EPA Continues to Improve Chemical Transparency under TSCA
On June 8, the U.S. Environmental Protection Agency (EPA) unveiled the identities of more than 150 chemicals that had previously been claimed as confidential by industry. The EPA's action was the latest step in the agency's initiative, announced in 2010, to disclose more chemical information to the public.
Under Section 8(e) of the Toxic Substances Control Act (TSCA), companies that manufacture, process, or distribute chemicals must notify the EPA if they learn that any of their chemical substances present a "substantial risk of injury to health or the environment." However, TSCA allows companies to treat as confidential the chemical's identity in the public version of these reports if that information is entitled to such treatment. Although EPA suggests that companies provide a reason for the confidential business information (CBI) claim, an explanation is not required. The reports are made available on EPA's website, but when the company labels a chemical as confidential, the chemical's name is removed from the report's public version.
Following EPA's recent action, 150 chemical names will no longer be redacted from 104 health and safety studies. The newly disclosed chemicals involved in the studies are used in dispersant formulations and consumer products such as air fresheners, non-stick and stain resistant materials, and fire resistant materials.
The disclosure is the result of new EPA confidentiality decisions, as well as voluntary decisions by some companies in response to the EPA's challenge to industry to disclose such data. In many cases, the disclosed information often involves a company's original report, requesting confidentially, with additional pages indicating the name of the chemicals that were originally redacted. For example, one company updated its report with the addition of a cover letter, indicating the name of the chemical.
Public health advocates have long pushed for EPA to make public the names of chemicals in order to evaluate their health and safety. The Environmental Working Group published a study in January 2009 documenting that the names of 17,000 of more than 83,000 chemicals in commerce had been labeled a "trade secret" and thus remain hidden from the public. The Government Accountability Office (GAO) testified that about 95 percent of notices that companies send to the EPA include information labeled "confidential."
Beginning in 2010, the EPA has taken several steps to disclose more chemical information to the public. In January 2010, it announced a new policy of rejecting, with limited exception, CBI claims for publicly available health studies when the chemical name is already disclosed in the public portion of the TSCA Inventory – a list of all chemical substances in commerce. In March 2010, the agency provided free public access to the TSCA Inventory, which previously had only been available for a fee, and in that same month, EPA challenged industry to reduce the number of CBI claims in new TSCA filings. In May 2010, it began reviewing all CBI claims for chemical identities in health and safety studies, and it added chemical information to its Envirofacts online public database.
During the first half of 2011, EPA continued to make progress. In February, it announced that it would no longer protect the identities of 14 chemicals, which manufacturers had claimed were trade secrets, and in March, the agency declassified the names of chemicals in 42 other health and safety studies.
Though public health and environmental advocates have hailed EPA's June 8 announcement as a significant move toward greater openness, they continue to seek improvements to EPA procedures to reduce the amount of illegitimate CBI claims and to promote transparency. Several such recommendations are included in a report to improve the public's right to know about environmental, health, and safety issues, published by OMB Watch in May 2011 and endorsed by more than 100 organizations. They include:
- Upfront Substantiations – requiring chemical manufacturers to justify requests for secrecy when the information is submitted to the agency. Such upfront substantiation of the need for secrecy reduces the burden on agency staff to evaluate CBI claims.
- Fees for CBI Process – required fees to be paid by submitters of CBI in order to cover administrative costs and reduce illegitimate claims.
- Penalties for Illegitimate CBI Claims – impose fines and penalties against companies that illegitimately request CBI protections, such as for a chemical identity that is already publicly disclosed.
The right-to-know report also recommends that certain workers, including workers risking exposure to chemicals and health professionals such as emergency medical technicians, nurses, and doctors, have access to vital chemical information. Medical personnel must have complete access to names of chemicals in products – including CBI – to which their patients may have been exposed to accurately assess and treat signs and symptoms, care for injuries, and protect themselves.
The chemical industry is still wary of disclosure. Both the American Chemistry Council (ACC) and Society of Chemical Manufacturers and Affiliates (SOCMA) voice support for the EPA's effort to make public potential chemical risks, but not at the expense of trade secrets. Scott Jensen, spokesman for the American Chemistry Council, noted that "[i]t's important that EPA continue to recognize legitimate claims to safeguard intellectual property from competitors." Proctor & Gamble is concerned that the EPA will continue to require chemical companies to disclose more and more proprietary chemical information.
In its June press release, EPA announced its plans to regularly declassify and post materials under TSCA on its website. According to Steve Owens, assistant administrator for EPA's Office of Chemical Safety and Pollution Prevention, "[a] health and safety study with the chemical name kept secret is completely useless to the public."