The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) is currently making its way through the U.S. Senate. This law would amend the Toxic Substances Control Act (TSCA), including its policy on confidential business information (CBI), which has traditionally kept tens of thousands of documents confidential.
TSCA authorizes the Environmental Protection Agency (EPA) to assess and regulate commercial chemicals and their use and distribution. The EPA can impose reporting, record keeping, and testing requirements on entities that manufacture, process, distribute in commerce, use, or dispose of chemical substances. They can also place restrictions on these activities. Some substances (like food, drugs, cosmetics, and pesticides) are regulated by other laws and are excluded from TSCA.
Information access and transparency are key to making TSCA an effective environmental and public health law. Upon it’s passage in 1976, EPA administrator Russell E. Train hailed the law as one that would “give public health far more of the weight that it deserves” in decisions about potentially harmful chemicals, saying:
"we know so little--so abysmally little--about these chemicals. We know little about their health effects, especially over the long term at low levels of exposure. We know little about how many humans are exposed, and how and to what degree. We do not even know precisely how many--much less precisely which--new chemical compounds are made and marketed every year." ... "It is precisely because we know so little about all these things, because we must balance risks against benefits as well as costs against benefits, and because we must draw upon as much outside expertise and advice as we can, that the kind of 'political' process I have described is essential in any successful effort to reduce chemical risks while preserving their benefits [.]"
Despite Train's hopes that TSCA would inform the public and encourage outside expertise and advice, TSCA’s Chemical Substance Inventory is riddled with CBI exemptions that hide information and hinder outside involvement. It is estimated that the identities of about 17,000 of the 85,000 chemicals in the TSCA Inventory are hidden behind CBI protections. In 2010, the EPA challenged companies to voluntarily release their TSCA data to the public, but that effort only resulted in making less than 1,000 additional documents available to the public, evincing a need for regulatory disclosure reformation under the law.
The proposed CBI changes reflect compromises between competing desires for public information access and protection of trade secrets. TSCA’s Section 14 now uses CBI exemptions similar to the FOIA’s section 552(b)(4) broadly-worded exemption for “trade secrets, commercial and financial information obtained from a person and privileged and confidential.” The new law, if passed, would make it harder to keep chemical identities and information from health and safety studies confidential, and it would place ten-year time limits on CBI claims so that the EPA has to re-approve information exemption claims every decade.
Richard Denison, Ph.D., a lead senior scientist at the Environmental Defense Fund, recently testified before the U.S. Senate Committee on Environment and Public Works and wrote about these proposed amendments. Denison supports the bill, saying that it will make “more information available by limiting companies’ ability to claim information as confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs.” He urges the passage of the law to fix TSCA, claiming that “The law is so badly broken that our government lacks the ability to regulate even known dangers such as lead, formaldehyde and asbestos.”
Although there are divisions over the particulars of TSCA reformation (for example, some environmental organizations feel the bill could go further to improve the state of toxic substance regulation in the U.S., and lawmakers also fear that the bill will actual weaken regulation and make it hard for state to enact more stringent rules for toxic substances) it is clear to all that it’s time to reform TSCA to bring it in line with its original public health purpose.