Last summer, EPA finalized the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule), which we previously reported on here . As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA for chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016. The deadline for submittal of the required reports by manufacturers – February 7, 2018, is quickly approaching.
The Active/Inactive Rule includes a number of exemptions from reporting for manufacturers and processors, including:
- Chemicals that are manufactured under certain exemptions, including the polymer exemption, the R&D exemption, and the test marketing exemption;
- Chemicals manufactured as byproducts or impurities with no separate commercial purpose;
- Naturally occurring substances;
- Chemicals already reported by another manufacturer; and
- Chemicals that are on the interim list of Active substances.
The last exemption is the most notable, as EPA preemptively has incorporated into the Active Inventory all of the substances that were reported during the 2012 or 2016 reporting period for the Chemical Data Reporting rule. In addition, EPA preemptively has included all substances for which a Pre-Manufacture Notice and a subsequent Notice of Commencement were filed between June 21, 2006 and June 21, 2016. Finally, EPA periodically has been updating a list of the substances for which another manufacturer has already submitted a notice, which obviates the need for other manufacturers to report the substance. Nevertheless, determining which substances are already on the Active Inventory and are not subject to reporting may be confusing, because EPA appears to be maintaining two separate lists– one for those substances that were included in 2012 or 2016 CDR reports and one for those that have already been reported by another manufacturer under the Active/Inactive Rule. As a result, manufacturers should check both lists to determine whether their chemical substances need to be reported.
In addition, there are a number of uncertainties regarding the scope and applicability of the reporting obligations, which EPA has only partially addressed, including how reporting should be handled if a facility was sold to an unrelated entity during the reporting period. EPA held a series of webinars last fall to walk through the Active/Inactive Rule reporting obligations and a copy of the presentation from the November 29 webinar can be accessed here. While EPA indicated that it would publish a Q&A document summarizing the questions that the regulated community had asked and the answers that EPA had provided about the scope of and process for reporting under the Active/Inactive Rule, no such Q&A document has been made available to date.
Finally, and arguably most importantly, even if a substance has already been included on the Active Inventory, manufacturers nevertheless should ensure that a notice is submitted for any substance for which the manufacturer seeks to maintain an existing Confidential Business Information (CBI) claim. If a manufacturer elects not to submit a notice because they are availing themselves of one of the exemptions described above, then they are foregoing their opportunity to maintain an existing claim for protection against disclosure of the specific chemical identity of the substance as confidential. EPA is required, by the revised statute, to move from the confidential to the public portion of the Inventory any active chemical substance for which no request is received to maintain an existing CBI claim for chemical identity. See TSCA section 8(b)(4)(B)(iv) and 40 CFR 710.37(a).