Document v6prOKR464o4dmBaew7bwK3Z

TO: Distribution Interoffice Communication FROM: DATE: SUBJ: T. G. Grumbles October 25, 1991 POLYMERS RECYCLING TSCA ISSUES VISIA The attached article from Keller & Heckman describes potential concerns to be considered in polymer recycling programs. I don't believe the issues described are significant to our current efforts, but we should keep these issues in mind as we progress. T. G. Grumbles dlj .332 Attachment Distribution: S. Gabeline, L. Zimmerman, J. Ledvina, C. MillerHouston Bud Hall, J. Kirkpatrick-Austin J. Janes-Austin VVV 000008003 Environmental Regulatory advisory -n Route to LI-eegal Briefmingc from Keller and Heckman In Continuing Scries COMMENTARY The Waste Disposal Problem and the Free Market by Jerome H. Heckman It is time to take a closer look at some of the paradigms that are being relied upon by regulators, environmentalists, and so-called thought leaders in the setting of policies aimed at solving the solid waste "problem.'' As Thomas Kuhn, the author of The Structure of Scientific Revolutions instructs, "almost every significant breakthrough in the field of scientific endeavor is first a break with tradition, with old ways of thinking, with old paradigms." There is an almost indisputable precept that teaches that the solutions to the solid waste problem lie in a hierarchy of source reduction, recycling, and reduced but continued use of landfills and incineration. There can be no quarrel with this set of goals. But, the idea that the goals of the hierarchy can only be achieved if the government plays a leading role in the process is a paradigm or precept that deserves a serious challenge. The Government's Role Imagine government's regulatory and legislative approaches bringing about a complete ban on selected types of packaging, for example, plastic. Disregard the inconvenience this would cause the public in terms of loss of popular products like easily microwaveable foods, and the possible disappearance of "shatterproof1 cosmetic bottles and detergent containers, and even two-liter soda bottles. If such bans are mandated by governments, will this do anything to help with the solid waste problem? In a free economy, products stay on the market oph^ecause they meet consumer needs; consumers "vote" for or against thehi with their dollars. If all the products packaged in plastic packaging were suddenly banned, the need for the products would not vanish. Products made of other materials would quickly replace the banned products. There might then be less plastics, but there would be more of the substitutes that won't do the consumer's job as well, and will fill the landfills at least as rapidly. (continued on page 2) In This Issue Commentary: The Waste Disposal Problem and the Free Market ... 1 A TSCA Trap for Polymer Recycling ................................................... 1 TSCA's "pH Neutralizer" Exclusion........................................................ 3 CFC Substitutes: EPA Moves Foward with SNAP.............................. 4 State Control of Air Toxics After the 1990 CAA Amendments......... 4 Taking Aim at Green Marketing Claims .............................................. 5 F*U/Wuiter 1591 A TSCA Trap for Polymer Recycling by John B. Dubeck Corporate efforts to minimize toxic emissions and process wastes are being complicated by the unyielding requirements of the Toxic Substances Control Act (TSCA). In response tc EPA Administrator Reilly's challenge that toxic releases of seventeen toxic chemicals be reduced by 33 percent ty the end of 1992 and by 50 percent b\ the end of 1995, a number of chemica: manufacturers are undertaking process revisions. They are also implementing other waste reduction strategiesfoi environmentally laudable reasons and tc minimize potential future liability. Enthusiasm for implementing the changes, however, has caused some manufacturers to overlook the TSO implications of various process revisions EPA's Office of Toxic Substance: (OTS), the office responsible foi enforcing TSCA, adopted a makeshif1 ,, approach to polymer nomenclature ir the rush to establish the TSG6 Inventory. The shortcuts taken at tha time now create a particular problem including substantial fines -- for polyme: manufacturers seeking to implemen process changes. Process changes that implemen environmentally advantageous waste minimization objectives can escape the normal internal TSCA controls that arc now commonplace for new produc development. Such changes have "faller through the cracks" in severa manufacturers' carefully develops systems for assuring (1) that nev products are properly developed ii accordance with TSCA's R&T exemption and (2) that PMN's are (continued on page 3 VVV 000008004 Environmental Regulatory advisory Page: (continued from page 1) filed (and the 90 day review period has expired) prior to initiating commercial production. Since the waste reduction strategies that a company is likely to pursue are those that do not adversely affect specifications or performance of the final product, it is not too surprising that the TSCA requirements for new products tend to be overlooked. In a typical scenario, a process stream containing minimum product value is captured, concentrated, or otherwise treated to facilitate recovery of raw materials. Returning the recycled material into the commercial process improves product yield by the amount of the recovered material. Assuming that the finished product meets all specifications, the process change is implemented immediately. For purposes of TSCA, and especially if the product is a polymer, the product manufactured with the recycled stream will almost certainly not be on the Inventory. Polymers are listed on the TSCA Inventory on the basis of the chemical substances used (at greater than 2 percent of the weight of the finished polymer) to manufacture them, not on the basis of what is manufactured. Recovering trace concentrations of valuable constituents from a waste stream in an efficient manner is a technological challenge. If the material recovered happens to be an oligomer, or a salt, or some other derivative of the virgin starting material, a PMN and a 90-day delay in commercial implementa tion is almost sure to follow. This will be true even though the end product is absolutely identical -- even on an atomic scale -- to the original (all virgin) product. It is what is used that counts. Companies must appreciate that the major cost of TSCA is not the cost of complying -- a $2500 PMN filing fee plus the time and effort required to prepare a PMN -- but the cost of avoiding noncompliance. Penalties are exacted without regard for whether there had been a deliberate attempt to gain a commercial advantage by ignoring the requirements of TSCA. A company becomes liable for fines simply because it failed to recognize that a PMN was required. The ultimate absurdity of the polymer nomenclature system is that importers of plastic articles may find themselves in violation of the PMN requirements of TSCA by finding an alternate use for the resin content of defective or recovered products. A simple example illustrates that this is not far-fetched. At the National Plastics Exposition (NPE) in Chicago this past June, General Electric demonstrated the conversion of old computer housings made from GE resins into roof tiles. a resin that was not on the TSC/ Inventory? If an importer established ; similar buy-back program for compute: housings, the company would need ti file a PMN for the polymer. (Grindini any article into particles takes it out o the article definition since "fluids am particles are not considered article, regardless of shape or design.") Surprise! Recycling the importe* article constitutes manufacture of . - chemical substance and gives rise t< fines on the order of $25,000 per day fo every day that articles are ground int< particles. What if the computer housing had been imported and had been made from Beware. A TSCA trap may luri behind even a simple process change. * TSCA's "pH Neutralizer" Exclusion by Justin C. Powell, Ph.D. Due to widespread misunderstanding, EPA plans to clarify an exclusion under the Toxic Substances Control Act (TSCA) regulations and reopen the TSCA Inventory. EPA will issue a Federal Register notice that appends an explanatory note to 40 C.F.R. 710.4(d)(7) and 72030(h)(7). These provisions provide an exclusion (commonly called the "pH neutralizer" exclusion) from TSCA Inventory requirements and from the premanufacture notification (PMN) requirements for certain chemical substances. __ T* The Inventory is to be opened for 120 days after the clarification to permit reporting of those substances which, in light of the clarification, have become subject to PMN reporting. Substances manufactured up to the effective date of the notice would be eligible to be added to the Inventory (unless EPA, in its sole discretion, decides that the failure to file a PMN was not based upon a good faith interpretation of the exclusion). EPA's plans are discussed in a draft working paper dated July 8, 1991, on which EPA accepted informal comments during the summer. Because the proposed clarifications are referred to as "technical amendments," the firs notice of this issue in the Federa Register is likely to be the announcemen of the final clarification. Much more than pH neutralizatio; escapes reporting under the pH neutra lizer exclusion. Chemical substance escape reporting if they are the result o chemical reactions that occur whei other chemical substances functior solely as intended to impart a specific "physicochemical" effect. Such sub stances are considered to be manufac tured for commercial purposes unde: TSCA, but they are not considered to bt manufactured for distribution ii commerce as chemical substances, pe se, and have no commercial purpose separate from the substance, mixture, o. article of which they may be a part. The regulated community should bt encouraged by the possibility that thi exclusion will be fully clarified and the Inventory reopened. Reopening the Inventory could mitigate TSCA compliance burdens that have lonj plagued the regulated community. Copies of EPA's draft working paper an available upon request. ____ VVV qOQQOBQQ^