EDF Sues EPA to Ensure New Toxics Law Protects Public's Right to Know

(Washington, DC - September 5, 2017) On Friday, Environmental Defense Fund (EDF) filed a new lawsuit in the D.C. Circuit to preserve the public’s right to know about chemicals covered under the toxics law Congress overhauled just last year. The lawsuit seeks to hold the Environmental Protection Agency (EPA) to a key goal of the reforms to maximize transparency and knowledge about which chemicals are in use today.

“Among the critical goals of the new law is to shed more light on the chemicals found in our homes, schools and workplaces,” said Dr. Richard Denison, Lead Senior Scientist at Environmental Defense Fund. “Unfortunately, EPA’s rule skirts that responsibility and will conceal information that the public has a right to know. Our lawsuit seeks to force EPA to follow the law and enhance public access to that important information.”

A glaring failure with the implementation of the original 1976 Toxic Substances Control Act (TSCA) was how little the public could access information about the chemicals around us. That law required EPA to set up and maintain an inventory of chemicals in use. But in implementing the law, EPA provided no mechanism for removing chemicals no longer in use. That inventory has grown to some 85,000 chemicals, many of which are no longer manufactured, imported, or processed in the United States.

Moreover, EPA allowed companies to readily claim the identities of chemicals to be “Confidential Business Information” (CBI) with little scrutiny, thereby masking indefinitely the identities of more than 17,000 of these chemicals.

To address these problems, last year’s Lautenberg Act amending TSCA required EPA to “reset” the inventory. The law requires EPA both to identify which chemicals are in current use and to review chemical identity CBI claims to ensure that only claims that are still warranted are maintained. The law also establishes a significantly higher threshold for claiming CBI and sets a 10-year expiration for claims unless they are re-established.

EPA’s Inventory Notification Rule, published on August 11, 2017, deviated from the law’s requirements and falls short of the desired goal to improve transparency about chemicals in use, by failing to ensure that CBI claims are appropriately asserted and reviewed. The rule would allow companies to assert and maintain claims that do not meet the law’s requirements. As a result, EPA will be concealing information about chemicals in violation of the public’s right to know.

Congress required EPA to reset the Inventory for several important reasons, not the least of which is to better understand the landscape of chemicals in use as EPA begins its work under the new TSCA, including with respect to prioritization, risk evaluation and risk management. The Lautenberg Act expressly required that companies substantiate and EPA review all CBI claims for chemical identity, and it subjects those claims to an expiration date. These new requirements undo decades of prior practice at EPA of readily accepting and maintaining indefinitely CBI claims, often without evidence that the information warranted concealment from the public. Access to such information is crucial for researchers, journalists and public health advocates, as well as businesses who wish to better understand their own supply chains and consumers who wish to better understand the consequences of and exercise some control over their chemical exposures. 

In August, EDF filed two other lawsuits over rules governing how EPA will prioritize and conduct evaluations of chemicals in commerce, rules that will affect hundreds of future decisions made by the TSCA program.