Transparency Provisions Wanting in New Chemical Management "Principles"

Yesterday the Environmental Protection Agency (EPA) revealed [1] a set of "Essential Principles [2]" for reforming the nation's severely flawed chemicals management policies. The principles are a helpful and welcome addition to the reform efforts, but they say little about the need for greater transparency. The six principles include calls for greater authority for EPA to set standards and the use of "sound science" to regulate chemicals – even in the face of uncertainty about their health risks.

The EPA hopes that Congress will draw on this list of principles as a guide as it crafts new legislation to reform the Toxic Substances Control Act (TSCA), the primary statute covering the more than 80,000 chemicals in commerce.

During a speech [3] announcing the principles, the EPA administrator said, "over the years, not only has TSCA fallen behind the industry it's supposed to regulate – it's been proven an inadequate tool for providing the protection against chemical risks that the public rightfully expects."

The agency's announcement contains little guidance for Congress or the agency on dealing with the transparency of a reformed chemicals management program.

The principles contain a valuable statement calling for narrow application of a company's ability to conceal information from the public. Frequently companies submit data about chemicals that they label as confidential business information (CBI). By claiming the information is a trade secret, companies prohibit EPA from disclosing it to the public. This can deny public access to crucial information about a chemical's potential risks to public and environmental health and how those risks were determined.

The new set of principles includes this statement:

TSCA reform should include stricter requirements for a manufacturer’s claim of Confidential Business Information (CBI). Manufacturers should be required to substantiate their claims of confidentiality. Data relevant to health and safety should not be claimed or otherwise treated as CBI. EPA should be able to negotiate with other governments (local, state, and foreign) on appropriate sharing of CBI with the necessary protections, when necessary to protect public health and safety.

However, EPA's TSCA program already requires businesses to substantiate their trade secrets claims. The concern is that EPA allows non-trade secrets to slip through and information that should be disclosed is instead concealed. In response to a stakeholder's question during a conference call announcing the principles, the head of EPA's toxics office admitted that too much information was being labeled as CBI and EPA needs to make as much information available to the public as possible.

The EPA's new set of principles also declares:

Manufacturers should be required to provide sufficient hazard, exposure, and use data for a chemical to support a determination by the Agency that the chemical meets the safety standard.

This is a vital component of chemicals policy reform and it is good to see it here. Unfortunately the statement does not also include a declaration that such data be easily accessible by the public. Access to these data should be available online and not restricted to requests under the Freedom of Information Act (FOIA). Without such an affirmation of the public's right to know, the program is still susceptible to a lack of transparency.

Much to her credit, EPA administrator Lisa Jackson has already made important statements [4] calling for greater transparency at EPA. But the statements bear repeating. Considering the high priority given to chemical management reform by the administrator, Congress, and numerous public interest groups (and even the chemical industry), the essential principles guiding this reform should not omit another call for greater transparency.