USEPA Releases Formerly Confidential Business Information under TSCA

In September 2009, EPA Administrator Lisa P. Jackson announced changes to EPA’s chemical management program under the Toxic Substances Control Act (TSCA).  As part of these changes, EPA has both increased public access to chemical information submitted by companies to EPA and tightened EPA’s Confidential Business Information (CBI) policy under TSCA.  On January 21 and then on May 27, 2010, EPA issued new guidance and then revised this guidance with regard to reviewing and challenging CBI claims by companies under TSCA.  Under the new guidance policy, EPA is reviewing both existing and new CBI claims and intends to deny CBI claims where the health and safety studies show a substantial risk to human health and the environment and have been previously disclosed in the TSC Chemical Inventory.  Where the CBI claims are denied after review, EPA then intends to make both the chemical name and health and safety study available to the public. 

Under TSCA, companies may claim that information they have submitted to EPA should be treated as CBI and not be disclosed to the public.  Under Section 8(e) of TSCA, companies that manufacture, process, or distribute chemicals are required to immediately notify EPA when they learn that a chemical represents a substantial risk of injury to health and/or the environment.  The Section 8(e) reports are available on EPA’s website, but when a CBI claim has been made by a company, the chemical name is removed from the public report. 

As of October 2011, the identities of 577 formerly confidential chemicals are no longer confidential and more than 1,125 health and safety studies are now accessible to the public.  These studies were previously unavailable or only available in limited circumstances.  Furthermore, EPA reports that 100 percent of incoming TSCA filings are being reviewed and CBI claims are being challenged by EPA, where appropriate.  In these cases, where the companies do not voluntarily relinquish their CBI claims, EPA can initiate administrative action under Section 14 of TSCA.  To date, more than 35 companies have agreed to review previously submitted filings containing health and safety studies and “voluntarily” determine if any CBI claims are no longer necessary.  The newly available information can be accessed under a new "declassified tab" using EPA’s Chemical Data Access Tool.  Additional information is available at http://www.epa.gov/oppt/existingchemicals/pubs/transparency.html and http://www.epa.gov/oppt/existingchemicals/pubs/transparency-charts.html. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.