EPA's Lax Confidential Business Information Policy and the Importance of the Hampshire Associates Study

by Wendy Wagner

February 08, 2010

After laying dormant for decades, industries’ abuse of EPA’s permissive confidential business information program (CBI) is finally getting some serious attention. An investigation in the Milwaukee Journal Sentinel, and more recently articles in the Washington Post and Risk Policy Report; a report by the Environmental Working Group; and posts by Richard Denison at EDF, are turning the tide. Those of us at CPR who have spilled ink on various CBI problems over the years (i.e., Mary Lyndon, Tom McGarity, Sid Shapiro, Rena Steinzor, and myself) are thrilled to witness how these journalists and environmental watchdogs have finally managed to budge EPA on its contemptible program.

One document that has been referenced in several recent reports, but that I think deserves further attention, is an extensive empirical study of EPA’s CBI program by a consultant, Hampshire Associates. EPA commissioned this study in 1992 to evaluate whether EPA’s CBI program was in need of reform. Hampshire Associates documented extensive abuse of the CBI program by regulated industry, particularly in regulatory programs in which EPA does not require any justification for a CBI claim. The report is particularly relevant to current debates because virtually nothing has changed in EPA’s CBI policies since 1992. Continued evidence of CBI overclaiming over the years (see pages 129-35 and 146-47 in this article, where David Michaels and I argue that EPA's CBI program is far too lax) suggests that, if anything, abuse of the CBI privilege may only be getting worse, rather than better since the Hampshire Associates' study.

Here is an example of the use of CBI by EPA. There is a copper wood preservative sold as a "micronized" copper product. The accepted definition of "micronized" is particles in the size range of a few microns. I learned from an industry source that the copper particle size was sub-micron and some even nano-sized in some of the products. Since sub-micron and nano-sized copper present special health and environmental concerns, I asked both the manufacturer and the EPA under an FOIA for the actual particle size in the interest of worker and consumer safety. The response from both was that the particle size information was CBI. The particle size information can be critical for medical treatments and should be on the MSDS, but is not because of CBI. It seems to me that CBI is sometimes used to protect the producer at the expense of consumer health and safety.
— George Burdell
As someone who worked in EPA's CBI program for some years, it seems to me that some legislation is needed: (1) any substance which has or may have an adverse effect upon human health or the environment is not entitled to CBI protection; (2)the minimum information on such substances which must be disclosed to the public is the identity of the substance, the amounts/percentages in the formulation of the product, and any available information on its adverse effects; (3) the manufacturer must be required to perform both short and long-term post-marketing human health and environmental studies to verify whether the assumptions made in applications and Agency approvals are correct.. This would deal with so-called "inert" ingredients in pesticides and toxic chemical products, which often are more toxic than the "active" ingredients. One example is genetically modified plants, which were approved with the assumption that their genes would not "drift" to unmodified plants. This assumption often has turned out to be false.
— Allan Abramson
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Also from Wendy Wagner

Wendy E. Wagner is the Joe A. Worsham Centennial Professor at the University of Texas School of Law, Austin Texas. Prior to joining the University of Texas Law faculty, Professor Wagner was a professor at the Case Western Reserve University School of Law and School of Management, and was a visiting professor at the Columbia Law School and the Vanderbilt Law School.

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