What you don’t know could hurt you: Petition asks EPA to limit duration of chemical trade secret claims

It may come as a surprise to those not familiar with the Toxic Substances Control Act (TSCA) – the primary law that regulates chemicals used in the US that go into products other than cosmetics, drugs and pesticides – to learn that about 15,000 chemicals on the TSCA inventory have their identities claimed as trade secrets. According to an analysis included in the petition filed with the US Environmental Protection Agency (EPA) on August 21^st by Earthjustice and five other non-profits, approximately 62.5 percent of the 24,000 chemicals added to the TSCA inventory since 1982 cannot be “meaningfully identified by the public” because their names are claimed as confidential business information. This masking of chemical identities can often hamper public access to health and safety information about these substances and make it hard for those working with such chemicals to fully understand what they may be exposed to.

TSCA requires the EPA to maintain an inventory of chemicals used and manufactured in the US and requires manufacturers and importers of new chemicals to submit health and safety data to the EPA as part of new chemical registration. However TSCA, also allows chemical identities to be claimed as trade secrets if revealing that information would – in the opinion of the manufacturer – jeopardize  confidential manufacturing processes or formulas.

What Earthjustice, the Environmental Defense Fund, Breast Cancer Fund, BlueGreen Alliance, New Jersey Work Environment Council and Connecticut Coalition for Environmental Justice are asking, is that EPA put a time limit on TSCA confidential business information (CBI) claims. The petition asks that EPA set a five-year limit on these claims and have them expire at the end of this period unless the company registering the chemical can prove to the EPA that continued trade secret protection is warranted.

“EPA has the authority to do this under current TSCA,” explains Environmental Defense Fund senior scientist Richard Denison. “This is not a novel idea,” says Denison, noting that the EPA’s Inspector General has made such a suggestions previously, most recently in 2010. The petition outlines the history of attempts to limit the duration of TSCA trade secret claims, efforts that now date back more than 20 years.

Chemical identities in TSCA environment, health and safety data

TSCA requires chemical manufacturers to notify the EPA if information shows that a chemical “presents a substantial risk of injury to health or to the environment.” But what’s often happened historically, is that when – as part of the TSCA oversight process – health and safety studies are posted on the EPA’s website, chemical names have been withheld in these documents if these chemicals’ identities have been claimed as trade secrets as part of their TSCA registration. As the petition notes, these CBI claims under TSCA can impede worker and community right-to-know about potential chemical exposures. They can also impede both government regulation and voluntary industrial chemical stewardship programs. It also points out that this information is essential for effective monitoring of both worker exposures and employer safety procedures involving chemicals.

“We can’t test for it if we don’t know what it is,” says Breast Cancer Fund senior policy strategist Nancy Buermeyer.

If a chemical’s identity is not known, it is very difficult, if not impossible to monitor exposure either in the environment – indoors or out – or though biomonitoring, says Buermeyer. And when it comes to understanding human health effects, it is such exposure data “that drives research,” she explains. The US Centers for Disease Control and Prevention’s (CDC) National Health and Nutrition Examination Survey (NHANES), for example, now conducts biomonitoring tests for the presence of about 250 industrial chemicals or their breakdown products. That many of these exposures have been discovered to be widespread has prompted investigation of how these chemicals’ presence in the human body may be affecting health.

The petition also points out that TSCA CBI claims have included chemicals known to cause cancer in humans. It singles out the example of benzidine, a dye ingredient that “can cause bladder cancer” whose TSCA registration had data claimed as CBI.

In 2010, in a policy intended to increase transparency of chemical information under TSCA, the EPA began reviewing more than 22,000 TSCA confidential business information claims and asking companies to voluntarily declassify chemicals in TSCA health and safety data. Since 2010, the EPA’s policy has also been to deny CBI claims for chemical identities in TSCA health and safety studies. “Since 2011, many companies have risen to the challenge resulting in nearly 1000 documents with formerly confidential chemical identities being made public,” writes the EPA. This policy requires companies registering chemicals under TSCA to provide more justification for confidential business information claims than they had to previously but it does not change the fact that these trade secret claims can last forever.

The EPA is also now posting to its publically accessible databases, chemical health and safety information made available through this declassification effort. But connecting these documents with actual products in which these chemicals are used is challenging given that trade names may differ from chemical registration names and lack of full ingredient listing on commercial products. Earthjustice managing attorney, Marianne Engelman Lado offers the example of the oil dispersant chemicals used in response to the 2010 BP/Deepwater Horizon disaster as products for which CBI claims made under TSCA delayed access to information about potential response worker and other human exposure effects.

Chemical exposures and worker health

Pinpointing precise cause and effect between chemical exposure and work-related illness will always be challenging. No one – in the workplace or elsewhere – is exposed to only one chemical and most chemicals can affect the human body in multiple ways. Some chemical exposures produce immediate adverse effects but some prompt health effects that – like many cancers, reproductive or hormonally-related illnesses – take years to become apparent. But understanding the relationship between chemical exposure and work-related illness is made even more difficult if chemicals are not fully identified.

Efforts are being made through TSCA and through other policies both in the US and internationally to bolster the hazard information available to those working with chemicals. But the reality remains that workers often have only partial knowledge about the chemicals they’re working with.

Work-related diseases associated with chemical exposures are a serious and ongoing problem. According to the International Labor Organization (ILO), approximately 2.02 million people die each year worldwide from work-related diseases and 160 million are diagnosed with non-fatal work-related illnesses. The ILO estimates that exposure to chemicals is responsible for about 400,000 work-related deaths each year and that such exposures are also responsible for 35 million work-related diseases recorded worldwide.

In the US, researchers estimate that more than 60,000 workers die each year from occupational diseases while more than 850,000 develop new work-related illnesses. They also estimate that 10,000 to 20,000 US workers die annually from cancer related to occupational chemical exposures. Also not included in either US or global statistics are health effects to children and grandchildren resulting from their parents' and other family members' workplace chemical exposures.

Releasing more confidential business information claimed under TSCA will clearly not solve all these problems. But says Richard Denison, “More information in the public domain leads to better decision making.” And perhaps more information about chemicals present in the workplace would lead to safer work environments.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Ensia, The Washington Post, Salon and The Nation.