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The Updated TSCA Inventory: Still Time to Correct Errors
Manufacturers, importers, and processors have the next 90 days to correct errors in the inactive list before it becomes illegal to manufacture or import those chemicals.
On February 19, 2019, the Environmental Protection Agency (EPA) announced the release of the official Active/Inactive Update of the Toxic Substances Control Act (TSCA) Inventory. The Inventory now transparently shows, for the first time, which industrial chemicals on the list were manufactured, imported, and processed in the United States (U.S.) between June 21, 2006 and June 21, 2016. Of the 86,224 substances on the TSCA Inventory, companies reported 40,655 of them as commercially active for this period. Of these, 7,757 chemicals are listed on the confidential portion of the TSCA Inventory. The February 2019 update to the TSCA Inventory includes a new commercial activity status field designating which chemical substances are “active” in U.S. commerce. The updated Inventory reflects the following submissions:
- Notice of Activity (NOA) Form A’s received through October 5, 2018, per the "Inventory Reset" rule;
- The 2012 and 2016 Chemical Data Reporting cycles; and
- Notices of Commencement (NOCs) received since June 21, 2006.
The February 19 announcement also starts an important 90-day countdown. Substances that are currently not on the published active list will not be officially designated as “inactive” until 90 days after the publication date. This window provides time for manufacturers, importers, and processors to correct the inappropriate designation of a substance as inactive right now to avoid their activities from being deemed illegal in the future.
One group of chemicals that is most likely to have TSCA Inventory errors are those manufactured, imported or processed for the first time during the last two and a half years while EPA transitioned from the old TSCA Inventory to the Updated TSCA Inventory (e.g., between June 22, 2016 to now). Other chemicals may have inadvertently not been reported for other reasons last year. Companies also have the ability right now to change the status of a chemical from inactive to active if they anticipate manufacturing, importing or processing the substance in the next 90 days.
The rules for making these filings are in the EPA’s regulations at 40 C.F.R. Part 710. They specify that to correct an inactive list error, manufacturers, importers, and processors must file an NOA Form B prior to the effective date of the inactive designation 90 days from now (e.g. May 20, 2019). After this 90-day grace period it will be a violation to manufacture, import, or process an inactive substance that is on the Inventory without first notifying EPA using the NOA Form B within 90 days before manufacturing, importing or processing. This is a significant change in the new TSCA regime compared to the past. It has always been a violation of TSCA to manufacture or import a non-exempt substance that is not on the TSCA Inventory, but just being on the Inventory is no longer good enough. And, for the first time, domestic processors who do not import the chemical but simply source it here can be held responsible for this aspect of a chemical’s Inventory status.
Unlike with manufacturers, retrospective reporting by processors was voluntary during “Inventory Reset”. That is not the case going forward. Companies that want to process an inactive chemical on the TSCA Inventory will have to to file an NOA Form B or receive assurance from their supplier that this report was filed by them (manufacturers and importers also are obligated to file forward-looking reports for an inactive substance for which they plan to initiate commercial activity).
The information that must be reported on NOA Form B is 1) company name; 2) company address; 3) authorized official; 4) technical contact; and 5) chemical information (CAS Number and name or the TSCA Accession Number and a generic name for confidential substances). Reports must be filed electronically through EPA’s Central Data Exchange (CDX).
EPA’s current penalty policy for Section 8 of TSCA of does not address the new reporting requirement, and it remains to be seen if EPA will consider a failure to timely submit a report as simply a one-time paperwork reporting obligation. In the alternative, EPA could view the failure to report as on-going and more serious in nature, similar to the failure to file a premanufacture notification, if the failure to report were shown to interfere with the agency’s mandate to review existing chemicals.
Again, manufacturers, importers, and processors be aware: Check the new TSCA Inventory for errors in the next 90 days. To download the publicly accessible updated Inventory, click here. If there is a substance that is listed as “inactive” that you are currently manufacturing, importing or processing, you have the next 90 days to file an NOA Form B so you can continue your current activity and avoid potential commercial disruption.
EPA is hosting a webinar from 1-4 PM on March 13 to assist companies with future reporting requirements under the TSCA Inventory Notification (Active-Inactive) final rule. No advance registration is required. To log in, click here and scroll down to the announcement for this free webinar.