Regulatory History of the Byproducts Exemption
in 40 CFR §§ 711.10(c) & 720.30(g)
Presented by
Eric Wilber
EPA Office of General Counsel

 TSCA Enacted in 1976
• Section 8(a)(2) allows EPA to require manufacturers to maintain records
and report chemical substances and byproducts to EPA
▫ Authority is not tied to chemicals as named on the inventory in section 8(b)

• Legislative History – Senate Report
▫ Certain mixtures that change on end use are not covered “because they are
not manufactured for commercial purposes, per se”
▫ “Such chemical substances arising during the formulation, store, 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.”

 Regulatory Development – Byproducts in TSCA Inventory
• Spring/Summer 1977: Proposed inventory rules
▫ March proposal
▫ August re-proposal due to comments

 Introduces byproducts definition: “A chemical substance produced without separate
commercial intent during the manufacture or processing of another chemical
substance(s) or mixture(s).”
 Introduces first byproducts exemption, generally excluding byproducts from the inventory
but giving manufacturers the option to report on the inventory byproducts used as:
 Burning as a fuel
 Disposing as a waste/enriching soil
 Extracting component chemical substances

 “EPA intends to encourage conservation and recycling of the energy and resources
contained in the waste material that might otherwise be discarded because of reporting
burdens under TSCA.” EPA was also considering reporting for byproducts that are
hazardous wastes under RCRA regulations.

 Regulatory Development – Byproducts in TSCA Inventory
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
 Finalized the August proposed rule under the authority of TSCA section 8(a) with a few
changes
 Explanation of extraction of component chemical reporting in comment 55

 Regulatory Development – Byproducts under TSCA PMN
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules

 Regulatory Development – Byproducts under TSCA PMN
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules
• 1983: Final PMN Rule
• Final PMN rule expanded the definition of byproducts to include use and disposal
• Created 40 CFR 720.30(g) as it stands now as a corollary to the inventory rule, except
that those activities are always excluded from PMN
• “[T]he manufacturer of a byproduct is expected to know of any nonexempt uses
planned by its customer. In such cases, the byproduct would then be manufactured for
a commercial purpose and the manufacturer would be required to submit a notice.”

 Regulatory Development – Byproducts in TSCA Inventory
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules
• 1983: Final PMN Rule
• 1986: Inventory Update Rule (IUR)
• In an update of the inventory, EPA added Subpart B to Part 710, and exempted from
reporting “person[s] manufactur[ing] the chemical substance … in a manner
described in §720.30(g) or (h) of this chapter.”
• PMN exemption specifically mentioned in the preamble

 Regulatory Development – Byproducts in TSCA Inventory
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules
• 1983: Final PMN Rule
• 1986: Inventory Update Rule (IUR)
• Early 1990s: PMN Letters interpreting exemption
• 1991 Letter: 720.30(g)(3) requires that “the component to be extracted must be
already existing as a distinct chemical substance in the waste stream” to be
exempted.
• 1993 Letter: Extended the interpretation to certain activities associated with
production, processing, or use wastes (e.g. recovery/reuse)

 Regulatory Development – Byproducts in TSCA Inventory
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules
• 1983: Final PMN Rule
• 1986: Inventory Update Rule (IUR)
• Early 1990s: PMN Letters interpreting exemption
• 2003: Inventory Update Rule (IUR)
• Included inorganic chemicals for the 2006 reporting cycle and thereafter
• Carried over the exemptions in 720.30(g) and (h) for 2006 and thereafter

 Regulatory Development – Byproducts in TSCA CDR
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules
• 1983: Final PMN Rule
• 1986: Inventory Update Rule (IUR)
• Early 1990s: PMN Letters interpreting exemption
• 2003: Inventory Update Rule (IUR)
• 2011: Chemical Data Reporting (CDR)
• Renumbered Part 710 into Part 711, retaining exemptions in 720.30(g) & (h) in 711.10(c)
• “EPA is clarifying, not enlarging, the reporting requirements for byproducts which have been
in place for decades.”

 Regulatory Development – Byproducts in TSCA
• Spring/Summer 1977: Proposed inventory rules
• December 1977: Final inventory rule
• 1979: Proposed PMN rules
• 1983: Final PMN Rule
• 1986: Inventory Update Rule (IUR)
• Early 1990s: PMN Letters interpreting exemption
• 2003: Inventory Update Rule (IUR)
• 2011: Chemical Data Reporting (CDR)

 Questions?

References for Regulatory History of the Byproducts Exemption in
40 CFR §§ 711.10(c) & 720.30(g)
Statute
15 U.S.C. § 2607(a)(2).
Legislative History
Senate Report No. 94-698 at 19, 22 (1976).
Federal Register Notices
Original Inventory Rule
March 1977 Inventory Rule Proposal: 42 Fed. Reg. 13130, at 13134-35.
August 1977 Inventory Rule Re-Proposal: 42 Fed. Reg. 39181, at 39186, 39190, & 39192.
December 1977 Final Inventory Rule: 42 Fed. Reg. 64572, at 64577, 64587.
Original PMN Rule
January 1979 PMN Proposed Rule: 44 Fed. Reg. 2242, at 2248, 2264.
October 1979 PMN Re-Proposed Rule: 44 Fed. Reg. 59764, at 59772.
May 1983 Final PMN Rule: 48 Fed. Reg. 21722, at 21727, 21729, 21743, & 21745-46.
Inventory Update Rules
1986 Final Inventory Update Rule (IUR): 51 Fed. Reg. 21438, at 21440, 21448.
2003 Final IUR Amendments: 68 Fed. Reg. 848, at 873, 876, & 902.
CDR Rule
2011 CDR Final Rule: 76 Fed. Reg. 50816, at 50818, 50832-33, 50849-51, & 50872.
Library of Congress Federal Register Collection
https://www.loc.gov/collections/federal-register/?loclr=bloglaw
1936-1993
Federal Digital System (FDsys)
https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR&browsePath=1990&isCollapsed=fals
e&leafLevelBrowse=false&ycord=307
1990-present
CDR Website
https://www.epa.gov/chemical-data-reporting/legislative-and-regulatory-authority-chemical-data-reporting
TSCA - Full Law as Amended
http://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter53&edition=prelim