EPA Making Good on Chemical Transparency, But More Is Needed
The U.S. Environmental Protection Agency (EPA) is disclosing more information about hazardous chemicals while challenging industry claims that information should be concealed as trade secrets. With major reforms of the nation's chemical law held up in Congress, public health advocates are pushing EPA to take more aggressive action to make chemical health and safety information available to the public.
On Feb. 10, the EPA announced that it would no longer protect the identities of 14 chemicals, which manufacturers had claimed were trade secrets. The chemicals are identified in health and safety studies submitted to the EPA by the companies. Since the chemicals are associated with submitted studies, EPA concluded that the companies cannot legitimately claim the identities as confidential business information (CBI). The agency's action is the result of policy changes adopted in 2010 to increase transparency within the agency's chemical regulatory program.
Under the Toxic Substances Control Act (TSCA), the nation's primary law regulating chemicals, manufacturers must immediately report to EPA when they find evidence that a chemical substance "presents a substantial risk of injury to health or the environment." Considering that health and safety studies frequently uncover new information about previously unknown chemical hazards, there is great public demand for timely access to this information. EPA has determined that the identity of a chemical associated with such a health and safety study cannot be concealed as CBI, except under very narrow circumstances.
EPA sent letters to five chemical manufacturers announcing the agency's determination that the chemical identities were not entitled to confidential treatment. In making this determination, EPA merely exercised legal authority that it has long had but seldom exercised. The agency's rules allow it to challenge CBI claims, especially when they involve chemical health and safety information or if the information is already publicly available. EPA cited both of these reasons for its recent decision to reject the CBI claims.
This recent action is the result of several changes EPA has made to disclose more chemical information to the public. In January 2010, EPA announced a new practice of rejecting CBI claims for the identities of chemicals found in health and safety 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, EPA provided free public access to the TSCA Inventory, which previously had only been available for a fee. In May, the EPA began reviewing all CBI claims for chemical identities associated with health and safety studies. That same month, EPA added chemical information to its Envirofacts online public database.
Public health advocates have long complained that EPA was withholding crucial chemical information that was needed to evaluate the health and safety of chemicals. EPA estimates that there are more than 84,000 chemicals in commerce in the U.S., and the identities of more than 17,000 chemicals are protected as CBI. Very few of the chemicals in use today have been sufficiently tested for their impact on human or environmental health. EPA's CBI policies have often prevented health advocates and scientists from linking a specific chemical to its potential health hazards. For example, a safety study submitted by a manufacturer to EPA might show evidence that a particular chemical substance causes harm in lab rats, but the identity of the substance is not disclosed.
EPA's new policies aim to reduce such secrecy. According to the head of EPA's chemicals office, Steve Owens, "The public deserves access to critical health and safety information on chemicals, but if the name of the chemical is kept secret in the health and safety report, the information is of no real value to people."
Under TSCA and other statutes, companies that submit information to EPA may claim the information to be CBI and therefore should not be publicly disclosed. Chemical companies must immediately provide notice to EPA if they learn that a chemical presents a substantial risk of injury to health or the environment. EPA's press release states that, "The reports are made available on EPA's website, but when the identity of the chemical has been claimed confidential by a company, the name of the chemical has been removed from the copy of the report that is made public."
According to the agency, as a result of its new procedures, "EPA is moving to declassify many chemical identities so they are no longer secret." EPA has long had the authority to review all CBI claims, but the Government Accountability Office found in 2009 that very few claims – about 14 per year – are ever challenged by the agency.
The steps EPA has taken to date demonstrate that the agency currently possesses sufficient legal authority to improve public access to chemical health and safety information, especially by putting limits on what companies can claim to be trade secrets. Although public interest advocates have been pushing hard for Congress to strengthen EPA's chemical regulatory authority, it is clear that there are steps EPA can take with its existing authority to improve chemical transparency. Public interest groups are seeking a number of changes to EPA procedures to reduce the amount of illegitimate CBI claims and to promote transparency.
Among these changes, advocates are requesting that EPA require 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. This practice also is a disincentive against excessive use of CBI claims. Transparency advocates also seek required fees to be paid by submitters of CBI in order to cover administrative costs and reduce illegitimate claims. Additionally, advocates are encouraging the use of fines and penalties against companies that illegitimately request CBI protections, such as for a chemical identity that is already publicly disclosed. It is submitters’ responsibility to be familiar with requirements for claiming CBI and to evaluate all CBI claims thoroughly for compliance before the information is submitted to the agency.
Public health advocates also want to ensure that vital information is always available to certain people, such as workers risking exposure to chemicals and health professionals such as emergency medical technicians, nurses, and doctors. For instance, medical personnel must have complete access to the identity of chemicals in products – including CBI – to which their patients may have been exposed in order to accurately assess and treat signs and symptoms, care for injuries, and protect themselves.
EPA has promised to continue evaluating company trade secrets claims and disclosing information it determines is not CBI. In addition, the agency plans to continue increasing the transparency of the chemicals program through an online chemical data access tool, which allows searches of the agency's chemical health and safety information.