REGULATION & COMPLIANCE
In their responses, many companies claimed specific chemical identities as CBI, as they had done in the past. However, because this was the first time they had claimed those chemicals as CBI since the 2016 amendments, they had to contend with the new requirements for CBI, which included heightened substantiation requirements.
The EPA gave companies the option to substantiate their claims upfront or at a later date. Many companies chose upfront substantiation, which the EPA said would make their claims complete and require no further action. But the EPA was wrong.
Two years after the rule was promulgated, a court determined that the substantiation requirements developed by the EPA‘ nonsensically’ excluded certain questions necessary to meet amended TSCA’ s new requirements. The agency responded by adding new substantiation questions and applying them after the fact to companies that had provided upfront substantiation. This directly contradicted at least two prior assurances from the EPA that those companies’ substantiations were complete and that they would be exempt from further requirements. No personal notice went out to those companies. The only warning was buried in Federal Register notices tied to a separate rulemaking, published years after the original claims had been filed, and finalised in March 2020 as the business world was consumed by the onset of COVID-19. Unsurprisingly, numerous companies missed it.
Data from a 2024 Freedom of Information Act request shows that approximately 70 % of the EPA’ s Inventory Reset CBI claim denials for specific chemical identities resulted from failure to respond to the new, after the fact substantiation questions, leading to the public disclosure of approximately 1,500 commercially sensitive chemical identities. The EPA acknowledged the process was flawed and proposed a fix, but the Biden Administration never published the corrective rule in the Federal Register.
The CBI expiration and renewal process that begins this June is all but guaranteed to encounter similar complications. And although industry and the EPA will be learning together, only industry will bear the risk of loss, just as it did with Inventory Reset.
Three pitfalls to watch for
Expiration dates may be earlier than you think. A CBI claim for a specific chemical identity can expire less than ten years after a company asserted it if multiple companies claimed that same identity as confidential. That is because claims for chemical identities expire ten years from the date the first claim for that substance was asserted, not from the date your company filed.
Consider: Company A asserts a CBI claim for a chemical identity in 2016, and Company B asserts a CBI claim for the same identity in 2019. CBI protection would expire in 2026, ten years after the first claim was asserted, even though only seven years have passed since Company B asserted its claim.
Because it is often difficult to know whether others have claimed the same identity, companies should consider preparing to file a request for extension for all chemical identity CBI claims now. Companies should not rely on another company with a claim on the same identity to submit a request.
To determine when a specific chemical identity claim will expire, companies can look to the Inventory, which shows expiration dates associated with some, but not all, chemical identities claimed as CBI. For those without a listed date, companies should tentatively assume expiration ten years after assertion but investigate the situation and be prepared to act sooner.
EPA notices of expiring claims may not be reliable. Amended TSCA requires the EPA to provide at least 60 days’ notice prior to claim expiration. The EPA plans to address this requirement in two ways: a public list of expiring claims on its website and individual notice via CDX. Neither is failsafe.
The public list on EPA’ s website will identify claims by TSCA case or document identifier, strings of numbers and letters that may mean nothing to companies that have not already catalogued their claims. The EPA may opt to include the company name on the list when it is not claimed as CBI, but because company names are often claimed as CBI, this would not fully remedy these difficulties.
Individual CDX notices present even more difficulties. In the ten years since a claim was asserted, many companies will have undergone employee turnover or transfers in ownership, leaving contact information outdated or CDX accounts inaccessible.
At this time, it is unclear which CDX accounts associated with a TSCA submission will receive the notice. Where multiple companies have claimed the same chemical identity as CBI, it is also unclear whether the EPA will notify every company or only the one that filed first.
There is also a potential legal wrinkle. Although EPA believes the webpage list of expiring claims alone satisfies amended TSCA’ s 60-day notice requirement, the statute could be read to require actual notice to each claimant. This may invite litigation if a company does not receive CDX notice, fails to submit a request for extension, and subsequently loses CBI protections.
The submission tool may not be ready in time. The EPA is requiring that extension requests be submitted via a CDX reporting tool that is currently under development. If the tool is not ready by the time the first requests are due in May 2026, the EPA stated in a January 2026 Federal Register notice that companies should wait until it is operational and promised not to disclose any expired CBI in the meantime.
The problem is that it is not clear whether the EPA has statutory
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