Bite Taken Out of Chemical Secrecy

The U.S. Environmental Protection Agency (EPA) announced on Jan. 21 a new practice [1] that will prevent chemical manufacturers from hiding the identities of chemicals that have been found to pose a significant risk to environmental or public health. The policy is a small step to increase the transparency of the nation's chemical laws, and it highlights both the problem of excessive secrecy and the power of the executive branch to make government more open – even without action by Congress or the courts.

The new practice, which took effect immediately upon publication, changes how the agency handles information submitted by chemical companies under the Toxic Substances Control Act [2] (TSCA), the primary statute regulating chemicals. Under TSCA Section 8(e) [3], chemical companies must notify EPA of any information indicating a chemical substance or mixture presents a substantial risk of injury to health or the environment. In numerous cases, EPA has allowed companies to hide the identity of the chemical in these reports as a trade secret. Under the new policy, EPA will reject confidentiality claims for a chemical's identity if the name is already publicly disclosed on TSCA's inventory of chemicals [4] in commerce (a list of more than 83,000 chemical substances). The TSCA inventory does not include chemical substances subject to other statutes, such as food additives, pesticides, drugs, and cosmetics.

Businesses submitting information to the agency are allowed to claim all or part of the information as confidential business information (CBI). Information labeled CBI by companies is kept secret from the public by EPA. As reported in the previous Watcher [5], by hiding chemical information from the public, and even from other EPA offices, the agency greatly hinders the research and accountability needed to ensure public safety and protect the environment.

Although the agency's action is a step in chipping away at excessive secrecy, the move should not have been necessary based on a reading of the existing CBI regulations [6]. According to the rules already on the books, a company can legitimately claim information is CBI only "if the information is not, and has not been, reasonably obtainable without the business's consent by other persons … by use of legitimate means." In other words, the identities of chemicals publicly available in the TSCA inventory should never have been allowed to be hidden in the "substantial risk" reports.

Moreover, health and safety data are prohibited from being hidden as CBI. When evaluating the health and safety of chemicals, the identities of the chemicals are crucial data. EPA has repeatedly confirmed this in its TSCA regulations, stating [7], "Chemical identity is part of, or underlying data to, a health and safety study," and also stating [8], "Chemical identity is always part of a health and safety study." Despite these proclamations, EPA has allowed the labeling of chemical identities as CBI for years.

The agency's regulations under TSCA [9] do exempt from disclosure information in the health and safety data category that would "disclose processes used in the manufacturing or processing the chemical substance or mixture" or "disclose the portion of the mixture comprised by any of the chemical substances in the mixture." Despite EPA's previous practices to the contrary, this does not exempt chemical identity.

To address the handling of alleged trade secrets, EPA has the authority to issue a "class determination [10]," which defines certain types of business information as either public or entitled to confidential treatment. Such determinations would reduce the time and resource burden on the agency caused by case-by-case evaluations of CBI claims. The agency's recent action seems to lack the force of a class determination.

It is difficult to quantify the impact of illegitimate CBI claims or the impact this new agency practice will have on reducing those claims. According to Chemistry World [11], "The new policy covers the approximately 63,000 chemicals that are on the public portion of the TSCA inventory. Approximately 17,000 chemicals are on an undisclosed, confidential list." EPA has not disclosed the extent of CBI claims, what types of information are labeled as such, how many times the agency has challenged a CBI claim, or the results of such challenges.

Proponents of greater chemical disclosure have criticized [12] the chemical industry for abusing the trade secrets provisions in TSCA by submitting excessive and illegitimate claims of CBI. A recent report [5] from the nonprofit Environmental Working Group found that in the first eight months of 2009, industry concealed the identity of chemicals in more than half the reports submitted under TSCA Section 8(e). Without enforcement of the rules and without penalties for illegitimately making confidentiality claims, businesses have felt free to label information as secret that should be disclosed. EPA states [1] that its change in handling CBI claims is "part of a broader effort to increase transparency … by identifying programs where non-CBI may have been claimed and treated as CBI in the past."

The new practice restricting CBI claims is limited to one statute – TSCA – and to only health and safety data submissions under one section of that statute. However, EPA receives information with CBI claims under numerous other statutes as well, such as the Clean Air Act, Clean Water Act, and the Federal Insecticide, Fungicide, and Rodenticide Act (the statute regulating pesticides). It is unclear if EPA will review CBI policies under these statutes as well.

In the announcement [13] of the TSCA CBI changes, the agency stated, "In the coming months, EPA intends to announce additional steps to further increase transparency of chemical information." No further details about the pending actions were released.

Among the other transparency problems afflicting TSCA is the difficulty accessing the data. According to EPA's website [4], the TSCA inventory changes daily and "EPA does not provide searches of the non-confidential TSCA Inventory." The inventory data must be purchased as a CD-ROM from the National Technical Information Service [14] (NTIS) for $360, with an updated version available every six months.