of worker-hours, number of workers, and quantities by process category under items 4-7. Only the workers directly assigned to the manufacturing, processing, and use of the chemical should be counted. Maintenance workers should be counted only if they are directly assigned to and are a regular part of a process. When answering the items on worker-hours or number of workers, respondents must (i) identify the process category (enclosed, controlled release, or open) with which the worker spends the most ------- 125 time, and (ii) determine the number of workers involved with a given process category. For multiprocess operations, workers operating more than one process category should be listed only once — under the process category with which they work most of the time. This should avoid double counting of workers. Worker-hours need not be calculated from detailed production records, but may be based on design factors. That is, worker- hours may be estimated from the plant's production of a given chemical and the design number of employees needed to achieve that production. The final rule simplifies reporting by requiring the total number of workers involved in each process category, and deleting the proposed distinction between full and part-time workers. The number of workers should include employee turnover, and will not necessarily correspond to worker-hours. Include all employees who work on a given chemical's production or processing, regardless of the length of time of employment. Instructions have been clarified regarding items on the quantity of a chemical that goes through each process category. Chemical production could involve a single process or a multi- process operation, a split stream involving different processes, or two separate streams involving different processes (e.g., one stream might be for a reagent grade chemical and another for a technical grade). The instructions discuss how to handle reporting in these differing circumstances. D. Preparation and Uses of Manufacturer's Products: Items 7 and 8 The form has been revised to identify more clearly the distinct activity of on-site product preparation (making a product containing the manufactured chemical). Item 7 in the final rule applies only to plant sites that both manufacture and process a chemical. If a manufacturer of a listed chemical also produces a formulated mixture or other industrial or consumer product containing the chemical, he must report the chemical quantities, number of workers, and process categories in this question. Item 8 asks for the quantities of the substance incorporated into various use categories of products produced by the manufac- turer at the reporting site. This item also incorporates proposed question 12 on export of the chemical substance (as the chemical or as part of a product). Commenters thought we should differentiate between institu- tional and industrial uses to better judge exposures. We do not believe that this degree of differentiation will contribute to the evaluation of a chemical without more information on the manner of use of the chemical. Therefore, for the purposes of this rule, ------- 126 "industrial" and "institutional" products are treated in the same manner. Commenters said the definition of consumer products should have the same exemptions as listed in the Consumer Product Safety Act (15 U.S.C. 2052 (a) (1) (D) ) (CPSA) . We have not adopted this suggestion. Our purpose in citing CPSA is simply to help differentiate between consumer and industrial products. Thus, the CPSA definition, without its exemptions, is included in the rule to guide manufacturers in categorizing their products. F. Customer Uses: Items 9, 10, and 11 Items 9 and 11 ask the manufacturer to estimate the quantities of the chemical that his customers incorporated into various categories of products, exported, consumed as reactant, and processed by various categories of process. The manufacturer is to base his estimates on his knowledge of the market for the products and his customers' roles in that market. If manufacturers do not know how all quantities of the marketed chemical are used by customers, or if a use is subject to a secrecy agreement with the customer, the amount may be reported as "unknown". If the manufacturer reports that more than 20 per- cent of the total quantity manufactured and imported has unknown uses, in question 10 he must provide the trade names under which he marketed the "unknown" amount. The Agency, as discussed below, will use the trade names for processor reporting, if it becomes necessary for that chemical. G. Follow-up Reporting Nearly every industry comment requested that EPA eliminate the proposed requirement to submit customer lists for purposes of follow-up reporting on customer data that are unknown to manu- facturers. Commenters cited several difficulties with the approach, including their own confidentiality concerns and the burden of making up the lists when there are many customers. In addition, some pointed to the potential burden for all concerned, including EPA, of having follow-up proceed by mailing of letters back and forth. This would be difficult, especially when manu- facturers have customer addresses for deliveries rather than addresses for technical contacts. The Agency sees merit in many of the comments on the proposed approach and is proposing a different one in a separate proposed rule elsewhere in this issue of the Federal Register. The separate notice describes the new proposal and discusses the comments already received on processor reporting. In general, under the new approach, the Agency would aggregate the manufacturers' reports on a chemical. If "unknown" uses are reported for more than 20 ------- 127 percent of the aggregate quantity manufactured and imported, the chemical will be the subject of follow-up reporting by processors. The market names for the chemical will be taken from the responses to question 10 of the manufacturers' reporting forms. These names will be published, and processors of the chemicals under these names will report about them. This approach is based on commenters' suggestions that EPA should specify criteria that would trigger follow-up reporting, and that EPA should publish trade names on which processors must report in order to protect confidentiality of chemical product composition K. Recordkeeping Commenters expressed concern over the proposed requirement to maintain records that support information submitted to EPA. The proposed five-year retention period was said to be too long and too burdensome. The Agency agrees that this provision should be deleted. The records supporting reporting under this rule will be records that companies will retain as a matter of business. Companies should be alert to the possibility that they may be required to report under this rule in the future and consider or, if necessary, reconsider their recordkeeping practices in that light V. Other Issues A. Small Manufacturers Section 8(a)(3) of TSCA requires the Administrator to consult with the Small Business Administration and then to prescribe, by rule, standards to determine who may qualify as a small manufac- turer or processor. Such small businesses are then exempt from section 8(a) rule requirements. However, if a chemical substance is subject to certain proposed or final actions by the Agency, EPA need not apply the section 8 exemption for small businesses manu- facturing or processing the chemical. Among the actions that could remove the small business exemption are proposed rules under section 4, 5, or 6 of TSCA. Although several chemicals in the list published today are subject to section 4 proposals, EPA has decided not to require any reporting by small businesses. The additional data from those companies would not significantly influence the overall preliminary assessments. For this rule, for a plant site to qualify as small with respect to a listed chemical, a manufacturer or importer must meet both of the following criteria: i. Total annual sales taken together of all sites owned or controlled by the foreign or domestic parent company were below $30 million for the reporting period. ------- 128 As chemicals become subject to this rule in the future, the Agency will consider the need to adjust this dollar figure to reflect inflation. Sales figures would be based on activities at all of the plant sites of the reporting firm, its parent, and all subsidiaries owned or controlled by the parent company. The parent company owns or controls another company if the parent owns or controls 50 percent or more of the other company's voting stock, or other equity rights, or has the power to control the management and policies of the other company. ii. Total production of the listed substance for the reporting year was below 45,400 kilograms (100,000 pounds) at the plant site. The EPA has consulted with the Small Business Administration in developing the exemption standard for the rule. The exemption criteria for this rule have not changed from the proposal, except for the addition of a factor to correct the sales cutoff for inflation. B. Confidentiality 2. Release of data to the public There are two purposes for releasing data received by the Agency: i. To allow the public and the states to conduct local activities to identify and control risk situations, and ii. To allow public comment on the aggregate data the Agency uses to make its decisions. The first purpose seems best served by the release of discrete data items that have not been claimed confidential. However, comments indicated most of the reported data will be legitimately claimed to be confidential business information. Therefore, the public would be likely to receive only incomplete data that had not been claimed confidential. Moreover, the release of discrete non-confidential data elements would limit the release of the aggregate data used in risk assessments; discrete non-confidential data could be subtracted from the aggregate to reveal secret data. Given these considerations, we have decided to release the following types of non-confidential data: i. Identification of a firm or plant site that manufactures or processes a chemical, except when this fact is confidential. ii. Aggregate data on production, uses, and workers for each chemical. ------- 129 It will be necessary for us to withhold some data that have not been claimed confidential in order to protect confidential data within an aggregate. However, the Agency will determine its aggregation method in a manner that will allow as much data as possible to be released, but that will not allow confidential information to be recognized by the public. By releasing aggregate data we will be able to share information with the public, including the regulated industry Therefore, 40 CFR Chapter I is amended by adding a new Part 712 to read as follows: PART 712 — CHEMICAL INFORMATION RULES Subpart A — General Provisions Sec. 712.1 Scope and compliance. 712.3 Definitions. 712.5 Method of identification of substances for reporting purposes. 712.7 Report of readily obtainable information for Subparts B and C. 712.15 Confidentiality. Subpart B — Manufacturers Reporting — Preliminary Assessment Information 712.20 Manufacturers and importers who must report. 712.25 Exempt manufacturers and importers. 712.28 Form and instructions. 712.30 Chemical lists and reporting periods. Authority: Sec. 8(a), Toxic Substances Control Act, Pub. L. 94-469 (90 Stat. 2003, 15 U.S.C. 2601 et seq.). Subpart A — General Provisions § 712.1 Scope and compliance. This Part establishes procedures for chemical manufacturers and processors to report production, use, and exposure-related information on listed chemical substances. Subpart A establishes requirements that apply to all reporting under this Part. Subparts B and C, respectively, cover manufacturers' and processors' reporting. ------- 130 § 712.3 Definitions. The definitions in section 3 of TSCA, 15 U.S.C. 2602, apply for this Part. In addition, the following definitions apply: (a) "Byproduct" means any chemical substance or mixture produced without a separate commercial intent during the manufacture, processing, use, or disposal of another chemical substance or mixture (f) "Intermediate" means any chemical substance that is consumed, in whole or in part, in chemical reactions used for the intentional manufacture of other chemical substances or mixtures, or that is intentionally present for the purpose of altering the rates of such chemical reactions. (See also paragraph (j) of this section.) (h) "Manufacture for commercial purposes" means to import, produce, or manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer and includes, among other things, such "manufacture" of any amount of a chemical substance or mixture: (1) For commercial distribution, including for test marketing. (2) For use by the manufacturer, including use for product research and development, or as an intermediate. Manufacture for commercial purposes also applies to substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including byproducts and coproducts that are separated from that other substance or mixture, and impurities that remain in that substance or mixture. Byproducts and impurities may not in themselves have commercial value. They are nonetheless produced for the purpose of obtaining a commercial advantage since they are part of the manufacture of a chemical produced for a commercial purpose. (i) "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 "mixture" does include (A) any combination which occurs, in whole or in part, as a result of a chemical reaction if the combination could have been manufactured for commercial purposes without a chemical reaction at the time the chemical substances comprising the combination were combined, and if all of the chemical substances comprising the combination are included in the EPA, TSCA Chemical Substance Inventory after the effective date of the premanufacture notification requirement under 40 CFR Part 720, and (B) hydrates of a chemical substance or hydrated ions formed by association of a chemical substance with water. The term mixture includes alloys, inorganic glasses, ceramics, frits, and cements, including Portland cement. ------- 131 (j) "Non-isolated intermediate" means any intermediate that is not intentionally removed from the equipment in which it is manufactured, including the reaction vessel in which it is manufactured, equipment which is ancillary to the reaction vessel, and any equipment through which the substance passes during a continuous flow process, but not including tanks or other vessels in which the substance is stored after its manufacture. (See also paragraph (f) of this section.) (m) "Process for commercial purposes" means the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes ------- 132 INSTRUCTIONS FOR MANUFACTURER'S REPORT FORM PRELIMINARY ASSESSMENT INFORMATION IV. PRELIMINARY ASSESSMENT INFORMATION TSCA Regulatable Quantities - Except under items 4 and 5, do not report any quantity of chemical substance that is manufactured or processed solely for use as: a pesticide; tobacco or any tobacco product; any source material, special nuclear material, or byproduct material (as terms are defined in the Atomic Energy Act of 1954 and regulations issued under such Act); firearms or ammunition or food, food additives, drug, cosmetic, or device (as such terms are defined in section 201 of the Federal Food, Drug and Cosmetic Act). The above are not TSCA regulable. Some chemical substances are manufactured for both TSCA and non-TSCA regulable purposes. Thus, under items 4 and 5, include total production of the chemical stream for both TSCA and non-TSCA regulable quantities. PART A: PLANT SITE ACTIVITIES Item 1 - Enter the total quantity of the chemical substance imported in bulk during the reporting period. if you import, but do not further process the imported quantity or manufacture an additional quantity, answer this item and part B only Items 4-7 - Items 4-7 in part A require you to describe the manufacturing process and your use of the chemical in terms of the number of workers and quantity of substance associated with three process categories. Three process categories are described below, followed by instructions for calculating quantities, worker-hours, and number of workers. Additional instructions concerning items 4 through 7 are also listed. PROCESS CATEGORIES Enclosed Process -. The process is designed and operated so that there is no intentional release of the chemical. In this process category, only fugitive or inadvertent releases occur and special measures are taken to prevent worker exposures and environmental contamination. "Special measures" refer to procedures and equipment that are monitored and used to prevent worker exposure, ------- 133 and scrubbers and other recovery equipment employed to prevent environmental release. Equipment with emergency pressure relief venting would be allowed in this category; routine venting would not. With regard to handling the manufactured chemical, persons who handle closed packages containing the material would be counted under "enclosed process." Persons who package or transfer the unpackaged chemical would be counted in one of the following categories. Controlled Release Process - The process is operated in a controlled manner to minimize release of the chemical into the workplace. Releases should generally be within prescribed limits. These limits may be dictated by government regulations or by company guidelines. If the chemical is vented outside the plant, the process is a "controlled release" process. Do not count general space ventilation fans. Open Process - The chemical is routinely in direct contact with the atmosphere (workplace or outside the plant) and no measures are taken to prevent release. For example, reaction vessels are open vats, the chemical is transported or stored in open containers, or the chemical is freely vented into the workplace atmosphere. QUANTITIES Process Category - Enter the greatest quantity that is processed in each process category. If there is more than one process stream, calculate each stream separately and then add the values for each process category. If a quantity of the chemical passes in series through an enclosed process and then passes through an open process, the same quantity would be reported twice, once under each process category. (The sum of these quantities may be greater than 100% of the total quantity manufactured.) Example 1 - A company manufactures technical grade chemical x in four steps. 350,000 kg > 350,000 kg > 350,000 kg > 200,000 kg Open Enclosed Open Enclosed The company would report: Enclosed 350,000 kg Controlled release 0 Open 350,000 kg ------- 134 Example 2 - A company produces the same chemical in a reagent and technical grade with the following steps. Technical Grade Process: 350,000 kg > 350,000 kg > 350,000 kg > 200,000 kg Open Enclosed Open Enclosed Reagent Grade Process: 650,000 kg > 500,000 kg > 500,000 kg > 400,000 kg Controlled Controlled Open Open Release Release The company would report: Enclosed 350,000 kg Controlled release 650,000 kg Open 850,000 kg (The open process amount is the total of the maximum guantity in the open process category from each grade.) Total Quantity - For items 5, 6, and 7, enter the total quantity processed in all process categories. (This total may be less than the sum of the quantities reported in individual process categories.) WORKER-HOURS Worker-hours may be calculated for a given process category by multiplying the average number of full-time employees needed for the operation by the number of hours operating annually. Alternatively, worker-hour information may be taken from preexisting information sources such as resource planning or budget figures. WORKERS In reporting number of workers for each process category, count the total number of persons directly involved in manufacturing, processing, and handling the chemical during the reporting period. Count maintenance or inspection workers only if they work with the process on a routine basis. Do not count administrative staff. Three process categories are described in the form: enclosed, controlled release-, and open. A worker should be counted as working with only one process category. If he operates several process types, count him under the one with which he spends the most time. If he spends an equal amount of time with several, count him under the most open process. ------- 135 Example 3 - A company manufactured 1,000,000 kg of a chemical substance in 1980. It manufactured the chemical for all twelve months of the year and did so in an enclosed process. In order to run the production line, ten (10). workers were present working 40 hour weeks; thus over the course of the year 20,800 worker-hours were used to run the production line. Over the course of the year, twelve (12) different workers worked on the production of the chemical. The form would then be filled out as follows: Process category Quantity (kg) Worker-hours Total workers Open 000 Controlled release 000 Enclosed 1,000,000 kg 20,800 12 Example 4 - A company manufactured 1,000,000 kg of a chemical substance in 1980. It manufactured the chemical for the entire year in a 24 hour/day process consisting of three steps in the open, controlled release, and open process categories. The production line was shut down for maintenance for 2 weeks of the year. The production line had three 8-hour shifts. Each shift in step 1 required 5 workers, while 7 and 10 workers were needed per shift in steps 2 and 3, respectively. The total worker-hours required for each step follows: (Shifts/day x hours/shift x workers x days/week x Process' category weeks/year) Workers-hours Open (Step 1) (3x8x5x7x 50) 42,000 Controlled (Step 2) (3x8x7 x7x 50) 58,800 Open (Step 3) (3 x 8 x 10 x 7 x 50) 84,000 Analysis of the personnel records showed that a total of 75 individuals worked on the production of the chemical during 1980. After examining the personnel records, the company was able to fill in the following table: Process category Total workers Open (Step 1) 21 Controlled (Step ) 19 Open (Step 3) 35 75 Note that workers are not double counted or "split" even though some jobs may require moving from one step of the process to another step of the same process. An employee working on both step ------- 136 1 and step 2 is counted only in step 1 if he/she spends most of his time at that step. After adding together steps in the same process category, the company would report as follows: Process category Quantity (kg) Worker-hours Total workers Open 1,000,000 126,000 56 Controlled release 1,000,000 58,800 19 Enclosed 000 Item 4 - This item applies to the manufacture of the chemical substance and includes all steps to ready the chemical for further processing or use. Item 5 - This item applies to use of the chemical at your plant site as a reactant in the manufacture of another chemical substance, where the molecular structure of the chemical is altered by breaking chemical bonds or making new chemical bonds between the original substance and some other substance. Report .on all processing up to and including the actual reaction step and any ancillary steps which recycle unreacted chemicals back to the reactor vessel. Do not report on subsequent activities in this question. Item 6 - Report the quantity o the chemical substance that you use on site. Examples include cleaning solvents, dielectric fluids, emulsifiers, and lubricants. Do not include any quantity that you react to make a product. Item 7 - Report the quantity of the chemical substance that you process at the manufacturing site into products for on site use or sale. (Note that this does not include manufacture of the chemical substance; this is reported in item 4 above.) This item does include the quantity of chemical substance that you incorporate in a mixture or article. Report the steps up to and including incorporation of the chemical into an article; do not include any further processing of the article. Item 8 - Report the quantity of the chemical substance that you prepare for commercial distribution in each of the product types in 8a to 8g. Do not include any quantity of chemical substance that your customers will further process. This will be reported in item 9. In items 8a to 8f, report the quantity of the chemical substance in products that are for domestic use. If you are uncertain about whether your products are ,for domestic or foreign use, report them as domestic. ------- 137 The products are divided into industrial and consumer products. "Industrial" means the manufacturing and service industries covered by the Standard Industrial Codes. Products meant to be used primarily by the general population are considered to be "consumer" products. The following definition from the Consumer Product Safety Act can be used as a guide (15 U.S.C. 2052 (a) (1)): "The term •consumer product1 means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise." If you are uncertain about whether your products are industrial or consumer, report them as consumer. Three types of industrial and consumer product types are described below. "Chemical substance or mixture" means a chemical, or mixture containing the chemical, that is used directly by the persons using the product, e.g., cleaners, paints, inks, deodorizers, solvents, etc. This includes chemicals or mixtures in containers or other articles whose purpose is to release the chemical (e.g., cans of spray paint, ink pens, and other applicators.) "Articles or products with no release" are articles constructed to prevent human exposure to or release to the environment of the chemical substance during normal use and storage (e.g., chemical coatings on internal components, and chemicals inside sealed articles as in thermometers and batteries). "Articles or products with some release" are articles whose material components are made of chemicals which come in direct contact with persons using the article, the atmosphere, land, or water; e.g., exposure can come from leaching, evaporation, or surface contact. This includes such articles as plastic containers, chemically treated textiles, printed paper, coated appliances, etc. If the chemical itself is sold in a bottle or other container it should be reported under "Chemical substance or mixture," not as an article. Only the container itself is an article for purposes of this form; the substance it contains is not a component of an article Item 9 - Estimate the quantity of the chemical substance that your customers process for each of the uses listed in items 9a to 9h. (Do not include the quantity of chemical substances that your customers will use without further processing; that quantity should be reported in item 8a or 8d.) For items 9a or 9g, follow the same directions as for items 8a to 8g. ------- 138 For item 9h, report the quantity of chemical substance that your customers will react to make products that do not contain the chemical substance itself. For item 9i, report the quantity of chemical substance for which your customers' uses are unknown. Report your best estimate for items 9a to 9h within +/- 50%. If you cannot estimate an item to this degree of accuracy, include the quantity in item 9i. You may report "unknown" if the data would reveal information subject to a confidentiality agreement between you and your customers. Item 10 - If you report your customers' uses as unknown (item 9i above) for more than 20% of the total quantity that you manufacture and import (items 1 and 2 above) list the names under which you distribute the chemical substance. This item will allow EPA, if necessary, to find out about chemical uses you have reported as "unknown" by requiring processors of your products to report directly to us. Item 11 - This item addresses your general knowledge of the process types your customers use to process the chemical. Estimate the quantity of the chemical that your customers process in each of the three process categories. Specify "unknown" if you do not know to within +/- 50%. ------- 139 PROPOSED RULE Federal Register / Vol. 47, No. 120 / Tuesday, June 22, 1982 / Proposed Rules / Starting Page 27009 40 CFR Part 712 [OPTS-82004G; 2039-6] Chemical Information Rules; Preliminary Assessment Information; Opportunity for Additional Comment ACTION: Proposed rule. SUMMARY: EPA is proposing 50 additional chemicals for manufacturer reporting of preliminary assessment information. These are chemicals that the Interagency Testing Committee has designated as candidates for testing in its fifth through ninth reports. EPA is also proposing supplementary processor reporting on the 300 chemicals subject to manufacturer reporting, when customer use information is inadequate. In addition, EPA is proposing that certain chemicals automatically become subject to manufacturer reporting. SUPPLEMENTARY INFORMATION: I. Introduction EPA proposed a rule under section 8(a) of the Toxic Substances Control Act (TSCA) to obtain preliminary use and exposure data on about 2,300 chemical substances published in the Federal Register of February 29, 1980 (42 FR 13647). Under the final Manufacturers Reporting — Preliminary Assessment Information rule published elsewhere in this issue of the Federal Register, manufacturers must report on about 250 chemicals. In the original proposal, chemical manufacturers were to submit information on their own and their customers' uses of the chemicals. If manufacturers did not provide the specified information on their customers' uses, manufacturers were also to submit lists of their customers so that EPA could contact the customers directly. The Agency received over 150 written comments on that proposal, most comments requesting that EPA eliminate the proposed requirement to submit customer lists While EPA does not agree with all the reasons presented against the customer list requirement, the Agency is persuaded that customer list reporting is not the best approach for this rule. Thus today's final rule deletes the proposed requirement for manufacturers to submit customer lists. Instead, the Agency here proposes an alternative approach to obtain data that manufacturers do not supply on their customers' uses. ------- 140 In this notice, the Agency proposes to initiate a "second round" of "follow-up" reporting from processors by Federal Register notice. In this second round of reporting, processors would report on chemical substances that are marketed by manufacturers who reported unknown customer uses for more than 20 percent of the total quantity manufactured and imported. EPA would publish by Federal Register notice a list of the marketing names of these chemicals. Processors would then submit the shorter Processor's Follow-up Report — Preliminary Assessment Information on the listed chemicals. EPA would use the information reported by processors to complete assessments of the listed chemicals. The final manufacturers rule also provides that chemicals in addition to the original 250 may become subject to manufacturer reporting after proposal and comment. Additional chemicals would be subject to processor reporting if manufacturers are unable to provide sufficient information. This notice proposes and solicits comment on the addition of about 50 chemicals for manufacturers reporting. These are chemicals that the Interagency Testing Committee has designated as candidates for testing in its fifth through ninth reports This notice also proposes that manufacturers automatically report on test candidates designated by ITC in the future. We are proposing to waive future comment periods for the individual ITC designates in order to collect needed exposure data in a more timely fashion. II. Proposed Processor Reporting Requirements A. New Approach to Processor Follow-Up The Agency received many comments objecting to the originally proposed processor reporting requirements. Those proposed requirements have been deleted and are replaced by a new approach. This reproposed processor follow-up approach adopts suggestions made in comments on the February 29, 1980 proposal. Based on those comments, the Agency considers that this new approach has significant advantages over the customer list approach. In this new approach, EPA would require processor reporting for an individual chemical only after receipt and review of all manu- facturers' forms on the chemical. Commenters requested that EPA specify objective criteria to trigger processor follow-up, so that only a limited number of chemicals would be subject to processor reporting. The Chemical Manufacturers Association (CMA) suggested that the trigger should depend on the data provided by manufacturers and that EPA should require processor follow-up reporting if at least 10 million pounds of a chemical are produced for processing by firms other than the manufacturer's, and all manufacturers' reports on the chemical fail ------- 141 to provide use and exposure information on at least 30 percent of the portion of the chemical's output that is sold to processors. Gaps in manufacturers' data should trigger processor reporting, but the Agency does not consider any single, absolute quantity of chemical to be an appropriate trigger because a quantity trigger cannot apply equally to all chemicals. For example, a million pounds is a very small portion of a chemical when total production is 20 billion, but a very large portion of a chemical when total production is 2 million. EPA has not adopted the 30 percent suggestion because the Agency considers that the trigger should be based on the quantity of the total chemical manufactured and imported, rather than on only the portion processed by customers, as CMA suggested. EPA proposes to require processor reporting on a chemical when manufacturers report that customer uses are unknown for more than 20 percent of the total quantity manufactured and imported. That is, on the Manufacturer's Report form, EPA will compare the total for all manufacturers in questions 1 and 2 to the total for all manufacturers in item 9i, "unknown customer uses." If "unknown customer uses" represent more than 20 percent of the total domestically available, EPA will initiate processor reporting. If at least 80 percent of the uses of a chemical are accounted for, then EPA will not require any processor reporting. Knowing 80 percent, we can project that the remaining 20 percent even if it is radically different will not significantly affect estimates of overall exposure for preliminary assessment purposes. For instance, if the exposure estimate for the known 80 percent were quantified as two on a scale of ten, and, in an hypothetical extreme case, the missing 20 percent would have scored an eight, the missing portion would change the average estimate only to three. With any known portion less than 80 percent, the confidence in this kind of projection would be correspondingly less. Likewise, using a figure greater than 80 percent would increase the confidence of the projection, but at the cost of an increase in amount of processor reporting. Also as recommended by comments, when possible, EPA intends to publish trade names, rather than CAS numbers or chemical names, of the chemicals on which processors must report. EPA agrees with comments that this would better protect confidential information on composition of marketed chemical products, and that this approach will also communicate more to processors. Manufacturers should note, however, that if one manufacturer sells a chemical under a trade name, and another sells the same chemical under its chemical name, EPA would potentially be required to publish both the trade name and the chemical name for any follow-up reporting. ------- 142 Comments also indicated that manufacturers would be more concerned about the confidentiality of ingredients in formulated mixtures sold under trade names, rather than confidentiality of chemical substances sold under trade names. Because this rule does not collect information on mixtures, publishing trade names should be a less serious confidentiality problem. EPA will publish the trade names in a Federal Register notice along with the reporting period for each chemical and the date by which processors must submit reports to EPA. Note that if a manufacturer did not mark "unknown" for more than 20 percent of the total quantity processed (question 9i on the manufacturer's form,, published elsewhere in this issue of the Federal Register as 40 CFR Part 712, Subpart B), his trade names would not be published. It may also happen that we will not follow up on a manufacturer who does not account for 80 percent of his processed quantity. Follow-up wold not be needed if all other manufacturers' reports for the same substance account for 80 percent of the aggregate production. The new approach has other advantages. Because direct processor reporting eliminates the need for manufacturers to assemble and submit customer lists, this approach would decrease the manufacturers' reporting burden. Follow-up processor reporting would reach customers who are processors, and would also reach processors who purchase chemicals from distributors. It would also avoid unnecessarily involving distributors who are direct customers of respondent manufacturers, and who do not further process the chemicals. The requirements for processor reporting are described in more detail at III below and elsewhere in this issue of the Federal Register, and appear in § 712.40 of the proposed rule. Today's notice solicits additional comment on this proposed method of follow-up processor reporting. After reviewing comments to be received on this proposal, we will publish the final requirements for processor reporting in the Federal Register. B. Who Must Report In the proposed second round of reporting to collect information for preliminary assessment, persons who processed for commercial purposes certain chemical substances during the reporting year would submit the Processor's Follow-up Report — Preliminary Assessment Information. The chemicals would be listed in § 712.50 and published in a Federal Register notice, along with a date by which reports would be submitted to EPA. The proposed requirements for reporting are described in this section of the preamble and appear in § 712.48 of the rule. Processors who would be specifically exempted are described at III.B below. Several comments requested clarification of the distinction between "processor," "user," and "distributor." The primary concern of the commenters was that the use of a chemical to manufacture a ------- 143 different chemical should not be considered processing. They suggested that if a person's activities change a listed chemical so that it no longer exists in its listed chemical form, the person is a "user" and consequently should not be subject to follow-up reporting. The Agency disagrees with this interpretation. "Processing" includes any preparation of the chemical substance for distribution in commerce as part of a mixture, an article, or any product containing or composed of the chemical substance. Processing also includes the use of a chemical as a reactant or intermediate to produce another chemical substance. If a company only uses and discards the chemical at its plant site, the company is not a processor. A processor is, among other things, one who prepares a chemical substance or mixture for distribution in commerce, after its manufacture, in the same or different form or physical state from that in which it was received by the processor (see TSCA section 3(10)). One who mixes, reacts, purifies, separates, repackages, or otherwise "prepares" a chemical substance or mixture for distribution in commerce is also a processor. A person who reacts a listed chemical substance to make another chemical for distribution in commerce has prepared that chemical substance for distribution in commerce in a form different from the one in which the person originally received it. Furthermore, a person who reacts a chemical substance subject to this rule to produce another chemical substance is a manufacturer of a chemical substance and may be subject to a section 8(a) rule as a chemical manufacturer. TSCA section 8(a) authorizes EPA to require manufacturers of a chemical substance to report on the chemicals they react in the manufacturing process. For example, EPA may need data on chemical A. Companies that react chemical A with chemical B to manufacture chemical C are manufacturers of chemical C. EPA may require them as chemical manufacturers to report data oh chemicals A and B because they are reacted to manufacture chemical C. "Users," who do not have to report for this rule, are persons who only use or discard a chemical substance or mixture. One who uses a listed chemical substance or mixture to maintain or repair his equipment, or to otherwise maintain the plant, would be a user only. For example, the purchaser of a piece of machinery who painted the machinery for maintenance or repair would be a user of the paint. However, if the manufacturer of the same machinery painted it before selling the machinery, he would be a processor of the paint. A "distributor" is one who "distributes in commerce" as defined in TSCA section 3(4). The terms "distribute" and "commerce" are both defined in the Act and do not need further ------- 144 definition. Distributors are not subject to reporting under this rule. C. Processors Exempt From Reporting The same exemptions that apply to manufacturers would also apply to processors. These exemptions are discussed more fully in the final manufacturer's reporting requirements published elsewhere in today's Federal Register. In general, the following processors would be exempt from reporting for a plant site in the following situations: 1. Small processors. This proposal complies with the Regulatory Flexibility Act by exempting small processors from reporting requirements, except in very limited cases. Processors would be "small" in respect to a listed chemical if total annual sales of the foreign or domestic parent company were below $30 million during the reporting period, and the plant site processed below 45,400 kilograms (100,000 pounds) of the listed chemical during the reporting period. Small processors would be required to report only on a chemi- cal subject to TSCA section 4, 5(b)(4), or 6 proposed or final rules, and only if the additional information from small processors is likely to have a significant effect on EPA decisions. 2. Processors of small quantities. No one would report on a chemical processed in quantities below 500 kilograms (1,100 pounds) per year at any plant site. 3. Processors of substances in mixtures and articles. Persons would not report on processing of substances already incorporated in mixtures or articles. 4. .Research and development. Persons would not report on chemical processing that is solely for research and development or scientific analysis. 5. Impurities and byproducts. Persons would not report on listed chemicals that are processed solely because they are byproducts or impurities associated with processing of another chemical. D. What Chemicals Must Be Reported Processors would report on chemicals for which manufacturers could not provide sufficient customer use information. If the aggregate unaccounted for in all manufacturers' reports is greater than 20 percent of the total quantity manufactured and imported, the chemical would be subject to processor reporting. However, processors would report only on the trade names of manufacturers who did not account for 80 percent of their quantity manufactured ------- 145 and imported. This criterion allows us to extrapolate the uses of remaining quantities with sufficient confidence. EPA would issue a Federal Register notice containing the names under which these chemicals are sold. A processor of a listed chemical must report. Persons who process the following preparations of a chemical substance must report: 1. The chemical substance in aqueous solution; 2. The chemical substance containing a small amount of an additive (such as a stabilizer or other chemical) to maintain the integrity or physical form of the substance; 3. The chemical substance in any grade of purity. A chemical with additives is sold and used as the chemical substance. The Agency's purpose in asking about such products is to determine the use and potential exposure of that chemical substance. Congress recognized this need in the Conference Report on the Act: "Thus the definition of [the] term 'chemical substance' shall be applied to chemical substances as actually produced and marketed" H.R. Rep. No. 1679, 94th Cong., 2d Sess. 57 (1976) (Conference Report). Substances are rarely marketed in pure form and very often other chemicals are added to insure that the substance does not degrade during transport. In these cases it is the substance that is being marketed in the eyes of both seller and buyer. Under the definition of "mixture" in TSCA section 3(8), a substance with an additive would be a mixture. However, for this information collection to be effective in accounting for the processing of substances, substances with additives must be reported. Thus to the extent that the rule requires reporting on these "mixtures," the Administrator finds that it is necessary for the effective enforcement of TSCA. As in the manufacturer's rule, processors would report only on chemicals processed for purposes regulable under TSCA. E. Processor's Reporting Form Processors would submit the Processor's Follow-up Report — Preliminary Assessment Information, EPA form Number 7710-35a. The proposed processor's form contains only the questions regarding customer use from Part B of the manufacturer's form. Thus, the processor's form itself is a modification of Part B of the manufacturer's form. Processors would report their best estimate of the total quantity of chemical substance they processed in the reporting year, and the quantities processed for various product types. The estimates would be based on readily obtainable data. The proposed form also contains a question on the process categories used for ------- 146 the chemical. This information would be used to supplement data reported by manufacturers. The same guidance and accuracy as described for manufacturers on Part A of their form is required of processors. See 40 CFR Part 712, Subpart B published elsewhere in this issue of the Federal Register. F. When to Report A processor would report data for the same period as reported by the manufacturer of the published trade name chemical. This period would be published in the Federal Register notice for each chemical on which processors must report. Processors would submit EPA form No. 7710-35a within 30 days of the effective date of the Federal Register notice announcing reporting. If a company must report on more than 15 chemicals listed in the notice, it may petition EPA for an extension of time as prescribed in § 712.45(g) of the rule. III. Additional Chemicals Subject to the Rule A. Automatic Reporting of Future ITC-Designates We are proposing an amendment to Subpart B — Manufacturers Reporting Requirements that would automatically have manufacturers report on certain chemicals within 60 days. In the same manner as for chemicals previously listed in Subpart B, processors would be subject to reporting on these chemicals only if manufacturers failed to provide enough information. The chemicals for which we proposed automatic reporting are chemical substances or designated mixtures that the Interagency Testing Committee (ITC) recommends for testing. Within one year after the ITC recommends a chemical for testing, EPA must initiate rulemaking to require testing under section 4 of TSCA or publish its reasons for not initiating rulemaking. Because of the short time allowed for this decision, the Agency must proceed as rapidly as possible to gather available data on a chemical. To decide within one year whether to propose a test rule, EPA must complete its preliminary exposure analysis of the chemical about four months, in most cases, after the ITC recommendation. If Preliminary Assessment Information reports are submitted automatically under this rule, EPA will have accurate and sufficiently complete exposure data from manufacturers within about three months after the ITC recommendation. This timetable assumes that we add the chemicals to § 712.30 by publishing a notice in the Federal Register within 10 days after the Federal Register publication of the ITC's recommendations. With an effective date 30 days after the date of the EPA Federal Register publication, and a due date 60 days after the effective date, EPA would have basic ------- 147 exposure data from manufacturers in about 100 days. This would allow the Agency about one month to complete the preliminary exposure analysis that would be based partially on the data. On the other hand, if the chemicals were proposed for comment, an additional two to three months, at a minimum, would be required to give time for the comment period. Because of the constraints on decision making time for ITC-recommended chemicals, and because this notice solicits comment from all potential respondents on the purpose and requirements of the rule as it will be used, EPA does not propose to go through additional rulemaking to add these chemicals to the rule. In the infrequent cases when processors must report, EPA would be working with incomplete data on the substances involved until about six months after the Federal Register publication of ITC's recommendations. This assumes that EPA would publish the chemicals for processor reporting in § 712.50 about 10 days after basic exposure data is available from manufacturers; that there would be an effective date 30 days after the date of this Federal Register publication; and that there would be a due date for processor reports 30 days after the effective date. Since recognition of the need for processor reporting depends on data from manufacturers, we cannot speed the processor reporting timetable. However, we anticipate requiring processor reporting very infrequently, and on very few chemicals, so that the number of instances in which EPA will have incomplete data for an interval of time will be very few. • • * • • IV. Economic impact The cost estimate of the proposed amendments has two parts. The Agency estimates for planning purposes that it will receive insufficient information for preliminary assessment on approximately 10 percent of the 250 chemicals on which manufac- turers must report. A better estimate cannot be established until the manufacturer reporting is under way, so the Agency will revise its cost estimates before processor reporting is required. For the current estimate, we assume that five manufacturers will report on each chemical, and that three of these manufacturers will report unknown customer uses for more than 20 percent of the quantity they manufactured and imported during the reporting period. We also assume that there will be an average of 10 customers per manufacturer's report, and that five of the customers will be distributors and two will be small businesses not required to report. On this basis, the Agency estimates that approximately 225 processor reports would be required under this rule. At an average cost of $255 per plant site plus $100 per report to prepare and submit the Processor's Reporting Form, the total of the proposed processor reporting provisions would be $91,000. (For discussion of reporting costs, see Economic Impact and Small Business Definition Analysis for the final TSCA Section 8 (a) ------- 148 Preliminary Assessment Information Rule, prepared by ICF, Inc., 1981.) This cost assumes that processors will not be required to search files to determine trade names of chemicals processed. The Agency requests comments on its estimate of the cost of submitting the form and on the overall economic impact of this rule. The 50 additional chemicals listed in this amendment will have total reporting costs of $60,000. This includes 40 manufacturers submitting a total of 60 reports. With fixed costs of $480 per site, and variable costs of $420 per report, the manufacturers' costs are $44,000 for these 50 chemicals. The $60,000 also includes $16,000 as the cost of processors' reporting. Again we assume that manufacturers data will be incomplete for 10 percent of the 50 chemicals, and that nine customer-processors will report per chemical VI. RulemaJcing Record This proposed rule, "Processors Follow-up Reporting — Preliminary Assessment Information" (OPTS-82004G) is also included in the public record VII. Regulatory Assessment Requirements B. Regulatory Flexibility Act Consistent with the purposes of the Regulatory Flexibility Act, the Agency has proposed here a definition of the businesses that will be excluded from reporting because they are small processors. Similarly, small manufacturers have already been defined and excluded from manufacturer reporting requirements. In addition, the average cost of reporting for a manufacturer or a processor under this proposal is small. It is $1100 for a manufacturer, and $400 for a processor (see above discussion of economic impact). In view of the exemptions and the small cost per company, the Agency finds that this proposal, if adopted, would not have a significant impact on a substantial number of small entities. C. Paperwork Reduction Act The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., authorizes the Director of the Office of Management and Budget to review certain information collection requests by Federal agencies. The reporting provisions in this rule have been approved by the Office of Management and Budget (OMB) under section 3504(b) of the Paperwork Reduction Act of 1980, 3501 et seq., and have been assigned OMB control number 2000-0420. The proposal contains a one-page form to be completed by processors of certain chemicals. Processors will complete the form ------- 149 only when manufacturers of the chemicals are unable to provide certain data about processing. The proposal is designed to minimize processor reporting. Processors will be required to report only if manufacturers cannot supply adequate data on their processor-customers. These processor-customers report directly to EPA PART 712 — CHEMICAL INFORMATION RULES Therefore, it is proposed that 40 CFR Part 712 be amended as follows: 2. Subpart C is being added to read as follows: Subpart C — Processor's Follow-Up Reporting — Preliminary Assessment Information Sec. 712.40 Processors who must report. 712.45 Exempt processors. 712.48 Form and instructions. 712.50 Chemical lists and reporting periods. Authority: (Sec. 8(a), Toxic Substances Control Act, Pub. L. 94-469 (90 Stat. 2003, 15 U.S.C. 2607(a) et seq.)). Subpart C — Processor's Follow-Up Reporting — Preliminary Assessment Information Rule § 712.40 Processors who must report. Except as described in § 712.45, at the time a chemical substance is listed in § 712.50, persons who processed the chemical substance for commercial purposes during the reporting period indicated must submit a "Processor's Report — Preliminary Assessment Information" (as described in § 712.48) for each plant site where they processed the chemical substance. § 712.45 Exempt processors. The following persons are exempt from reporting under § 712.40: (a) Persons who reported their manufacture and processing of the chemical substance under § 712.30 are not subject to reporting under § 712.40. (b) Persons who processed the chemical substance solely for purposes of scientific experimentation, analysis, or research, including research or analysis for product development, are not subject to reporting under § 712.40. ------- 150 (c) Persons who processed below 500 kilograms (1100 pounds) of the chemical substance at a single plant site are not subject to reporting for that site under § 712.40. (d) Persons who qualify as small processors in respect to a specific chemical listed in § 712.50 must report on the chemical only if it is designated by an asterisk. A small processor is exempt from submitting a report under this Subpart for a chemical substance processed at a particular plant site if both the following criteria are met: (1) Total annual sales taken together of all sites owned or controlled by the foreign or domestic parent company were below $30 million during the reporting period. (2) The total amount of the listed substance processed at the plant site during the reporting period was below 45,400 kilograms (100,000 pounds). (e) Persons are not subject to reporting under § 712.40 if they processed the chemical substance only in the following forms: (1) A byproduct that was not used or sold or that was formed as described in 40 CFR 710.4(d)(3) through (7). (2) An impurity. (3) A mixture or article containing the listed chemical substance. § 712.48 Form and instructions. (a) Processors subject to this Subpart must submit a single EPA Form No. 7710-35a, "Processor's Follow-up Report Preliminary Assessment Information," for each plant site processing a chemical substance listed in § 712.50. (b) Chemical substances will be listed under § 712.50 only when the data submitted on Manufacturer's Report — Preliminary Assessment Information under Subpart B show unknown customer uses for more than 20 percent of the aggregate total manufactured and imported. Processor follow-up reporting will be required on chemical substances that are marketed by manufacturers who reported unknown customer uses for more than 20 percent of the total quantity they manufacture and import. (c) The designation of chemical substances for reporting by processors will be made by Federal Register notice. (d) Reporting companies may submit their reports through individual plant sites or company headquarters as they choose. A ------- 151 separate form must be submitted for each plant site processing the chemical substance (g) If a processor must report on more than 15 chemical substances he may petition the Assistant Administrator of Pesticides and Toxic Substances for an extension of time. Requests for extensions should be submitted to: Document Control Officer, Office of Pesticides and Toxic Substances (TS-793), Environmental Protection Agency, Room E-401, 401 M St., SW. , Washington, DC 20460. (h) Instructions and a facsimile of the form are as follows: INSTRUCTIONS FOR PROCESSOR'S REPORT FORM PRELIMINARY ASSESSMENT INFORMATION What chemicals to report - This form applies to chemical substances that are listed in 40 CFR 712.50. Reporting period - Enter the month and year beginning and ending the 12-month period for which you report. This reporting period is listed with the chemical substance in 40 CFR 712.50. Who must report - All firms who purchased and processed a chemical under one of the names listed in 40 CFR 712.50 must report. How many forms to complete - For each chemical, complete separate form for each plant site that processed the chemical. Who may submit forms - Companies may choose to complete and submit forms directly to EPA from each plant site, or through company headquarters. Retention of forms - You should keep a copy of each completed form. Refer to the form's preprinted Control Number (shown in the upper right corner) when communicating with EPA IV. PROCESSING ACTIVITIES Accuracy - For each item, provide numbers that represent your best estimates based on readily obtainable data. TSCA Regulable Quantities - Do not report any quantity of chemical substance that is processed solely for use as: a pesticide; tobacco or any tobacco product; any source material; special nuclear material, or byproduct material (as such terms are defined in the Atomic Energy Act of 1954 and regulations issued under such Act); firearms or ammunition; or food, food additive, drug, cosmetic, or device (as such terms are defined in section 201 of the Federal Food, Drug and Cosmetic Act). The above are not TSCA regulable. ------- 152 Item 1 - Enter the total quantity you processed during the reporting period. Item 2 - Report the quantity of the chemical substance that you use or process for each of the categories in 2a to 2h. Include the quantity of the chemical substance itself, and the quantity of chemical substance in any product that you distribute. For items 2a through 2g, if you are not sure about whether your products are for domestic or foreign use, report them as domestic. The products are divided into industrial and consumer products. "Industrial" means the manufacturing and service industries covered by the Standard Industrial Codes. Products meant to be used primarily by the general population are considered to be "consumer" products. The following definition from the Consumer Product Safety Act can be used as a guide (15 U.S.C. 2052 (a) (1)): "The term "consumer product" means any article, or component part thereof, produced or 'distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise." If you are uncertain about whether your products are industrial or consumer, report them as consumer. Three types of industrial and consumer product types are described below. "Chemical substance or mixture" means a chemical, or mixture containing the chemical, that is used directly by the persons using the product, e.g., cleaners, paints, inks, deodorizers, solvents, etc. This includes chemicals or mixtures in containers or other articles whose purpose is to release the chemical (e.g., cans of spray paint, ink pens, and other applicators). "Articles or products with no release" are articles constructed in a way to prevent human exposure to or release to the environment of the chemical substance during normal use and storage (e.g., chemical coatings on internal components, and chemicals inside sealed articles as in thermometers and batteries). "Articles or products with some release" are articles whose material components are made of chemicals which come in direct contact with persons using the article, the atmosphere, land, or water; e.g., exposure can come from leaching, evaporation, or surface contact. This includes such articles as plastic containers, chemically treated textiles, printed paper, coated appliances, etc. if the chemical itself is sold in a bottle or other container it should be reported under "Chemical substance or mixture," not as an article. Only the container itself is an ------- 153 article for purposes- of this form; the substance it contains is not a component of an article. In item 2g, report the quantity of chemical substance that you export directly either as the chemical or contained in mixtures or articles. In item 2h, report the quantity of chemical substance that you react to make products that do not contain the chemical substance itself. Item 3 - List the quantity of chemical substance that you process n each of the following process categories. Enclosed process - The process is designed and operated so that there is no intentional release of the chemical. In this process category, only fugitive or inadvertent releases occur, and special measures are taken to prevent worker exposure and environmental contamination. "Special measures" refer to procedures and equipment that are monitored and used to prevent worker exposure, and scrubbers and other recovery equipment employed to prevent environmental release. Equipment with emergency pressure relief venting would be allowed in this category; routine venting would not. Controlled release process - The process is operated in a controlled manner to minimize release of the chemical into the workplace. Releases should generally be within prescribed limits. These limits may be dictated by government regulations or by company guidelines. If the chemical is vented outside the plant, the process is a "controlled release" process. Do not count general space ventilation fans. Open process - The chemical is routinely in direct contact with the atmosphere (workplace or outside the plant) and no measures are taken to prevent release. For example, reaction vessels are open vats, the chemical is transported or stored in open containers, or the chemical is freely vented into the workplace atmosphere § 712.50 Chemical list and reporting periods. (a) Subject chemical substances. A Preliminary Assessment Information Processor's Report must be submitted by the deadline specified for each chemical substance listed below. The reporting period for each chemical is the 12-month period for which manufacturers provided incomplete information. (b) [Reserved]. ------- 154 "ASBESTOS" CODE OF FEDERAL REGULATIONS (CFR) Part 763 — Asbestos Subpart D - Reporting Commercial and Industrial Uses of Asbestos 40 CFR §763.63(k) defines "Process for commercial purposes" as "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes." FINAL RULE [47 Fed. Reg. 33198 (30 July 1982)] "EPA will require detailed information on EPA Form 7710- 36, 'Reporting Commercial and Industrial Uses of Asbestos,1 from the first group -- persons who mine, mill, or import bulk asbestos, or process it to form an asbestos mixture or product, such as asbestos paper. The latter persons are called 'primary processors of asbestos.' This first group must report within 90 days of the effective date of this rule. "EPA will require reporting in two phases for the second group — secondary processors of asbestos (secondary processors of asbestos make products from asbestos mixtures, not bulk asbestos,) and persons who import asbestos mixtures or other products that contain asbestos." Id., at 33202: "TSCA defines a processor, in part, as a person who prepares a chemical substance or mixture, after its manufacture, for distribution in commerce. This rule classifies processors into two groups according to their starting material. 'Primary processors of asbestos' are those whose starting material is bulk asbestos. •Secondary processors of asbestos' are those whose starting materials are asbestos mixtures. "A primary processor starts with bulk asbestos and makes a mixture that contains asbestos fiber. A primary pro- cessor may simply mix or repackage different types or sizes of fiber and then sell that product. Such mixing ------- 155 or repackaging of fibers is considered primary processing of bulk asbestos for the purpose of this rule. Asbestos mixtures are products to which asbestos fiber has been intentionally added and which can be used or processed further and incorporated into other products. For example, asbestos cement, asbestos paper, and asbestos- reinforced plastics are asbestos mixtures. In some cases, a primary processor further processes the asbestos mixtures. If so, the person is also a secondary processor. For instance, asbestos paper can be further processed to incorporate it into an article, or asbestos- reinforced plastics can be further processed to make vinyl-asbestos floor tile. .... "'Secondary processors are those who start with asbestos mixtures and incorporate them into their own products. For example, persons who fabricate asbestos cement sheet by cutting the sheet to make an electrical switch board, or persons who make garments by cutting an asbestos tile, are secondary processors. A person who fabricates asbestos cement sheet by cutting it to a specific dimension for a customer is a secondary processor. An automobile manufacturer is a secondary processor if he incorporates asbestos felt into an automobile as a hood insulation blanket or makes heating vent ducks [sic., ducts] from asbestos paper. A paint formulator is a secondary processor if he purchases a paint that contains asbestos and reformulates the paint by adding some agent to give the paint special properties for specific applications." Id., at 33203: "Reporting is not required by persons who are 'end users' of bulk asbestos or asbestos products and do not further distribute such items in commerce. The most common example of this is in the manufacture of chlorine, where some persons use asbestos as a diaphragm to separate chlorine and caustic soda. While much bulk asbestos is consumed annually by this industry and much waste generated, asbestos fiber is not present in the resultant products which are distributed in commerce and these activities are therefore not 'processing' of asbestos." PROPOSED RULE [46 Fed. Reg. 8200 (26 January 1981)] "Under TSCA, manufacturers of asbestos are persons who mine, mill, or import asbestos in bulk form or as part of a product containing asbestos. Processors of asbestos are persons who make products for distribution in commerce which contain asbestos or any asbestos containing component. ------- 156 "EPA emphasizes that the terms 'manufacturers' and 'processors' as used in TSCA, to some extent, have different meanings from common usage. Section 3 of TSCA defines 'manufacturer1 to include manufacturers, pro- ducers, and importers. Thus, miners and millers of asbestos are 'manufacturers' under TSCA, as are im- porters. Importers include those persons who import asbestos in bulk form, or as part of any product. Thus, persons who import automobiles that contain asbestos brake linings are 'manufacturers' of asbestos for purposes of TSCA. "'Processors' of asbestos are persons who prepare asbestos, after manufacture, for distribution in commerce in the same or different form as they received it or as part of a product that contains asbestos. Thus, persons who incorporate asbestos or asbestos-containing components into products are processors under TSCA, even if they consider themselves 'users' of a product that contains asbestos." Id., at 8204: "TSCA defines a processor in part as a person who prepares a chemical substance or mixture, after its manufacture, for distribution in commerce. This rule classifies processors into two groups according to their starting material. 'Primary' processors of asbestos are those whose starting material is bulk asbestos (a chemi- cal substance). 'Secondary1 processors of asbestos are those whose starting materials are asbestos mixtures. "A primary processor starts with bulk asbestos and makes a mixture that contains asbestos fiber. (A primary processor may simply mix or repackage different types or sizes of fiber and then sell that product. Such a mix of fibers is still considered 'bulk asbestos' for the purpose of this rule.) Asbestos mixtures are products to which asbestos fiber has been intentionally added and which can be used or processed further and incorporated into other products. For example, asbestos cement, asbestos paper, and asbestos-reinforced plastics are asbestos mixtures. In some cases, a primary processor further processes the asbestos mixtures. If so, the person is also a secondary processor. For instance, asbestos paper can be further processed to incorporate it into an article or asbestos-reinforced plastics can be further processed to make vinyl-asbestos floor tile. . . "'Secondary processors' are those who start with asbestos mixtures and incorporate them into their own products. ------- 157 For example, persons who fabricate asbestos cement sheet by cutting the sheet to make an electrical switch board, or persons who make garments by cutting an asbestos textile, are secondary processors. An automobile manufacturer is a secondary processor if he incorporates asbestos felt into an automobile as a hood insulation blanket or makes heating vent ducts from asbestos paper. A paint formulator is a secondary processor if he purchases a paint that contains asbestos and reformulates the paint by adding some agent to give the paint special properties for specific applications "Certain secondary processors are excluded from this rule. They are persons who repair articles, repackage asbestos mixtures without modification, or who engage in construction work. Other secondary processors are exempted if they apply, assemble, install, erect, or consume asbestos products without modifying or fabri- cating the asbestos products. While we believe there may be a substantial risk from asbestos exposures in these categories, we expect to complete necessary analyses with estimates and extrapolations of data reported by persons who make the asbestos-containing products that are processed by the excluded industries. Therefore, reports from these excluded industries are not essential. . . . "Reporting is not required by persons who use bulk asbestos or asbestos products but do not distribute them in commerce as part of a product. The most common example is in the manufacture of chlorine, where some persons use asbestos as a diaphragm to separate the chlorine and the caustic soda. While much bulk asbestos is consumed annually by this industry and much waste generated, asbestos fiber is not present in the resultant products which are distributed in commerce and these activities are therefore not 'processing1 within the meaning of TSCA." Id., at 8209 [language of proposed rule § 763.63]: " (g) 'Manufacture for commercial purposes' means to import, produce, or manufacture with the purpose of obtaining an immediate or eventual commercial advantage and includes among other things, such manufacture of any amount of a chemical substance or mixture: "(1) For commercial distribution, including for test marketing, and "(2) For use by the manufacturer, including use for product research and development, or as an intermediate. ------- 158 •Manufacture for commercial purposes' also applies to substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including both byproducts and coproducts that are separated from that other substance or mixture and impurities that remain in that substance or mixture. Byproducts and impurities may not, in themselves have commercial value. They are nonetheless produced for the purpose of obtaining a commercial advantage since they are part of the manufacture of a chemical product for a commercial purpose 11 (k) 'Process for commercial purposes' means the preparation of a chemical substance or mixture, after its manufacture for^distribution in commerce with the purpose of obtaining 'an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical substance or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes." Id., at 8213 [prop, language for reporting form directions] "Secondary Processor: means a person whose asbestos starting material is an asbestos mixture, which is incorporated into that person's own product. For example, asbestos millboard may be purchased by a secondary processor, who could cut that millboard and incorporate it into an appliance; A/C sheet may be purchased by a secondary processor, who could fabricate it to make the backing for an electrical switchboard." ------- 159 S8(b) ("INVENTORY.") TSCA (THE ACT) TSCA §8(b)(l) states that "The Administrator shall compile, keep current, and publish a list of each chemical substance which is ... processed in the United States. Such list shall at least include each chemical substance any person reports, under section 5 [("MANUFACTURING AND PROCESSING NOTICES.")] or subsection (a) of this section, is ... processed in the United States. Such list may not include any chemical substance which was not . . . pro- cessed in the United States within three years before the effective date of the rules promulgated pursuant to the last sentence of subsection (a)(1). In the case of a chemical substance for which a notice is submitted in accordance with section 5, such chemical substance shall be included in such list as of the earliest date (as determined by the Administrator) on which such substance was . . . processed in the United States " §8(b) (1) of TSCA states also that "The Administrator shall not include in such list any chemical substance which is ... pro- cessed only in small quantities (as defined by the Administrator by rule) solely for purposes of scientific experimentation or analysis or chemical research on, or analysis of, such substance or another substance including such research or analysis for the development of a product." ------- 160 S8(c) ("RECORDS.") T8CA (THE ACT) TSCA §8(c) states that "Any person who . . . processes . . . any chemical substance or mixture shall maintain records of significant adverse reactions to health or the environment, as determined by the Administrator by rule, alleged to have been caused by the substance or mixture Records required to be maintained under this subsection shall include . . . [certain types of cited reports] submitted to the . . . processor in commerce from any source " CODE OF FEDERAL REGULATIONS (CFR) Part 717 — Records and Reports of Allegations that Chemical Substances Cause Significant Adverse Reactions to Health or the Environment Subpart A - General Provisions According to 40 CFR §717.3 ("Definitions"), all definitions in section 3 of TSCA apply to this part. In addition, 40 CFR §717.3 provides the following additional process-related definitions: 40 CFR §717.3(d), "process" means "to process for commercial purposes." 40 CFR §717.3(g), defines "Process for commercial purposes" to mean "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes." It should be noted that in 40 CFR §717.5 ("Persons subject to this part."), processors are identified specifically as subject persons; with regard to this coverage, 40 CFR §717.5(b) states that "(1) a person who processes chemical substances, who is not a manu- facturer of those chemical substances, is subject to this Part if (i) the person processes chemical substances to produce mixtures, or (ii) the person repackages chemical substances or mixtures." Proposed 8(c) Rule Text § 717.13 Who is subject to this Part. "All manufacturers, processors, and all persons who dis- tribute substances in commerce, except retailers, are subject to this rule...." ------- 161 Final 8(c) Rule Text § 717.5 Persons subject to this Part. (b) Processors. (1) A person who processes chemical substances, who is not also a manufacturer of those substances, is subject to this part if such person is engaged in Standard Industrial Classification (SIC) Major Group 28—Chemicals and Allied Products, and SIC code 2911—Petroleum Refining. Proposed 8(c) Rule Amendment Text § 717.5 Persons subject to this Part. (b) Processors. (1) A person who processes chemical substances, who is not also a manufacturer of those substances, is subject to this part if the products that person distributes in commerce are of the type described in Standard Industrial Classification (SIC) Major Group 28—Chemicals and Allied Products, and SIC code 2911— Petroleum Refining. Final 8(c) Rule Amendment Text § 717.5 Persons subject to this Part. (b) Processors. (1) A person who processes chemical substances, who is not also a manufacturer of those substances, is subject to this part if (i) the person processes chemical substances to produce mixtures, or (ii) the person repackages chemical substances or mixtures. Preambles to Proposed and Final 8(c) Rule and Amendment From the proposed 8(c) rule (45 FR 47008; 7/11/80) "Persons who process chemical substances or mixtures include companies that manufacture consumer goods or industrial products. Manufacturers of automobiles, paper products, textiles, electronic components, for example, should consider commenting on this proposed rule." (at p. 47008) "The term "process" is defined in TSCA to mean ... Thus, persons who ordinarily consider themselves to be "users" because all they do is incorporate a chemical into an ------- article, are considered "processors" under TSCA." (at page 47009) 162 page From the final 8(c) rule (48 FR 38178; 8/22/83)): C. Processors Subject to the Rule There are two types of processors subject to this rule. If a company is processing a chemical it manufacturers, that company must collect allegations on any of its processing or distribution in commerce activities involving that chemical. See A of this unit. If a company is processing a chemical it does not manufacture, that company must collect allegations involving that chemical only for those activities described in Standard Industrial Classification (SIC) Major Group 28-Chemical and Allied Product, or SIC code 2911-Petroleum Refining. It also must collect allegations relating to any further processing or distribution in commerce of any products resulting from such processing activities. Thus, a firm that processes chemical substances but that is not a manufacturer can be subject to this rule. However, the Agency has decided to limit the applicability of the rule where this type of processor is concerned. The Agency has concluded that the best approach is to concentrate the recordkeeping responsibility with those firms that have at least one plant site engaged in activities within the mainstream of the chemical industry. The Agency believes that such processors are likely to be among the firms that have the greatest stake in recording and if appropriate, taking positive or corrective action with respect to allegations received. The Agency feels that by focusing the recordkeeping responsibility with these processors the rule enhances the concept of product stewardship, a growing practice within the chemical industry that continually assesses the potential health and safety risks of substances at each stage from development through disposal. Again, the Agency considers it necessary to outline for processor subject to this rule their specific responsibility regarding collection of allegations. Such processors must collect: 1. Any allegation identifying any chemical substance, mixture, or article resulting only form processing activities as described in SIC 28 or SIC 2911, or identifying the operations involved in making such products (See unit III B. of this preamble and § 717.10 of the rule). 2. Any allegation identifying any of its own further processing or distribution in commerce activities of the products described in 1. above. ------- 163 3. Any allegation identifying emissions, effluents, or other discharges from activities described above. Note that if a company is not a manufacturer of a chemical substance, but is only a processor, it is only required to collect allegations relating to products resulting from activities described in SIC codes 28 and 2911. A processor subject to this rule is not required to collect allegations involving substances it does not produce. For example, an allegation specifically involving a mixture component bought from some other company does not have to be collected (although allegations involving the processing of the component or the new product created would be collected by the processor). As with manufacturers, the Agency believes that processors have a strong incentive to forward allegations on a mixture component to the supplier of that component. The Agency strongly encourages this passback activity. At this juncture, the Agency wishes to make clear two very important points relating to processing operations and the use of SIC codes in this preamble and rule. First, when a company is deciding whether it is "engaged in activities described" in SIC codes, it must refer to the descriptions that appear after each four digit code. The company should not rely solely on the listing of substances that appears after the descriptions. These descriptions are generic in nature and refer to the production of categories of chemicals, mixtures, or other chemical products. It is quite possible that a company may be processing chemicals to produce a substance or product that does not specifically appear in the list of substances that follows the generic description. The second point is that terms used in the SIC codes are not necessarily the same as those used in this rule. For the purposes of this rule, TSCA definition of "manufacturing" and "process" apply. Activities described in SIC codes 28 and 2911 are categorized by the SIC system as "manufacturing." This term is broader than the TSCA definition of manufacture and encompasses activities referred to as "processing" under this rule. For example, a company referred to under SIC code 2851 as engaged in the activity of manufacturing paints is, for the purposes of this rule, a processor of the chemicals used to make the paints. Thus, it is subject to this rule as a chemical "processor" engaged in an activity described in SIC code 28. (The company is also a mixture manufacturer under TSCA definitions.) Accordingly, section 717.5(c) of the rule provides that where there is a conflict between the SIC codes uses of a term and the definition of that term in this rule, the rule definition applies. D. Processors Not Subject to the Rule. A processor, who is not also a manufacturer is not subject to this rule if none of the sites it owns or controls is engaged in activities described in SIC 28 or SIC 2911. The TSCA definition of ------- 164 processor is such that tens of thousands of firms could be made subject to recordkeeping responsibilities of section 8(c). For example, a shoemaker that applies a dye to shoes is technically a processor because of the incorporation of that chemical dye into an article for distribution in commerce. Likewise, a hardware store that adds a pigment to premixed paint is a processor. Such "processing" permeates the economy. To include firms engaged in activities of this nature under the rule would create a vast recordkeeping requirement. The economic analysis for the proposed rule estimated that some 543,000 establishments outside of SIC 28 or 2911 could be made subject to this rule as processors. Requiring these establishments to collect allegations would be an administrative nightmare. Further, the public health concerns of section 8(c) would not be harmed by excluding these establishments because they would have a strong incentive to refer complaints about chemicals they "process" to the suppliers of those chemicals- firms that are likely to be subject to this rule. In this final.rulemaking, the Agency did consider making such "other" processors subject but with an alternative compliance method. The purpose would be to promote the passback of allega- tions to those required to maintain records. In brief, such firms could be required to record allegations or they could discharge this responsibility by forwarding such allegations to their supplier. This would be similar to the alternative compliance mechanism for distributors as outlined in the proposed rule. After evaluating this alternative compliance method the Agency has determined that such a requirement could actually inhibit allegation passback as much as it could enhance it. If this regulatory requirement were imposed such firms may take the path of least resistance to satisfy the requirement. Basically, it would be less of a administrative burden to file automatically any complaint or allegation received than it would be to evaluate the allegation, determine to whom such allegation should be sent and do the paperwork, including keeping a copy of all this correspondence. Added to these considerations is the fact the subjecting these numerous processors to an alternative compliance method is still adding substantially to the overall burden of the rule. As a result, the Agency is not implementing an alternative compliance method for processors solely engaged in processing activities outside of SIC 28 and 2911. The Agency is not ruling out the future implementation of such a provision. However, EPA prefers at this time to support the concept of product stewardship as previously discussed. We strongly encourage those manufacturers and processors that are subject to the rule to educate their customers regarding TSCA section 8(c), and to stress the importance of passing back any potentially recordable allegations. ------- 165 From the proposed 8(c) rule amendment (49 FR 39865, 12/24/84) III. Amendment Regarding Processors Subject to the Rule Questions and comments received after rule promulgation indicated some uncertainty about what processors are subject to the rule. The current rule language under § 717.5(b)(l) reads as follows: "A person who processes chemical substances, who is not also a manufacturer of those substances, is subject to this Part if such person is engaged in activities described in Standard Industrial Classification (SIC) Major Groups 28-Chemicals and Allied Products, and SIC code 2911-Petroleum Refining." Most of the uncertainty revolves around the phrase "engaged in activities described * * *." The concern is that the phrase can be interpreted to apply to many more companies than the Agency intended. For example, in the manufacturer of paper cartons, the glues and inks may be prepared by adding water or other solvents to con- centrates purchased from other companies. Such activities con- stitute both processing of chemical substances and the manufacture of mixtures. This could be interpreted as an "activity described in (SIC 28/2911)" because these codes cover such products as ready to use adhesives and inks. The practical question is who should be the recordholder in the case of an allegation about ill effects of exposure to the glue or ink. For the purposes of this rule that responsibility rests with the producer of the concentrate intended for use as a glue or ink. EPA's intent is more clearly expressed by putting the emphasis on end products. Processors subject to the rule would be those who produce for distribution in commerce a product of the type described by SIC codes 28 or 2911. Therefore, EPA proposes to amend § 717.5(b) of the rule to read as follow: (b) Processors. (1) A person who processes chemical substance, who is not also a manufacturer of those chemical substances a subject to this Part if the products distributed in commerce resulting form such processing are of Ihe type described in Standard Industrial Classification (SIC) Major Group 28 - Chemicals and Allied Products, or (SIC) code 2911-Petrolcum Refining From the final 8(c) rule amendment (50 FR 46768, 11/13/85) B. Amendment To Clarify Which Processors Are Subject. Comments. Dow, in general, objected to the use of SIC codes as a means of defining which processors are subject to the rule. Dow contends that "establishments" and not products are described in the SIC Major Groups. Dow states that the products listed in the SIC manual are intended only as illustrations to describe the results of activities which are listed within a SIC manual. Dow recommends two alternatives to the proposed amendment. One approach would have EPA actually list in regulation all the ------- 166 products covered by the SIC 28 and 2911 major groups without reference to the SIC manual. The other option would be to modify the rule.language so that it would refer to SIC code 28 and 2911 establishments and not to the products that result from activities of these establishments. In Dow's words, there would be no con- fusion because operators of establishments have already determined if the establishment is within SIC major group 28 and 2911 for regulatory purposes. General Electric Company (GE) also commented on the processor issue. GE stated that EPA's proposed amendment provided little in the way of clarification. GE also criticized the use of the SIC codes as a way of defining processors subject to the rule. In GE's words, requiring a company to wade through the SIC manual every time an allegation is made regarding a company product constitutes an undue and unreasonable burden. GE recommends a simplified method outlining who in total is subject to the 8(c) rule. GE contends that the majority of the "processors" that EPA intends to cover.are actually manufacturers of mixtures. The only exception according to 'GE would be the repackagers of chemical substances and mixtures. Therefore, GE recommends that in order to clarify which processors are subject to the section 8(c) rule, EPA should revise the regulatory language of § 717.5 to state that persons subject to the rule include all manufacturers of chemical substances and mixtures and all repackagers of chemical substances and mixtures. EPA's response. In finalizing the section 8(c) rule, EPA sought to develop a way to limit and at the same time adequately specify which chemical processors would have recordkeeping responsibility. It was a situation similar to the coincidental manufacturer issue where literally hundreds of thousands of businesses could be considered chemical processors. The Agency has to provide the processor universe with some criteria for determining whether it is subject to the rule. Also, the Agency needed to be able to quantify these processors for purposes of rule burden estimation. The Agency does not consider that it used the SIC code system inappropriately in the context of its implementation of section 8(c) . As stated in the SIC manual, "Each establishment is assigned an industry code on the basis of its primary activity which is determined by it principal product or group of products, produced or distributed, or services rendered." These code descriptions, including representative products, provide that measure by which a company classifies it establishments. In essence, they are what they do. With regard to the options recommended by Dow, EPA does not consider the copying of the SIC products into the regulatory language to be an improvement over the proposed amendment. The SIC ------- 167 manual is a well known and readily available standard reference. Transcribing the product listings into the regulatory language will not further clarify which processors are subject to the rule or reduce the regulatory burden on industry. Dow's other recommenda- tion to target the SIC establishments was considered by the Agency prior to proposal of the amendment. It would be a somewhat more simplified means of designating who is subject, but would be more restrictive in it coverage that the Agency believes appropriate in implementing section 8(c). The SIC code refers to an establish- ment's "primary" activity. By adopting Dow's approach, EPA wold lose coverage of companies or sites that engage in chemical processing but that are classified under some other primary SIC code. This is why the proposed amendment placed it emphasis on end products of a site. After careful review the Agency has determined that the GE proposal provides a way to accomplish the goals of this proposed amendment and remove specific dependence on SIC code listing. The Agency agrees that the types of "sole" processors the Agency intends to cover are those who produce and market chemical mixtures (including solutions) and those firms that repackage chemical substances or mixtures. This recommendation actually enhances the regulatory language because it express the Agency's intent to cover repackagers as processors. Such coverage is referenced only indirectly in the current language. QUESTION AND ANSWER DOCUMENTS The following is from a July 1984 Question & Answer document that was issued prior to the amendment of 8(c) which clarified subject processors: 1. Where does "extraction" stop and "processing" begin? (From p. 21, question 1) Answer Persons are exempt from the rule provided the means by which they manufacture a chemical substance involves mining or other solely extractive functions. This exemption applies to com- panies or sites within a company whose sole function is mining or extracting naturally occurring materials. EPA considers extraction to be a primarily mechanical process such as crushing, grinding, drying, milling, leaching, etc. These are normal steps taken to remove raw materials from the earth, and prepare it for distribution in commerce as a "raw material." Operations beyond this point, such as distilling, refining, smelting, etc. are processes of separating out marketable fractions, and are considered processes covered by the rule. They are in fact primary chemical manufacturing activities that make a person subject to the rule. ------- 168 2. Does EPA consider the mixing and use of chemicals which do not react with one another to be a "manufacture" subject to the rule? (From page 22, Q 3) Answer: The mixing of chemicals is both processing of chemical substances as well as the manufacture of mixture. In general, mixture manufacture may be best thought of as a subset of all processing activities. As such only mixture manufacture to produce SIC 28/2911 type products is subject to the rule if this is all the firm does (i.e., it is not also a manufacturer of one or more of the chemical substances that comprise the mixture). This differs from "manufacture" of a chemical substance because all manufacturers of chemical substances are subject to the rule without regard to SIC code. 3. Is a repackager of bulk .chemicals for resale considered to be a manufacturer or a processor for §8(c) purposes? (from p. 22, Q4) Answer; Persons who repackage chemicals for resale are considered processors under TSCA. 4. Is a service compound, such as a reactor cleaner, a processed material if emptied to waste disposal? (from p. 37, Q4) Answer: No. In this case, the substance is not processed for commercial purposes. Disposal-only activities do not constitute manufacturing or processing for commercial purposes. The only possible exception would be if the user is also the producer of the reactor cleaner. 5. If a firm is an 8(c) manufacturer, but purchases a solvent and uses it to manufacture another product, is an allegation con- cerning the solvent recordable? (from p. 5, Q16) Answer: No, provided that the allegation specifically cites the solvent. In such cases, the Agency strongly encourages the company to forward the allegation to the solvent supplier. ------- 169 A July 25, 1986 "Question and Answer Summary" prepared by EPA following a June 10, 1986 Agency-sponsored seminar on the industry obligations under TSCA presents the following with regard to the term processor under §8(c) of TSCA: "Question: What processors are covered by section 8(c)? If a firm does not manufacture a chemical but does use the substance to make a mixture, is that firm subject to section 8(c)? "Answer; Processors covered by section 8(c) include persons who are making mixtures or are repackaging chemical substances or mixtures. ------- 170 ("HEALTH AND SAFETY STUDIES") T8CA (THE ACT) §8(d) of TSCA states that "The Administrator shall promulgate rules under which the Administrator shall require any person who . . processes . . . or who proposes . . . to process . . . any [listed] chemical subtance or mixture . . . [to submit lists and/or copies of health and safety studies]." CODE OF FEDERAL REGULATIONS (CFR) Part 716 — Health and Safety Data Reporting Subpart A - General Provisions According to 40 CFR §716.3, the term "Process" is defined to mean "to process for commercial purposes." According to 40 CRF §716.3, "Process for commercial purposes" is defined as "the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce, with the pur- pose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical substance or mixture containing impurities is processed for commercial purposes, then those impurities are also processed for commercial purposes." According to 40 CFR §716.5, the persons who must report under §8(d) include (with certain constraints) past, present, and future processors of chemical substances and listed mixtures. 8(d) Model Rule Interpretive Guidance The following are published questions with answers (and in some cases statements with responses) which address the scope of the terms "process" or processor" under the 8(d) Model Rule: 1. A person who synthesizes or manufactures a chemical substance C from chemicals A and B as raw materials is not a processor of chemicals A and B. Answer EPA disagrees. Under TSCA section 3(10), "..." (no further response). [From "General Comments on the Proposed 8(d) Rule" (47 FR 38780) Q # 19] ------- 171 2. Several definitions in the proposed rule differ from earlier Agency definitions of the same term. To the extent that the same term has been defined in earlier regulations, it must remain unchanged in subsequent regulations. Introduction of multiple definitions of the same term under TSCA will guarantee confusion and unintentional noncompliance. Answer The Agency agrees that, to the extent possible, it is important to maintain common definitions. However, the Agency is not required to use the identical definition in all rules. In many cases, it is necessary to tailor a definition to the specific requirements of a given rule. To use the same definition simply because it was previously used, can be draconian and may give rise to confusion when viewed in the context of a given rule. [From "General Comments on the Proposed 8(d) Rule" (47 FR 38780) Q # 21] 3. Processors should be exempt from these reporting regulations since they are unlikely to perform the type of studies useful in determining what chemicals need further testing. Answer The Agency disagrees. Processors may have a greater concern about the health and environmental effects of a chemical substance being used in a certain way than the manufacturer of the chemical. It is a good business practice for them to know about the potential hazard of the chemical substances they are marketing, hence, they will often conduct health or environmental studies. Since these studies may be oriented to discovering the effects of a substance in its ultimate use, the Agency feels these studies are very important for it to have when making regulatory decisions on the chemical sub- stances. Also, as previously stated, the Agency needs to examine many types of studies that, taken as a whole, might indicate the need for testing, although individu- ally they might not indicate the need for testing. [From "General Comments on the Proposed 8 (d) Rule" (47 FR 38780) Q # 39] ------- 172 4. Are listed chemicals that are used for cleaning metal parts or other articles considered to be processed under TSCA? [Question (Q) #18, 2/16/89, Q #20, 11/10/82)] Answer A listed substance used only to clean metal parts is not considered to be processed under TSCA. 5. Are laboratory chemicals that are used to test manufac- tured chemicals considered to be processed under TSCA? [Q #19, 2/16/89, (Q #21, 11/10/82)] Answer No. Since these substances are not prepared for distri- bution in commerce, they are not processed under TSCA. 6. Should studies on purchased catalysts and process sol- vents be submitted if the catalysts and solvents are used to produce products sold? [Q 22, 2/16/89 (Q 24, 11/10/82) ] Answer No. Catalysts and process solvents are used. Only studies on substances manufactured or processed for distribution in commerce must be submitted. Studies on manufactured or processed chemicals containing 8(d) listed substances as impurities are not required to be submitted (§ 716.20(a)(9)). The following are telephone log O&As which concerning the 8(d) Model Rule published 9/2/82) Q. If they used a chemical as a solvent during the manufacture of a product, and most of the solvent evaporates and is not in the final product, do they report for 8(d) as a processor of the listed chemical? Or, are they considered a user of the listed chemical and not required to report? 9/27/82 A. In this case they are considered a user of the chemical because it is used in the process of making the final product and is not part of the final product. ------- 173 Q. As a user of a listed chemical, are they required to report any monitoring data that they have collected? 9/14/82 A. No. The section 8(d) rule applies to manufacturers and processors of a chemical substance, not to those that are the users of the chemical substance. Q. If they process a listed chemical for their own use, do they have to report as a processor of the chemical? 9/14/82 A. If they process a chemical and use it themselves, they do not report. However, if they process a chemical and then react the product to make something distributed in commerce, then they would report. Q. 3M has a mixture that contains an 8(d) listed chemical in its initial formulation, but the chemical leaves the mixture before processing is completed. What studies must be reported? 9/17/82 A. Since the listed chemical is not present in the end product, it is not reportable. The listed chemical must be in the final result to be reportable. Q. My client buys an 8(d) listed chemical for inclusion in paints he manufactures and sells. The 8(d) chemical is not altered chemically during the manufacture. Is the client a "processor" of the 8(d) chemical? 1/20/83 A. Yes. "Process for commercial purposes" includes preparation of a chemical substance of mixture, even if the chemical was not reacted. see 716.3(K) Q. Under section 8(d), reporting health and safety studies, would an intermediate used to generate another chemical substance be reportable under the definition of processor? A. Yes, an intermediate used to generate another chemical falls under the category of processing. ------- 174 The following are CSB responses (dated 1/26/90) to AEA comments (dated 8/23/89) on a draft 8(d) "monitoring study" O&A document concerning the term "processor": 1 (4) . Comment regarding the definition of "processor" under TSCA section 8(d)• The 8(d) rule incorporates the TSCA definition of "processor" (and limits it to "commercial purposes"). 40 CFR 716.3. Persons wishing an interpretation of whether their activities fall within this definition may ask EPA for a determination on a case by case basis. It should be noted that under the 8(d) rule, very few such inquiries have been made to date. 2 (5) . Comment requesting a consistent definition of "processing" from section 8 rule to rule. Section 8 rules are written to accommodate potential data users with consideration given to the burden imposed by the information collection. It is recognized that having different definitions of the same term may create some problems (or having different, possibly overlapping subsets of persons subject to rules within a larger defined set of persons). However, it would be less appropriate to have a single broad definition of the term for all rules where the burden can not be justified for each individual information collection. Similarly, it would not be justified to have a narrow definition of the term when such a definition would eliminate EPA's access to data deemed valuable for the purpose of a particular data gathering effort where a broader respondent audience is clearly within the scope of EPA's data collection authority. 3 (6) . Comment regarding applicability of the rule to toll processing. In situations as described in the comment where "Company A" has Company B purchase, blend, package, and distribute a substance which has the label of Company A on the container, Company B is a processor under the rule and Company A is not. This interpretation is the same as that given in the March 1989 CAIR Q&A document referred to in your comment. Preambles to and Rule Texts of various 8(d) Rule Versions: Proposed Original 8(d) rule (43 FR 4073. 1/31/78) Preamble: "For the purpose of this rule, EPA is requiring the submission of H&S studies only from "juridical" persons; i.e., "persons" established by law as companies, associations, or other entities that manufacture, process, or distribute ------- 175 chemicals.... Persons who "manufacture or process for commercial purposes" include those who use a chemical for product research and development, for test marketing purposes, or solely for their own use " Proposed Rule- Text; 730.l(b): "Manufacture or process" means to manufacture or process for commercial purposes, which includes (1) for distribution in commerce, including for test marketing purposes; (2) for use as a catalyst or intermediate, (3) for the exclusive use by the manufacturer or processor; or (4) for product research purposes" include those who use a chemical for product research and development., for test marketing purposes, or solely for their own use " Final Original Rule (43 FR 30984) (Subsequently revoked to solicit comments on the scope of the rule, 44 FR 6099) Preamble: ...There is also no reason to specify "for use as a catalyst since it is included in the phrase "for use by the manufacturer or processor...Therefore, the definition is now consistent with that in the inventory reporting regulations." at 3098, col 2. [Note: To me (Chris Blunck 9/6/90), this implies that the manufacturer or processor is not necessarily processing by virtue of its use as a catalyst. The person is already a manufacturer or processor prior to using the catalyst. In other words, the question of whether catalyst use is processing is not addressed here.] Text; 730.1(a): "Manufacture or process" means to manufacture or process for commercial purposes, which includes (1) for distribution in commerce, including for test marketing purposes; or (2) for use by the manufacturer or processor, including for use as an intermediate. Re-proposed Original Rule (44 FR 77470) Preamble: ".... Thus, a paint formulator placing a solvent in the product intended for distribution in commerce is a processor (of the solvent) as defined in TSCA." at 77472, col. 1. "EPA interprets the term 'manufacture or process for commercial purposes' to refer to such activities conducted in whole or in part, for the purpose of obtaining a commercial advantage for the manufacturer or processor. This may be distinguished from strictly charitable or purely academic activities. TSCA places the responsibility for gathering information in support of chemical ------- 176 regulation on those persons who will derive the commercial benefits from those chemicals." At 7742, col.l. Proposed Rule Text; Process definition: [Same as .current] Final Rule (47 FR 38780) "Although some commenters indicated that the scope of the rule extends beyond the "chemical industry" and would therefore increase the number of potential number of potential processors beyond our estimate, EPA believes that its estimates of respondents is proper for the following reasons. First, over 85 percent of the companies that reported for the first section 8(d) rule were concentrated in the chemical, allied products, and petroleum refining industries. Second, most of the comments received from companies on the proposed rule were from companies in those industries, which EPA believes is an indicator of the respondent population for the final rule. Third, EPA believes that almost all of the studies performed on the listed substances are initiated by the manufacturers or primary processors of the substances, which is the reason EPA exempted distributors from reporting. These companies are heavily concentrated in the chemical, allied products, and petroleum refining industries." (From Economic Impact discussion, at p. 38789.) "ASBESTOS" FINAL RULE [47 Fed. Reg. 38780, 38781 (2 September 1982)] "EPA interprets the term 'manufacture and process for commercial purposes' to refer to such activities conducted, in whole or in part, for the purpose of obtaining a commercial advantage for the manufacturer or processor as distinguished from charitable or academic purposes. Therefore, chemicals manufactured for product research and development (R&D), as well as byproducts and impurities of commercial manufacturing and processing, are 'for commercial purposes.1 "EPA received comments saying that the Agency's inter- pretation is wrong because these substances themselves are not actually marketed, and, in the case of byproducts and impurities, are not desired for the market. However, the Agency considers it undeniable that products of commercial endeavors are made for commercial purposes. ------- 177 "The contmenters thought that the Inventory rule exempted reporting of byproducts, impurities, and R&D chemicals because they were not considered to be 'for commercial purposes.1 On the contrary, this section 8(d) rule is completely consistent with the Inventory rule, both rules define these chemicals as 'for commercial purposes.' The Inventory Rule exempted such substances only because they were hot appropriate for inclusion in the Inventory. In this final rule the Agency has limited the potential reach of this interpretation. A description of the applicability of this rule to impurities, byproducts, and R&D chemicals follows. "(1) Impurities. Under this rule, EPA has excluded from reporting any studies of chemicals that the person reporting has manufactured or processed or has proposed to manufacture or process only as impurities. "Since the chemicals presently listed in the rule are marketed mostly as desirable products, rather than as impurities, EPA expects that the excluded studies will be so few as not to justify the burden of searching for them. However, in other circumstances, the Agency may propose to require the excluded studies to be reported for some chemicals. "(2) Byproducts. It should be noted that the definition of 'manufacture for commercial purposes' includes only byproduct substances and mixtures that are separated from the other substance or mixture that is being manu- factured, processed, used, or disposed of. Other substances that are produced as byproducts, but not separated from the product, are impurities of the product and are thus not covered in the present rule." PROPOSED RULE [44 Fed. Reg. 77470 (31 December 1979)] " . . . Section 8(f) of TSCA [15 U.S.C. 2607(f)] states that for purposes of section 8, the terms "manufacture1 and 'process1 mean manufacture or process for-commercial purposes. Therefore, manufacturers and processors who are potentially subject to the requirement to submit lists under section 8 (d) are those who manufacture or process chemical substances or mixtures for commercial purposes." Id., at 77470-77471: "On July 18, 1978, EPA promulgated a rule similar to the one proposed in this notice [43 FR 30984]. That rule required persons who manufacture, process, or distribute ------- 178 in commerce the chemicals on the first ITC priority list to submit lists and copies of health and safety studies on those chemicals. ... On September 15, 1978, Dow Chemical Company [Dow] filed a petition for review of the rule in the United States Circuit Court of Appeals for the Third Circuit, Dow Chemical Company v. United States Environmental Protection Agency, no. 78-2203. Dow's petition challenged two provisions of that rule on the following grounds relating to the scope of the Agency's statutory authority. First, Dow asserted that EPA does not have the authority to obtain studies on chemicals manufactured or processed for research and development purposes since it was claimed such chemicals are not manufactured or processed for commercial purposes. . . . Dow's challenge of EPA's interpretation of its statutory authority was denied on August 24, 1979. The court ruled that (i) chemicals manufactured or processed for research and development are manufactured or processed for commercial purposes and (ii) that the EPA has the authority under 8(d) (2) to require persons to submit copies of studies on chemicals that they do not manufacture, process, or distribute." [NOTE: EPA subsequently revoked the July 18. 1978 rule.] Id., at 77472-77473: "The term 'process1 is defined in section 3(10) of TSCA to mean preparation of a chemical substance or mixture for distribution in commerce in the same or different form or physical state from that in which it was received, or as part of an article containing the chemical substance or mixture. Thus, a paint formulator placing a solvent in the product intended for distribu- tion in commerce is a processor (of the solvent) as defined in TSCA. "EPA interprets the term 'manufacture or process for commercial purposes' to refer to such activities conducted, in whole or in part, for the purpose of obtaining a commercial advantage for the manufacturer or processor. This may be distinguished from strictly charitable or purely academic activities. TSCA places the responsibility for gathering information in support of chemical regulation on those persons who will derive the commercial benefits from those chemicals. "Chemicals manufactured for product research and development would fall within the scope of this rule bacause those chemicals are produced for the potential commercial benefit of the manufacturer ------- 179 "Chemicals that occur as byproducts or impurities from the manufacturing or processing of other chemicals are also considered to be manufactured or processed 'for commercial purposes' even though they may have no commercial purpose separate from the substance, mixture, or article to which they are incidental. See Inventory Reporting Regulations 40 CFR 710, 4 (d) ; 42 FR 64577 (1977). The legislative history of TSCA indicates that a broad interpretation of the term 'commercial purpose1 was intended. Specifically addressing the definition of 'for commercial purposes,' the House Committee stated: "By use of the term 'for commercial purposes, ' the Committee does not intend to restrict coverage to substances manufactured or pro- cessed 'for sale.1 Any commercial purpose such as use as a chemical intermediate in a manufacturing process, is sufficient to bring the manufacture or processing of a substance within the ambit of [the Act]. H.R.Rep. No. 94-1341, 94th Cong., 2d Sess. 30 (1976). "Chemical intermediates which never leave the manufac- turing plant and which are not manufactured 'for sale' or even 'for distribution in commerce1 nevertheless are manufactured for commercial purposes. Likewise, bypro- ducts or impurities not manufactured 'for sale1 are considered by EPA to be manufactured for commercial purposes. "When a company manufactures a particular chemical substance or mixture for commercial purposes, other chemicals may be produced concurrently. These other chemicals may be byproducts that are separated from the principal commercial products and sold, used, or dis- carded, or they may remain in the manufactured chemical as impurities. These byproduct chemicals that are developed for sale or use as commercial products, of course, are manufactured for commercial purposes. EPA interprets TSCA to mean that the discarded byproducts and the impurities, although they may have no commercial purpose separate from the chemical product with which they are associated, are also manufactured or processed for 'commercial purposes.' The Agency notes further that a byproduct discarded by one manufacturer may be developed for sale by another. In either case the byproduct is manufactured for commercial purposes. "EPA does not believe that one manufacturer should be able to avoid listing a study on the byproduct simply because the byproduct is discarded, since EPA believes that many substances which occur as byproducts or impuri- ------- 180 ties may be more hazardous than the chemical substance or mixture with which they are associated. If the Agency is to carry out the purpose of the Act, it must obtain studies on these materials. An example of this situation is the case of chlorinated dioxins, highly toxic chemicals which appear as impurities or byproducts from the manufacture of certain halogenated phenols, such as 2 ,4 , 5-trichlorophenol and pentachlorophenol . The chlorinated dioxins that occur as impurities are typically carried along in the processing of the products in which they are found. Chlorinated dioxins, accordingly, are covered by this rule as chemicals manufactured or processed 'for commercial purposes.111 Id., at 77475 [proposed rule language for § 716.12]: "(f) 'Manufacture1 and 'Process' means manufacture or process for commercial purposes. (1) 'Manufacture for commercial purposes' means to import, produce, or manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer, and includes, among other things, such 'manufacture' of any amount of a chemical substance or mixture, "(i) For commercial distribution, including for test marketing, and "(ii) For use by the manufacturer, including use for product research and development, or as an intermediate. 11 (9) (2) 'Manufacture for commercial purposes' also applies to substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including both byproducts that are separated from that other substance or mixture and impurities that remain in that substance or mixture. Such byproducts and impurities may, or may not, in themselves have commercial value. They are nonetheless produced for the purpose of obtaining a commercial advantage since they are part of the manufacture of a chemical product for a commercial purpose ..... "(j) 'Process for commercial purposes' means the preparation of a chemical substance or mixture, after its manufacture for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included. If a chemical substance or mixture containing impurities is ------- 181 processed for commercial purposes, then those impurities are also processed for commercial purposes." ------- 182 S8(e) ("NOTIFICATION OF SUBSTANTIAL RISK.") TSCA (THE ACT) According to §8(e) of TSCA, "Any person who . . . processes . . a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment, shall immediately inform the Administrator. . ." "POLICY STATEMENT" According to Part I ("DEFINITIONS" section) of the Agency's TSCA §8(e) policy statement ("Statement of Interpretation and Enforcement Policy; Notification of Substantial Risk" 43 FR 11110; March 16, 1978), "The term 'manufacture or process for commercial purposes' means to manufacture or process: "(1) for distribution in commerce, including for test marketing purposes, "(2) for use as a catalyst or an intermediate, "(3) for the exclusive use by the manufacturer or processor, or "(4) for product research and development." NOTE: It should be noted that the above language from the 1978 TSCA §8(e) policy statement is similar to that used in the preamble of a 1978 proposed §8(d) rule (XX FR YYYYY; January Z, 1978) cited previously in this document. In addition, Appendix B of the Agency's March 16, 1978 TSCA §8(e) policy statement presents the following process/processor- related comment and response: "Comment 30: To what extent are 'users' of chemicals subject to ... [§8(e) of TSCA]? "Response: The Agency considers that many industrial uses of chemicals actually fall within the scope of 'processing1 chemicals " ------- 183 S8(f) ("DEFINITIONS.") T8CA (THE ACT) §8(f) of TSCA states that for the general purposes of §8 and its subsections (subsection (a) through subsection (e)), the term "process" means to "process for commercial purposes." ------- 184 DEFINITIONS OF CHEMICAL "PROCESS," "PROCESSOR" AND "PROCESSING" UNDER TSCA AND TSCA REGULATIONS (8/92 Supplement to 10/90 Background Document) ------- 185 Contents General Documents 186 §5 SNURS 188 Biotechnology 191 §6 Asbestos (Asbestos Ban and Phase Out (ABPO) Rule) 193 ------- 186 GENERAL TSCA DOCUMENTS UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 August 11, 1992 OFFICE OF PESTICIDES AND TOXIC SUBSTANCES Mr. David J. Hayes, Esquire Latham & Watkins (Suite 1300) 1001 Pennsylvania Ave, N.W. Washington, D.C. 20004-2505 Dear Mr. Hayes: This responds to your April 23, 1992, letter on behalf of the Motor Vehicle Manufacturers Association (MVMA) concerning EPA's interpretation of the term "process" under the Toxic Substances Control Act (TSCA) and the impact of that Agency interpretation on the U.S. automotive manufacturing industry. As explained in our meeting on June 16, 1992, your letter is one of several inquiries the Agency has received on the coverage of processors under our TSCA regulations. In order to address these concerns, we are planning to solicit public comment and hold a public meeting this Fall to provide interested parties an opportunity to present their views on this subject. The Agency intends to examine the issues that are of greatest concern to the regulated community rather than attempt comprehensive evaluation, or redefinition, of processor under TSCA. We look forward to participation by MVMA and its member companies. Regarding the issues raised in your letter, EPA believes that it is better tp provide exemptions to limit coverage of processors in individual TSCA rules rather than to narrow the broad TSCA definition of process. Under TSCA, the term process means, in pertinent part, the preparation of a chemical substance . . . for distribution in commerce ... as part of an article containing the chemical substance . . . TSCA §3(10), 15 U.S.C. §2602(10). This definition provides EPA with relatively comprehensive jurisdiction, which the Agency is reluctant to narrow. Limiting the overall scope of the statutory definition might result in EPA missing activities that could affect public health or the environment. Comprehensive coverage, of course, is not necessary in all cases and, accordingly, EPA does provide numerous exemptions in its TSCA regulations. ------- 187 MVMA's major concerns appear to relate to the coverage of processors under EPA's TSCA regulations rather than to the statutory definition. In the upcoming public comment process, MVMA may wish to recommend additional exemptions to the extent it believes the coverage in specific regulations is unnecessarily broad. The following are a few examples of existing exemptions in TSCA regulations that may help to focus MVMA's comments. EPA provides, at 40 C.F.R. §704.5(a), a general exemption from TSCA §8(a) regulations for persons who process a chemical solely as part of an article. Under §704.210, the reporting exemptions in §704.5 apply to reporting under the Comprehensive Assessment Information Rule (CAIR). The Agency's most current guidance limits this exemption to those persons who only process the article. See, for example, EPA's response to Questions 18 and 19 in the Agency's March 1989 TSCA Question and Answer (Q&A) document for the CAIR. EPA states that a person who prints on plastic bags (articles) with an ink (a reportable chemical substance) and then sells the printed bags is a processor of the ink and is not exempt from reporting under CAIR. However, a person who buys and further processes the printed bags is an exempt processor for the purposes of CAIR reporting. Under EPA's TSCA §8(d) health and safety study reporting regulations, persons are only required to search files of those employees "whose assigned duty is to advise ... on the health and environmental effects of chemicals," 40 C.F.R. §716.25. It does not appear to be a significant, or unfair, burden to require submission of studies likely to be located in files of employees responsible for health and safety in MVMA member companies if those studies were conducted on chemicals incorporated into automobiles or other articles in MVMA facilities. Under EPA's TSCA section 4 test rules, because chemical manufacturers typically pass through the costs of toxicity testing to processors by way of increased product prices, it is generally not necessary for processors to submit either letters of intent to initiate testing or applications for exemption from testing (40 C.F.R. §790.48(b)). EPA appreciates the concerns of MVMA, and other industry groups, on the need to clarify the coverage of processors under TSCA regulations. The Agency believes that the upcoming public comment process will significantly aid in the resolution of the most important issues. If you have further questions on any matters raised in this letter, please contact Mr. Frank Kover of my Staff at (202) 260r3436. Sincerely, /S/ Mark A. Greenwood, Director Office of Pollution Prevention & Toxics ------- 188 TSCA §5 "Significant New Use Rules" (SNURs) o 2-Chloro-l,1,1,2-tetrafluoroethane (Final SNUR published on July 22. 1992 (57 FR 3244in "The commenter stated that EPA should define processing or processors of P-88-1763, to clarify who would be subject to the requirements for notification of customers of hazard communication requirements, notification of customers of the existence of the SNUR for P-88-1763, and records documenting such notification. The commenter asked EPA to clarify if the listing of potential processors in its comments would be considered processors under the rule. The commenter also restated that the uncertainty and burden of a SNUR applying to so many potential processors could adversely impact the commercial utilization of P-88-1763 as a chlorofluoro- carbon alternative. "EPA agrees that a better description of who is subject to the SNUR for P-88-1763 would reduce uncertainty and the regulatory burden. Therefore, the final rule specifically describes processing activities that would not constitute new uses under this SNUR. First it should be noted that under § 721.45 (f) any person who imports or processes a substance subject to a SNUR is exempt from that SNUR if the substance is incorporated into an article before that person receives it unless EPA identifies such articles as subject to a specific SNUR. Therefore, once P-88-1763 is incor- porated into appliances, air conditioners, industrial equipment, or any other articles (except the foam insulation described earlier) the SNUR no longer applies to persons who import or process such articles. "In addition, EPA has added language to the final rule to indicate that this SNUR is not applicable to the following categories of processors: Processors of this substance are not subject to this section if they only service, repair, maintain, or sell products that contain the substance. "This statement defines the applicability of this SNUR and is not intended to affect the statutory or regulatory definition of 'processor' for other purposes." ------- 189 o Sulfurized Alkvlphenol (Final SNUR published on February 6f 1992 (57 FR 4577)) "The comment provided was that the recordkeeping requirements of § 721.125(b) and (c) were too broad and burdensome on manu- facturers and processors. Specifically, § 721.125 (b) requires: Records documenting volumes of the substance purchased in the United States by processors of the substance, names and addresses of suppliers, and the corresponding dates. Similarly, § 721.125(c) requires: Records documenting the names and addresses (including shipment destination address, if different) of all persons outside the site of manufacture, importation, or processing to whom the manufacturer, importer, or processor directly sells or transfers the substance, the date of each sale or transfer, and the quantity of the substance sold or transferred on such date. Given that for P-89-708 processors may include distributors and repackagers at thousands of individual retail and consumer sites, the commenter questioned whether EPA intended such recordkeeping requirements. The commenter also requires notification only if the production volume manufactured or imported exceeds the volume specified in the SNUR, the function of EPA recordkeeping requirements should be to assure that manufacturers observe this limit and that records under § 721.125(a) would achieve this goal. In addition the commenter noted a similar problem concerning the large number of processors and users who would have to be notified of the SNUR requirements under § 721.5. "The language of § 721.125 (b) and (c) is sufficiently broad that it could be interpreted as requiring recordkeeping by a large number of processors at thousands of retail and consumer sites. In the case of P-89-708 EPA agrees with the commenter that § 721.125 (b) and (c) are not appropriate. Accordingly, the final rule does not require the recordkeeping at § 721.125 (b) and (c) . EPA does not intend such broad recordkeeping especially in light of the limited SNUR provisions, which require notice when a manufacturer or importer exceeds a certain production volume or when a person fails to provide risk notification. "In general EPA limits only the production volume manfuacturerd or imported when it makes the finding under TSCA section 5(e)(l)(A) (ii)(II)(exposure based finding) that was the basis of action for the section 5(e) consent order for P-89-708. EPA agrees with the commnet that in cases where EPA uses only the exposure based authority of TSCA the recordkeeping of § 721.125(b) and (c) may be unduly burdensome. In cases where there are other restrictions such as worker exposure, hazard communication, and limited distribution based on an unreasonable risk finding under TSCA EPA may still cite 721.125(b) and (c) when appropriate. "The commenter also questioned the notification requirement in § 721.5 on the grounds that they could apply to a large number of processors and users. EPA believes, however, that this will not ------- 190 occur. Section 721.5 requires manufactuers, importers, and processors to notify each recipient of a substance subject to a SNUR of the requirements of that SNUR. Section 721.5(a)(2)(iii) also exempts manufactures, importers, and processors, from such notification requirements when they can document that the recipient cannot undertake any significant new use described in the SNUR. Because the SNUR for P-89-708 contains only a production limit and risk notification provisions for manufactures of importers further notification of the SNUR requirements is not required. "EPA will review future SNURs especially those similar to P- 89-708 that contain only a productin volume limit and risk notification provision to ensure that appropriate recordkeeping requirements are imposed. The recordkeeping requirements of § 721.125 (b) and (c) are still appropriate for some SNURs. In addition the suggestion that recordkeeping requirements apply to a limited number or tiers of processors may also be appropriate in some cases." ------- 191 "BIOTECHNOLOGY" Proposed Policy Regarding Certain Microbial Products. EPA. 49 FR 50880, December 31, 1984. [This was finalized as the June 26, 1986 document.] "Section 8(c). Persons who manufacture or process microbial products that fall under the TSCA definition of "chemical substances" should consult the final section 8(c) recordkeeping rule. 49 FR 50893." "Section 8(e). Persons manufacturing, processing, or distributing microbial products for TSCA purposes will be subject to this requirement [8(e) Policy] and should consult the policy statement to determine their responsibilities under section 8(e). 49 FR 50893." Statement of Policy; Microbial Products Subject to the Federal Insecticide, Fungicide, and Rodenticide Act and The Toxic Substances Control Act. 51 FR 23313, June 26, 1986. [This 1986 Policy Statement is the primary document for the TSCA biotechnology program until rules are published. This policy is being implemented through the requirements of 40 CFR Parts 720 and 721, as interpreted in the 1986 Policy Statement, so that most of the definitions in those parts also apply to microorganisms.] "SNUR - In the unlikely event that an imminent hazard would arise during this interim period, the Agency could use its authority under the section 7 of TSCA to immediately limit or prohibit the manufacture, processing, distribution in commerce, use, or disposal of the hazardous product. 51 FR 23329." "In the meantime, EPA strongly encourages persons who are planning to manufacture, import, or process pathogenic microorganisms for non-agricultural, new environmental uses, except those used solely for agricultural purposes, to report their activities to the Agency and to provide information similar to that required for a PMN for a new microorganism. 51 FR 23329." ------- 192 "Section 8(e) - All manufacturers, processors, and distributors of microbial products subject to TSCA, including those involved in research and development, are reminded of their responsibility to notify EPA immediately of any new information which "reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment (TSCA section 8(e)). 51 FR 23331." PACT SHEET: EPA STATEMENT OF POLICY ON MICROBIAL PRODUCTS SUBJECT TO THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT AND THE TOXIC SUBSTANCES CONTROL ACT. [Summarizes key provisions of June 26, 1986 FR notice, discussed above as 1986 Biotechnology Policy Statement.] "EPA must be notified by manufacturers, processors or distributors of microorganisms immediately if they become aware of any new information that suggests the microorganisms present a substantial risk of injury to human health or the environment. This is not a new requirement; it applies to all substances subject to TSCA." Points to Consider in the Preparation and Submission of TSCA Premanufacture Notices (PMNs) for microorganisms. July 23, 1990. [General guidance sent by EPA to any potential PMN submitter for biotechnology.] "EPA must be notified by manufacturers, processors or distributors of microorgnaisms immediately if they become aware of any new information that suggests the microorganisms present a substantial risk of injury to human health or the environment. This is not a new requirement; it applies to all substances subject to TSCA under the section 8(e) requirement for notice of substantial risks. (p. 2)" ------- . 193 TSCA §6 "ASBESTOS" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 February 10, 1992 OFFICE OF PESTICIDES AND TOXIC SUBSTANCES R. David DiJulio, Esq. DiJulio and Glasser 501 North Central Ave. » Glendale, CA 91203 *G L'r''" Re: Asbestos Ban and Phase Out RMfe/Linoleum-Type Flooring T-J-. •' Dear Mr. DiJulio: ^'- ».•-*.+ This letter is in response to yojtr ^letter dated January 13, 1992, concerning "linoleum-type floorimj*"* Only those products listed in section 763.165 of the Asbestos Ban and Phase Out (ABPO) Rule are regulated by the Rule. However, there is not enough information in your letter for us to determine whether your client's product is a listed product or not. If your client's product fits within the definition of any product listed in section 763.165 of the ABPO Rule, the product may be regulated by the Rule. Product definitions are contained in section 763.163 of the ABPO Rule. In particular, note that the ABPO Rule includes at least two flooring materials, vinyl/asbestos floor tile and flooring felt, which is used as an underlayer for floor coverings and is sometime bonded to the floor products. 40 CFR 763.165(a). Another product category, non-roofing coatings, also contains some flooring materials. 40 CFR 763.165(d). If your client's product fits within the definition of either vinyl/asbestos floor tile or flooring felt, or within any other product definition, it may be regulated by the ABPO Rule. In addition, be advised that on October 18, 1991, the U.S. Circuit Court of Appeals for the Fifth Circuit in Corrosion Proof Fittings, et al. v. EPA, No. 89-4596, vacated the ABPO Rule and remanded it to EPA. In a subsequent clarification of its decision, the Court stated that only new uses of asbestos and asbestos products included in the ABPO Rule that were not being manufactured or processed in, or imported into, the United States on July 12, 1989, when the ABPO Rule was published are still subject to the ABPO Rule. In the next few weeks, EPA will publish a notice in the Federal Register about the present status of the ABPO Rule in light of the 5th Circuit Court's decision. The notice will also address which products may still be subject to the ABPO Rule. ------- 194 The cutting that you describe in your letter would be considered processing under the ABPO Rule. "Process" has the same meaning in the ABPO Rule as it does in Section 3 of the Toxic Substances Control Act (40 CFR 763.163), where it is defined as: [T]he preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce - (A) in the same form or physical state as, or in a different form or physical state from, that in' which it was received by the person so preparing such- substance or mixture, >or'd$fid*,- as part of an article containing the chemical sub&&SBf&£ or mixture. 7 U.S.C.A. 2 Under this d^e£inCjH.on, your client is "processing" the flooring because it is-|||?teparing the flooring for distribution by cutting large roll's gf ttffr' flooring into smaller portions for sale to contractors an'd'*usej^sjsi{ This interpretation is consistent with the purpose and in£eh|L Qf the ABPO Rule to reduce unreasonable risks to human heal^^%uring activities involving asbestos- containing products, because cutting can release significant amounts of asbestos. See, for example, the discussion of vinyl/asbestos flo'or tile in the Federal Register notice on the final ABPO Rule. 54 FR 29492, July 12, 1989. Therefore, if your client's product is an asbestos-containing product that is still subject to the ABPO Rule, your client is a processor of a regulated product under the Rule and subject to the processing, distribution in commerce, and labeling prohibitions and requirements found in sections 763.167, 763.169, and 763.171 of the Rule.. If you have any questions, please contact Mike Mattheisen on my staff at the above address (mail code TS-794) or at 202-260- 7363. Sincerely, /s/ John W. Meldne, Director Chemical Control Division ------- |