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August 4, 2017

Bloomberg BNA Daily Environment Report Quotes Richard E. Engler, Ph.D., on EPA’s New Electronic Reporting System

Bergeson & Campbell, P.C.

On August 4, 2017, Richard E. Engler, Ph.D., Senior Chemist at Bergeson & Campbell, P.C. (B&C®), was quoted in the Bloomberg BNA Daily Environment Report article “Chemical Makers Told to Act Now, Duck Regulatory Hassles Later.”

Chemical manufacturers should have access to the EPA’s electronic reporting system now to avoid headaches in six months as the deadline approaches to notify the agency about chemicals they have made or imported during the past 10 years.

The clock hasn’t started yet for the 180 days that chemical manufacturers and importers have to notify the agency, said Richard Engler, a senior chemist with Bergeson & Campbell, P.C. and 17-year veteran of the Environmental Protection Agency’s chemicals office, Aug. 2.

But it will as soon as the agency publishes its final chemical inventory update rule (RIN 2070-AK24) in the Federal Register.

“Don’t wait until the last minute,” Engler said during [a webinar Bloomberg BNA and B&C hosted]. If a company has not yet signed up for the EPA’s electronic reporting system, or Central Data Exchange (CDX), “do so now,” he said.

If a company has to register for the CDX with paper documents and correspondence, “it may take weeks, and you don’t want your 180 days to be spent waiting for your log in access,” Engler said.

“EPA cannot extend the deadline; the deadline is set in the statute,” Engler said. The Toxic Substances Control Act Amendments of 2016 required chemical manufacturers to meet the 180-day deadline.

It is in companies’ interest to make sure the chemicals they work with are on the active list, Engler said.

Once the agency finishes its update—likely in 2019—the only chemicals that can be made in, imported into, distributed, or processed are ones on the active list, he said. June 21, 2006, marks 10 years before the requirement to update the inventory became law.

Chemicals on the inactive list can, however, be added to the active by going through a process described in the rule, Engler said.

Knowing which chemicals are active in commerce will help the agency decide which chemicals to focus on as it reviews whether certain risks warrant some kind of regulation. 

The rule’s second goal is to require companies to explain or “substantiate,” any claim they make that information submitted to the EPA must be kept out of the public sphere.

There are there are two basic types of information that companies can claim confidential during the inventory update provided they substantiate that claim when they assert it, Engler said.

Companies can claim their connection to a chemical—their identity as its manufacturer, importer, or processor—is confidential, he said.

They also can claim a business need to keep the name of the specific person, or “technical contact,” whom EPA can reach for questions about a chemical, confidential, he said.

Manufacturers and importers must provide the EPA evidence to justify their claim that disclosing that information would harm their business’ competitive position, Engler said.

The EPA will verify 25 percent of these, he said. 

Another type of confidentiality claim that must be made during the inventory update period—but can be substantiated later—is the specific identity of a chemical, Engler said. Claims can only be made for chemicals that already have confidential identities on the TSCA inventory, he said. The EPA knows the specific identities of the chemicals on its confidential inventory. The general public, including, potentially, companies that purchase chemicals, may know only generic names for these confidential chemicals.

Again any manufacturer, importer, or processor that says a chemical’s specific identity must be kept off the public portion of the inventory will have to justify how their competitive position would be harmed if the chemical’s identity was known, Engler said. The details about how companies will substantiate—and how the agency will verify—those claims will be spelled out in a future rule, he said.

Every claim that a chemical’s identity must be secret must be verified by the EPA under the amended TSCA law, Engler said.

He offered tips to protect confidential business information along with general compliance strategies. Companies should be gathering all the electronic access, information and documents they’ll need to comply with the rule now even before the EPA publishes it, he stressed.

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