178 



to fail of its own language. But that is the lesson of the asbestos case and that is 

 the contradiction we are obliged to correct. 



6. Confidential Business Information 



In the last three years, U.S. EPA has taken positive steps to reduce the amount 

 of TSCA information that is claimed to be confidential business information, or CBI. 

 Recently, the agency released its proposed action to further enhance its ability to 

 screen out inappropriate trade secrecy claims by the regulated community. In the 

 examination to amend the Act, it is imperative that Congress reinforce this effort. 



First, Congress should include, as a general purpose of TSCA, the public informa- 

 tion collection and dissemination mission of the Act. In other words. Congress must 

 properly affirm that information collected under TSCA is presumptively information 

 in the public domain. This critical pronouncement is necessary to ensure public par- 

 ticipation in pollution prevention, and, ultimately, to reduce ihe amount of informa- 

 tion which is directed to EPA as CBI. 



A declaration that TSCA information is public information will also stimulate 

 broader efforts to transmit meaningful TSCA data to the public. Part of the benefit 

 of public accessibility is to transfer some of the burden for acting on toxics issues 

 to the public. Not only should the responsibility to provide risk data about new and 

 existing chemicals be shifted from EPA to industry, but part of the responsibility 

 for using this information can also be shifted to the public once it is made available. 



For instance, CBI inhibits the free flow of information gathered about toxic sub- 

 stances. This consumer information should be available to the public so that it can 

 identify and respond to negligently manufactured products or foreseeable harmful 

 uses. Additionally, many businesses that choose to import chemicals that are on the 

 Confidential Inventory cannot readily determine if a particular chemical is listed or 

 not. This puts an importer in potential jeopardy because it is liable for filing Pre- 

 Manufacturing Notices for unlisted chemicals. 



There is no doubt that certain information is legitimately entitled to confidential 

 treatment, most significantly process and mixture information regarding certain 

 products. When I was with the Agency, our practice was to treat all information 

 submitted or claimed CBI as deserving CBI protection, regardless of its trade se- 

 crecy merit. As a practical matter, we either had to ask the submitter to withdraw 

 its claim, as we did in CBI Challenge Program, or petition the Office of General 

 Counsel to make a formal legal decision which, historically, has not occurred. The 

 EPA's OfBce of Toxic Substance should be authorized to determine when informa- 

 tion is clearly not CBI. 



Confidential Business Information is expensive and burdensome to manage. Pres- 

 ently there exist no basic disincentives for claiming information as CBI. Many pos- 

 sible disincentives exist, including granting EPA authority to collect fees for CBI 

 treatment; establishing penalties for invalid CBI; the implementation of sunset pro- 

 visions; upfi-ont substantiation; and signature certification by senior company offi- 

 cials. 



Furthermore, Congress must also adopt language specifically stating that health 

 and safety information, contained in health and safety studies and substantial risk 

 notices required under Section 8(d) and 8(e), including chemical identity, is pre- 

 sumptively not entitled to confidential treatment. In fact, there is a logic which 

 states that the Inventory itself should never really contain any CBI, least of all for 

 chemical identity and production volumes. 



7. Chemical Use Inventory 



Public accessibility and the use of TSCA data can be viewed in the context of a 

 current EPA proposal. EPA is studying the feasibility of creating a Chemical Use 

 Inventory which is currently envisioned as an enhanced version of the Inventory 

 Update Rule, the periodic, partial updating of the TSCA inventory. By expanding 

 the authority of TSCA to allow the agency to collect inventory information from 

 chemical users, EPA could begin to collect qualitative and quantitative information 

 on chemical production and use. 



Congress should explicitly grant the authority for EPA to reach chemical users 

 with a broad discretion to collect use information at each distinct phase of manufac- 



