Compromise that strengthens, not weakens, TSCA is the key to getting a new law

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

My recent blog post about the public’s right to know the names of chemicals in health and safety studies brought a response from the Vice President for Government and Public Relations at the Society of Chemical Manufacturers and Affiliates (SOCMA), a trade association of specialty chemical firms.

The response devotes considerable space to arguing for something we don’t oppose:  why it’s important for a company to be able to protect information relating to the process by which a chemical is made.  We have no quarrel with that:  EDF has never sought to change the provision of TSCA that precludes EPA from disclosing such information, even in the context of a health and safety study.  That provision is preserved in both the Senate and House bills, and that has been and remains acceptable to us.

Let me be crystal clear:  EDF has not sought to alter TSCA’s requirement that EPA withhold the identity of a chemical even in a health and safety study if revealing that identity would reveal process information.

What we do strongly oppose, however, is the effort to expand TSCA’s exclusion so as to allow a company always to hide from the public the identity of the chemical in a health and safety study – even where knowing that chemical’s name would not reveal the process used to make it.  That is exactly what the provision in the House TSCA reform bill that SOCMA is pressing for would do.

This would be a major weakening of current TSCA that would severely limit the public’s right to know about health and environmental impacts of chemicals in use today.

SOCMA’s response argues this would be okay for two reasons:  First, EPA will know the chemical’s identity, so no one else needs to know.  And second, the public should be content with a “generic” name.  Let me briefly address each of these arguments.  

Does the public need to know, if EPA knows?

In the sidebar of my earlier blog post, I gave a couple of examples of why the public needs to know what specific chemical is linked to identified health effects, but let me elaborate a bit.  Put aside for the moment the strong argument that consumers, workers and citizens have a right to know such information for chemicals to which they may be exposed.

All significant decisions made by EPA under both bills would be subject to public notice and comment – a cornerstone of good government that I doubt is at issue here.  In such public debates over decisions on the safety of chemicals, how is it even remotely fair for one party – the public – not to know or be able to access information on the chemical in question that the other two parties (EPA and the company that makes the chemical) have access to?  How could such a skewed system lead to decisions that the public would have any confidence in?

Members of the public should have the ability to participate in such proceedings without one hand tied behind their backs.  And they should have the ability to independently evaluate health information on chemicals to which they may be exposed.

Can’t the public make do with “generic names”?

Instead of knowing specific chemical identities, SOCMA argues we should just make do with “generic names” – which are specifically designed not to let you identify the chemicals in question.  Using current EPA guidance for the selection of such generic names, companies could use a name that would literally refer to hundreds or thousands of possible chemicals.  How useful would that be?  (This and other arguments are laid out elsewhere, where we’ve provided a thorough critique laying bare the many inadequacies of this “generic name” approach.)

I can’t tell you how many times I’ve been told by chemical industry representatives that even subtle changes in a chemical’s structure can lead to large changes in toxicity, persistence, bioaccumulation potential, and so on.  The toxic chemical PFOA is being phased out of production.  Many of its replacements, which are structurally similar chemicals, are being touted by their manufacturer as being much less persistent and toxic.  Yet a generic name could completely obscure any differences between PFOA and its replacements.  Searches done using such a generic name, if they yielded anything, could turn up information relating to any of the chemicals covered by the generic name – with no ability to determine what information pertains to what chemical.  That could not only be confusing or unhelpful; it could be misleading, suggesting a specific chemical has toxicity or other properties that it in fact does not have, or the converse.

Here’s another example of a chemical that EPA initially identified only by its generic name – “Halogenated Alkane” – based on a company’s confidential business information (CBI) claim.  That generic name could literally refer to any of hundreds of chemicals.  EPA recently declassified information on this chemical, which discloses the specific chemical identity as 1,1,1,3,3-pentachloropropane.  Included were a Material Safety Data Sheet (MSDS) and a number of health and safety studies.  These documents reveal the chemical to have considerable toxicity.  The MSDS states, among other warnings:

  • POSSIBLE REPRODUCTIVE HAZARD May cause birth defects or other reproductive harm based on animal data.
  • INHALATION – TOXIC. Exposure to high concentrations of vapor or mist can cause central nervous system depression with symptoms of headache, dizziness, stupor, loss of consciousness or death, depending on concentration and duration of exposure. Overexposure to vapors has been associated with severe adverse effects on the liver, kidney, and nasal epithelium. Exposure to high concentrations of similar materials can cause irregular heartbeat, cardiac arrest and death.
  • CHRONIC EFFECTS – Studies in laboratory animals indicate that exposure to vapors of this material can cause adverse effects on the liver, kidney, and nasal epithelium. Overexposure to similar materials has been shown to cause adverse effects on the fetus, such as birth defects.

Until EPA’s declassification – and under the House bill – none of these disturbing effects could have been linked to this chemical – not by any member of the public, workers handling this chemical, health or environmental researchers or other professionals, or companies using or contemplating using this chemical.  None of these stakeholders would have been able to search for this information even had they somehow known the specific chemical identity, because only the generic name had been disclosed.  All they would have known would be that some mystery “Halogenated Alkane” now on the market had these toxic properties.

The House bill would allow the indefinite masking of the specific identity of such a chemical, replacing it with a virtually useless generic name that could refer to any of hundreds or thousands of chemicals.

While SOCMA is accurate in saying that “the hazard information from the study speaks for itself, independent of what name is used to identify the particular chemical being assessed,” what wouldn’t be discernible at all is whether any of those potential health effects can be linked to the chemical that actually causes them!

The nature of compromise

EDF believes that the Senate bill represents a solid compromise on CBI.  SOCMA claims:  “As it stands, the Senate bill’s CBI language completely trumps private interests.”  In fact, every element of those provisions represents compromise between legitimate competing public and private interests.  Here are a few of the provisions that lean in the industry’s direction:

  • The carving-out of a slew of information types that are presumed protected from disclosure, without any requirement they be substantiated or subject to time limits. Among these are the identities of new chemicals prior to commercial production, which TSCA does not expressly protect in the context of health and safety studies.
  • The maintenance of allowance for use of generic names where specific chemical identity is legitimately deemed confidential, outside of the context of health and safety studies for chemicals in use.
  • Requirements that health and environmental professionals and first responders provide a statement of need in order to gain access to confidential information they need to do their jobs.
  • Agreement to a standard 10-year period for protection from disclosure (much longer than we advocated for) for CBI claims under most circumstances, with unlimited ability of companies to seek extensions of that protection.
  • A requirement that EPA only review a subset of most types of CBI claims.
  • A requirement that EPA notify companies when CBI is shared with a state even where the state has in place procedures comparable to those of EPA to ensure protection of that information.

To its credit, SOCMA supports some aspects of the Senate bill’s compromise on CBI that also appear in the House bill.  But it’s dug in on this one, which would severely weaken current law.

The majority of the chemicals and related industries has recognized that TSCA needs strengthening, including in ensuring it provides meaningful public access to health information on chemicals.  What SOCMA is insisting on – that companies always be able to hide the identities of chemicals in health and safety studies – would undermine public confidence in the new law.  That’s something none of us, including SOCMA and its members, can afford.

 

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