Chemical Secrecy Increasing Risks to Public

Excessive secrecy prevents the public from knowing what chemicals are used in their communities and what health impacts might be associated with those substances, according to a recent analysis [1] of government data by the nonprofit Environmental Working Group (EWG). The growing practice of concealing data alleged to be trade secrets has seemingly hobbled regulators' ability to protect the public from potential risks from thousands of chemicals.

Calling the situation "a regulatory black hole, a place where information goes in – but much never comes out," EWG's analysis, Off the Books: Industry's Secret Chemicals [1], criticizes the nation's primary chemical statute, the Toxic Substances Control Act [2] (TSCA), and highlights excessive secrecy as one of the law's biggest flaws.

By literally locking up the data within a few offices at the U.S. Environmental Protection Agency (EPA), the agency prevents researchers, in and out of government, from identifying risks and problems with the use of the rapidly growing number of chemicals in commerce. Moreover, without the information, the public is unable to make informed decisions regarding the safety of everyday activities – from what cleaning products to use to what bedding to sleep on.

The data obtained by EWG under the Freedom of Information Act (FOIA) partially reveals the extent to which EPA is allowing chemical manufacturers to hide chemical names, the chemicals’ characteristics, and often even the identity of manufacturers. EWG also found that for two out of every three chemicals that entered commerce in the past 30 years, their identity remains secret. Of the more than 83,000 chemicals in commerce, information on 20 percent is kept secret. These secret chemicals include substances that have shown a substantial risk of injury to health or the environment. The list of secret chemicals also includes those used in products specifically designed for children.

The 33-year-old TSCA includes provisions [3] to protect information that manufacturers claim would hurt their profits if it were disclosed. Businesses can claim that such information is confidential business information (CBI) when they submit it to the agency. If the government does not raise an objection to the claim, it must protect the information from disclosure. Many offices don’t have sufficient staff to review all of the CBI claims made by companies in their submissions. In the case of chemicals, the EPA does not share information claimed as CBI with other agencies, state or local officials, emergency personnel, or even within EPA itself, except under certain, highly restricted circumstances.

The use of CBI claims by chemical companies has been increasing. The EPA data show that secret chemicals make up a much greater proportion of widely used chemicals than they did 15 years ago. Secret chemicals increased five to six times by volume produced from 1990 to 2006.

According to the EWG report, "Hiding the identity of these chemicals could significantly delay or completely prevent actions to reduce exposures to compounds that by definition require an open and transparent evaluation of their risks."

The refusal to disclose chemical information can have serious consequences for public health. In 2008, a spill of fluids [4] used in natural gas drilling sent a drilling worker to the hospital. The worker recovered quickly, but one of the nurses treating him was also exposed to the chemicals on the worker's boots, and her health gradually deteriorated. As the nurse's health declined, her physicians struggled to get the needed information on the drilling chemicals she was exposed to because the information was considered a trade secret.

The EWG study did not evaluate how frequently EPA challenges claims of CBI or what outcomes such challenges produce. However, a 2005 report [5] by the Government Accountability Office (GAO) stated that only about 14 CBI claims were challenged per year, and that in almost every instance, the industry capitulated and agreed to disclosure of the information. The GAO report found that 95 percent of manufactures' new chemical registrations with EPA contain some information alleged to be trade secrets.

Back in December 2000, the EPA began a process [6] to revise its regulations for dealing with confidentiality claims throughout the agency. This agency effort was geared to replace a 1994 attempt, which was abandoned due to "the complexity of the issues raised in the public comments." The 2000 initiative was also abandoned before completion.

There is some indication that the Obama administration may take action to reduce the amount of secrecy that prevents the public from understanding what chemical threats surround them. In July 2009, shortly after assuming leadership of EPA's Office of Prevention, Pesticides, and Toxic Substances, Assistant Administrator Steve Owens ordered the disclosure [7] of 530 identities of substances produced in large amounts. Also, in a recent Washington Post article [8], Owens stated, "People who were submitting information to the EPA saw that you can claim that virtually anything is confidential and get away with it."

Although the EWG report focuses on the treatment of alleged trade secrets under TSCA, the use of CBI claims allows EPA to hide other types of industry data, such as information about pesticides, which are regulated under a different law. Recently, EPA concealed information [9] on the inspection and enforcement histories of coal ash impoundments. These impoundments contain billions of tons of toxic waste generated from burning coal for electricity. In December 2008, the catastrophic failure [10] of one such impoundment sent 5.4 million cubic yards of toxic coal ash flowing over 300 acres and into rivers in Tennessee. The EPA also manages alleged trade secrets under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and many other statutes.

Advocates for greater transparency of chemical information have offered numerous suggestions [11] for reforming what they and the EPA recognize to be excessive and harmful levels of secrecy. The CBI regulations under TSCA have helped create an agency culture that is geared toward secrecy, with criminal penalties for unauthorized disclosure of CBI by agency personnel and the imposition of huge resource burdens if the agency attempts to challenge a company's trade secrets claims. Among other changes, reformers call for a narrower, clearer definition of what information may legitimately be claimed as a trade secret, greater up-front substantiation of the claims, and periodic reviews to remove outdated or unjustified CBI determinations.