The Environmental Protection Agency (EPA) has just made massive updates to the largest national data base of chemical information, the TSCA Inventory. Since 1976, the Toxic Substances Control Act (TSCA) has provided EPA with broad authorities to collect information about chemical substances in commerce in the U.S., including new chemicals that manufacturers and importers hope to bring into commerce. Information about all these substances is collected in the TSCA Inventory.
In June 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (identified below as the “2016 Amendments”) revised several TSCA provisions extensively to expand EPA’s responsibilities. One of these directives is that EPA determine which of the chemicals in the TSCA Inventory are still in active use and which have gone off the market. In 2017 EPA issued requirements for updating notifications by manufacturers and importers, and in February 2019 EPA processed those notifications designating over half of the chemicals in the TSCA Inventory as inactive.
What is the TSCA Inventory?
The initial TSCA Inventory was compiled during 1977 and was intended to include all chemical substances being manufactured or distributed at that time—some 62,000 entries. As EPA continued to collect chemical information via a variety of reporting requirements, including premanufacture notifications (PMNs) for new non-exempt chemicals, and periodic supplemental reports about selected existing chemicals (such as the Chemical Data Reporting (CDR) Rule), EPA fed this information into the TSCA Inventory. Most information is available through the public inventory, although EPA also maintains a separate confidential inventory of information submitted under claims of confidential business information (CBI). By 2016 the TSCA Inventory had grown to more than 86,000 entries.
However, EPA never developed any systematic approach to culling inactive chemicals. It therefore was assumed that an unknown number of entries reflected chemicals no longer in distribution. To address this issue, the 2016 Amendments included a directive that EPA collect information to enable it to distinguish “active” and “inactive” chemicals, and properly label entries in the TSCA Inventory.
How Has EPA Updated the TSCA Inventory?
The 2016 Amendments directed EPA to require manufactures (including importers) to notify the agency of each Inventory-listed chemical manufactured during the 10 years up to the enactment of the 2016 Amendments effective June 21, 2016; (EPA calls this the “lookback period”). They also authorized EPA to accept notifications from chemical processors – which may wish to ensure that chemicals they handle remain “active.” The Amendments direct EPA to designate all chemicals for which it receives notifications as active, and all others as inactive.
Effective August 11, 2017, EPA issued rules for these notifications, including a retrospective “Notice of Activity Form A” for use in presenting required information. Manufacturers were required to report by February 7, 2018, and processors could do so by October 5, 2018. To avoid duplication, EPA designated substances already reported in the 2012 and 2016 CDR reports as active, and exempted them from reporting in 2018. EPA also designates all substances added since June 21, 2016 as active. EPA has also issued a prospective “Notice of Activity Form B” to be used for chemicals introduced after June 22, 2016, or being reintroduced after lapsing to inactive status.
The results of this initial round of reporting were startling. When EPA issued its TSCA Inventory update in February 2019, less than half of the total number of listed chemicals (47 percent or 40,655 of the 86,228 chemicals) were listed as active, and the rest are inactive. Remember that these include those for which no Form A was filed, so it’s possible that organizations will review the listings and file notifications in order to change some chemicals’ status from inactive to active. Since manufacturing or processing of an inactive chemical violates TSCA rules, parties wishing to make ongoing use of an “inactive” chemical will have a strong incentive to adjust its status.
What Now?
If your organization manufactures or processes a chemical that’s just been put on the inactive list, you need either to file a notification with EPA to secure a status change, or find a substitute. If you use a chemical that’s now listed as inactive, you need to alert your supply chain to pursue a change in status, or find a substitute. Searching for “inactive” chemicals you use could be a daunting task.
Self-Evaluation Checklist
Does the organization manufacture, import and/or process any chemicals listed in EPA’s TSCA Inventory?
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If so, are all those chemicals now identified in the TSCA Inventory as “active” chemicals?
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If EPA now identifies any as “inactive”?
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Is the organization satisfied with that result?
- Is the organization seeking a change of status to “active”?
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Does the organization use any chemicals now listed in the TSCA Inventory as “inactive”?
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If so, is the organization satisfied with that result?
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Is the organization working with its supply chain to change any chemical’s status to “active”?
Where Can I Go For More Information?
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EPA’s TSCA Inventory home page
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EPA’s 2017 TSCA Inventory Notification (Active-Inactive) (8/11/17 Federal Register)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements.
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com