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EPA to Cease Issuing Notice of Deficiencies for TSCA

As of August 15, 2019, the United States Environmental Protection Agency (“EPA”) will no longer issue notice of deficiencies to affected businesses that manufacture and/or process chemicals covered under the Toxic Substances Control Act (“TSCA”) that submit defective non-exempt confidential business information (“CBI”) claims, thus subjecting that information to public disclosure without further notice.

On January 19, 2017, EPA announced an interpretation of Section 14 of TSCA relating to non-exempt CBI claims. This interpretation requires businesses that manufacture and/or process chemicals covered under TSCA, 15 U.S.C. § 2601 et seq., to substantiate CBI claims at the time of submittal. Non-exempt CBI claims submitted without a substantiation are considered deficient and subject to disclosure.

To facilitate compliance with this statutory interpretation, EPA adopted a policy of sending notice of deficiencies to affected businesses that failed to submit a non-exempt CBI claim without substantiation, or claims that contained other procedural flaws such as missing certification statements or, in the case of specific chemical identity CBI claims, a missing generic name. Once a notice of deficiency was issued, an affected business had 30 days to correct the deficiency. Failure to correct the deficiency within the allotted time would result in the withdrawal of the CBI claim and the public disclosure of the information.

Since adopting this policy in 2017, EPA has been conducting outreach activities with affected entities and asserts that its outreach has led to a dramatic decrease in the submittal of deficient CBI claims. As such, EPA will no longer issue such notices so as to facilitate EPA’s obligations to review all CBI claims within 90 days. After August 15, 2019, affected businesses that submit deficient CBI claims will receive only a written notice that its CBI claims are invalid, and the underlying information will not be treated as confidential and will be subject to public disclosure. As such, businesses submitting required information with a claim that the information is confidential must be sure to follow the proper procedure at the time of submittal because there will NOT be an opportunity to correct any deficient submittals.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume IX, Number 205
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About this Author

Richard L. Lewis, Attorney, International Business, Steptoe & Johnson Law Firm
Member

Richard Lewis practices in the areas of domestic and international business law with a focus on environmental and energy-related legal matters. He represents clients before federal, state, and appellate courts and administrative agencies in civil, criminal, and penalty proceedings. In addition, he provides client counseling and advice in general business, permitting, compliance, and transactional matters.  Mr. Lewis is the former Chair of the firm's Business Department.

304-353-8133
Marissa G. Nortz Environmental Lawyer Steptoe-Johnson Law Firm
Associate

Marissa Grace Nortz concentrates her practice in the areas of environmental and administrative laws. Marissa regularly assists in matters involving permitting and regulatory requirements for water and wastewater, solid and hazardous waste, air emissions, and other environmental and regulatory matters. Marissa has assisted in the preparation and presentation of appeals before a variety of administrative boards, and has experience regarding NPDES permitting and compliance matters for both municipal and industrial clients.

304-353-8156
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