Act Now To Prepare for TSCA Changes

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 The U.S. Environmental Protection Agency in 2003 significantly amended the Toxic Substances Control Act (TSCA) Section 8(a) Inventory Update Rule (IUR), imposing substantial new reporting burdens. As a result, the next IUR reporting period in 2006 will be more difficult and time consuming than in years past. This column explains why, and discusses prudent steps to take now.

Key IUR changes

Every four years, manufacturers and importers of certain chemicals included on the TSCA Inventory are required to report current data on the output, production site, and site-specific information about these substances. The changes issued earlier this year markedly expand the types of information that must be submitted to EPA.

Some changes are good. For example, under previous requirements, the IUR applied to chemical substances listed on the TSCA Inventory that were manufactured or imported in quantities of 10,000 lb per year or more at a single site. EPA has raised the reporting threshold to 25,000 lb per year per chemical per site.

However, EPA also has imposed a second reporting obligation, which is not such good news. Processing and use information now will have to be provided on chemicals subject to the IUR that are produced in quantities above 300,000 lb per year per site. Information that must be reported includes the type of processing or use operations at each site, including downstream ones, and the categories of commercial and consumer uses of the chemical, among other details.

Additionally, for substances over the 25,000-lb-per-year reporting threshold, EPA is requiring certain exposure-related information -- including the number of workers potentially exposed to the chemical, the maximum concentration of the chemical at the time that it leaves the submitter's site, the physical form of the chemical, as well as related data.

Importantly, EPA has revoked the full exemption from IUR reporting for inorganic chemical substances. Only materials produced or imported at a level of under 300,000 lb per year per site will remain exempt.

EPA will be phasing in the IUR reporting requirements. For the 2006 submission period, it will not be necessary to report processing and use information. Subsequently, however, full reporting requirements will apply to inorganics above the 300,000-lb-per-year threshold.

The information gathered on inorganics, EPA notes, will allow the agency to include them in other programs that rely upon IUR information, such as the HPV (high production volume) Challenge Program.

Recognizing that these changes will mandate IUR reporting for significantly more chemicals, EPA has provided a list of "low interest" chemicals that are partially exempt. You should review this list to ensure that you do not inadvertently report chemicals of low interest to EPA.

How to assist EPA

Although the deadline for these reporting obligations is years away, EPA is struggling today with creating IUR reporting forms and instructions that will best elicit information and that pose the fewest reporting burdens. So, it behooves IUR submitters to work with EPA now to ensure these forms and reporting obligations are clear and useful. EPA is seeking comments on the draft reporting requirements via a series public meetings scheduled throughout the country. The most recent meeting was in Houston in October; others are planned for 2004.

EPA expects significant issues to arise in connection with the expansion of the IUR to inorganics. So, the agency is especially interested in obtaining help in preparing the portions of IUR Instruction Manual relating to their reporting. For example, it is not clear how EPA will identify metals and metal compounds for IUR purposes. How the agency will address speciation, in particular, is important. Additionally, although EPA has issued guidance on determining when metals are considered "chemical substances" that must be listed on the inventory, confusion remains on several issues, including metal oxides of different valence states, mixed metal silicates, i.e., magnesium aluminum silicates, and inter-metallic compounds. How EPA sorts out these and related issues will be extremely important for manufacturers and importers of metal chemicals.

Processors and downstream users also have a significant stake, since EPA intends to leverage the information it obtains from the expanded IUR forms. For instance, the data will be used to assist current EPA program offices in refining chemical-testing priorities, revising regulatory standards, implementing the Waste Minimization National Plan, and, with respect to metals, implementing the Great Lakes Binational Toxics Strategy.

Regulated entities have every reason to ensure that the IUR Instruction Manual, reporting form, and related documents are clear and well designed to produce useful, meaningful information. Working with EPA now will best help make sure that this goal is realized.

Lynn Bergeson is a founding shareholder of Bergeson & Campbell, P.C., a Washington, D.C. , based law firm. The views expressed herein are solely those of the author.

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