EDF comments fault EPA for deviating from the law in proposal for states and health professionals’ CBI access

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

One of the key reforms to the Toxic Substances Control Act (TSCA) made by 2016’s Lautenberg Act was the expansion of who can access confidential business information (CBI) submitted by companies to EPA.  The old law largely limited access to federal government employees and contractors.  Congress recognized the enormous value such information could provide to officials at other levels of government and to health providers and environmental officials treating or responding to chemical releases and exposures.  It therefore mandated that EPA expand CBI access, subject to certain conditions specified in the law.

In March, a full 21 months after passage of the Lautenberg Act, EPA finally issued draft guidance documents setting forth how it intends to meet the law’s mandate to expand access to CBI.  Unfortunately, as has been the case with so many other aspects of TSCA implementation under the Trump administration, EPA got a lot of things wrong in its draft guidance documents.

Yesterday, EDF filed extensive comments raising our concerns over these serious deviations from the law and providing our recommendations for fixing them.  

Three groups are to be provided access to CBI:

  • States, political subdivisions of a State, and tribal governments [TSCA § 14(d)(4)]
  • health and environmental professionals employed by Federal or State agencies or tribal governments and treating physicians and nurses in nonemergency situations [TSCA § 14(d)(5)]
  • treating or responding physicians, nurses, agents of poison control centers, public health or environmental officials of States, political subdivisions of a State, or tribal governments, and first responders [TSCA § 14(d)(6)]

Among the concerns we discuss in detail in our comments are that EPA:

  • fails to indicate that disclosure of CBI to qualifying parties subject to its guidance is mandatory, not discretionary;
  • inaccurately suggests that health and safety information is CBI;
  • fails to acknowledge that TSCA confidentiality is now narrower than confidentiality under Exemption 4 of the Freedom of Information Act (FOIA);
  • proposes to share state, local, or tribal government requests for information with affected businesses despite TSCA providing no such right of review;
  • has not specified deadlines to ensure timely processing of requests for CBI access;
  • has failed to provide, or acknowledge its mandate to provide, the electronic database and tracking system for facilitating CBI access required under the law;
  • erroneously asserts that state, local, and tribal governments need to show that CBI they request is “necessary” for administration or enforcement of a law;
  • defines who is eligible to receive CBI more narrowly than is provided in the law; and
  • imposes onerous obligations in health care providers’ confidentiality agreements that exceed the requirements of the law.

We hope that in finalizing its guidance documents, EPA takes more seriously its obligations to provide ready and timely access to CBI by those who need or would benefit from access to it to effectively do their jobs.

More broadly, it is disappointing that EPA appears to have placed such a low priority on implementing the information disclosure requirements of the Lautenberg Act, a critical element in restoring public confidence in the agency and our nation’s chemical safety system.

 

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