Senator Introduces CRA Resolution to Nullify EPA’s PFAS Reporting Extension

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Senator Sheldon Whitehouse (D-RI) has introduced a joint resolution to disapprove EPA’s April extension of the start PFAS Reporting Rule’s reporting period start date.

The Congressional Review Act resolution, filed as S.J.Res. 187 on April 27, 2026, would immediately nullify EPA’s extension rule if passed.  The resolution currently has no cosponsors.

EPA’s extension pushed the start of the reporting period to January 31, 2027, or 60 days following the effective date of amendments narrowing the rule’s scope, whichever is earlier.  EPA proposed those amendments in November 2025, which would add exemptions for de minimis concentrations and imported articles, among others.

The extension was published on April 13, the same day the reporting period was scheduled to open.  EPA had already delayed the start of the period twice before, citing technical difficulties.

The PFAS Reporting Rule is a one-time PFAS reporting obligation under TSCA section 8(a)(7) for persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022.  More on the rule is available in our archive.

EPA to Host May 6 Webinar on TSCA CBI Claim Expirations

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On May 6, 2026, at 4:00 p.m. EDT, EPA will host a webinar on expiring confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA).

According to EPA, the webinar will help companies, stakeholders, and the public understand the regulatory requirements governing the lifecycle of CBI claims, including how to determine whether a claim is expiring and how to request an extension.  EPA will also demonstrate the Central Data Exchange (CDX) application that TSCA submitters must use to request extensions, address frequently asked questions, and outline effective ways to communicate with the agency about the CBI claim expiration process.

Registration is available here.

Last week, EPA released the first list of expiring CBI claims and announced the deployment of the CDX extension request tool in advance of the first expirations, which begin on June 22, 2026.  Additional details on the list of expiring claims and the CDX tool are available in a previous post.

EPA Releases List of Expiring CBI Claims, CDX Tool for Extensions

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On April 23, 2026, EPA announced the release of the first list of expiring confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA).

Each claim on the list is identified by TSCA case number, expiration date, and submission type.  The inaugural list includes 294 claims that are set to expire between June 22 and August 1, 2026.  EPA says it will update the list monthly.

The list is intended to help meet TSCA’s requirement that EPA notify submitters at least 60 days before a claim expires.

According to the press release, EPA has also deployed a new “TSCA Section 14(e) CBI Claim Extension Request” tool in CDX, its electronic filing system.  Companies can use this tool to request a 10-year extension for an expiring claim, which must include substantiation of the need for continued CBI protection.

Requests for extension must be submitted at least 30 days before a claim’s expiration date.  EPA warns that failure to submit a timely request may result in public disclosure of the CBI without further notice to the submitter.

In addition to publishing the list, EPA is notifying submitters directly through CDX as claim expirations approach.  EPA advises companies to ensure their contact information in CDX is current to receive these notices.

CBI claims appear across a wide range of TSCA submissions.  The first list includes claims made on new chemical applications (such as PMNs and LVEs), Chemical Data Reporting submissions, import and export materials, and section 8(e) substantial risk notifications, among others.

Expiration Dates

As discussed in detail in a previous post, 2016 amendments to TSCA now mean most CBI claims expire ten years after assertion.  Because those amendments were enacted on June 22, 2016, the first expirations under the revised statute will occur on June 22, 2026.

Companies should be mindful, however, that CBI claims for specific chemical identities can expire less than 10 years after assertion if another company has also asserted a claim for the same chemical.  That is because expiration dates for chemical identity claims are set 10 years from the first approved confidentiality claim for the chemical identity.

Companies should also note that certain CBI claims are exempt from expiration: specifically, those that are statutorily exempt from substantiation requirements and EPA CBI review.

More information on CBI expirations can be found in a January 2026 Federal Register notice and on EPA’s website.

PFAS Reporting Rule Delayed Again Amid Ongoing Rulemaking

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EPA has delayed the start of the PFAS Reporting Rule reporting period for the third time as the agency finalizes amendments that would narrow the rule’s scope.

The reporting period will now begin January 31, 2027, or 60 days following the effective date of the final rule implementing the amendments, whichever is earlier.  EPA says that it expects to release the final rule “well before” the January 31, 2027, fallback date.

The extension will be published in the Federal Register on April 13, 2026, the same day the reporting period had been scheduled to begin.

Background

Promulgated under section 8(a)(7) of the Toxic Substances Control Act (TSCA), the PFAS Reporting Rule requires all persons who manufactured or imported PFAS for commercial purposes between 2011 and 2022 to report chemical information to EPA.  For most manufacturers and importers, the original reporting deadline was May 13, 2023.  However, EPA delayed the start of the reporting period in 2024 and again in 2025, citing technical difficulties with the reporting tool.

In the 2025 postponement, EPA also signaled that it was considering reopening the rule’s reporting requirements.  Subsequently, in November 2025, EPA released a proposed rule introducing various exemptions to the reporting requirements.  These include exemptions for mixtures and products containing de minimis PFAS concentrations, imported articles, and certain byproducts and impurities.

More on the PFAS Reporting Rule can be found in our topic archive.

Manufacturer Challenges Court-Ordered CBI Disclosure

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A specialty materials manufacturer is suing EPA to prevent the release of its unredacted premanufacture notices (PMNs) under seal in separate litigation challenging the transparency of EPA’s new chemicals program under the Toxic Substances Control Act (TSCA).

A March 23, 2026, court deadline for EPA to produce the documents has now passed without EPA compliance, as the agency, environmental groups, and the manufacturer battle over the appropriate course of action.

The five environmental groups brought the original suit in 2020, alleging that EPA violates TSCA by withholding certain information from the public and allowing overly broad confidential business information (CBI) claims.  In December 2025, over EPA’s objections, the D.C. District Court ordered the agency to produce unredacted PMNs under a protective order as part of the administrative record.

Arkema, Inc. submitted two of those 84 PMNs.  After EPA notified the company of the impending disclosure, Arkema filed suit on March 13, 2026, to block it.

While TSCA allows EPA to disclose CBI as required by a court order, Arkema argues that the scope of the disclosure encompasses information beyond what is at issue in the case.  EPA’s failure “to narrow appropriately the scope of CBI disclosures to only those necessary and related to the claims at issue is both arbitrary and capricious,” the complaint states.

Arkema further contends that “the terms of the protective order are insufficiently protective of proprietary information” and impose “substantially less stringent requirements than EPA itself requires to protect CBI” because they lack provisions for safe storage and handling, training, designated work areas, limits on the number of recipients, a central oversight contact, or recourse for inadvertent disclosures.

Arkema’s suit prompted EPA to move for a stay of the disclosure order on March 17.  While “Arkema seeks relief only as to the information that it claims is CBI,” EPA argues that the lawsuit implicates all CBI-designated materials at issue in the case.  In addition, the agency warns that allowing separate production of Arkema’s PMNs could inadvertently reveal which PMNs belong to Arkema and thereby compromise its CBI claim.

Environmentalists’ Response

In a March 19 response, the plaintiffs argue that Arkema’s suit and EPA’s motion are a delay tactic in the long-running litigation.

EPA should never have notified Arkema of the impending disclosure, the plaintiffs contend, because multiple statutory notification exceptions apply.  Under the plaintiffs’ reading of TSCA, notification is a precondition to filing suit—meaning there is “no basis for” the new challenge.

This “should have been evident to EPA,” the plaintiffs allege.  “Nevertheless, EPA voluntarily sent a letter to Arkema incorrectly stating they had a right to appeal….Now that a single manufacturer has submitted such an appeal, EPA turns around and asks this Court yet again to halt production of all 84” contested PMNs, not just Arkema’s.

If EPA believed that a manufacturer could challenge the disclosure and enjoin EPA from complying with the court’s order, it should have said so, the plaintiffs argue.  “Instead, it remained silent, thereby inviting the current procedural mess.”

Nor has EPA met its burden to receive its requested relief, since it has not alleged any hardship, the response continues.  And despite the company’s CBI claims, the plaintiffs note that it may already be apparent which of the sanitized PMNs—already provided to the court—belong to Arkema: one contains an attached safety data sheet identifying the company by name, and another includes “a number of documents with Arkema’s letter head.”

The plaintiffs further argue that six years of media coverage make it implausible Arkema was unaware its PMNs might be disclosed, alleging the company “has slept on its rights.”  Arkema “never claims that it did not know of this lawsuit or the potential implications for its PMNs, but instead has carefully worded its allegations” to say only that it was never informed of active discussions about the scope and terms of releasing its CBI.

EPA’s Reply

In a March 20 reply, EPA says it is agreeable to the environmental groups’ suggestion that the parties meet and confer about potential consolidation or modification of the protective order to address Arkema’s concerns.  But EPA reiterates its request for a stay, arguing that the agency “is caught in an untenable situation” that demonstrates “clear hardship.”

“Requiring EPA to produce any of the unredacted PMNs would prematurely decide Arkema before the parties (EPA, Plaintiffs, and Arkema) have an opportunity to resolve the competing positions and defeat the purpose of coordination and possible consolidation or modifications to the protective order,” the reply states.

EPA contends its disclosure notifications to Arkema and other companies were required, arguing that none of the statutory exemptions apply.  The agency also notes that, due to difficulties confirming receipt, a subset of companies are still within TSCA’s 30-day window—triggered by notification—to file suit to enjoin disclosure.

EPA further argues that whether it can selectively withhold only Arkema’s PMNs is a legal question that should be resolved in the new litigation.  “Until the parties or the Court resolve that legal question, EPA proceeds cautiously,” the reply states, citing TSCA provisions imposing criminal penalties for wrongful CBI disclosures.

On March 25, the environmental groups notified the court that EPA failed to produce the unredacted PMNs by the March 23 deadline.

The case is Arkema Inc. v. EPA, No. 26-cv-886 (D.D.C.).  The underlying case is Environmental Defense Fund v. Zeldin, No. 20-cv-762 (D.D.C.).

Senate Republicans Release Draft TSCA Reform Legislation Ahead of EPW Hearing

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Senate Republicans have introduced draft Toxic Substances Control Act (TSCA) reform legislation, which will be examined at a Senate Environment and Public Works (EPW) Committee hearing on March 4, 2026.

The “Toxic Substances Control Act Fee Reauthorization and Improvement Act of 2026” takes a narrower approach than its House counterpart released in January, focusing primarily on the regulation of new chemicals under TSCA section 5.  As its title suggests, the discussion draft would also reauthorize the TSCA fee program, which is set to expire at the end of fiscal year 2026, for another 10 years.

“We need to improve our current systems so we can bring better, safer and more innovative chemicals to market — with the predictability and resources to get it right,” EPW Chair Shelley Moore Capito (R-WV) said in a statement to E&E News. “This discussion draft is a step in the right direction, and I look forward to working with my colleagues on this during next week’s hearing.”

Tiered Review for New Chemicals

A central feature of the draft is the creation of a four-tiered framework for new chemical notices under section 5:

  1. Tier 1: New chemicals and new uses that satisfy Safer Choice and Design for the Environment criteria.
  2. Tier 2: New chemicals and new uses that fall into a chemical category “for which the Administrator has developed established scientific methodology for review.”
  3. Tier 3: New chemicals and new uses intended to serve as an alternative to a riskier existing chemical where modeling or other information demonstrates potential risk reduction.
  4. Tier 4: All other new chemicals and new uses.

Although each tier would be assigned its own EPA review timeframe, the draft does not specify the number of review days applicable to any category.  The tiered structure appears designed to address longstanding industry concerns regarding the growing backlog of new chemical submissions, which frequently extend beyond the current statutory 90-day review period (extendable to 180 days).

Third-Party Assessors

Another proposed change presumably designed to address the new chemical submission backlog is a mechanism by which third parties could provide a preliminary review of section 5 submissions.

Accredited third-party assessors would be authorized to review submissions for completeness and determine whether any risk assessment included in the submission was conducted using EPA assumptions, models, and procedures.  Submissions that receive a third-party risk assessment review would be eligible for expedited review periods, which are unspecified but vary by tier.

Notably, if EPA fails to make a determination within the expedited review period for a dual-certified submission—one that received both a completeness and risk assessment review—the applicant would be allowed to commence manufacture consistent with the conditions described in the submission.  EPA would retain authority to order cessation of manufacture upon completing its review.

Stewardship Pathway Authorization

Separate from the tiered review framework, the draft proposes a “stewardship pathway authorization” as an alternative route to the manufacture and distribution of a new chemical.

Applicants would submit a detailed stewardship implementation plan outlining intended conditions of use, engineering controls, disposal practices, PPE requirements, and downstream communication measures.  Manufacturers of chemicals approved under this pathway would be required to obtain contractual commitments from immediate recipients of the substance that they will comply with the approved stewardship implementation plan.  Approved chemicals would not be placed on the TSCA Inventory.

The draft does not specify how many days EPA would have to review stewardship pathway applications.  As with dual-certified third-party submissions, if EPA fails to act before the deadline and no extension has been granted, the requirements of the section would be deemed fulfilled for the conditions of use described in the submission.

Section 5 Exemptions

In addition to restructuring the review process, the draft proposes codifying versions of the low volume exemption (LVE) and low releases and low exposures (LoREX) exemption.  EPA has long allowed these exemptions by rule, which ease section 5 requirements for eligible chemicals.  The draft would make certain PFAS ineligible for either exemption, and only allow other PFAS and persistent, bioaccumulative, and toxic chemicals (PBTs) to qualify if certain conditions were met.

Again, the draft does not specify the EPA review timeframe for these exemption submissions, which would differ for PFAS and PBTs.  Exemption timeframes when expedited via third-party assessment are also unspecified.

The draft would also establish a brand-new Section 5 exemption for de minimis quantities, allowing the manufacture or processing of any chemical in quantities of less than 500 kilograms per year if the manufacturer or processor notifies EPA within 30 days of commencing manufacture.  A variety of substances would be ineligible, including substances with at least one fully fluorinated atom, nanomaterials, and mercury, lead, and cadmium compounds, among others.

Other Section 5 Revisions

Another subtle but important change is the replacement of the term “may present” unreasonable risk with “is more likely than not to present” unreasonable risk in section 5.  Currently, if EPA determines that a new chemical or new use “may present” unreasonable risk in the absence of sufficient information to permit a reasoned evaluation, EPA must issue an order to address that risk.  Raising that bar to “more likely than not” would require greater certainty before issuance of an order, known as a 5(e) order.

Similarly, the draft proposes to change the standard for granting section 5 exemptions from “will not present” unreasonable risk to “is not likely to present” unreasonable risk.

The draft also addresses incomplete submissions.  Under the proposal, EPA would have a limited time to determine whether a submission is complete and issue a deficiency notice; its ability to do so after that window expires would be restricted.

Environmental groups and EPA have often pointed to incomplete section 5 submissions and associated rework as a significant contributor to new chemical delays.

Other provisions in the draft require EPA to maintain a program similar or identical to the Sustainable Futures Program and consider information voluntarily provided in submissions, including whether the chemical may reduce greenhouse gas emissions among other criteria.

Key Definitions

Cutting across each of these reforms are proposed revisions to two foundational TSCA terms that would have significant implications for both new and existing chemical regulation.

First, the draft would narrow the scope of “conditions of use,” which are the reasonably foreseeable chemical uses evaluated by EPA to determine whether restrictions on a chemical are necessary.  While preserving the existing definition, the draft would add the following qualifications to what circumstances are considered conditions of use by:

  • Excluding “merely hypothetical circumstances.”
  • Requiring that EPA “have a cognizable basis to foresee [a] condition of use”
  • Excluding uses that violate other federal laws as “not within the meaning of what is reasonably foreseen.”
  • If a submitter provides information demonstrating that “broadly applied and effective exposure control measures are routinely used,” it would create a “rebuttable presumption that the lack of such measures is not reasonably foreseen.”

Second, the draft proposes to add bounds to “unreasonable risk,” a crucial, currently undefined term that serves as the basis for regulation under TSCA.  The draft would exclude “risks that may arise from common, well-understood hazards, such as irritation, corrosion, flammability, unreactive dust, and other physical effects” from the meaning of unreasonable risk.  It would also clarify that the phrase “includes consideration of both the hazard of a substance and the quantity, frequency, and duration of the exposure to the environment.”

Supreme Court to Weigh FIFRA Preemption in Roundup Cancer Warning Case

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The Supreme Court has agreed to hear Monsanto’s appeal of a $1.2 million jury verdict in favor of a plaintiff who claimed Roundup weedkiller caused his cancer, focusing on whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state failure-to-warn claims when EPA has not required the warning.

At the core of the dispute is FIFRA section 24(b), 7 U.S.C. 136v(b), which forbids states from imposing labeling requirements “in addition to or different from those required under” FIFRA.  Citing the Supreme Court’s 2005 decision in Bates v. Dow Agrisciences LLC, the Ninth and Eleventh Circuits have held that this language does not preempt state-law claims if the elements of the claim “parallel” FIFRA’s prohibition on misbranding.

However, more recently, in 2024, the Third Circuit created what many view as a circuit split, ruling that those courts erred by applying the “parallel requirements” test from Bates too generally.  According to the Third Circuit, EPA regulations implementing FIFRA prohibit manufacturers from adding precautionary statements to product labels without EPA approval, making such labels preempted.

Monsanto’s petition for certiorari, filed April 4, 2025, asks the Court to adopt the Third Circuit’s analysis.  “Because the jury verdict in this case requires Monsanto to include a cancer warning that EPA’s regulations did not require—and in fact affirmatively forbade it from adding—FIFRA preempts Respondent’s claim,” the petition argues.

Respondent John Durnell argues that the circuit split is both “irrelevant” and “illusory.”  In his June 9, 2025, brief, he argues that the jury verdict did not hinge on the labeling claims because Monsanto also advertised Roundup as safe in television advertisements.  He further maintains that there is no actual circuit split.

According to Durnell, there are two ways to update pesticide product labeling: by notification to EPA or by applying for amended registration.  Due to a “unique quirk” in the Third Circuit case, the court explicitly limited its analysis to the first option and “express[ed] no opinion” on whether Monsanto was required to pursue the latter, the brief states.

The Supreme Court’s decision is likely to have massive implications for numerous suits alleging that glyphosate, the active ingredient in Roundup, is carcinogenic.  EPA has repeatedly determined that glyphosate does not cause cancer, but the International Agency for Research on Cancer (IARC) has classified glyphosate as a probable human carcinogen.

The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.

Governors Urge EPA to Add Microplastics to UCMR 6 Drinking Water Monitoring

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Democratic governors from seven states have petitioned EPA to include microplastics in its upcoming Unregulated Contaminant Monitoring Rule 6 (UMCR 6), triggering a Safe Drinking Water Act (SDWA) mandate for EPA to include microplastics in the rule unless the administrator determines it “would prevent the listing of other contaminants of a higher public health concern.”

In the petition, dated November 26, 2025, the governors argue that monitoring microplastics under UCMR 6 would establish a foundation for the future promulgation of drinking water standards.  “[T]he potential risks to public health posed by this contaminant, its expected prevalence, the need for a nationwide testing standard in order to better understand the foregoing, and the great public interest in this contaminant together warrant monitoring under the UCMR for future regulation under SDWA,” the petition states.

“[I]nformation on [microplastics’] prevalence, health impact, and public interest is ahead of other aspects of the scientific and policy state of play, especially consistent definitions and testing methodologies,” it adds.  “By including microplastics in UCMR 6, EPA can provide leadership to the scientific and regulatory community on consistent definitions and testing methodologies that lag behind.”

The petition identifies several potential public health concerns associated with microplastics, including their ability to act as vectors for toxic chemicals.  Other cited risks include cellular and tissue damage and potential developmental effects in children.

The petition also highlights the role of consumer products in the generation of microplastics.  It distinguishes between primary microplastics, which are intentionally manufactured for use in cosmetics and in plastic production processes, and secondary microplastics, which result from the degradation and wear of products such as textiles, tires, paints, fertilizers, mulch films, and food packaging.

Statutory Context

EPA issues the UMCR every five years to require public water systems to collect occurrence data for contaminants that are not yet subject to SDWA drinking water standards.  The most recent UMCR, promulgated in 2021, required monitoring for lithium and 29 PFAS.

Despite microplastics’ heterogeneity, the governors—representing New Jersey, Delaware, Illinois, Maryland, Michigan, Wisconsin, and Connecticut—argue that microplastics qualify as a “contaminant,” under SDWA, which broadly defines the term as “any physical, chemical, biological, or radiological substance or matter in water.”

A petition from seven governors is sufficient to require EPA to include a contaminant in a UCMR unless the administrator determines that another contaminant presents a higher public health priority.  No more than 30 contaminants may be included in a single UCMR.

Additional information on UCMR 6 is available on EPA’s website.

First TSCA CBI Claims Will Expire in 2026—Companies Should Prepare Now

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Companies with confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA) should mark their calendars—prompt action may soon be required to maintain their claims.  CBI claims asserted under amended TSCA will begin to expire in June 2026, and submitters must reassert their claims prior to expiration to prevent the public disclosure of commercially sensitive chemical information.

Update – January 7, 2026

On January 6, 2026, EPA published a Federal Register notice describing its intended process for implementing the statutory requirements governing CBI expirations and reassertions.  This post has been updated to reflect new information provided by EPA in the notice.

The notice states that “EPA expects to provide further guidance [on CBI claim expirations], to solicit and answer questions, and potentially to host a webinar with information on notices of expiration and instructions for requesting extensions.”

When Will My CBI Claim Expire?

In 2016, Congress passed the Lautenberg Amendments to TSCA, which overhauled the statute’s CBI provisions.  Under amended TSCA, most CBI claims—including claims for specific chemical identities—expire after ten years.  As a result, many CBI claims asserted in 2016 will expire in 2026.

Under TSCA section 14(e)(1)(B), the ten-year protection period starts when a submitter asserts a claim, not when the submitter provides substantiation.  Although substantiation is generally required at the time a claim is submitted, some submitters may have provided substantiation at a later date.  This is especially true of claims that were submitted soon after the statute was amended.  Submitters should therefore calculate expiration dates based on the date of assertion and note that claims might expire before the ten-year anniversary of their substantiation.

Expiration dates for some chemical identity CBI claims are available on the TSCA Inventory.

Update: EPA’s January 2026 notice clarifies that claims for specific chemical identities expire ten years from the date the first claim for that substance was asserted.  If a chemical identity is claimed as confidential by multiple companies, this may result in a claim expiring less than ten years after it was asserted by a subsequent submitter.

For example, if Company A asserted a CBI claim for a chemical identity in 2016, and Company B asserted a CBI claim for the same chemical identity in 2019, CBI protection for the chemical identity would expire in 2026—even though only seven years have passed since Company B asserted its claim.

At present, it is unclear whether EPA would provide CDX notice of the impending expiration to both companies or only to the submitter that asserted the first claim.  (Notice procedures are discussed below.)

What Do I Have to Do to Reassert and Re-Substantiate my CBI Claim?

Submitters may extend CBI claims for subsequent ten-year periods by submitting a request for extension to EPA.  Section 14(e)(2).  A request for extension must include substantiation and must be submitted to EPA at least 30 days before the claim is set to expire.  Section 14(e)(2)(B)(i).

The substantiation requirements for a request for extension are the same as those that apply when asserting a claim initially.  Under 40 CFR 703.7(g), submitters have the option to either submit new substantiation or rely on substantiation that was provided with the initial submission, certifying that the substantiation remains true and correct.

The CBI regulations require that claims be submitted through EPA’s Central Data Exchange (CDX).  40 CFR 703.5(f).  In a response to comments document from the 2023 rulemaking that developed those regulations, the agency indicated that it anticipated developing a new CDX reporting form for submitters to reassert expiring claims.  EPA’s CBI FAQ page, last updated in August 2025, continues to signal that an electronic reporting tool is planned.

In some cases, submitters may find that it is no longer necessary to maintain a CBI claim, or that the subject information is no longer eligible for CBI protections because it has become publicly available.

Update: In the January 2026 notice, EPA confirmed that it is currently developing a CDX reporting tool for requests for extension and expects to have the tool in place before the first claims expire.  If implementation is delayed, EPA instructs submitters to postpone submitting requests for extension until the tool becomes available.  The notice states that “EPA will not release any information subject to expiring claims until the notice and review requirements of section 14(e) are met.”

On a CBI expiration guidance webpage updated January 5, 2026, EPA added that it will not disclose information covered by a timely request for extension if the agency does not complete its review of the request before the expiration date.  Under section 14(g)(1)(D), “the information will continue to be protected until the review is complete and any applicable appeal period under section 14(g) has elapsed,” the webpage states.

Will EPA Provide Advance Notice of My CBI Claim’s Expiration?

Section 14(e)(2)(A) provides that EPA “shall provide to the person that asserted the claim a notice of the impending expiration of the period” at least sixty days before a CBI claim expires.  EPA will address this provision by publishing a list of TSCA submissions with expiring confidentiality claims on its website or other appropriate platform.  40 CFR 703.5(h)(3).  Submissions must be added at least 60 days prior to expiration, along with instructions for reasserting and substantiating expiring claims.

In the response to comments document, EPA asserted that “Section 14(e) does not specify that EPA must provide individual notice of claim expiration.”  Nonetheless, during the rulemaking the agency stated its intent to provide individual notice via CDX, which is authorized under 40 CFR 703.5(h)(2).

EPA’s CDX notification system is imperfect.  Submitters may miss CDX notifications if the contact information associated with CBI claims is outdated.  Companies should therefore review their TSCA submissions to assess whether contact information is current.  Companies may need to contact the CDX Helpdesk for assistance gaining access to submissions made by former employees.  This process may take several weeks if a company needs to create a new CDX account and get that account connected to filings submitted by a former employee.  If the original filing was submitted by an entity that was not part of the company at the time of the submission, additional steps may be required, such as filing a notice of transfer.  40 CFR 703.5(h)(1).  That said, EPA’s response to comments document indicated that companies will not need access to the original CDX submission to reassert claims.

In general, TSCA requires EPA to provide actual notice before disclosing information claimed as CBI, such as information covered by a denied CBI claim or a denied request for extension.  Section 14(g)(2).  However, the statute makes an exception for expired CBI.  Where no timely request for extension is submitted, TSCA does not require EPA to provide actual notice before disclosing expired CBI, provided EPA has given the 60-day notice described above.  Section 14(g)(2)(C)(iii)(II).  As a result, a company that does not receive a CDX notification and does not monitor EPA’s list of expiring claims may not learn that a CBI claim has expired until after the covered information has been publicly disclosed.

Update: EPA’s January 2026 notice reiterates that the agency anticipates providing notice of impending CBI claim expirations via CDX, “[a]lternatively, or in addition” to the website listing.  The notice also reflects EPA’s view that publication of the website listing satisfies the 60-day notice requirement in section 14(e)(2)(A).  Whether a court would agree that a website posting—as opposed to personal notice—is legally sufficient remains an open question.

The notice further affirms that a “notice of disclosure [is] not required where a CBI claim has expired and no person submitted a timely extension request following [a] timely notice of expiration.”  EPA also observes that some companies may have submitted information claimed as CBI outside of CDX, such as paper filings predating electronic filing requirements or physical material provided to EPA pursuant to a TSCA subpoena or inspection.

Considering that:

  • CDX contact information may be outdated;
  • CBI claims may have been made outside of CDX; and
  • It is unclear whether all companies with CBI claims for a specific chemical identity will be notified via CDX when the first claim expires;

It is highly advisable that companies regularly review EPA’s list of expiring claims, rather than relying solely on CDX notifications, to avoid inadvertent expiration of CBI protections.

Are Any CBI Claims Exempt from the Reassertion and Re-Substantiation Requirements?

Pursuant to section 14(e)(1)(A), no action is necessary to maintain CBI claims that are exempt from substantiation and review according to sections 14(c)(2) and 14(g).  These include claims for specific information describing manufacturing processes, marketing and sales information, information identifying suppliers or customers, and specific production volumes, among others.

This post is for informational purposes only and does not constitute legal advice.

EPA Formalizes “Compliance First” Enforcement Framework

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On December 5, 2025, the acting assistant administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a “compliance first” directive to the agency’s enforcement staff.  A memo detailing this directive was issued to personnel both at headquarters and in regional EPA offices.  The memo, obtained by POLITICO’s E&E News, signals a paradigm shift in the agency’s enforcement philosophy.

“The primary focus for the Agency in all inspection, investigation, EPA enforcement, state/tribal enforcement coordination, and compliance assistance activities must be on achieving and ensuring timely compliance,” the memo reads.  OECA adds that compliance should be attained in “the most efficient, most economical, and swiftest means possible, while ensuring that our actions align with the clearest, most defensible interpretations of our statutory and regulatory mandates.”

OECA outlines six factors that will underpin the agency’s enforcement philosophy:

  1. Deployment of compliance assistance tools,
  2. State partner coordination,
  3. Open communication,
  4. Clear and well-tailored findings of violation,
  5. Restrained use of injunctive relief, and
  6. Reasoned decision-making.
Key Changes to Enforcement Practice

Several provisions in the memo mark notable departures from previous practice.

First, EPA inspectors and enforcement staff must now immediately elevate concerns raised by regulated entities about how the agency has applied a statute or regulation in enforcement actions at their facilities.  Decisions on how to proceed will be made at the national level, with regional counsel required to consult with the relevant Office of General Counsel (OGC) and OECA offices.

With respect to injunctive relief—court orders to compel or cease specific actions—the directive substantially narrows EPA’s authority.  Approval from the OECA assistant administrator will now be required for injunctive relief that falls outside “clear regulatory or statutory requirements,” which will only “be appropriate in limited, case-specific circumstances.”  The memo rescinds the agency’s earlier policy—issued in 2021—that allowed for more expansive injunctive relief.  Under the 2021 policy, EPA could use tools such as advanced monitoring, third-party auditing and monitoring, electronic reporting, and enhanced public reporting.  These tools are now generally discouraged.

In addition, the directive tightens settlement procedures.  The memo explains that agency personnel must now obtain approval from the OECA assistant administrator prior to initiating negotiation on any proposed settlement that could include mitigation or a stipulated remedy until additional guidance is issued.  Similarly, the memo prohibits the use of supplemental environmental projects (SEPs) in settlements until further guidance is developed.

Finally, in the memo EPA states that it plans to develop consolidated criteria across all media to categorize violations and assign appropriate enforcement responses to improve consistency across programs and regions.  OECA says that existing enforcement response policies, “together with the best reading of each requirement,” will inform the basis of the consolidated criteria.  The memo also notes that EPA “must act swiftly to limit actions from third parties who, through citizen suit litigation, unfairly impact policy through abusive litigation tactics.”

Implications for Industry

OECA’s compliance first framework—particularly its emphasis on achieving timely compliance through efficient and economical means—signals renewed support for industry self-policing.

The memo expressly directs enforcement staff to “promote voluntary compliance through self-reporting and voluntary audits.”  That instruction, coupled with the memo’s focus on open communication, early issue elevation, and restrained use of injunctive relief, suggests an enforcement environment more receptive to self-identified violations that are promptly disclosed and corrected.

For companies that manufacture chemicals or use chemicals to produce consumer, commercial, or industrial products, self-auditing offers an opportunity to establish a clear compliance baseline and move potential violations off of balance sheets.  EPA’s Audit Policy, discussed below, provides substantial protection to entities that systematically discover, disclose, and correct violations.

Given OECA’s new approach, companies facing compliance questions should strongly consider whether self-auditing and voluntary disclosure can help manage enforcement risk while demonstrating good-faith compliance efforts.

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EPA’s long-standing Audit Policy, last revised in 2000, remains the primary mechanism for obtaining credit for self-auditing.  Under the policy, regulated entities that systematically discover, disclose, and correct violations may be eligible for significant enforcement incentives, including:

  • Up to 100% mitigation of gravity-based penalties.
  • No recommendation for criminal prosecution.
  • No routine requests from EPA for the audit report.

More information on EPA’s Audit Policy can be found on EPA’s website.