Additional comments and needed enhancements to EPA’s proposal to reset the TSCA Inventory

-Any Inventory resetting must be done using a reporting mechanism that tracks production/import over a significant period.  EPA’s experience with reporting of production and import data under its Inventory Update Rule (IUR) – which entails the reporting of only one year’s volume once every five years (recently raised from every four years) – shows that there is enormous fluctuation from one reporting cycle to the next that must reflect underlying changes in chemical supply and demand dynamics and production and use patterns.^[2]  These data demonstrate that infrequent and time-limited reporting yields a highly inaccurate picture of which chemicals are in commerce, as well as their actual manufacturing levels over time. 

-Given experience with IUR reporting, EDF is concerned that use of only a 3-year window as suggested by EPA could significantly underestimate the number of chemicals in commerce. 

-EPA needs to carefully consider the length of the reporting period it uses to reset the Inventory, and should require reporting of any production or import that has taken place at any time during the reporting window. 

-While we are concerned that some companies might be able to "game the system" if a too-short reporting window is employed, this concern will be alleviated considerably as long as EPA requires (as it has proposed) that any chemicals removed from the Inventory be subject to PMN notification prior to their reintroduction.

-We support EPA’s proposal to conduct a reset on a periodic basis, a measure that would also help to alleviate our concerns that a reset with too short a window could miss many chemicals in commerce.

-No lower threshold should apply to the reporting used to reset the Inventory.  Production or import of a chemical in any amount at any time during the reporting window should trigger its retention on the Inventory if its original purpose is to be retained. 

-Exemptions available from reporting conducted under TSCA Section 8(a) should not apply.  Numerous classes of chemicals have been granted full or partial exemptions from IUR reporting by EPA, some of which are based on presumptions of low environmental or health concern.  Because the purpose of the Inventory is to list chemicals in commerce independent of any sort of risk consideration, such exemptions are wholly inappropriate.  Specifically, EPA should not provide Inventory reset exemptions for:

-Polymers (exempted from IUR reporting under CFR 710.46(a)(1))

-Microorganisms (CFR 710.46(a)(2))

-Naturally occurring substances (CFR 710.46(a)(3))

-Certain forms of natural gas (CFR 710.46(a)(4))

-Petroleum process streams (CFR 710.46(b)(1))

-Specific exempted chemical substances (CFR 710.46(b)(2))

Also inconsistent with the Inventory’s purpose would be providing exemptions for small manufacturers; for this reason, EDF supports EPA’s proposal to conduct the Inventory reset using its Section 8(b) rather than Section 8(a) authority.

-A publicly available list of all chemicals removed from the Inventory must be maintained.   Many such chemicals, even if not in active production, may nevertheless still be stockpiled, present in products as ingredients, byproducts or residuals, or present as pollutants in air, water, soil, sediment or waste sites.  And of course, they may return to active production in the future.  Maintenance of a public list of all chemicals removed from the Inventory would serve as a compliance tool (see more on compliance below).  It is critical, therefore, that EPA retain — and the public still have access to — an inventory of, and any and all information available on, any chemicals removed from the Inventory.

-Any chemicals removed from the Inventory must be subject to TSCA Section 5 notification requirements.  As discussed at length in our May 2008 comments and noted above, we strongly support EPA’s proposal in this regard.  We support EPA’s "clean" reset option, under which EPA would set forth this requirement as unambiguous policy via a Federal Register notice:  As has been the case historically, any chemical not on the Inventory is subject to Section 5 requirements. 

We do not support the alternative EPA discusses of seeking to issue a Significant New Use Rule (SNUR) to cover such chemicals.  This approach would be more cumbersome and not offer any advantages over the more direct proposed approach.

-Processors should be included in the Inventory reset.  The language of Section 8(b) is unambiguous:  EPA is required to "compile, keep current, and publish a list of each chemical substance which is manufactured or processed in the United States."  We see no basis or rationale for excluding processors from certification under an Inventory reset.

-EPA should not allow companies to certify "future" manufacture or production as a means to retain a chemical on the Inventory.  Such an approach would necessarily be based on speculative or uncertain information that could easily change, leaving chemicals listed on the Inventory that are not actually in commerce, thereby frustrating the entire purpose of the reset.  This approach could also create a perverse incentive for companies to seek to retain listings for chemicals not currently in production so as to avoid Section 5 notification and review requirements, thereby frustrating what we see as a key advantage to the core element of EPA’s proposed approach.

-EPA needs to require, not merely invite, certification and take additional steps to ensure compliance.  We are troubled by EPA’s statement that it would merely "invite" companies to certify their production or import (73 FR 70642; paragraph 3 of the Inventory reset background document).  Elsewhere EPA more appropriately refers to "requiring certification" (paragraph 9(a) of the Inventory reset background document).  If the Inventory reset exercise is to be – and be perceived as – credible, it must include all reasonable steps to ensure compliance by all companies that produce, import or process chemicals:

-EPA must require companies to certify as to which chemicals they produce, import or process.  Such a certification should be signed by a senior officer and be legally binding.

-EPA should also require that a company certification indicate that the chemicals it identifies are the only chemicals listed on the Inventory that it produces, imports or processes.

-EPA should commit to undertake additional steps to assess the extent of compliance achieved under the reset, and to promptly initiate actions, including robust enforcement, to address any non-compliance.  EPA should cross-check its reset Inventory chemical lists with other sources of reported information (e.g., IUR and other Section 8 reporting; PMN submissions, etc.) as one means to identify discrepancies.  It should use its enforcement authorities (access to company records, audits, inspections, etc.) on at least a spot basis to ensure full compliance.

-EPA should provide public access to up-to-date versions of both the reset Inventory and the list of removed chemicals.  As proposed by EPA, these lists should also include entries for any chemicals with identities claimed as confidential business information, providing as much identifying information as possible consistent with allowed protections for legitimate CBI.