EPA Announces New Policy on CBI in Health and Safety Studies

by Matt Shudtz | May 27, 2010

EPA today announced (pdf) that it will begin a general practice of reviewing – and likely rejecting – confidentiality claims regarding chemical identities and supporting data in health and safety studies submitted to the agency under TSCA.  The news is long overdue, but very welcome.

One of Congress’s primary goals in drafting TSCA was to create regulatory mechanisms through which EPA would gather information about the human health and environmental effects of toxic chemicals. Recognizing the societal benefits of broad disclosure of that information, Congress created an exemption for “health and safety studies” from TSCA § 14’s general prohibition on EPA’s disclosure of information submitted to the agency and claimed to be trade secrets or confidential business information (CBI). Health and safety information, in other words, was too important to be hidden from the public.

But despite the plain language of the statute, EPA for years simply turned a blind eye when health and safety studies were submitted under the Act’s information disclosure requirements and stamped as CBI. In fact, EPA even developed a process through which companies could claim that elements of a health and safety study – including chemical identities and supporting data – pass as CBI.

When companies submit certain information to EPA and claim it deserves confidential or trade secret protections, they have to substantiate their request with an explanation of the harms that would result from disclosure and the efforts they’ve taken to keep the information ...

Why Federal Climate Change Legislation Shouldn't Stop States From Innovating in Adaptation Efforts

by Alejandro Camacho | May 27, 2010
Even if a climate change bill like Kerry-Lieberman were to become law, the effects of climate change will still be dramatic, making adaptation a crucial complement to mitigation activities for addressing climate change. As specialists on local conditions with the capacity to innovate at a smaller scale, state and local authorities need to retain the authority to adopt adaptation strategies that prevent, reduce, and manage the effects that climate change will have on vulnerable natural resources under their jurisdiction. Though a federal ...

Socializing Risk: The New Energy Economics

by Frank Ackerman | May 26, 2010
Cross-posted from Triple Crisis. Despite talk of a moratorium, the Interior Department’s Minerals and Management Service is still granting waivers from environmental review for oil drilling in the Gulf of Mexico, including wells in very deep water. Until last month, most of us never thought about the risk that one of those huge offshore rigs would explode in flames and then sink, causing oil to gush out uncontrollably and befoul the oceans. The odds seemed low, and still do: Aren’t ...

Assessing the Federal Response to the Deepwater Horizon Catastrophe

by Joel Mintz | May 25, 2010
The recent horrific events in the Gulf of Mexico have presented immense challenges to the Obama administration and many of the federal career officials who are responsible for regulating the safety of offshore oil extraction and responding to spills like the one that continues to gush from the remains of the Deepwater Horizon oil rig at great volume. To their credit, a number of presidential appointees and career officials with duties regarding spill countermeasures have been working very hard to ...

Eye on OIRA: No Room for a More Compassionate CBA in EPA's Coal Ash Rule

by James Goodwin | May 24, 2010
“Although the 1976 RCRA [Resource Conservation and Recovery Act] statute does not require benefit-cost justification of RCRA regulations, this RIA [regulatory impact analysis] presents a qualitative benefit analysis for compliance with OMB’s 2003 ‘Circular A-4: Regulatory Analysis’ best practices guidance.” This statement comes from the executive summary to the cost-benefit analysis (CBA) that EPA sent to OIRA last October with its original proposed rule for regulating coal ash waste, and it is without a doubt the most important sentence in the ...

Don't Blame Tony Hayward: Why We Need Laws and Regulations That Specifically Hold Parties Liable for the Harm They Cause

by Victor Flatt | May 21, 2010
BP CEO Tony Hayward has been careful to say his company will pay for the "clean-up" from the oil spill -- meaning, not the damages. But if past disasters are any guide, the clean-up will be just a small fraction of the damages from the spill (the deaths, the damage of the oil to natural resources and the humans that depend on them, and more). Many media have commented that Hawyard is a “jerk”, but the who-pays-for-the-damages problem isn't really ...

Sending Don Blankenship to Jail: A Legal Argument

by Rena Steinzor | May 20, 2010
Today, the Senate appropriations subcommittee chaired by Senator Tom Harkin (D-IA) will discuss "Investing in Mine Safety: Preventing Another Disaster" and hear testimony from the notorious Don Blankenship, chief executive officer of Massey Energy, owner of the Upper Big Branch disaster where 29 miners lost their lives on April 5.  Workers safety and health advocates have posted calls over the past months to “send Blankenship to jail,” perhaps under federal racketeering laws, and the FBI opened an inquiry into potential ...

Doremus in LAT: Administration's Response to BP Oil Spill Needs to Go Beyond Splitting MMS

by Ben Somberg | May 20, 2010
CPR Member Scholar Holly Doremus and fellow UC Berkeley School of Law Professor Eric Biber have penned an op-ed in today's LA Times arguing that the Administration's plan to split the Minerals Management Service in two in response to the BP oil spill disaster falls short of what's needed. Write Doremus and Biber: The political pressure to prioritize rapid development over safety won't evaporate if the MMS is split. The new safety agency would still be under the supervision of ...

New CPR White Paper Critiques Supreme Court’s Heightened Pleading Standard for Getting Complaints into Federal Court

by Sidney Shapiro | May 19, 2010
Cross-posted from ACSblog. The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell ...

What if MMS Had Followed the Law When Considering the Deepwater Horizon Permit?

by Dan Rohlf | May 19, 2010
As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling. The Endangered Species Act requires federal agencies to consult with ...

Potentially Regulated Parties, White House Trying to Inject the Data Quality Act and Other Distractions Into EPA's IRIS Assessment Process

by Matt Shudtz | May 17, 2010
In the year since EPA Administrator Lisa Jackson announced a new process (pdf) for updating chemical risk assessments in EPA's IRIS database, agency scientists have succeeded in getting some stalled assessments moving through the system. Since the May 21, 2009 announcement, EPA staff have competed nine new and updated assessments. Two others are in the final stages of review and 20 more are at the external peer review stage. But just as EPA staff are getting geared up, industry, potentially regulated federal ...

On Adaptation, Kerry-Lieberman Climate Bill Largely Similar to ACES, But Drops Several Provisions and Provides Less Money

by Alejandro Camacho | May 14, 2010
Though in many respects similar to provisions in the House-approved American Clean Energy and Security Act (ACES) bill and the prior Boxer-Kerry bill in the Senate, the adaptation program proposed in the newly released Kerry-Lieberman American Power Act substantially decreases funding for federal and state adaptation programs and eliminates provisions establishing a public health adaptation program.  Like its predecessors, Kerry-Lieberman’s adaptation program, included in large part in Title IV, §§6001-6011, incorporates a number of provision focused on managing the effects ...

Preemption Aside, New Climate Change Proposal Would Create Generally Similar Results as Prior Proposals (But Watch Out for Those Offsets)

by Victor Flatt | May 12, 2010
While Kerry and Lieberman (and before two weeks ago, Graham) have tried to pitch the proposed new Senate climate and energy draft legislation as a “game-changer” the truth is that, aside from the stronger preemption language limiting the states, its effect is not terribly different from what has come before. Sure, there are sweeteners for the conservascenti, such as enhanced loan guarantees and permit streamlining for nuclear energy, continued support for carbon capture and sequestration, removal of a natural gas “penalty,” ...

Kerry-Lieberman Creates Some Added Certainty on Offsets

by Victor Flatt | May 12, 2010
The Kerry-Lieberman bill's provisions on offsets are largely similar to those in the Waxman-Markey and Kerry-Boxer bill, but include a number of changes that make more specific policy choices in the use of offsets. First, the proposal enumerates a specific lengthy list of eligible offset categories (whereas Waxman-Markey didn't list specific categories, instead giving instruction for a regulatory decision). This change  might assist in providing market liquidity. In terms of offset regulation, there seems to be a complex dance between the ...

US Releases Final Strategy for Chesapeake Bay Restoration and Protection

by Yee Huang | May 12, 2010
Today marks the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Restoration and Protection, which commits federal agencies to a new leadership role in Bay restoration. This morning the Federal Leadership Committee, headed by EPA and comprised of many of the major federal agencies, released its final Strategy for Restoration and Protection of the Chesapeake Bay. While the final Strategy is not significantly different from the draft Strategy, it contains new detail about a watershed-wide nutrient trading program ...

Federal Task Force on Carbon Capture and Sequestration Will Need to Grapple With Property Rights Law

by Alexandra Klass | May 11, 2010
A federal task force of the EPA and a host of federal agencies are  currently working on a proposal, due to President Obama by June, on carbon capture and sequestration (CCS) policy; they’re now holding a series of public meetings (for background on CCS generally, see the CPR Perspective I wrote examining some of the arguments for and against). I had a chance recently to discuss with members of the task force the key property rights and takings law issues associated ...

Heads in sand, oil in water

by Holly Doremus | May 10, 2010
Cross-posted from Legal Planet. As oil drifts on and offshore in the Gulf of Mexico, forcing the closure of wildlife refuges and more fishing grounds, Interior Secretary Ken Salazar has called a temporarily halt to new offshore drilling while his staff prepare a report on the disaster and even Republicans in Congress are calling for new investigation of the troubled Minerals Management Service. Clearly, things didn’t go as planned on the Deepwater Horizon. Notwithstanding Rush Limbaugh’s wild accusations of environmentalist ...

CPR's Victor Flatt in Houston Chronicle on a Momentous Week for Energy Policy

by Matthew Freeman | May 09, 2010
CPR Member Scholar Victor Flatt has an op-ed piece in this morning's Houston Chronicle, in which he argues that the week of April 20 will likely be recalled as "one of the most pivotal and important weeks in the history of energy in this country," citing the confluence of the explosion of the Deepwater Horizon offshore oil drilling platform and its disastrous environmental consequences, and the federal approval of the massive Cape Wind project in Nantucket Sound to capture wind ...

Deconstructing Regulatory Science

Wagner | Jun 19, 2018 | Regulatory Policy

Agency U-Turns

Farber | Jun 18, 2018 | Regulatory Policy

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015