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EPA Amends TSCA Inventory Update Rule (IUR)

Date: Jan 10, 2003


On January 7, 2003, EPA significantly amended the existing TSCA Inventory Update Rule (IUR). 68 Fed Reg. 848. As discussed below, the amendments have in some ways decreased and in some ways increased the reporting burden on the regulated community.

In 1986, EPA promulgated the initial IUR, which required manufacturers and importers of certain chemical substances to submit reports describing production quantities and other information. EPA regulations governing IUR appear at 40 C.F.R. Part 710. Reporting was required in 1986, 1990, 1994, 1998, and 2002.

Under the 1986 IUR, any person who manufactured or imported 10,000 pounds or more of a chemical substance that was listed on the Inventory at any single site owned or controlled by that person at any time during the person's latest complete corporate fiscal year was required to submit a "Form U" (EPA Form 7740-8, 1-02). The Form U required little more than contact information; the specific chemical name and Chemical Abstracts Registry Number (CASRN) (if available) of each substance for which reporting was required; an indication as to whether the substance was manufactured, imported, or site limited; and the total volume (in pounds) of the substance manufactured or imported at the site.

On January 7, 2003, EPA significantly amended the existing IUR under the IUR Amendments (IURA). The IURA increased reporting requirements in certain ways, and decreased reporting requirements in certain ways. The IURA:

  1. changed the reporting period from a corporate fiscal year to a calendar year basis. EPA also intends to change the submission period to occur earlier in the year (e.g., from January 1 through May 1). In a separate action, EPA also intends to change reporting frequency after the first reporting year under IURA (i.e., 2005 with submission to EPA in 2006) from every four years to every five years, and change the recordkeeping period from five years to six years.


  2. raised the basic production volume reporting threshold from the current 10,000 pounds (lbs) per year to 25,000 lbs per year, and added a new larger-volume reporting threshold of 300,000 lbs. per year for the reporting of processing and use information.


  3. added certain exposure-related information to the existing reporting requirements. EPA is requiring that manufacturers subject to the amended rule report, in ranges: (a) The number of workers reasonably likely to be exposed to the chemical substance at the site of manufacture; (b) the physical form(s) in which the chemical substance is sent off-site; (c) the percentage of total reported production volume associated with each physical form; and (d) the maximum concentration of the chemical substance at the time it leaves the submitter's manufacturing site (if the chemical substance is site-limited, the maximum concentration at the time it is reacted on-site to produce a different chemical substance.)


  4. require manufacturers and importers of substances with production volumes of 300,000 lbs. or greater to report, to the extent the information is readily obtainable, certain exposure-related information concerning the processing and use of each reportable substance that is conducted at sites that directly or indirectly receive the substance from the submitter site. More specifically, manufacturers of these larger-production volume chemical substances will be required to report, to the extent the information is readily obtainable: (a) the type of industrial processing or use operation(s) at each site, including downstream sites; (b) the five-digit North American Industry Classification System (NAICS) codes that best describe the industrial activities during the processing or use operation; (c) the industrial function of each substance during the processing or use operation, for each NAICS code reported; (d) the percentages of the submitter's production volume used in each industrial function category; (e) the number of sites at which the various processing or use operations occur; (f) the number of workers reasonably likely to be exposed to the chemical substance in each processing or use operation; (g) the categories of commercial and consumer uses of the reportable chemical substance; (h) an indication of the presence of the reportable chemical substance in or on consumer products intended for use by children; (i) the percentages of the submitter's production volume associated with each commercial and consumer product category; and (j) the maximum concentration of the reportable chemical substance in each commercial and consumer product category.


  5. revoked the current full exemption from IUR reporting for inorganic substances, and phase-in reporting for these substances. For the 2006 submission period, inorganics will not be subject to the reporting of processing and use information. In subsequent submission periods, inorganics will be subject to full reporting (i.e., including the processing and use information reporting requirements), to the extent that they manufacture at least 300,000 lbs. of the substance at a site during a given reporting year.


  6. added a partial reporting exemption for certain petroleum process streams. These substances will not be subject to reporting of processing and use information.


  7. provide a partial exemption (i.e., these substances are not subject to the reporting of processing and use information) for specifically listed chemical substances that EPA has identified as having a low current interest in processing and use information, and provide a process for revising this list over time. These substances will not be subject to the reporting of processing and use information.


  8. provide a full exemption from IUR reporting for certain forms of natural gas.


  9. require the reporting of more specific information to assist in the accurate identification of reporting plant sites. Submitters must report the plant site county or parish in addition to the information currently required for each plant site subject to reporting.


  10. allow submitters to claim their production volume range as Confidential Business Information (CBI).


  11. require substantiation of plant site confidentiality claims at the time such claims are made in IUR submissions to EPA (i.e., "upfront substantiation").


  12. extend the records retention period from four years to five years.

Several exemptions to the 1986 IUR survived the IURA. Naturally occurring substances, polymers, and microorganisms continue to be exempt from the IUR, unless they are: (a) the subject of a rule that is proposed or promulgated under TSCA §§ 4, 5(a)(2), 5(b)(4), or 6; (b) is the subject of an order under section 5(e) or 5(f) of TSCA; or (c) the subject of relief that has been granted under a civil action under section 5 or 7 of TSCA. 40 C.F.R. § 710.46(a). Small manufacturers as defined under 40 C.F.R. § 704.3 are exempt from reporting unless the substance is regulated under certain specified sections of TSCA. 40 C.F.R. § 710.49. If a company is subject to the reporting requirements of a TSCA section 8(a) rule within one year of the beginning of the submission period and submitted the same information and would be required under section 710.52, it does not need to report that substance for the IUR for that submission period. 40 C.F.R. § 710.55.

Substances manufactured in small quantities for R&D need not be reported under the IUR. Further, IUR is not required for substances imported as part of an "article." 40 C.F.R. § 710.50. Another exemption is provided for any byproduct if the only commercial purpose is for use by public or private organizations that (a) burn it as fuel; (b) dispose of it as waste, including in a landfill or for enriching soil; or (c) extract component chemical substances from it for commercial purposes (this exclusion only applies to the byproduct; it does not apply to the component substances extracted from the byproduct). 40 C.F.R. § 720.30(g). Substances described at 40 C.F.R. § 720.30(h) are also excluded from IUR. Note, however, that even if a substance is manufactured solely for export and is labeled as such, and, thus, is exempt from TSCA premanufacture notification (PMN) requirements, it is subject to IUR if it happens to appear on the TSCA Inventory.

In a subsequent rulemaking, EPA intends to change the submission period to occur earlier in the year (e.g., from January 1 through May 1). EPA also intends to change the reporting frequency after the first reporting year under IURA (i.e., 2005, with submission to EPA in 2006) from every four years to every five years, and to change the recordkeeping period from five to six years.

If you have any questions regarding this article, please do not hesitate to contact Tom Berger at (202) 434-4285 or berger@khlaw.com.