Stephanie Schwarz, J.D., is a Legal Fellow. Richard Denison, Ph.D., is a Lead Senior Scientist.
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This is our final post in a series spurred by our review of 69 public files for new chemicals we received from EPA’s Docket Center. For most of these chemicals, EPA made a determination that they are “not likely to present unreasonable risk” under the Toxic Substances Control Act (TSCA), which greenlights their entry into commercial production.
In our previous post we demonstrated EPA is not complying with a number of provisions under TSCA that require the agency to make public the premanufacture notices (PMNs), notices of commencement (NOCs), and information that is submitted with them. In this post we look further into how, through these failures and others, EPA has impeded meaningful transparency in the new chemicals program.
As originally enacted in 1976, TSCA recognized the value of public access to information, like health and safety information (see, e.g., TSCA § 14(b)). Even in EPA’s original (1983) regulations establishing the new chemicals review program, EPA recognized that “[p]ublic participation cannot be effective unless meaningful information is made available to the interested persons” (see here p. 21737). Among the many flaws of the original TSCA, however, was the law’s inability to ensure EPA delivered the promised transparency when it came to both information EPA receives and the agency’s decisions on new chemicals.
The amendments to TSCA in 2016 were meant, in part, to expand public access to information about both chemicals and agency decisions, and in doing so increase public confidence. For instance, under § 26, EPA must now make available to the public “all notices, determinations, findings, rules, consent agreements, and orders.” And under § 5, EPA must now make an affirmative determination on new chemicals, which under § 26 must be made public. These changes, in addition to the original TSCA provisions, clearly envision a robust program under which the public is able to readily access non-confidential information on new chemicals and information on EPA’s decisions about them. [pullquote]Coupled with the policy changes EPA has made, the concerns we raise here make clear that EPA under this Administration intends to weaken a new chemicals program that Congress sought to strengthen through TSCA reform – and hide as much of it from public view as possible.[/pullquote]
As implemented, however, a number of features of the new chemicals program severely hamper the ability of the public to understand EPA’s decision-making or engage in the new chemicals program. In addition to the failings we have discussed in previous posts in this series, this post will address several others:
- the convoluted and fragmented public information “system” EPA has created for PMNs;
- the failure of EPA to provide access to agency-generated health and safety information on PMN substances; and
- EPA’s failure to publish Notices of Commencement (NOCs) and EPA’s determinations on confidentiality claims for specific chemical identity in those NOCs.
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