Although the 1976 Toxic Substances Control Act requires chemical manufacturers to alert the government about new chemicals they plan to market, companies can keep that information a secret from the public by claiming that disclosure could harm their business. A few EPA employees have access to the information, but can’t share it with other state and federal health officials, first responders, or the public.

This “confidential business information” designation is widely used and easily abused. EPA told the Government Accountability Office that roughly 95% of premanufacture notices contain some information identified as confidential by chemical companies, and a 1992 EPA study found extensive use of inappropriate CBI claims. The agency hasn’t performed a more recent study, and it told GAO that it every year it can only challenge about 14 claims of CBI that it suspects of being inappropriate. When the agency does challenge claims, chemical companies withdraw nearly all of the claims in question.

This situation may be changing. The Washington Post’s Lyndsey Layton reports that Steve Owens, assistant administrator of the Office of Prevention, Pesticides and Toxic Substances at EPA, came to the agency in July and has since ended confidentialty protection for 530 chemicals. It seems that these weren’t tough calls to make; Eilperin reports, “In those cases, manufacturers had claimed secrecy for chemicals they had promoted by name on their Web sites or detailed in trade journals.” She also gives an example of a situation where ease of chemical-information access can make a difference:

Last year, a Colorado nurse fell seriously ill after treating a worker involved at a chemical spill at a gas-drilling site. The man, who later recovered, appeared at a Durango hospital complaining of dizziness and nausea. His work boots were damp; he reeked of chemicals, the nurse said.

Two days later, the nurse, Cathy Behr, was fighting for her life. Her liver was failing and her lungs were filling with fluid. Behr said her doctors diagnosed chemical poisoning and called the manufacturer, Weatherford International, to find out what she might have been exposed to.

Weatherford provided safety information, including hazards, for the chemical, known as ZetaFlow. But because ZetaFlow has confidential status, the information did not include all of its ingredients.

Mark Stanley, group vice president for Weatherford’s pumping and chemical services, said in a statement that the company made public all the information legally required.…

Behr said the full ingredient list should be released. “I’d really like to know what went wrong,” said Behr, 57, who recovered but said she still has respiratory problems. “As citizens in a democracy, we ought to know what’s happening around us.”

Layton also provides some more numbers showing the scope of the CBI issue: Of the 84,000 chemicals used in the US today, roughly 17,000 (around 20%) are secret. Of the secret chemicals, 151 are produced in quantities of at least one million tons per year, and 10 are used in children’s products. And during a recent month, more than half of the 65 reports filed by chemical companies with the EPA about chemicals that may pose substantial risk to human or environmental health involved secret chemicals.

As Wendy Wagner and David Michaels explain in the paper “Equal Treatment for Regulatory Science,” companies making CBI claims don’t need to substantiate them and face no penalties for frivolous claims. Companies, they write, “openly concede that it is more cost-effective for them to routinely stamp as much internal information as CBI when no substantiation is required.”

While this tactic costs manufacturers little, it spells costs and delays for those who then want to access health and safety information about these companies’ chemicals. Groups and individuals can request CBI-stamped information under the Freedom of Information Act, but months or years can elapse before the information is provided to the requestor – and during that time, the chemical may be released into the environment and become widely used in consumer products.

When the Office of Science and Technology Policy requested public comments on advancing scientific integrity (as required by President Obama’s March memo), my colleagues and I included in our comments three approaches for fixing CBI problems, based on recommendations by Wagner and Michaels:

  • Require firms to provide up-front substantiation of CBI claims.
  • Exempt any data needed to assess health risks from trade secret protections, and devise a cost-sharing mechanism to provide compensation to actors who can demonstrate competitive losses from the disclosure. When competitors benefit from the disclosure, they would reimburse the initial firm; when beneficiaries are diffuse, reimbursement would be from public funds.
  • The agency receiving the claims could charge review and classification fees on each CBI claim and levy penalties for CBI claims found to be unjust. The fees would fund agency oversight of the quality of manufacturer research, such as random replication of studies.

The Toxic Substances Control Act has many weaknesses that need fixing in order to better protect the public’s health – and Congress should be taking on the task in the near future. Reforming the use of CBI claims may be one of the simpler steps.

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