TSCA Inventory Reset Rule to Rely on “Best Available Science”

In the wake of the release of the watered-down TSCA rules, the door has been left open for industry to continue with unsafe chemical management processes. The use of “best available science” to determine a chemical substance’s impact will not apparently be determined by traditional risk assessment methodology – methodology that was typically inadequate as it rarely accounted for the multiple uses and sources of exposure to a given chemical. The proposed draft rules attempted to change this by requiring the EPA to conduct broad reviews of chemicals across their full lifecycles and account for their known, intended, and reasonably foreseen uses. Unfortunately, the final rules allow the EPA to examine only certain use of and exposures to a chemical, with minimal explanation of how these exclusions will be determined. In other words, the final rules allow big loopholes and continued chemical exposures to known hazardous substances. Certainly not the best available science.

Interestingly, the rules on reporting have been “reset” so that all manufacturers and Importers of chemicals for the past 11 years are now subject to a new TSCA reporting requirement under which reports will be due six months after the final rule is published. Known as the TSCA Inventory Reset, it requires the EPA to determine which of the 85,000 chemical substances in the TSCA Inventory are actually active in commerce. To this end, the TSCA Inventory Reset rule sets forth a process to designate chemical substances on the TSCA Inventory as either “active” or “inactive” based on notifications from manufacturers and processors. After the initial Inventory Reset is complete, companies that intend to manufacture or process an inactive substance must notify EPA prior to commencing manufacturing or processing. Once EPA has these reports, it will compile an interim list of active chemical substances.

It’s a first step, but the rule is weak. It only requires reporting of “chemical substances subject to “commercial activity designation.” It does not require reporting for chemicals where the EPA already has equivalent notice of active status. It does not require reporting for chemicals added to the TSCA Inventory list during the 10-year “lookback” period. The exemptions are many. What’s not really addressed is whether the best available science will be used by chemical manufacturers and importers as they compile their reports, particularly since those reports can exclude numerous criteria, such as prior loss of records that provide important information. Excuse me for being cynical, but records are lost all the time when employees leave or are laid off and the ones left can’t find the information. So best available science can deteriorate into best available guess.

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