|The EPA is expected to propose a rule soon that would overhaul the mechanism that allows companies to keep hidden the identities of toxic chemicals in their products. Click to enlarge.|
WatchDog Opinion: Should EPA Chemical Risk Info Remain a ‘Trade Secret’?
By Joseph A. Davis
The U.S. Environmental Protection Agency is about to overhaul a rule about chemical trade secrets. It’s an opportune moment for journalists to demand more attention to the public’s right to know.
Toxic and hazardous chemicals are a dangerous presence in the lives of many Americans — and too often an invisible one. One reason: Over many years, industry has woven a curtain of “trade secrets” laws and regulations that masks and hides them.
Any day now the EPA will propose a rule to overhaul the mechanism under the federal Toxic Substances Control Act, or TSCA, that allows companies to keep hidden the identities of chemicals in their products that may harm people. The White House has already approved it.
There are trade secrets provisos in
many U.S. environmental laws that
protect companies — rather than people.
There are trade secrets provisos in many U.S. environmental laws that protect companies — rather than people. They are rarely challenged; that is the problem. Journalists should be pulling the curtain aside.
Such hidden information — often called confidential business information, or CBI — is hidden because companies claim that they would be harmed if their competitors learned their secrets.
One reason we know about the coming rule change is that Pat Rizzuto, a sharp-eyed chemicals reporter for Bloomberg, recently wrote about it. But we don’t yet know the substance of it. That will come when EPA Administrator Michael Regan signs off on it and the agency publishes it in the Federal Register. At that point, it will be open for public comment before the EPA finalizes it.
Congressional rewrite on confidentially a factor?
After years of befuddlement and ineffective regulation, Congress comprehensively amended TSCA in June 2016. The rulemakings to carry out those changes are still going on.
One of the good things Congress did in the 2016 rewrite was to specify that companies can not claim health and safety information as a trade secret. At least, that was the theory.
Another potentially good thing Congress did in 2016 was to reiterate that companies had to “substantiate” their claims of confidentiality.
The question now is: Will this requirement become more stringent and effective via the rule the EPA is about to propose? Don’t bet the ranch on it. The fact is that the existing CBI rule for the old, pre-2016 TSCA required substantiation of claims already.
When the EPA has a backlog of
unreviewed claims, that has created
a de facto sanctuary of secrecy.
Historically, another problem has been the speed of EPA review of CBI claims. Fairness may seem to require that information claimed as confidential be protected at least while the EPA is considering the substantiation of the claim. Current law and regulations give the EPA a 90-day deadline to finish the review.
But when the EPA has a backlog of unreviewed claims, that has created a de facto sanctuary of secrecy. It gets technical and complicated very fast — and there is an army of skilled and well-paid lawyers to protect the companies’ desires for secrecy.
Rules should err on side of disclosure
A brash (and perhaps naive) journalist might well ask, why all the fuss? Does the public really need all this secrecy (they are, after all, the ones who risk being poisoned)?
And let us not forget that we also live in an era of mass spectrometers and gas chromatography that can often analyze what ingredients are in your secret sauce. And “reverse engineering” can often replicate that secret sauce as well.
Meanwhile, many of the most important processes in industrial chemistry are widely understood and published. And the EPA’s secrecy process ends up using generic code names for the mystery chemicals.
When public health and safety are at stake, perhaps rules should err on the side of more disclosure.
The issue arises in many other environmental laws, beyond TSCA. CBI claims are in many cases a way of keeping people unaware of chemical dangers they should know about. For example:
- Under the Emergency Planning and Community Right-to-Know Act, or EPCRA, of 1986, companies are (sort of) required to disclose chemicals they handle that could present a hazard of toxicity, fire, explosion, corrosion, etc., especially if they are discharged or spilled. Yet EPCRA allows companies to keep many of those chemicals secret as CBI.
- A 2005 energy bill exempted the chemicals in fracking fluids from disclosure requirements of the Safe Drinking Water Act. Some of them are toxic and there is a risk that chemicals injected into oil wells will end up in drinking water.
- The Occupational Safety and Health Act is meant to protect workers from exposure to toxic and hazardous chemicals in their workplace environment. It requires disclosure of many such chemicals, but also exempts chemicals whose identity is claimed as CBI.
- The nation’s main pesticide law, the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, plays a complicated game with disclosure. It requires studies on the health and environmental effects of pesticides to be disclosed. But pesticide makers worry that competitors can steal their studies and submit them on behalf of competing products. So FIFRA allows EPA to require nondisclosure agreements from people to whom the health studies are disclosed — including journalists.
As great as the U.S. marketplace is and as brilliant as our engineers are, we’ve got to ask: Are there really that many super-products to be found based on total secrets? Our stuff works, and one product usually works more or less like another. The supposed competitive advantage of hardcore secrecy may, in the end, be mostly a scam.
For five decades since Congress started passing big environmental laws in the 1970s, the public benefits of transparency have been quietly undermined by CBI rules. Maybe it’s time to give them another, more skeptical look.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.
* From the weekly news magazine SEJournal Online, Vol. 7, No. 18. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.