Industry Secrecy Still Hindering Protection from Toxics

The excessive use of confidential business information claims is a major factor preventing the government from safe, effective management of thousands of industrial chemicals, according to several experts who recently presented their views to a congressional panel. The witnesses asserted that when information about potentially dangerous chemicals is labeled as trade secrets, government agencies and the public are denied the opportunity to evaluate the risks of chemicals and take action to protect public health and the environment.

The House Subcommittee on Commerce, Trade, and Consumer Protection recently held a hearing to review the Toxic Substances Control Act (TSCA), a 33-year-old law enforced by the U.S. Environmental Protection Agency (EPA). Under the law, the agency is supposed to review and manage the risks of chemicals in commerce in the United States. Companies that submit chemical information to the EPA are allowed to mark certain information as confidential business information (CBI). The EPA is not allowed to disclose CBI to the public or other levels of government.

In testimony [1] before the subcommittee, John Stephenson of the Government Accountability Office (GAO) reported that TSCA's confidential business information provisions restrict foreign, state, and local governments, as well as the public at large, from better controlling the risks of potentially harmful chemicals.

According to the GAO, "EPA's ability to provide the public with information on chemical production and risk has been hindered by strict confidential business information provisions of TSCA." The undisclosed information is needed for various activities, including "developing contingency plans to alert emergency response personnel to the presence of highly toxic substances at manufacturing facilities."

The GAO testimony also drew attention to the EPA's inability to counter a company's claims of confidentiality. About 95 percent of premanufacture notices are submitted containing some information labeled "confidential." These notices contain basic health and safety information and are required before a company can manufacture a new chemical. EPA has no information on whether these confidentiality claims are warranted and few resources to investigate and challenge inappropriate claims. As a result, vital information is not disclosed.

EPA reported that it challenges only 14 confidentiality claims per year and that companies withdraw nearly all the challenged claims. Approximately 700 new chemicals are introduced into commerce each year.

Reforming the CBI provisions in TSCA has been a recommendation of the GAO and several public interest groups. Richard Denison, a senior scientist with the Environmental Defense Fund, criticized many aspects of the toxics law, including the excessive use of CBI claims. In his testimony [2] before the House panel, Denison stated that EPA's weak capacity to challenge the extensive CBI claims "further exacerbat[es] the lack of transparency and accountability of its assessments."

In a recently published article [3], Denison cites cases where information indicating substantial risk from a chemical is submitted with the chemical's specific name, identifying number, and even the name of the company submitting the data, all labeled as confidential.

J. Clarence Davies, one of the original architects of TSCA and a senior advisor at the Woodrow Wilson International Center for Scholars, also criticized [4] several aspects of the statute. The CBI provisions make TSCA "less conducive to state-federal cooperation than any other environmental statute," and "major impediments" to international cooperation.

Among the industry representatives providing testimony to the panel was the American Chemistry Council (ACC), a trade association representing 140 chemical companies. The president of the ACC stated [5] that TSCA should be "modernized" because the public's confidence in federal chemicals management has been "challenged." The industry association offered tempered support for limited release of CBI to state, local, and foreign governments.

Many policymakers have long held that TSCA is inadequate to protect public health and the environment and needs significant strengthening. In a statement [6] submitted for the hearing, Rep. Henry Waxman, chairman of the House Committee on Energy and Commerce, said that "for years, it has been clear that TSCA is not living up to its intent." Mr. Waxman cited the EPA's inability to ban asbestos, a notorious known carcinogen, as an example of the weakness of the statute.

EPA Administrator Lisa Jackson announced in a memo [7] to EPA employees in January, "It is clear that we are not doing an adequate job of assessing and managing the risks of chemicals in consumer products, the workplace and the environment. It is now time to revise and strengthen EPA's chemicals management and risk assessment programs."

The ability to protect certain sensitive corporate information allows businesses to keep confidential research and development programs, new chemical formulations, and the specific economics of their operations – all crucial to maintaining competitiveness. Yet, as the GAO and EPA data attest, the amount of CBI is enormous, and the limits it places on the public's right to know hinder the EPA's ability to protect public health and the environment.

Superior uses of CBI exist. EPA's highly successful Toxics Release Inventory (TRI) program requires industry to substantiate up front any CBI claim and provides simple, common-sense limitations on CBI claims. An OMB Watch report, A Citizen's Platform for Our Environmental Right-to-Know [8], uses the TRI model for handling CBI to outline a CBI policy for TSCA and other statutes. This model has worked well in providing critical information to the public through TRI and has resulted in few confidentiality claims while fully protecting CBI.