Nothing is forever – and chemical industry trade secret claims shouldn’t be an exception

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

A coalition of health, labor, environmental and environmental justice groups (including EDF), represented by Earthjustice, filed a petition today with the Environmental Protection Agency (EPA) that requests EPA establish a limit on how long information on chemicals submitted and claimed confidential by the chemical industry under the Toxic Substances Control Act (TSCA) can be protected from disclosure.

The petition asks EPA to close a loophole in its current regulations that by default grants indefinite protection for nearly all chemical information claimed confidential.  Because EPA’s only option under its current regulations is to challenge these claims on a case-by-case basis, industry bears no responsibility to ensure that its claims remain valid over time.  The lack of any expiration date for such claims has contributed to a large backlog of excessive and often unwarranted claims – the protection of which imposes large costs on EPA and the American taxpayer and denies public and market access to information that could lead to better-informed decisions about chemicals.

The petition filed today offers a simple solution, one called for in virtually every internal and external review of EPA trade secret policy conducted over the last several decades (see list at the end of this post):  EPA should alter its regulations to create a “sunset” for confidential business information (CBI) claims, which would expire after a set period of time (5 years is proposed) unless the claimant shows that continued protection is warranted.  This approach would allow true trade secrets to continue to be protected while providing public access to information that no longer warrants trade secret protection. 

The groups filing today’s petition are:  BlueGreen Alliance, Breast Cancer Fund, Connecticut Coalition for Environmental Justice, Environmental Defense Fund, and New Jersey Work Environment Council.

While many other flaws in TSCA’s system for protecting and disclosing chemical information must await reform of the law, this aspect is one that EPA can fix just by amending its current regulations.  And today’s petition calls on EPA to do just that.

Internal and external reviews of EPA trade secret policy recommending sunsets:

EPA – OPPT, PROPOSED ACTIONS TO REFORM TSCA CONFIDENTIAL BUSINESS INFORMATION (May 20, 1993), available at http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=91014AC3.txt.

EPA – OPPT, FINAL ACTION PLAN: TSCA CONFIDENTIAL BUSINESS INFORMATION REFORM (June 20, 1994), available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2002-0054-0075.

EPA, Public Information and Confidentiality Regulations, 59 Fed. Reg. 60,446 (proposed Nov. 23, 1994), available at http://www.gpo.gov/fdsys/pkg/FR-1994-11-23/html/94-28146.htm.

EPA, TSCA Inventory Update Rule Amendments, 64 Fed. Reg. 46,772 (proposed Aug. 26, 1999), available at http://www.gpo.gov/fdsys/granule/FR-1999-08-26/99-22243/content-detail.html.

EPA, Public Information and Confidentiality: Advance Notice of Proposed Rulemaking; Withdrawal of 1994 Proposed Rule, 65 Fed. Reg. 80,394 (proposed Dec. 21, 2000), available at http://www.gpo.gov/fdsys/granule/FR-2000-12-21/00-32565/content-detail.html.

EPA, TSCA Inventory Update Rule Amendments, 68 Fed. Reg. 848 (Jan. 7, 2003), available at http://www.gpo.gov/fdsys/granule/FR-2003-01-07/02-32909.

Government Accountability Office, CHEMICAL REGULATION: OPTIONS EXIST TO IMPROVE EPA’S ABILITY TO ASSESS HEALTH RISKS AND MANAGE ITS CHEMICAL REVIEW PROGRAM (June 13, 2005), available at http://www.gao.gov/assets/250/246667.pdf.

EPA OFFICE OF INSPECTOR GENERAL, EPA NEEDS A COORDINATED PLAN TO OVERSEE ITS TOXIC SUBSTANCES CONTROL ACT RESPONSIBILITIES (Feb. 17, 2010), available at https://www.epa.gov/sites/production/files/2015-11/documents/20100217-10-p-0066.pdf.