EPA Expands Transparency on Confidential Business Information Claims for Hazardous TSCA Chemicals

As noted previously, one of the issues being discussed in relation to reforming the Toxic Substances Control Act (TSCA) is that of Confidential Business Information (CBI). Recently the NGO Environmental Working Group issued a report called "Off the Books: Industry's Secret Chemicals," in which they claimed that industry's use of CBI was out of control, and that they could pretty much hide the identity and other information from the public. Industry has countered that CBI is necessary to protect new products from being stolen by competitors, a problem made possible because TSCA allows anyone to make the chemical once it is put on the Inventory.

EPA has now taken one more step to reining in the confidentiality claims to only that information that is really necessary. Today the EPA published in the Federal Register a new general practice of barring industry from withholding chemical identities when submitting health and safety studies under TSCA Section 8(e), at least in those cases where the name of the chemical is already listed on the TSCA Inventory. Section 8(e) requires all manufacturers to let EPA know if they become aware of a study that suggests "substantial risks" of the chemical.

As I've been saying, EPA is taking a proactive and assertive attitude toward their current TSCA authority, something that hasn't always been true in the past. It is possible that industry will rebel and start filing lawsuits claiming EPA is overstepping their authority, though that might give more impetus to explicitly stipulating that authority in the "new TSCA." On the flip side, industry may be able to argue that Congress does not need to significantly change TSCA if EPA's more aggressive actions demonstrate that it already has the authority it needs but simply failed to use it to its full extent.

In the end I think it is inevitable that TSCA will be reformed. Given the recent Massachusetts Senatorial results and the potential impact it may have on the health care bill, it's quite possible that a window may open up for introduction of a revamped Kid Safe Chemical Act.

I will keep updating as new information becomes available, and add some analysis of what Kid Safe might look like.