No, Bergeson & Campbell, the public’s right to know about new chemicals is not a distraction or waste of resources

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

Earlier this month, EDF and other NGOs filed a notice of intent (NOI) to sue the Environmental Protection Agency for violations of the Toxic Substances Control Act and its own regulations that deny the public timely access to information on chemicals companies seek to bring onto the market.

Members of the public have a right to know about chemicals entering the market because they may well be exposed to them.  And they have a right to know about and meaningfully participate in EPA’s review of the safety of those chemicals because such transparency, accountability, and public participation are fundamental to good government, as well as being required by the law.

This week the industry law firm Bergeson & Campbell (B&C) offered a commentary on the NOI, lamenting it as “hugely distracting and draw[ing] resources and [EPA] management’s attention away from other priorities.”  Note that B&C represents many companies that submit new chemicals to EPA for review under TSCA and has been a central actor in the chemical industry’s efforts to weaken those reviews.

In its commentary, B&C acknowledges that the NOI has identified real legal violations committed by EPA, and that these violations result in the public having less information about the agency’s new chemicals program.  But B&C asserts that the violations don’t really matter because they have been going on for a long time, not just under this administration.  While that is true in some cases, the argument ignores the two elephants in the room. 

First, Congress passed major reforms to TSCA in 2016 because the old system wasn’t working.  Two of the most heavily amended sections of the law are section 5 (which governs reviews of new chemicals) and section 14 (which governs public access to information and confidential business information).  The intent of these reforms was to substantially transform the landscape surrounding new chemical reviews and the public’s ability to understand and engage in the process.  Many of those reforms were made precisely to address the enormous problems under the old law that had led EPA’s new chemicals program to be a black box where industry had a prominent seat at the table and the public was completely locked out.  The reforms should have led to major improvements in both the rigor of EPA’s reviews and the transparency of its decisions, correcting deficiencies seen in the past.

Enter the second elephant:  The implementation of TSCA by a new administration that has proven itself hostile to the public’s right to know and willing to elevate private interests over public ones at every turn.  B&C and other industry players have taken full advantage of their political opening:  New chemical reviews under the new law have actually become even weaker than they were under the old law.  But that comes at a considerable cost:  There is simply no public trust remaining in EPA’s new chemical reviews, a result that serves no one in the long run.

With respect to the violations compiled in the NOI, EDF has been raising legal and policy concerns about how this EPA has chosen to implement these provisions of the law for over two years – a topic this blog has dealt with in minute detail.  While some modest efforts have been undertaken by EPA in recent months to address a few of them, EPA has also taken steps to reduce the amount of information available to the public on its new chemical reviews.  Meanwhile, the fundamental problems we raised remain virtually entirely unaddressed.

The myriad legal, scientific and policy deficiencies in this EPA’s new chemicals program make it all the more important that EPA be compelled to provide the public with all the information on EPA’s doings that the public is entitled to.

As they say, the best disinfectant is sunshine.  Hence the NOI.

 

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