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.

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.

TSCA Bill in March?

It's become somewhat of a parlor game to figure out when (assuming ever) Senator Lautenberg will reintroduce the newest version of his expected TSCA Reform bill. The assumption is that it will still be called the Kid Safe Chemical Act but that the last year of active information collection and meetings with various stakeholders will morph it into something rather different from the original. Still, we won't really know until it is reintroduced.

And when might that be?

The latest insight suggests that they are actively working on a new draft of the legislation, and that it will be introduced "in the near future." Not much help there since Lautenberg has been saying it was imminent since last February. The hold up seems to be timing and resources issues as Congress has been rather busy on health care reform. So don't expect the TSCA bill to show up until that is passed and there is a signing ceremony at the White House (assuming tomorrow's special election in Massachusetts doesn't shoot the health care bill down completely).

In any case, look for TSCA to show up only after health care (and maybe climate change and finance reform?). Additional hearings are still likely, perhaps one in each house of Congress, though it seems they wouldn't be decisive in shaping the bill as they will likely be shortly before its introduction. Again, assuming the health care bill is finished by early February, we're looking at sometime in February or even March for hearings.