Looming November 30, 2020 EPA Submission Deadline for Chemical Data Reporting Requires Attention Now

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Faegre Drinker Biddle & Reath LLP

Companies required to report under the Toxic Substances Control Act’s (TSCA) Chemical Data Reporting (CDR) regulations need to consider and address new Environmental Protection Agency (EPA) provisions governing reporting of chemical data.

CDR regulations generally require that chemical manufacturers and processors (including importers) report a wide range of chemical production data to EPA every four years. In March 2020, EPA finalized certain amendments to the CDR regulations, which implemented key changes in how this data is reported to EPA. EPA extended the reporting deadline to November 30, 2020, to give companies more time to make submissions under CDR after the agency announced key changes to the CDR regulations. Some of the key changes include: confidential business information (CBI); processing and use codes; byproduct reporting; foreign parent reporting; and small manufacturer/government definitions. These changes require attention now to timely and accurately report chemical information to EPA.

CBI Substantiation

EPA’s amendments confirm that information and data submitted under the CDR may be claimed as CBI in order to ensure confidential information is not released to the public. EPA is requiring upfront substantiation for CBI claims. This change places a higher burden on companies claiming CBI to articulate the harmful effects to its competitive position if such information were to be disclosed publicly. EPA also identified certain data elements that cannot be claimed as CBI.

Processing and Use Codes

EPA also changed certain processing and use codes used for reporting information under the CDR in order to conform with product and use codes used by the Organization for Economic Cooperation and Development (OECD). The shift to OECD-based codes will be primarily voluntary for most substances for the 2020 submission period (except for high priority TSCA substances), but use of OECD-based codes will be mandatory for all substances for the 2024 submission period.

Byproduct Reporting

EPA added two additional exemptions for byproducts that do not need reporting under CDR. First, byproducts recycled in a site-limited enclosed system are exempt from reporting (Portland Cement Manufacturing and Kraft Pulping Process). Second, byproducts manufactured as part of non-integral pollution control and boiler equipment need not be reported under the CDR.

Foreign Parent Reporting

EPA changed site identification reporting requirements to include the highest-level foreign parent company, if applicable. Sites are still required to report the highest-level U.S. parent company, but if the ultimate parent company is outside of the U.S., the highest-level foreign parent company must be identified.

Small Manufacturer/Government Definitions

EPA changed the definition of a “small manufacturer” in the CDR. EPA also added a definition for “small government.” Manufacturers meeting either of these definitions have no or reduced reporting obligations under the CDR.

Due to the novelty of these EPA amendments, questions may arise during preparation of the CDR reports due by November 30, 2020. We are available to address some of the novelties and subtle issues that may arise and thus encourage early preparation of the reports to allow for sufficient time to vet any questions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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