This EPA has a blatant double standard when it comes to transparency on new chemicals under TSCA

I’ve blogged extensively over the past year about the Trump EPA’s moves to dismantle health-protective reviews of new chemicals under the Toxic Substances Control Act (TSCA).  A remarkable feature of those moves is that they have been cast as an effort to improve transparency in the new chemicals review process.

A year ago when Scott Pruitt unveiled his intent to institute “Improvements to New Chemical Safety Reviews,” he cast it as necessary to increase the program’s transparency, using the word no fewer than five times in the press release.  When EPA released its “Points to Consider” guidance to aid companies in expediting getting their new chemicals through the review process, EPA touted it as a move to “improve transparency with the public.”

In fact, it seems that whenever the agency has acted to assist companies under the new chemicals program, it’s all about transparency.  But as for the public?  EPA has actually denied the public access to information it has a right to, and has taken steps to hide information from the public that it used to make available.  

In a series of four detailed blog posts, EDF documented just how difficult it is for the public to gain access to even the most basic information about new chemicals, forced to rely on an antiquated, time-consuming request system out of the last century when EPA’s own regulations require ready electronic public access.  Even then, the information provided to the public is incomplete and masks as confidential business information (CBI) health and safety studies and related data that are not eligible for CBI status.  There is little evidence that EPA is reviewing the massive number of CBI claims made by companies in their new chemical submissions, and it is failing to require adequate substantiations of many of those claims.

We also blogged about a decision EPA political appointees made last December to stop providing the public with the recommendations that EPA’s professional staff made based on their initial reviews of new chemicals, opting instead to merely inform us that an initial review meeting had occurred.  This came at a time when EPA was actively seeking ways to avoid regulating or requiring testing of any new chemicals.  Before this decision to hide its tracks, these initial staff recommendations had been routinely made public for many years.

Just this summer, EPA began to apply an even weaker new chemical review system.  Among its most notable features is that it hasn’t been written down, apparently even for sharing internally with the staff who are required to implement it, and certainly not for sharing with the public.  Lack of public access hasn’t stopped industry from touting the new approach as one that “adds clarity.”

Which brings me to the lack of transparency surrounding the first greenlighting decision EPA made under its new approach.  See this 3-part series for details on the chemical and why EPA’s decision is reckless.  In our series, we questioned why EPA has not made public its risk assessment and other analyses it generated during the review process, instead providing only a short summary document.  Access to those documents would assist stakeholders in evaluating for themselves the decision EPA made to provide unfettered market access to a chemical that presents considerable health hazards, for use in a wide array of everyday consumer products.

Upon learning of EPA’s decision, EDF requested the risk assessment and other analyses – so far, to no avail.  To date, we have not received the documents we requested.

We are hearing, however, that EPA is balking at making those documents public, claiming they are confidential business information (CBI), despite the fact that the documents clearly comprise health and safety information not eligible for CBI protection.

Which brings me back to EPA’s double standard.  EPA recently posted a large number of long-overdue “significant new use rules” (SNURs) it has proposed.  These SNURs are linked to earlier consent orders on new chemicals, which were developed back before EPA decided to stop issuing such orders in response to industry complaints.

But here’s what’s curious:  Those proposed SNURs reside in a docket on regulations.gov.  In that same docket are numerous other documents, and among them are – you guessed it – risk assessments and related analyses EPA developed in the course of reviewing those new chemicals!  See here and here for examples of risk assessments posted in the docket, and here and here for examples of the other analyses.  While these documents appear to contain excessive redactions and arguably provide insufficient information to inform an adequate review of the assessment, at least EPA has made the analyses available and allowed people some opportunity to assess the adequacy of those analyses.

So … EPA is already making public these documents when they pertain to a new chemical EPA is proposing to regulate through a SNUR.  That facilitates industry access in case they want to consider challenging the proposal.

But EPA isn’t doing the same even for final green-light decisions on new chemicals, which could be helpful for members of the public questioning those decisions.

So much for transparency.

By Richard Denison