Richard Denison, Ph.D., is a Lead Senior Scientist.
For some time now, Environmental Defense Fund (EDF) has been requesting “public files” of new chemical notices the Environmental Protection Agency (EPA) receives under the Toxic Substances Control Act (TSCA). The process is kludge-y to say the least. We have to email our request to EPA’s Docket Center, and, typically, several weeks later the staff there copy the files that staff in the TSCA office have given them in response to our request onto a CD-ROM and snail-mail it to us.
This, despite the fact that EPA’s own regulations (see here and here) state unequivocally that EPA is to promptly make new chemicals’ premanufacture notifications (PMNs) and associated documents broadly available to the general public by posting them to electronic dockets. One regulation states: “All information submitted with a notice, including any health and safety study and other supporting documentation, will become part of the public file for that notice, unless such materials are claimed confidential.” The other regulation states that public files are to be made available in the electronic docket posted at http://www.regulations.gov.
We have blogged extensively about how, even once we receive the public files, they are rife with wholesale omissions, illegal redactions and myriad other problems.
After two years of our repeated requests to EPA to comply with its own regulations, it appears EPA may be taking a first step to try do so: EPA recently announced (via email, but not anywhere on its website that we can find) that it will start posting PMNs and associated documents it receives in the future to its ChemView database, within 45 days of their receipt. While this could be a welcome development, it does nothing to remedy EPA’s failure to provide access to the thousands of PMNs it has received in the past. And it remains to be seen what EPA actually will and won’t be posting.
We’ll be watching closely to see when and what EPA actually makes available. Part of the need for vigilance comes from a disturbing response we’ve been receiving from EPA’s Docket Center to some recent requests for new chemical public files:
Our requests for some of the files have been denied on the basis that the companies’ submissions contain confidential business information (CBI), or that EPA still needs to review the documents to “sanitize” them to remove CBI.
Here’s the problem with that: EPA’s own regulations (40 C.F.R. section 720.40(d)(2)) require that companies provide – as part of their submissions – “sanitized cop[ies]” of any documents containing information they claim CBI. And those sanitized copies are to be placed in the public files (see 720.80(b)(2)). So EPA’s withholding from the public of those files points to illegal actions on EPA’s part: Its acceptance of incomplete PMNs that include CBI claims but fail to provide the mandated sanitized copies (see 720.65(c)(1)(vii)); and its apparent failure to review at least 25% of those claims within 90 days of their receipt, as required under TSCA section 14(g)(1).
Below we list the public files we have been denied timely access to; note that, in each case, EPA’s responses to our requests were sent well after the 90-day timeline for reviews of the CBI claims. In the table, we also indicate the reason EPA stated in its response to us as to why it was withholding the public file.
| PMN | Date of PMN receipt by EPA | Date response from Docket Center was received by EDF | Lag (days) | Reason given by EPA for not providing public file | Status |
| P-17-0387 | 8/30/2017 | 4/15/2019 | 593 | “still waiting to be sanitized and reviewed” | still not received |
| P-17-0388 | 8/30/2017 | 4/15/2019 | 593 | “still waiting to be sanitized and reviewed” | still not received |
| P-19-0021 | 11/12/2018 | 4/15/2019 | 154 | “still waiting to be sanitized and reviewed” | received later |
| P-19-0022 | 11/12/2018 | 4/15/2019 | 154 | “still waiting to be sanitized and reviewed” | received later |
| P-19-0009 | 10/23/2018 | 4/18/2019 | 177 | “CBI was found in the sanitized submission” | still not received |
| P-17-0191 | 12/30/2016 | 5/20/2019 | 871 | “will not be included, due to it containing Cbi” | still not received |
| P-18-0222 | 6/22/2018 | 5/21/2019 | 333 | “was not sent due to CBO [sic] issues” | still not received |
| P-19-0037 | 12/11/2018 | 5/22/2019 | 162 | “was excluded from the submissions sent to you because CBI was found in the sanitized submission. So, this PMN was not given to the docket center staff.” | still not received |
We can hope that EPA’s recent announcement suggests there may be some improvement in the future. But EPA also needs to remedy its systematic, longstanding failures to:
- comply with its own regulations that require public access to the thousands of PMNs it has reviewed;
- enforce its own requirements that companies include sanitized copies of any documents they submit that contain information they claim is CBI, and reject as incomplete submissions that do not; and
- conduct timely reviews of CBI claims in the PMN submissions.