TSCA §14-Protection of Confidential Information

• Author: Carolyne R. Hathaway/William K. Rawson/Ann Claassen/Julia A. Hatcher
• Pages: 137-140

Page 137

Chapter XIII:

TSCA §14—Protection of

Confidential Information

A. Introduction to Conf‌idential

Information Under TSCA

As described in the preceding sections of this

deskbook, EPA has broad authority under TSCA

to collect information from U.S. chemical manu-

facturers, processors, and i mporters. Pursuant to

these authorities, EPA may collect manufacturing

process details, precise percentages of components

in a mixture, and other information that compa-

nies consider to be trade secret or otherwise con-

dential because it gives them a business advantage

over their competitors. Indeed, such information

often is at the heart of innovation, and if it is not

protected from public disclosure, there is a very

real risk t hat competitors may reverse engineer

the product or manufact uring process as a result

of information obtained from EPA under a FOIA1

request.

FOIA provides the public a broad right of access

to information held by the U.S. government,

including “access [to] records mainta ined by fed-

eral agencies, [such a s] compliance reports submit-

ted to the EPA.”2 Although enacted primarily to

fulll t he public’s “right-to-know” about the work-

ings of government, FOIA places no restrictions

on who may request information submitted to the

government or for what purpose. erefore, busi-

nesses, both domestic and foreign, are free to—and

often do—submit requests to EPA for information

submitted by competitors pursua nt to TSCA. In

recognition of this practice, FOIA exempts trade

secrets and certain condential business informa-

tion (CBI) from disclosure.

1. 5 U.S.C. §552, available in ELR S. A. P.

2. RSR Corp. v. Browner, No. 96-6186, 27 ELR 20822, 20822

(2d Cir. Mar. 26, 1997), vacated, 1997 U.S. App. LEXIS 41414

(2d Cir. Apr. 17, 1997).

EPA has struggled for decades to strike the

appropriate balance between protecting informa-

tion submitted under TSCA that is legitimately CBI

and meeting its statutory obligations under TSCA

to make available to the public information regard-

ing chemicals’ potential eects on health, safety,

and the environment. Since 1990, EPA has been

working with industr y to address what, in EPA’s

(and environmental groups’) view, is excessive and

unwarranted use of CBI cla ims by industry. EPA

and others argue that these practices have inhib-

ited the dissemination of data to the public about

specic toxic chemicals and the Agency’s chemi-

cal management activities a nd have prevented the

sharing of information with other countries such as

Canada or the European Union.3

In 1994, a fter much study and discussion,

EPA proposed substantial changes to the general

CBI procedures applicable to all environmental

statutes.4 is rule would, among other things,

have required up-front substantiation for many

CBI claims (as opposed to requiring substantia-

tion only when a FOIA request was made for the

information) and to allow CBI claims to “sunset”

if not reasserted.5 e proposal, which was strongly

opposed by industry, was never nalized.

More recently, in connection with growing pres-

sure to enact broader TSCA reform6 and a White

3. According to a 2010 evaluation report produced by the EPA

Oce of Inspector General, EPA sta estimate that some 90%

of PMN requests and 50% of §8(e) notices are submitted with

requests for CBI protection. See O  I G.,

U.S. EPA, EPA N  C P  O I

T S C A R  (2010),

available at http://www.epa.gov/oig/reports/2010/20100217-

10-P-0066.pdf.

4. Public Information and Condentiality Regulations, Proposed

Rule, 59 Fed. Reg. 60446 (Nov. 23, 1994).

5. Id. at 60450.

6. For additional discussion of potential modications to TSCA,

see infra Part XIX.