ILMA Compoundings - August 2019 - 19

degree) available for domestic purchase in the U.S. creates a
larger category of compliance and enforcement effort.
This category of risk is not technically new, in that
TSCA ineligible substances have never been permitted to
be commercialized domestically since the law was enacted.
Yet the risk is new in a practical sense because the originally compiled TSCA Inventory did not capture all of the
substances present in the U.S. market at that time. One
of many reasons for that is the problematic incomplete
disclosure associated with imported products, both then and
now. The risk associated with the presence of these ineligible
substances has been muted (until now) by the difficulty of
their discovery and the lack of priority by the EPA to go to
the lengths necessary to investigate this issue.
Coincidental to this historical lack of enforcement
concerning hidden ineligible chemicals, many in the U.S.
chemical product industry, and in the market as a whole,
developed a general assumption that chemicals available in
the U.S. market are TSCA-compliant and market-eligible.
Along with this assumption, much of the industry and

marketplace presume that responsibility for any noncompliant
content is the exclusive responsibility of the party responsible
for introducing the chemicals into the U.S. market. As a
result, many (if not the vast majority) believe that there is
no need for scrutiny concerning domestically sourced raw
materials, whether for manufacturing or processing.
Both the assumption and the presumption are without
merit. The EPA does and will enforce TSCA compliance
responsibilities against all persons who are commercially
active with ineligible substances. Historically, this has not
been prominently the target of primary enforcement efforts,
a fact that is probably due to the relative difficulty, historically, to detect them.
THE NEW ENFORCEMENT PRESUMPTION
Clearly, the TSCA reset process has changed all that. The
extent of difficulty, experienced by manufacturers and
processors alike, with obtaining required information about
imported chemical product content has triggered a new focus
on this responsibility. Given the extent to which importers
experience difficulty during the reset process, all marketplace
participants (including distributors and downstream users)
should presume that the EPA is mindful and prepared to be
vigilant. This caution is not strictly theoretical. Audit and
enforcement have begun in multiple instances. Consequences
are yet to be seen, but in my estimation, they will most likely
be harsh - to make a clear statement, if for no other reason.
Caveat emptor - buyer beware.
Eggenschwiler, an ILMA consultant, is an
international trade attorney and director of global
trade for The Redstone Group, a Trinity Consultants
company. He can be reached at 614-923-7472
or jeggenschwiler@redstonegrp.com.

ILMA Compoundings - August 2019

Table of Contents for the Digital Edition of ILMA Compoundings - August 2019