Manufacturers reporting under TSCA develop production information for a variety of intermediate streams – some of these streams are stored in intermediate tanks between units, and some are only fed between parts of one process unit. However, our experience (and a review of reporting data submitted in 2012) has shown that there is confusion around which of these streams actually require reporting.
In 40 CFR 711.10, EPA indicates that certain activities are not subject to TSCA reporting, including activities described by 40 CFR 720.30(h) within the TSCA Pre-Manufacturing Notice requirements. Following that reference, in 40 CFR 710.30(h)(8), EPA uses a key phrase that could have clarified the practical extent for which intermediates should be reported as manufactured: “any non-isolated intermediate.” The title to 40 CFR 711.10 is “Activities for which reporting is not required,” which leaves open the possibility that a facility could choose to report some of these activities if it wanted to.
In 40 CFR 720.3, “Non-isolated intermediate” is defined as:
“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 chemical substance passes during a continuous flow process, but not including tanks or other vessels in which the substance is stored after its manufacture.”
In April 2016, EPA chose to issue “TSCA Chemical Data Reporting Fact Sheet: Non-Isolated Intermediates“, a document intended to clarify this issue further. Several case studies are presented in this document, but the most instructional is Case Study F:
“Company F manufactures substance A and transfers a portion through an enclosed, continuous flow system to a second reactor to manufacture chemical substance B, which is subsequently used for a commercial purpose. The remaining portion of substance A is transferred to a storage tank for later use for a different commercial purpose. Is any portion of substance A considered a non-isolated intermediate?
The portion of substance A that is transferred through an enclosed, continuous flow system to a second reactor (where it is used to manufacture chemical substance B is considered to be a non-isolated intermediate. The portion of substance A that is transferred to a storage tank is isolated. Reporting under CDR for the isolated portion of substance A would be required if the isolated portion of substance A meets the other reporting requirements.”
So EPA’s intent is now pretty clear. If a process unit produces products and those are fed directly to another unit without any intervening storage, these intermediate streams don’t need to be reported. Although it is easy to see how the regulation could be read with this intention in mind now, many that reported in 2012 land before likely did not view the obligations in this way. So now reporting companies are left with a decision:
I’ve long been an advocate of logical compromise. Taking the case of a petroleum refinery, changing the TSCA report data to exclude almost all of the process intermediate streams if few intermediate tanks are used seems to circumvent the EPA’s intent to get at some measure of worker exposure during the manufacturing process. Refinery workers generally have as great, if not greater, exposure to intermediates as they do to products. To address this, we suggest that a facility report the intermediate products produced by each discrete process unit, whether they have intermediate storage or not. This frees a facility from tracking down unit internal streams, and avoids applying EPA’s logic as stated in the Fact Sheet about tankage (having a “clear technical relationship to the needs of the process;” whatever that means). Following this logic seems consistent with how many manufacturing facilities view their operations and perform their analysis and accounting.
TSCA reporting must be completed by the end of September, so the time to consider these important reporting strategies is now!