Don't Forget TSCA CBI Substantiations are Due September 19th

Confidential Business Information (CBI) claims asserted in any Toxic Substances Control Act (TSCA) submissions made between June 22, 2016 and March 21, 2017 must be affirmatively substantiated by September 19, 2017, unless they fall within one of seven classes of information exempt from substantiation under section 14(c)(2) of TSCA. If it is questionable whether an exemption applies, one may consider formally invoking the exemption by September 19th given the lack of significant guidance on the scope of these exemptions.  

According to the U.S. Environmental Protection Agency (EPA), if no substantiation for a claim has been received by this date, the Agency will provide the affected business 30 days' notice and a "final opportunity" to substantiate the claim. CBI claims that are not substantiated at the end of the 30 days will be considered withdrawn, and "the information may be made public with no further notice to the affected business." Waiting for EPA to issue such notice and then submitting the substantiation may limit a company's opportunity to bolster its justification if EPA rejects the initial substantiation. A second notice is not required by statute prior to disclosure. A proper submission by September 19th eliminates this risk. For more information, see our previous article EPA to Require Up-Front Substantiation of All Non-Exempt CBI Claims. For assistance, please contact tsca@khlaw.com.