New Regulatory Requirements for Recycling Byproducts?

By Fern Abrams, IPC Director of Government Relations and Environmental Policy

Although neither Congress nor the U.S. EPA (Environmental Protection Agency) have introduced new laws or regulations for byproducts, a new interpretation of existing chemicals regulations may put manufacturers in a bind for doing what they thought was the right thing — recycling. A new interpretation by the EPA follows a twisted road to their conclusion that a recycled byproduct from electronics and other manufacturing sectors is subject to regulation under the Toxic Substances Control Act (TSCA). Considered a regulation for controlling the toxicity of new chemicals, TSCA has been of little interest to electronics manufacturers. Now, by a bizarre turn of logic, the EPA regards recycled byproducts as “new chemicals” that are “feedstock” into the recycling processes; therefore, subject to TSCA regulations. Any manufacturer with the temerity to send spent plating baths, solder dross, F006 treatment sludge, and other electronics manufacturing byproducts for reuse or recycling may be subject to chemicals regulations never considered applicable or relevant. If this sounds odd to you, keep reading as we follow Alice and the Cheshire Cat to the land where logic no longer reigns.

The Toxic Substances Control Act
TSCA was enacted to ensure the safety of chemical substances that are not covered under other federal laws. Under TSCA, the EPA can control or ban a chemical if it poses an unreasonable risk to human or environmental health. Regulatory requirements of TSCA require chemical manufacturers to provide the EPA with a pre-manufacture notification (PMN) for “new chemicals” before manufacture. Following EPA review, further testing may be requested to determine the hazards associated with the chemical. TSCA requires the EPA to maintain an inventory of all chemicals that are commercially manufactured in or imported into the U.S. under the Inventory Update Rule (IUR), manufacturers and importers of chemical substances included on the inventory are required to periodically report current data on the production volume, plant location, and site-limited status of these substances.

How did this rule come to apply to electronics manufacturers?
Electronics manufacturers are not chemical manufacturers and could hardly be expected to be subject to the IUR. In fact, the IUR contains specific exemptions for byproducts, such as F006 wastewater treatment sludge, solder dross, and spent solutions generated by the electronics manufacturers. So what happened?

In 2006, IUR reporting was required for the first time for inorganic substances, including most metals-bearing substances such as those found, used, and generated by the electronics manufacturing industry. When an overly cautious PCB environmental manager contacted the EPA for clarification of regulatory requirements as they pertained to recycled byproducts, the EPA responded that the byproduct exemption did not apply because when the byproducts were sent for recycling they became new chemical feedstocks. The EPA even considered F006 electroplating sludge — a listed hazardous waste under RCRA — as a new chemical if it was recycled.

When IPC investigated, we discovered that several other industries with metal-bearing byproducts or wastes had received letters or e-mails from the EPA with similar interpretations. However, these letters and other interpretations have never been publicly published or reviewed through EPA’s rulemaking or guidance processes. IPC and a coalition of affected industries have had several meetings with the EPA vigorously opposing this new and absurd interpretation, but have had no success.

While the moral of the story is clearly to never ask a regulator if you are regulated, electronics manufacturers are left with several quandaries. Although the EPA has not taken any enforcement actions against companies that failed to file under the 2006 IUR, the possibility remains. In addition, the EPA may consider companies that recycle byproducts to be in violation of pre-manufacture notice (PMN) requirements for new chemicals not on the TSCA Inventory. Many of these byproducts, which were never considered to be new chemicals, are not on the inventory. These so-called new chemicals should have been reported under the PMN program before they were placed on the market which, in this alternate universe, is the act of sending them for recycling.

The next set of IUR reports, that cover 2010 production, will be due in June 2011. In addition to the simple data required in 2006, the 2011 reports will need to include industrial processing and use data, such as the type of process or use (processed as reactant, formulated, etc.) for the byproduct “feedstock,” the industrial application (five-digit NAICS code) of the byproduct recycling process, and the industrial function category (bleaching agent, filler, lubricant, etc.) of the byproduct “feedstock.” Reports will also need to identify unique combinations of processing and use elements (recycling processes), and report on the percent of production volume per combination (to the nearest 10 percent), the number of downstream sites (range) and the number of potentially exposed workers downstream (range). Also required will be commercial and consumer use data.

As if that’s not enough, the EPA plans to propose regulatory changes this spring to include additional reporting requirements and increase the reporting frequency. IPC and its coalition partners intend to use this opportunity to force the EPA to publicly address the implications of its wonderland-like interpretations of the byproducts exemption. While we hope the EPA comes to a sensible solution before the 2011 reports are due, companies that wish to be proactive may want to start collecting 2010 data now and review whether they should submit PMN notices for byproducts they are recycling that are not on the TSCA Inventory.

For more information visit the EPA’s Web site.

2 Comments

  1. Posted July 28, 2010 at 5:15 am | Permalink

    In my opinion, regulatory changes should cover the whole world as in today’s global environment, it’s not possible to control the toxicity within one country.

  2. Posted August 2, 2010 at 10:16 am | Permalink

    I tend to agree with stardust. Regulatory changes should cover the whole world the old saying one man cant win a war but an army of men can. Recycling helps the environment and we all have the live on the planet so we should all do are bit to help save it, if not for us the our childrens sake.


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