Suppose there was a cleaning product under your kitchen sink that could cause birth defects when sprayed on the table where you eat. If the government warned you that some product presented such a risk, but refused to tell you which product it was — would that help you protect your unborn children?
No, it wouldn't. But that is in essence government policy under the obsolete 1976 Toxic Substances Control Act (TSCA). And it is supported by most chemical companies — who also do not want their company names associated in public information with the potential health effects of their anonymous products. They claim the very identity of the company is a trade secret.
A controversy is brewing over disclosure of chemical safety information. And the administration of President Barack Obama, who on his first day in office declared his was to be an unprecedentedly open administration, is making the decision on toxic secrecy behind the closed doors of the White House Office of Management and Budget (OMB).
To its credit, the U.S. Environmental Protection Agency under Administrator Lisa P. Jackson has called for changing the interpretation of TSCA to require disclosure of the identities of the chemicals subject to health-effects studies before they are used in manufactured products. Under the longstanding current interpretation, the studies are public information, but the identities of the chemicals being studied are usually kept secret on the claim that they are "confidential business information."
There are no public records of what was said at a January 20, 2012, meeting between OMB officials and chemical industry lobbyists on a secret EPA proposal on chemical secrecy. But we do — thanks to a Clinton-era order — know that the meeting took place and who attended it.
And we do know that the chemical industry is arguing against EPA's effort to open up chemical safety information to the public by requiring disclosure of the identities of chemicals subject to health studies. An industry "white paper" presented to OMB argued "EPA should reconsider its stance against CBI protection for chemical identities in health and safety studies."
While the thrust of EPA's proposed rule change is known — because EPA has announced it — the text of the formal regulatory proposal has not been released yet. Before such proposals can be published in the Federal Register, they must be approved by OMB. OMB has little or no in-house expertise on the health effects of chemicals.
Environmental health advocates had their own meeting with OMB on March 1, 2012, to rebut the chemical industry arguments.
EPA submitted its proposed rule-change to OMB on December 27, 2011. OMB is supposed to rule on such agency submittals within 90 days. When OMB keeps proposed rules bottled up longer than that, it is often in effect a covert disapproval of the agency rule. The TSCA rulemaking has been under consideration at OMB for 86 days. A number of EPA regulatory proposals opposed by industry are currently languishing at OMB, with some expected to stay frozen until after the November 2012 election.
- "Meeting Record Regarding: CBI: PMN Amendments Claiming Chemical and Microorganism Identity as Confidential in Data From Health and Safety Studies Submitted Under TSCA Prior to the Commencement of Manufacture," January 20, 2012.
- "Meeting Record Regarding: CBI: PMN Amendments Claiming Chemical and Microorganism Identity as Confidential in Data From Health and Safety Studies Submitted Under TSCA Prior to the Commencement of Manufacture," March 1, 2012.
- "White Paper: TSCA Protects Confidential Chemical Identities in Health and Safety Studies From Disclosure," American Chemistry Council, January 19, 2012, by Christina Franz.
- "Increasing Transparency in TSCA" (Web page), Office of Pollution Prevention and Toxics, EPA, Updated March 2, 2012.
- "Smoke and Mirrors: ACC Lawyers Are Working Hard To Rein in Your Right To Know," Environmental Defense Fund blog, March 1, 2012, by Richard Denison.
- Letter from Earthjustice and Environmental Defense Fund to OMB-OIRA Administrator Cass R. Sunstein, March 1, 2012.
- "Protecting Trade Secrets," Chemical & Engineering News, March 19, 2012, by Cheryl Hogue (by subscription only).
- "Naming Names," Chemical & Engineering News, April 19, 2010, by Cheryl Hogue (by subscription only).
- "Trade Secret Anxiety," Chemical & Engineering News, April 4, 2011, by Cheryl Hogue (by subscription only).