Chemical industry reacts to EPA on CBI: Burglars claim to like new alarm system

Richard Denison, Ph.D., is a Senior Scientist.

After EPA announced yesterday that it will deny certain confidential business information (CBI) claims that have masked the identity of risky chemicals, two chemical industry trade associations responded favorably, saying they “welcome” the move as “the right thing to do.”

Entirely missing from their responses, however, was any acknowledgment of the fact that the EPA policy shift would not have been necessary but for the huge number of illegitimate CBI claims made by none other than the member companies of those same trade associations.  In a classic case of industry-speak, the companies who have been effectively stealing information from the public about their chemicals try to obscure their nefarious role by now saying they welcome the new alarm system they have forced EPA to install.

As I noted in a post to this blog on Wednesday, EPA’s new policy states that EPA will in general now deny any CBI claim intended to hide the identity of a chemical for which a company is submitting information, as required by law, indicating the chemical poses a substantial risk, if that chemical is already identified on the public version of the Toxic Substances Control Act (TSCA) Inventory.  (My post also noted that further changes are needed if this problem is truly to be solved.)

So what does the chemical industry think of this move by EPA?

In an article in Chemical Week, Charles Drevna, the president of the National Petrochemical & Refiners Association is quoted as saying:

"We support EPA’s action because it is the right thing do with regard to addressing health and safety concerns.  We applaud the Obama Administration for taking this step that, frankly, previous administrations would have been wise to consider.  In the case of health and safety information, it makes little sense to protect the identity of a chemical that is already publicly available on the TSCA inventory."

And Chemical Watch (subscription required) quotes Mike Walls, the American Chemistry Council’s (ACC) vice president regulatory and technical affairs, as saying:

“EPA’s announcement of a general policy on confidentiality claims associated with certain filings under TSCA is a welcome indication of the agency’s ability to apply its statutory authority to promote transparency. While ACC is still assessing the full impact of the policy on filings made under Section 8(e), in general the announced policy is consistent with ACC’s position that EPA and chemical companies should work together to enhance public access to chemical health and safety information.”

Rhetoric versus deeds

This new-found industry enthusiasm for transparency and working to enhance public access to chemical information is quite a reversal from its practice for decades of pressing every opportunity to claim information it submits to EPA as CBI, thereby denying public access to it.  Indeed, it has learned that by flooding the agency with such claims, it can overwhelm EPA’s only defense mechanism:  a time- and resource-intensive, case-by-case challenge process.

The results?  As reported by the Government Accountability Office (see pages 32-34):

  • EPA receives extensive illegitimate CBI claims, which must be honored until and unless challenged by EPA.
  • EPA is able to challenge only about 14 CBI claims out of thousands made each year, because it simply can’t afford to do more.

Lest you think all this is in the past, consider the very latest posting by EPA of the “substantial risk” notices it receives, those posted for the month of November 2009:

  • 41 submissions covering 54 chemical substances were received.
  • For 32 of the chemicals, the chemical’s identity was claimed CBI by the submitter.
  • For at least 25 of these chemicals, the submitter is a member of the American Chemistry Council.
  • For an additional four of these chemicals, the company’s identity as well as that of the chemical were claimed CBI by its mystery submitter.

It remains to be seen how the chemical industry’s rhetoric will stand up when the tougher needed changes are pursued, whether by EPA in efforts to use its existing TSCA authorities, or by Congress in seeking to rein in CBI abuses when amending TSCA.

That will be the real test of whether or not we’re dealing with a truly reformed offender.

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