The U.S. EPA has released the updated Toxic Substances Control Act (TSCA) Chemical Substance Inventory (Inventory), which identifies non-confidential chemical substances designated as “active” in U.S. commerce. The April 2018 TSCA Inventory update reflects for the first time information received through the chemical substances reporting mandated under EPA’s newly promulgated TSCA Inventory (Active-Inactive) Rule, which took effect in August 2017. Stated broadly, this Inventory is of particular importance to any company that purchases or uses chemical substances given the impending general prohibition against producing or using a chemical which is not on EPA’s list of “active” chemical substances.
TSCA, as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, requires EPA to designate “active” and “inactive” chemical substances in U.S. commerce, and promulgate what is now known as the TSCA Inventory (Active-Inactive) Rule. The Active-Inactive Rule establishes the process by which industry must report chemicals manufactured, imported, or processed in U.S. commerce. The Active-Inactive Rule required manufacturers (including importers) to submit retroactive reporting of those substances manufactured or imported into the U.S. between June 21, 2006 and June 1, 2016—known as the “lookback period”—by no later than February 7, 2018.
The Active-Inactive Rule also requires forward-looking reporting, requiring manufacturers and processors—companies that formulate products with industrial chemicals— to submit reports to EPA if they intend to manufacture or process chemical substances designated as “inactive” by EPA on future updates to the TSCA Inventory. Effective 90 days after EPA officially designates chemicals as “inactive”, which we anticipate will occur in 2019, TSCA makes it generally unlawful to produce or use a chemical substance not on EPA’s list of “active” chemicals.
The new April 2018 Inventory identifies “active” chemical substances in U.S. commerce based on the following information:
1. Data submitted in 2012 and 2016 under the Chemical Data Reporting Rule;
2. Notices of Commencement received since June 21, 2006; and
3. Notice of Activity submitted under the TSCA Inventory (Active-Inactive) Rule by February 7, 2018.
To assist processors in identifying whether EPA has already designated a chemical substance as “active”, EPA separately released a database reflecting those chemical substances reported by manufacturers and importers from February 8, 2018 through March 30, 2018. Thus, processors can confirm whether chemicals necessary to their processing are already labeled as “active.” If not, processors have until October 5, 2018 to voluntarily submit a Notice of Activity to EPA to activate the chemical substance. EPA will update the TSCA Inventory to designate “inactive” chemicals after the October 5, 2018 deadline. The “inactive” designation becomes effective 90 days after the date EPA officially identifies it as such on the TSCA Inventory.
The Active-Inactive Rule also allows for the submission of confidential business information (CBI) to protect certain chemical substances from disclosure. Many chemicals are therefore listed on the confidential TSCA Inventory and not accessible on the April 2018 TSCA Inventory update. The TSCA amendments, however, expanded the groups who can access CBI to include: (1) states, local government, and tribal governments, (2) environmental, health, and medical professionals; and (3) emergency responders. In March 2018, EPA released three draft guidance documents setting forth how and when such CBI can be disclosed to each group. Ultimately, EPA’s treatment of CBI may be impacted in light of pending litigation that challenges EPA’s Active-Inactive Rule in the U.S. Court of Appeals for the D.C. Circuit. Environmental Defense Fund v. U.S. Environmental Protection Agency, et al., No. 17-1201 (D.C. Cir.).
We will continue to monitor the pending litigation and future updates to the TSCA Chemical Substance Inventory.
