5 Key Features Of Impending TSCA Inventory ‘Reset' Rule

In short order, the U.S. Environmental Protection Agency will issue a final regulation to which all manufacturers, importers and processors of chemical substances should pay close attention. Failing to do so could adversely affect numerous businesses that over the years probably have not worried too much about the Toxic Substances Control Act (TSCA).

The TSCA requires the EPA to compile and maintain a list (the inventory) of chemical substances manufactured, imported or processed in the United States. The initial inventory was first compiled in 1979. In 2016, Congress amended the TSCA to, among other things, require the EPA to (1) designate chemical substances on the inventory as either "active" or "inactive" in U.S. commerce; and (2) issue a final regulation by June 22, 2017, establishing the process by which manufacturers, importers and processors must provide the EPA the information needed to update the inventory in this manner (TSCA inventory reset rule). On Jan. 13, 2017, the EPA published its proposed inventory reset rule for comment.1

The proposed TSCA inventory reset rule imposes two new reporting requirements on the regulated community, including not just chemical manufacturers, but also companies that only purchase and use chemical substances to blend or formulate other products that are distributed in U.S. commerce. First, the rule will require "retrospective" reporting to confirm which substances have been "active" in U.S. commerce at any time between June 21, 2006, and June 21, 2016, (the look-back period). Active substances include not only chemicals that have been manufactured in (or imported to) the U.S. during that period, but also substances that were processed in the U.S. at any time during that 10-year period. Such substances, once properly reported, will be placed on the "active" portion of the Inventory.

Second, for any substance that is not on the active portion of the inventory, the rule requires entities to provide "forward-looking" reports of the commencement of manufacturing or processing of chemical substances that are on the "inactive" portion of the inventory. If a chemical is placed on the "inactive" portion of inventory, the continued manufacture (including import) or processing of the chemical in the United States for a nonexempt commercial purpose would be unlawful, unless a "forward-looking" report is provided to the EPA no more than 30 days before of resumption of manufacturing (including importing) or processing of the substance.2

If the EPA follows the same practice it established with the proposed rule, it is possible the EPA will not send the final inventory reset regulation to the Office of Management and Budget for prepublication review. Thus, entities that will have reporting obligations under the final rule should assume the agency intends to meet the June 22 deadline. Moreover, it is anticipated that the final version of the TSCA inventory reset rule will largely mirror the proposed version the EPA issued in January and so the regulated community would be well served to begin planning compliance with the new rule. While we await publication of the final TSCA inventory reset rule, here are five key features of the rule...