TSCA Chemical Control and CBI - Confidentiality is Good (to a point)

Yesterday's Federal Register publication by the USEPA of a "new general practice" for restricting the withholding of chemical identities when submitting health and safety studies under TSCA Section 8(e) has received some mixed reviews. Most people agree that a certain amount of confidentiality is necessary to protect trade secrets and provide incentives for companies to develop new chemicals. And most agree that previous practices resulted in overuse of the CBI provisions.

In general it can be said that the environmental and health advocacy groups are supportive of EPA's move toward greater transparency. No surprises there, as the advocacy groups routinely advocate for greater communication of potential hazards to the public. But industry groups like the national Petrochemical & Refiners Association (NPRA) have also come out in support of EPA's action. NPRA released a statement yesterday saying that “We applaud the Obama Administration for taking this step that, frankly, previous administrations would have been wise to consider.” Charles Dreva, NPRA President, further said that “We support EPA’s action because it is the right thing do with regard to addressing health and safety concerns.” Needless to say, other industry trade associations are perhaps less enthusiastic, though they do agree that the use of CBI can probably be controlled better.

This CBI issue will continue to be a topic of contention as EPA continues to aggressively use its current TSCA authority and Congress moves towards introducing a bill to reform TSCA. In the end there will still be CBI - there has to be - but it will be much more tightly controlled under the new regime. Companies will have to provide justification, but more importantly, EPA and/or Congress will need to stipulate strict limits on what justifications will be considered acceptable and unacceptable in the future to cut down on the back-and-forth between industry and EPA that ate up resources.