Federal law forces companies to provide detailed information to U.S. EPA about the toxicity of the chemicals they use.
But there is a catch. The same law -- the 1976 Toxic Substances Control Act, or TSCA -- prohibits the agency from sharing that information with the public or even with state and local authorities.
States are demanding that the law be changed.
"It doesn't seem right that we have to go elsewhere to get information, it seems like the role of the federal government to help support us," said Ken Zarker, pollution prevention manager with Washington state's Department of Ecology.
So Washington has joined 12 other states -- California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Oregon and Vermont -- in presenting Congress with changes they want in the federal government's primary chemical law.
Their primary target: a TSCA provision that prohibits EPA from releasing information that industry deems confidential.
"There's a need for more information about the toxicity and other attributes around chemicals," Zarker said in an interview. "A lot of data is not in the public realm, and we see some opportunities within TSCA to help us do our jobs better."
Added Ginger Jordan-Hilliard, public health coordinator for Maine's Environmental Protection Department, "We're talking about a very basic right to know, which is needed by consumers, regulators, workers. ... If [a chemical] is in products we're going to use, we feel like people ought to have access to robust information."
To be sure, TSCA also limits what data the federal government can gather because it requires that EPA prove a chemical poses a health threat before it can act, but regulators also need proof before they can require companies to provide more information about a chemical. But state officials say a key first step to increasing transparency is to share what information is already collected.
The state regulators are backed by environmentalists and consumer advocates.
"Given the magnitude of the problem, even under an ideal scenario, EPA is never going to be able to do the full job by itself," said Richard Denison, senior scientist for Environmental Defense Fund. "The only way to solve the problem of ensuring chemical safety is to empower the public and the market with the information they need to make better decisions, what I call the democratization of chemicals management."
EPA's inspector general has also found fault with the agency's withholding of chemical information. In a recent audit, the IG cited EPA's keeping of chemical secrets as a reason the agency is failing to meet its mandate to protect human health and the environment (Greenwire, Feb. 19).
Barbara Cunningham, EPA's acting deputy director of the Office of Pollution Prevention and Toxics, said the agency is working to enhance public access to chemical information within the confines of TSCA and pushing for Congress' help in revamping the law.
"The public is interested in trying to understand chemicals in products," Cunningham said. "There is an important need that the agency is trying to fulfill, but we have limitations because of our current statute."
Pushing on confidentiality claims
EPA said it has begun changing how it handles businesses' confidentiality claims.
To provide an idea of the scope of the challenge, Cunningham said, consider that 16,000 out of 84,000 chemicals in the TSCA inventory are classified as confidential business information, or CBI.
But there has been some progress. EPA last month announced plans to review companies' confidentiality claims for certain chemical applications and to deny them for chemicals already public on the TSCA inventory. It has also announced plans to roll out further initiatives aimed at weeding out undeserving confidentiality claims.
"While we understand that there are, at times, legitimate reasons why a company may need to claim confidentiality, it is also clear that ... claims are used too often, in too many areas," Steven Owens, head of EPA's Office of Prevention, Pesticides and Toxic Substances, recently told a Senate Environment and Public Works subcommittee.
Cunningham said the agency is focusing on unveiling chemical information relevant to public health and safety.
EPA's efforts have so far been praised by both environmentalists and industry groups.
James Cooper, vice president of the National Petrochemical & Refiners Association, said data sharing could be beneficial for people needing to assess risks and make decisions.
"As long as the information can be afforded the same type of protection as the government, the information should be shared with people for risk management," Cooper said.
The latest actions demonstrate that the agency recognizes there is a problem and is seeking to identify actions it can take through policy or regulations, EDF's Denison said.
But, he said, EPA will only go so far unless Congress acts on TSCA reform.
EPA challenges few CBI claims
A big reason so much information has been kept secret, Denison said, is how EPA has interpreted TSCA.
TSCA says health and safety data cannot be claimed confidential by businesses. But there are provisions that EPA through the years has interpreted as trumping that requirement and allowed companies to claim certain processes or mixture proportions confidential, Denison said.
The Obama administration, he said, is scrutinizing how the agency has handled the confidentiality provisions. He is hoping the agency comes down on the side of the public's right to know.
"If you look back at the legislative history of TSCA, it tended to be a right-to-know statute," Cunningham said. "It speaks to the importance of the public understanding what is in their products."
EPA is also required to challenge any confidential claim, and companies can make the claim for anything. But of the thousands of confidentiality claims it receives every year, EPA has challenged on average 14 annually.
"The presumption is against disclosure, even for information that nobody would argue is legitimate CBI," Denison said. "That culture has permeated the agency and its practices so deeply it's just second nature at this point."
Charles Drevna, the president of the National Petrochemical & Refiners Association, said in a statement that confidentiality claims do not make sense for health and safety information when the identity of a chemical is already publicly available on the TSCA inventory.
The trade group's vice president, Cooper, said confidentiality claims have run amok because there is no easy EPA mechanism to switch off claims.
"EPA has to figure out a way to provide companies with a mechanism where they can recategorize the confidentiality of chemicals," Cooper said. "It's got to be efficient, then it will be used."
States push for federal role
While some states, including his, have implemented strong disclosure laws in the absence of federal action, Washington state's Zarker said the federal government has an important role to play in chemical regulation.
"It makes sense having EPA play the role to collect data," Zarker said. "They have more scientists and toxicologists, and some expertise there that some states don't have."
Maine in 2008 enacted a law on toxic chemicals in children's products that gives the state power to require disclosure. But Jordan-Hilliard of the state's Environmental Protection Department said EPA could use its national perspective to help so that states keep chemicals of concern off the market.
"It's not just health and safety data; it's also helping us understand where [a chemical] is used in commerce," Jordan-Hillier said. "It would also help us prioritize. ... Our little state can only pick off a few little things."
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