EPA Issues for Review the Draft Updated TSCA Inventory

On April 12, 2018, EPA issued a draft updated version of the Toxic Substances Control Act (TSCA) Inventory (draft updated Inventory). The TSCA Inventory provides information about the chemical substances that are considered to be "active" in US commerce. The draft is of critical importance to chemical manufacturers, importers, and entities that purchase and use chemical substances and mixtures (processors) because it is generally unlawful to produce or use a substance which is not on EPA's list of "active" chemicals. The draft updated Inventory released by the Agency relies on the following sources of information in listing chemical substances as active: (1) information submitted in 2012 and 2016 pursuant to the Chemical Data Reporting Rule; (2) notices of commencement received by the agency since June 21, 2006; and (3) data submitted pursuant to the TSCA Inventory (Active-Inactive) Rule by February 7, 2018.

The TSCA Inventory Active-Inactive Rule took effect in August 2017. As discussed in our June 2017 Advisory, the final Active-Inactive Rule is intended to allow EPA to determine which chemical substances currently listed on EPA's TSCA Inventory of chemical substances are actually "active" in US commerce. The rule establishes "retrospective reporting requirements" which required manufacturers and importers of chemical substances to notify EPA, by no later than February 7 of this year, which chemical substances appearing on the current TSCA Inventory were manufactured in or imported to the United States between June 21, 2006 and June 21, 2016.

The draft updated Inventory released yesterday is the first version of the Inventory to include information submitted to EPA pursuant to the TSCA Inventory Active-Inactive Rule. The draft updated Inventory includes almost 31,000 active substances (an increase of over 20,000 active chemical substances over the June 2017 version of the Inventory). Along with the draft updated Inventory, EPA also released a database containing a list of only those substances for which information was submitted pursuant to the TSCA Inventory (Active-Inactive) Rule. According to EPA, this database is intended to help processors determine whether chemical substances important to their business operations have been designated as "active" by the manufacturers or importers of those substances. Processors who require the use of chemical substances that were previously listed on the TSCA Inventory but were not reported to be "active" by manufacturers and/or importers pursuant to the TSCA Inventory Active-Inactive Rule have the option under the Rule to voluntarily submit a notice to activate a chemical substance. Processors choosing to do so must submit the notice to EPA by October 5, 2018.¹

Processors of chemical substances should review the draft updated Inventory to ensure that all chemical substances involved in their processes have been designated as "active." If not, processors must be prepared to either submit their own notices to EPA, or replace the inactive chemical substances used in their processes. Additionally, manufacturers, importers, and processors should be aware that litigation currently pending in the DC Circuit could impact EPA's treatment of confidential business information submitted pursuant to the TSCA Inventory (Active-Inactive) Rule and the application of the Rule to chemical substances manufactured or processed solely for export.² 

© Arnold & Porter Kaye Scholer LLP 2018 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.