THE BLOG
03/31/2010 05:12 am ET Updated May 25, 2011

EPA: No More Eyes Wide Shut?

Whatever your politics, it's hard to argue with President Obama's condemnation of "Washington gimmicks that let ... us pretend we solved a problem."

Even if - especially if - you're the author of one of those gimmicks. That's not something you'd want to boast about, not in public anyway.

Which may be the reason nobody from the chemical industry is protesting the Environmental Protection Agency's move last week to block a maneuver that chemical companies have used to game the system for more than 30 years.

During the Ford administration, Congress tried to solve the problem of industrial chemical pollution - then a burgeoning scandal -- with the federal Toxic Substances Control Act. This measure requires, among other things, that companies that manufacture, process, or distribute chemicals alert the EPA whenever a new study shows that one of their products is a "substantial risk" to human health or the environment.

Companies who found themselves in the unhappy position of having to file "substantial risk" notices for their wares quickly discovered they could keep ominous lab reports quiet by labeling them "confidential business information."

Congress had, in fact, left a loophole that allowed inventors of new chemicals to claim that the identities - the precise molecular composition - of their creations were "confidential business information," to be divulged only to a handful of EPA technocrats. That provision is currently a matter of intense debate, detailed earlier this month in the Washington Post and in a report by my colleagues, EWG Vice President Richard Wiles and senior scientist David Andrews, a Ph.D. chemist. (Since secrecy, once granted, never expires, the number of secret chemicals has grown from 4,000 in 1980 to about 17,000, according to the EWG investigation.)

Wherever you stand on confidentiality for new chemicals -- and if you want to weigh in, join the conversation here or on EWG's toxics policy blog-- there's no serious dispute that known chemicals listed on EPA's public chemical inventory aren't eligible for the confidentiality loophole.

But, EPA officials disclosed last week, many companies "would routinely claim confidentiality" to thwart public disclosure of disquieting lab results.

Why? Because they could. The regulators weren't just lenient. They were apparently oblivious. According to Andrews' investigation, EPA officials almost never challenged an assertion of secrecy or even cross-checked agency records to see if the chemical was already a matter of record.

This sort of thing went on well into the current administration. From January through September last year, EPA received nearly 293 "substantial risk" notices, 153 of which, or 52 percent, asserted confidentiality. Most were stamped "Company Sanitized" or the like and heavily censored before being attached to the EPA website. In some cases, even the manufacturer's name was blocked out.

What does this mean for firefighters, other first responders, neighborhood residents, and other passers-by in the case of a spill due to a plant fire, train or truck wreck, earthquake or other disaster? There's no way to tell, but, as we've seen in the terrorism arena, it's pretty tough to connect dots that only a handful of people can see.

No more, EPA officials said last week. EPA administrator Lisa Jackson was ushering in a new era of openness, so, they said, the agency would henceforth reject confidentiality claims for new tests of known chemicals. "The American people are entitled to transparent, accessible information on chemicals that may pose a risk to their health or the environment," said Steve Owens, assistant administrator for EPA's Office of Prevention, Pesticides and Toxic Substances.

Environmentalists cheered the agency's action -- in unusual solidarity with chemical makers and fabricators.

"We applaud the Obama Administration for taking this step that, frankly, previous administrations would have been wise to consider," said Charles T. Drevna, president of the National Petrochemical and Refiners Association. "... It makes little sense to protect the identity of a chemical that is already publicly available on the TSCA Inventory."

Mike Walls, a vice president of the American Chemistry Council (ACC), told the industry publication Chemistry World that EPA's action represented "a welcome indication of the agency's ability to apply its statutory authority to promote transparency ... EPA and chemical companies should work together to enhance public access to chemical health and safety information."

Of course, the bigger game, which the ACC adamantly defends, is the policy of shielding new chemicals behind the cloak of "confidential business information."

After the Post and EWG reports, Walls declared, "There are no 'secret' chemicals on the market."

Except when there are.

Walls prefers the term "confidential" and says these off-the-books substances "fully comply with the requirements of the law."

Let's hope so. But, fact is, when it comes to any new chemical, it takes time and extensive investigation to understand how these molecules behave, in living organisms and in the environment. The subtle mysteries of the plastic chemical Bisphenol A are only now being unraveled, after nearly 80 years of poking and prodding on laboratory benches around the world. If independent, financially disinterested research institutions are shut out of examining new chemicals, or even learning their names, will we ever know what we don't know?