The February 7, 2018 deadline is rapidly approaching for manufacturers and importers of chemical substances in the US to submit their notifications to US EPA as required by the Inventory Reset Rule issued by US EPA pursuant to the amended Toxic Substances Control Act (TSCA).
The Inventory Reset Rule requires every chemical manufacturer and importer to notify US EPA of each chemical substance it manufactured or imported for a non-exempt commercial purpose in the US during the 10-year period ending June 21, 2016 (the “lookback period”). Each chemical substance for which US EPA receives a notice will be designated as “active” on the TSCA Inventory.
The rule also gives chemical processors the option to report to US EPA any chemical substance they processed during the same lookback period, but they must do so by October 5, 2018.
Any chemical substance that is subject to the reporting requirement will be designated as “inactive” on the Inventory if it is not reported to US EPA by a manufacturer, importer or processor by the applicable deadline. Once the Inventory “reset” is finalized, no one may manufacture, import or process an inactive substance without giving US EPA prior notice not more than 90 days before the anticipated date of manufacturing, importing or processing.
Certain substances do not have to be reported to US EPA for purposes of the Inventory Reset Rule. Substances that are generally excluded from being listed on the TSCA Inventory do not have to be reported (i.e., naturally occurring substances and substances that are excluded based on the low volume exemption, LoREX exemption, polymer exemption, test marketing exemption or R&D exemption). The Inventory Reset Rule also exempts all substances for which US EPA already has received an “equivalent” notice: substances that were reported in response to the 2012 or 2016 Chemical Data Reporting (CDR); substances that were added to the Inventory during the lookback period pursuant to a Notice of Commencement (NOC) submitted to US EPA during that period; and substances added to the TSCA Inventory since June 22, 2016. US EPA has posted a list of the exempt substances on its website.
In addition to these exemptions, the Inventory Reset Rule provides that a manufacturer or importer is not required to submit a notice for a substance covered by the lookback period if the manufacturer has “evidence in the form of a CDX receipt” from another manufacturer showing that the other manufacturer or importer submitted a notice to US EPA for the substance. US EPA cautions, however, that any manufacturer relying on the exemption “bears the risk” if the other manufacturer later withdraws its notice and the substance is subsequently designated as inactive. US EPA also has stated that a company seeking to maintain an existing “confidential business information” (CBI) claim for the chemical identity of a substance should submit a notice for the substance and assert the CBI claim itself even if a company is relying on a CDX receipt from another manufacturer. Otherwise, the company runs the risk that the other company did not assert the CBI claim or even that the other company might withdraw its submission entirely.
US EPA also has compiled a “preliminary” list of chemical substances for which the agency received notices through November 10, 2017. US EPA will update this list approximately once each month. The list is for “informational purposes only,” however, and does not relieve manufacturers and importers from the obligation to report the substances that they have manufactured or imported. According to US EPA, substances identified on the list are not exempt from the reporting requirement unless, as noted above, a manufacturer has obtained a copy of the CDX receipt from another manufacturer or importer showing that the other company reported the substance to US EPA.