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April 5, 2016

BRAG Petition Succeeds:  EPA Expands Chemical Data Reporting Exemptions To Biodiesel Products

Bergeson & Campbell, P.C.

On March 29, 2016, the U.S. Environmental Protection Agency (EPA) published the Partial Exemption of Certain Chemical Substances from Reporting Additional Chemical Data final rule in the Federal Register. This final rule amends the list of chemical substances that are partially exempt from additional reporting requirements under the Chemical Data Reporting (CDR) rule. The rule applies to six biodiesel chemicals that are very similar to petroleum based biodiesel chemicals that are already on the exempt list. Per EPA’s estimate, companies that utilize this reporting exemption will save 65.63 hours, or almost 1.5 weeks of staff time, per report. Companies that produce more than one of the listed chemicals or have more than one reporting site will save even more.

This EPA rulemaking amends the list of chemicals for which the more time-consuming and onerous downstream processing and use information must be reported under the CDR Form U, Part III. This fabulous outcome is due to the forward-thinking actions of the Biobased and Renewable Products Advocacy Group (BRAG®), managed by B&C® Consortia Management (BCCM). BRAG members recognized an advocacy opportunity to equalize what had been an uneven regulatory reporting field for biodiesel products. In October 2014, BRAG submitted a petition to EPA outlining the reasons why the six biodiesel chemicals should be afforded reduced reporting requirements under the CDR. This petition was reported in the Bloomberg BNA Daily Environment Report story “Biobased Diesel Companies Petition EPA For Rules Comparable To Traditional Diesel.”

EPA quickly concurred with BRAG’s view and issued a direct final rule to add the listed chemicals to the partial reporting list in January 2015. Unfortunately, due to one comment that EPA deemed adverse, EPA was required to with withdraw the direct final rule and re-propose it as a standard rulemaking under the Administrative Procedures Act, a significantly more time- and resource-consuming approach. BRAG expressed its members’ concerns that the rulemaking process might not be completed in time to add the biodiesel chemicals to the partial reporting exemption list prior to the 2016 reporting cycle. EPA staff worked diligently to issue the proposed rulemaking in July 2015 and issued the final rule in March 2016 — lightning-fast action within a regulatory context.

BRAG’s Executive Director Kathleen M. Roberts stated: “BRAG members should be very proud of this accomplishment. They recognized a need, met with EPA staff, executed a strategy, and achieved the desired regulatory goal in under 20 months. I am pleased that my members and others in the industry will have the benefit of a reduced reporting burden for these chemicals come June 1, 2016. I hope this success will heighten others’ interest in BRAG and what we are doing. While a small group, we have made some great strides for the biobased chemical industry.”

The six biodiesel chemicals added to the list of chemicals eligible for partial CDR exemptions are:

  • Fatty acids, C14-18 and C16-18 unsaturated, methyl esters (Chemical Abstracts Service (CAS) No. 67762-26-9);
  • Fatty acids, C16-18 and C-18 unsaturated, methyl esters (CAS No. 67762-38-3);
  • Fatty acids, canola oil, methyl esters (CAS No.129828-16-6);
  • Fatty acids, corn oil, methyl esters (CAS No. 515152-40-6);
  • Fatty acids, tallow, methyl esters (CAS No. 61788-61-2); and
  • Soybean oil, methyl esters (CAS No. 67784-80-9).

The reporting window for the 2016 CDR is June 1, 2016, to September 30, 2016CDR reporting includes detailed information on volumes of chemicals produced, imported, used on site, and exported. It also requires information on amounts and functions for downstream uses in industrial, commercial, and consumer applications. Renewable fuel and biobased chemical companies that have successfully moved from research and development to commercialization will be required to respond to the CDR rule under the Toxic Substances Control Act (TSCA). All chemicals not otherwise regulated as a pesticide, food, food additive, drug, cosmetic, or nuclear material, are subject to the rules and requirements under TSCA. Companies that do not comply are subject to enforcement actions and significant fines of up to $37,500 per violation, per day.

Due to BRAG’s efforts, companies that produce or import the six biodiesel chemicals do not have to report the following information elements for the exempted chemicals:

  • Top ten combinations of industrial process, industrial sector and industrial functions;
  • Production or importation volumes associated with each combination;
  • Number of industrial sites using the chemical within each combination;
  • Number of workers potentially exposed within each combination;
  • Top ten consumer and/or commercial downstream applications;
  • Indication of whether reported consumer or commercial categories result in products intended for children;
  • Production or importation volumes associated with each reported consumer or commercial category;
  • Maximum concentration within each reported consumer or commercial category; and
  • Number of workers potentially exposed with each reported consumer or commercial category.

For more information on claiming this partial data reporting exemption or other current advocacy engagements by BRAG, contact BRAG Executive Director Kathleen M. Roberts, or (202) 833-6581. BRAG membership is open to biobased chemical manufacturers, and companies and organizations that support them. BRAG is the only trade group solely focused on addressing the unique challenges that biobased chemicals face under TSCA.

CDR reporting is complicated with numerous potential exemptions that must be carefully analyzed for applicability. BRAG’s affiliate Bergeson & Campbell, P.C. (B&C®) is hosting a webinar on practical tips for complying with the new CDR reporting requirements on May 3, 2016, 1:00 p.m. – 2:00 p.m. (EDT). All impacted stakeholders are invited to participate in the complimentary webinar, but companies new to the TSCA arena and CDR reporting are urged to attend.

As recognized leaders in sustainable chemistry, Biobased and Renewable Products Advocacy Group (BRAG®) members lead efforts to drive better, more robust policies for new technologies to ensure fair, balanced, and equitable treatment for biobased chemical feedstocks and products. Regulatory Memoranda regarding biobased chemicals and Articles regarding biobased chemicals are available on our website. BRAG is managed by B&C® Consortia Management (BCCM).