15 Mar EPA is extending the comment period on the proposed TSCA Inventory Notification (Active-Inactive) rule until March 24.
Summary of Proposed Rule
EPA is proposing reporting and procedural requirements for manufacturers and processors of chemical substances pursuant to TSCA section 8(b).
A. What chemical substances would be reportable under this rule?
1. Reportable chemical substances. As a general matter, the retrospective reporting requirement of this proposed rule would apply to chemical substances listed on the TSCA Inventory that were manufactured for a nonexempt commercial purposes during the 10-year period ending on June 21, 2016. This lookback period is set by statute. TSCA also establishes forward-looking reporting requirements, at section 8(b)(5)(B), with respect to chemical substances listed on the TSCA Inventory that EPA designates as inactive. The TSCA Inventory is available at https://www.epa.gov/tsca-inventory.
2. Exemptions from reporting. i. Statutory background. This proposed rule provides exemptions from reporting based on sections 8(b)(4) and (5) and the general objectives that EPA can infer from that text. Unlike the reporting that informed the initial compilation of the TSCA Inventory (which arose under TSCA section 8(a)), the reporting requirements described in this proposed rule arise directly under TSCA section 8(b). EPA must finalize the retrospective reporting requirements by June 22, 2017, and all mandatory reporting under TSCA section 8(b)(4) must be completed by not later than 180 days thereafter. TSCA section 8(b)(4) and 8(b)(5) reporting requirements apply to “each chemical substance,” found on the TSCA Inventory, subject to the provision that reporting obligations shall only be triggered by manufacturing or processing for a “nonexempt commercial purpose.” The retrospective reporting requirements under TSCA section 8(b)(4) are expressed as being “subject to the limitations” of TSCA section 8(a)(5)(A). TSCA section 8(a)(5)(A), in turn, specifies that “to the extent feasible,” EPA shall: (1) Avoid requiring reporting that is “unnecessary or duplicative;” (2) “minimize the cost of compliance” to small manufacturers and processors; and (3) apply reporting obligations to the persons likely to have information relevant for effective implementation.
Furthermore, as EPA interprets its statutory authority, the reporting is intended to support two key objectives. First, to enable EPA to determine which reportable chemical substances are active in U.S. commerce. EPA will accomplish this based on notices received. Reportable chemical substances for which no notices are received would be considered inactive in U.S. commerce. See TSCA section 8(b)(4)(A)(iii). Second, with respect to chemical substances identified as being active in commerce that are listed on the confidential portion of the TSCA Inventory, to require that persons manufacturing or processing such chemical substances request that existing claims for protection against disclosure of the specific chemical identity be maintained. See TSCA sections 8(b)(4)(B)(ii), 8(b)(4)(C), 8(b)(5).
ii. Excluded chemical substances. If a chemical substance is not listed on the TSCA Inventory, then by the terms of TSCA sections 8(b)(4) and (5), it is not subject to reporting under this proposed rule. For example, chemical substances that are manufactured under a TSCA section 5(h) exemption are not added to the TSCA Inventory. Accordingly, this proposed rule would not require that reporting occur with respect to such substances. This is reflected in the proposed definitions at 40 CFR 710.23, which are drafted in such a manner that if a chemical substance was not on the TSCA Inventory as of June 22, 2016, it would not be subject to reporting.
Naturally occurring chemical substances also are proposed to be excluded from reporting under this proposed rule, so long as the manufacturing and processing of such substances meets the criteria set forth in 40 CFR 710.27(b). When EPA required manufacturers and processors to submit notices in support of the original compilation of the TSCA Inventory in 1977, EPA made clear that reporting on naturally occurring chemical substances would not be necessary, as these substances would automatically be included in the Inventory as a category: “Naturally Occurring Chemical Substances,” 42 FR 64578 (1977). EPA proposes to simply designate the whole category of Naturally Occurring Chemical Substances as active substances, by rule, without the need for reporting to differentiate among such substances.
Finally, this proposed rule would not require manufacturers to report chemical substances that are on both the non-confidential portion of the TSCA Inventory and the interim list of active substances described in TSCA section 8(b)(6). Such reporting would be unnecessary, since EPA already has reporting data to establish that the chemical substance was in active commerce at some time between June 21, 2006 and June 21, 2016. Furthermore, for such substances, there are no existing claims for protection against disclosure of the specific identity of the chemical substance for any party to elect to maintain or not maintain. With respect to chemical substances on the confidential portion of the TSCA Inventory, however, such reporting still serves a statutory function under TSCA sections 8(b)(4)(B)(ii) and 8(b)(4)(C), even where there is already adequate evidence, prior to reporting, that the substance was in active commerce during the lookback period.