{"id":321,"date":"2010-01-05T15:31:07","date_gmt":"2010-01-05T20:31:07","guid":{"rendered":"http:\/\/blogs.edf.org\/nanotechnology\/?p=321"},"modified":"2024-02-12T11:00:50","modified_gmt":"2024-02-12T16:00:50","slug":"how-should-the-problem-of-secret-chemicals-be-addressed","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2010\/01\/05\/how-should-the-problem-of-secret-chemicals-be-addressed\/","title":{"rendered":"How should the problem of \u201csecret chemicals\u201d be addressed?"},"content":{"rendered":"

Richard Denison, Ph.D., is a Senior Scientist.<\/em><\/p>\n

A front page article by Lyndsey Layton in yesterday\u2019s Washington Post<\/a> \u2013 spurred by an intriguing new report by the Environmental Working Group<\/a> \u2013 did a great job of exposing the extent to which the identities of chemicals in widespread use are hidden from view, and of exploring some of the many adverse consequences.<\/p>\n

Neither the article nor the report, however, had much to say about how this problem of excessive reliance on confidential business information (CBI) claims by industry might be solved, especially in the context of impending reform of the Toxic Substances Control Act (TSCA).<\/p>\n

In this post I\u2019ll provide some concrete proposals for addressing this serious problem.<\/p>\n

<\/p>\n

Should any information be eligible for protection?<\/em><\/strong>\u00a0<\/strong><\/p>\n

While some might argue for full disclosure of all chemical information,\u00a0<\/span>let me say I think there are legitimate bases for industry to claim certain types of information as confidential business information (CBI).\u00a0 Most people would agree a company should not be required to divulge the identity of its customers, for example, or the precise recipe or formula for its products (that is different, however, from a requirement to identify which chemicals are used in a product \u2013 so-called mandatory ingredient disclosure \u2013 which I fully support).<\/p>\n

Even with respect to chemical identity, I think it can be legitimate \u2013 under certain circumstances and with sufficient justification and documentation provided \u2013 for a company making a new chemical to hide from its competitors, for a limited period of time, the fact that it is going to introduce that chemical into commerce.<\/p>\n

Think of the entrepreneur who has developed a far safer alternative to a chemical of high concern, and wants to gain a jump on its competitors\u00a0in getting to market.\u00a0 I’m thinking especially of the pre-marketing period, during development and initial manufacture\u00a0but before a chemical enters commerce or appears in products.<\/p>\n

So the solution is not as simple as requiring all information to be fully disclosed in all cases.<\/p>\n

The problem with TSCA\u2019s data disclosure provisions (Section 14<\/a>) is that they have allowed nearly unfettered opportunity for industry to claim information CBI, and tied EPA\u2019s hands both legally and resource-wise in any effort to challenge or rein in such claims where they are not legitimate.<\/p>\n

Section 14(c) of TSCA allows companies to designate virtually any submitted information as CBI:\u00a0 \u201cIn submitting data under this Act, a manufacturer, processor, or distributor in commerce may designate the data which such person believes is entitled to confidential treatment.\u201d<\/p>\n

And \u2013 despite TSCA\u2019s rhetoric to the contrary \u2013 whenever a conflict between public and private interests arises, EPA\u2019s practice under TSCA has generally been to let private interests trump.<\/p>\n

Finally, because TSCA requires that criminal penalties (including jail time) be imposed on anyone who knowingly discloses CBI (see Section 14(d)), the prevailing culture that has evolved at EPA has been one that effectively creates a strong presumption against disclosure.<\/p>\n

Needed reforms<\/strong><\/em><\/p>\n

So, what would an appropriately reformed data disclosure provision of TSCA look like?\u00a0 Here\u2019s my top-ten wish list:<\/p>\n

    \n
  1. EPA should develop standards that define legitimate and illegitimate bases for making CBI claims, specify the required documentation, and delineate the specific types of information that are and are not eligible.<\/li>\n
  2. Companies should only be allowed to make claims that meet the standards and should be required to assert, justify and document the basis for each claim at the time the data are submitted.<\/li>\n
  3. EPA should be required promptly to review all CBI claims against the standards; information for which EPA approves the claim would be protected, and information for which it does not would be disclosed after informing the claimant.\u00a0 EPA would collect a fee from the claimant sufficient to cover its costs of processing and reviewing the claim.<\/li>\n
  4. Each CBI claim should specify and justify the time period for which it is requested.\u00a0 For any claim it approves, EPA should specify an applicable time period after which disclosure will occur unless a new request is submitted and approved.<\/li>\n
  5. Workers should have access to all available information, whether or not CBI-protected, concerning chemical identity, properties, hazards and workplace exposures for any chemical with which they work or to which they could be exposed during work.<\/li>\n
  6. Within the federal government, employees at EPA or other agencies charged with assessing the safety of a chemical should have access to all relevant CBI about that chemical.<\/li>\n
  7. Other levels of government \u2013 local, state, Tribal, foreign \u2013 should be provided access to information approved as CBI, under agreements that provide that the recipient has procedures in place to ensure it can protect such information from improper disclosure.<\/li>\n
  8. Health and safety information about a chemical \u2013 including the identity of that chemical \u2013 should never be eligible for CBI protection.\u00a0 As a rule, the identity of the submitter of that information should also be ineligible; EPA should have standards that explicitly delineate the basis for any exceptions.<\/li>\n
  9. In addition, certain other types of information should not be eligible for CBI status:<\/li>\n<\/ol>\n