Keep it Simple, Chemical Makers Tell EPA on Inventory Update

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By Pat Rizzuto

Oct. 5 — The process the Environmental Protection Agency uses to update the inventory of chemicals in the U.S. must be uncomplicated, small and large chemical manufacturers say.

“Our members want this to be as simple as possible,” Derek Swick, regulatory and scientific affairs manager for the American Petroleum Institute, told Bloomberg BNA Oct. 5. Among other ideas to keep the process simple, the institute proposes the agency use a real time online system during the inventory update.

Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the Toxic Substances Control Act on June 22, the EPA is required to update the single TSCA inventory by dividing it into two sections. The first will list chemicals that are active in commerce. The second will list chemicals that have been in commerce but currently are not.

Only chemicals that are on the active inventory can be made in, imported into or processed in the U.S.

The Lautenberg Act requires the EPA to release by June 2017 a final rule describing its inventory update process. Chemical manufacturers—and, if the agency chooses to include them, processors—will have 180 days to tell the agency what chemicals they have made, imported or processed over the last 10 years.

One year after the EPA updates the chemical inventory, it must publish a final rule describing its process to review all chemical manufacturers’ claims that the identity of the chemical they make be kept confidential. That final rule launches a process that could take up to 10 years during which the EPA will determine whether confidential business information (CBI) claims companies have asserted for chemical identities are warranted.

The confidential business information substantiation process EPA requires also should be kept simple, Swick said.

In a Sept. 16 letter, the Environmental Defense Fund said the EPA could increase the efficiency of its rulemaking responsibilities by combining into a single regulation both its inventory update rule and its CBI substantiation rule.

Focus on Update

Swick said the statute required the EPA to update the inventory so that it knows what chemicals are in commerce and which ones aren’t. That mandate should remain the agency’s focus, he said.

The EPA doesn’t know how many chemicals are in commerce or which exact ones are, because once a chemical has been added to the TSCA inventory it remains there even if no one has made it in decades.

The TSCA inventory lists about 85,000 chemicals. That is a sharp contrast to the production volumes chemical manufacturers reported making in 2005 and 2011 respectively—7,080 and 7,690—the most recent years for which they submitted such data in accordance with the Chemical Data Reporting (CDR) rule.

Chemical manufacturers have until Oct. 31 to report their production for 2012, 2013, 2014 and 2015.

In an interview with Bloomberg BNA and in a Sept. 20 letter submitted to the EPA, Swick said the EPA should combine the information it will have received as of Oct. 31 with the information it received about 2011 production.

The information about what chemicals have been in commerce since 2011 is a good starting point for the agency to establish an online portal, Swick said.

The portal would list every chemical that the agency knows has been in commerce since 2011 and each of those chemicals automatically would be on the active inventory, he said.

Identifying Companies

Once a chemical is on that active list, no other chemical manufacturer or processor should also have to report its manufacture or use of the chemical, Swick said.

A policy that allows just one company’s notification that it has made, imported or processed a chemical during the last 10 years would avoid using the inventory update for two purposes, he said. One would be finalizing the update and the other would be using the inventory update to create a list of companies the agency could target for industry fees, he said. The Lautenberg Act authorizes the EPA to collect industry fees for a wide variety of chemical oversight activities the agency engages in.

Dan Newton, senior manager for government relations at the Society of Chemical Manufacturers and Affiliates, told Bloomberg BNA he was open to the idea that only one company would have to notify the agency that it made a chemical to ensure the substance was on the active TSCA inventory. The society represents chemical manufacturers that make small, custom batches of unique chemicals.

Like Swick, Newton said his trade association wants the inventory update process to be as simple as possible.

Challenge of Chemical Names

Both industry officials said the EPA should not use the inventory update process as a reason to challenge the ways chemicals are named on the inventory.

Determining how to name a chemical is a complicated process that can involve focusing on the atoms that make up the molecule and the ways they are connected or the source of the atoms—petroleum versus plant oils, for example. A chemical that is essentially the same chemical may have more than one name depending on the feedstocks from which it is derived.

Paul DeLeo of the American Cleaning Institute told Bloomberg BNA, “We don’t want a source that was previously available to be unavailable. Markets can shift very quickly.”

Chemical processors could have problems if a chemical with a source-based name were to be taken off the inventory due to a nomenclature challenge, said DeLeo, associate vice president for environmental safety.

Chemical processors, companies that mix chemicals into new products such as soaps, paints and waxes without causing a chemical reaction, may have to quickly shift the source of the chemicals they use due to the price of petroleum, palm oil and other feedstocks, he said. Or a temporary problem in getting a particular feedstock could require them to change the source of a needed chemical, DeLeo said.

Processors’ Role

DeLeo encouraged the EPA to include processors in the inventory update from the time the agency launches that process. “It’s easiest to give everyone the opportunity to participate,” he said.

The use of some chemicals, such as dyes and fragrances, can change over time to reflect consumer moods and preferences, he said. “Processors are going to want to know that materials they aren’t using right now, but have used, will still be available in the future,” DeLeo said.

Swick, from the American Petroleum Institute, envisioned a two-step inventory process.

“Reporting by processors should not be required,” he told the EPA in the trade association’s letter.

Mandating processor reporting is unnecessary and would impose a significant burden on these companies, because they would have to review 10 years of data about the chemicals they have purchased and used and could then conclude they don’t need to report, Swick said.

Processors should, however, have the opportunity to review the active inventory of chemicals and add actively used chemicals if necessary, he said.

If EPA establishes the online list that the petroleum institute recommends, processors would have that opportunity, Swick said.

The Environmental Defense Fund urged the EPA to require chemical manufacturers and allow processors to notify the agency of each chemical they have made or used over the last 10 years.

Any processor that forgoes the opportunity to notify the agency that it has used a chemical should forgo its ability to request that a chemical be moved from the inactive inventory to the active inventory, the environmental health organization said.

The processor also should forgo “any existing CBI claim for protection of [its chemical’s] identity,” it said.

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

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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