EPA Backs Off Planned Mandates in Chemical Inventory Rule

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By Pat Rizzuto

Chemical makers, importers and processors will find it easier to submit lists of chemicals in commerce to EPA due to more flexibility the agency built into a recent regulation, industry officials said.

The final chemical inventory rule is clearer than the proposed one was about what companies must do and by when, Kathleen Stanton, senior director of technical and regulatory affairs at the American Cleaning Institute, told Bloomberg BNA. “That clarity makes it more helpful to companies,” said Stanton, whose trade association represents firms that process chemicals into consumer products, such as Cargill Inc. and the Clorox Co.

Representatives from other segments of the chemical industry echo that view.

“We’re pleased with the final rule,” Dan Newton, senior government relations manager for the Society of Chemical Manufacturers and Affiliates, told Bloomberg BNA. Its members, which include BASF Corp. and Optima Chemical Group LLC, make customized chemicals on demand.

Changes the Environmental Protection Agency made to its final chemical inventory update rule make it easier for importers to work with supply chain partners, Martha Marrapese, an attorney in the Washington office of Wiley Rein LLP, told Bloomberg BNA.

Yet, companies throughout the chemical supply chain should not underestimate the amount of work ahead of them, Marrapese added.

180-Day Deadline

Stanton, Newton and Marrapese responded to a final rule (RIN:2070-AK24) the EPA issued June 22. The regulation, required by the Toxic Substances Control Act amendments of 2016, describes what chemical manufacturers, and importers must—and chemical processors may—do to notify the agency about chemicals they’ve made, imported or mixed from June 21, 2006, through June 21, 2016.

The EPA will combine the information manufacturers, importers and processors provide to create a first-time list of chemicals active in commerce, distinguishing them from dormant compounds.

Manufacturers and importers have 180 days after early July publication in the Federal Register to notify the EPA about chemicals they’ve made or imported.

By previously complying with another agency regulation—the Chemical Data Reporting, or CDR, rule in 2012 and 2016—thousands of companies will have gone some distance to meeting the new mandates. The EPA will recognize CDR information it received in both years as demonstrating that the chemical was in commerce.

Companies that made or imported small volumes of chemicals—which aren’t reported under the CDR rule—will have to notify the agency. That means—with some exceptions described in the inventory and CDR rules—that companies which have made or imported less than 25,000 pounds of a chemical since June 21, 2006, will need to notify the EPA.

Newton said the EPA’s inventory rule made the notification easier by reducing the amount of information makers must provide the agency and allowing “one and done” notifications: notification by one company is sufficient to put a chemical on a list of active chemicals in commerce even if multiple manufacturers produce it.

Processors Get More Time

The EPA will combine the new information manufacturers and importers provide under the inventory with the CDR data it already has to create a draft list of chemicals active in commerce, which processors can review.

Chemical producers—companies that mix chemicals into cleaning, automotive, paint and other products—may notify the EPA about chemicals they’ve used, but they are not required to. The final rule gives them up to 420 days after the final rule is published in the Federal Register to notify the EPA. That means processors have 60 more days than the EPA proposed in January to notify the agency.

“That extra 60 days is really going to be helpful,” Stanton said. Chemical manufacturers, importers and processors need time to talk with each other and determine what chemicals should be on the active inventory and who will notify the EPA, she said.

The EPA’s final rule made it easier to provide that notification, because it eliminated the need to report date ranges in which compounds were produced, imported or processed, Stanton and Newton said.

Importers will benefit from the final rule’s notification process. That allows companies to file joint submissions and eases notifications on compounds with confidential identities, Marrapese said.

Protecting Trade Secrets

Companies that made trade secret claims for information, including chemical identity, must take certain actions to protect those confidentiality claims, she said.

Even if a manufacturer filed a CDR report in 2016 for a chemical with a confidential identity, the company will need to file what the EPA calls a “Form A” to preserve its confidentiality, Marrapese said.

“Certifying the accuracy of the information that is reported is a serious obligation for the people preparing these reports and the company officials that sign them,” she said.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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