Compliance Deadlines Established for the TSCA Inventory "Reset" Rule

On August 11, 2017, the Environmental Protection Agency (EPA) published in the Federal Register the TSCA Inventory Notification (Active-Inactive) Requirements, nearly two months following its release of a pre-publication version of the final rule. ¹ The so-called "Inventory Re-set Rule" is one of several regulations EPA was directed to promulgate by June 22, 2017 pursuant to significant amendments enacted in 2016 to the Toxic Substances Control Act (TSCA) election. As detailed in our previous Advisories, this rule imposes two new reporting requirements on manufacturers (including importers) and processors of chemical substances. ² The rule will require the attention of manufacturers and importers in particular prior to the February 7, 2018 deadline if they wish to continue manufacturing or importing any of the chemical substances on which they (and their customers) have relied during the preceding decade.

The first feature of the rule (the "retroactive" reporting requirement) is intended to provide EPA with a list of chemical substances that were "active" in US commerce during the decade preceding the date of the TSCA amendments. Thus, manufacturers, importers, and processors of chemical substances must report all chemical substances that they manufactured, imported, or processed for non-exempt commercial purposes between June 2006 and June 2016. Exempt commercial purposes for the Reset rule are defined in 40 CFR 710.27(a), and include, among other things, manufacturing chemical substances in small quantities or for research and development purposes only and manufacturing substances pursuant to an approved exemption for test marketing purposes.

All substances reported in accordance with this first requirement will be considered "active" for TSCA purposes, and thus may continue to be manufactured or processed without further notice to EPA unless otherwise restricted. After the reporting period has closed for all entities eligible, it will be unlawful to manufacture, import, or process a substance that is not listed as active on the TSCA Inventory unless a manufacturer, importer, or processor complies with the second requirement of this rulemaking.

The second feature of the rule (the "forward-looking" reporting requirement) will allow EPA to track inactive chemical substances (i.e. those that have not been distributed in US commerce in the past decade) as they become active in the future. If a manufacturer or processor wants to "reactivate" a chemical substance, the entity must file a notice with EPA not more than 90 days before beginning to manufacture, import, or process the chemical substance for a non-exempt purpose.

Manufacturers and importers of chemical substances covered by the new rule's retroactive requirement (unless otherwise exempt) must report to EPA within 180 days of the final rule's August 11, 2017 publication date (by February 7, 2018). Processors of chemical substances covered by the retroactive requirement are required to report to EPA within 420 days of August 11, 2017 (by October 5, 2018). As with most TSCA reporting obligations, covered entities must file their reports electronically through EPA's CDX system. For additional details, including important insights into what requirements were changed since the rule's proposal and how the rule has been significantly streamlined, see our previous Advisory, "10 Key Revisions to EPA's Final TSCA Inventory Reset Rule."

*Camille Heyboer also contributed to this Advisory.