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April 1, 2022

TSCA New Chemicals Coalition Quoted in Chemical Watch Article “Companies call for EPA to keep TSCA inventory corrections process”

Bergeson & Campbell, P.C.

On March 31, 2022, Chemical Watch reported on a letter written by the TSCA New Chemicals Coalition (NCC) calling on the U.S. Environmental Protection Agency (EPA) to suspend its plans to revoke a decades-old policy allowing companies to request corrections to the TSCA inventory. 

The TSCA New Chemicals Coalition – an ad hoc group represented by the law firm Bergeson & Campbell – said scrapping the process could give rise to a host of unintended consequences. It also questioned the legality of the agency making the change without an opportunity for public input.  

The EPA’s rationale for jettisoning the 1980 guidelines appears to be “premised on an inadequate understanding of the fundamental purpose of the inventory and the inherent need for a functioning and ongoing correction process”, the businesses wrote to chemicals head Michal Freedhoff in a 25 March letter.   

Compliance with global regulatory schemes, the evolution of analytical techniques and changes in corporate ownership, are the sorts of activities that could cause a company to decide a substance was not originally identified properly on the inventory.  

“To eliminate the correction process is to ignore a critically important fact in the industrial chemical community – chemical identities can be subject to legitimate questions, and [industry] needs a process to answer these questions and get the chemical identity right.”  

By contrast, revoking the policy will force companies that discover a mistake to immediately stop production, inform their customers, prepare a pre-manufacture notice (PMN) and wait an indeterminate period for the agency to conduct its review. That, said the coalition, would cause the producer and its customers to “endure logistical, commercial, and legal consequences of stopping production, adding significant and entirely avoidable supply chain uncertainty”.  

The coalition also said it “vigorously disagrees” with the EPA’s view that the corrections process may be improperly used. Moreover, if such abuse does exist, the agency has “selected the wrong remedy” when it should enforce the law’s requirements instead, it said.  

Finally, it said acting unilaterally “seems to mark a decision-making process that imposes legal obligations on stakeholders without obtaining public input”.  

The coalition called on the EPA to pause the phaseout of the corrections process, currently set for 26 April, and to seek public comment on its plans.  

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