Companies Must Back Up Privacy Claims When Asserted: EPA

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By Pat Rizzuto

Companies that submit proprietary chemical information to the Environmental Protection Agency must justify upfront the reasons the information cannot be publicly released, the agency said in a notice to be published Jan. 19.

The Toxic Substances Control Act amendments of 2016 require companies to substantiate confidential business information claims at the time they submit information they say the agency must keep private, the EPA’s notice said. Its interpretation of the 2016 TSCA amendments will be effective March 20.

Two attorneys Bloomberg BNA contacted Jan. 18 expressed concerns that the process the agency used—issuing a notice rather than a direct final or proposed rule—denied the public the opportunity to weigh in on the agency’s legal interpretation.

Richard Denison, lead senior scientist with the Environmental Defense Fund, said in a blog post that he hoped the agency’s notice would not be controversial. “A broad swath of stakeholders have voiced support for the upfront substantiation requirement and have noted that it is a key reform made by the new law,” Denison wrote.

Request for Clearer Instructions

Irene Hantman, a TSCA attorney working in Verdant Law, PLLC’s Washington office, told Bloomberg BNA that her clients are happy to submit information to substantiate confidential business information claims.

However, “we need clarity in the process and procedure,” she said.

The EPA’s notice fails to clearly state what information can be claimed as confidential business information and what information companies should provide to substantiate their claims that information they submit warrants protection, Hantman said.

Under the TSCA amendments, substantiation is not generally required for certain information, such as specific details about the methods a company uses to make or process a chemical. Yet the amendments say there may be circumstances when the EPA administrator could require substantiation for such information even though it typically isn’t required, Hantman said.

Hantman asked how a company would know when information that normally is protected without substantiation needs to be substantiated.

The notice doesn’t explain that, she said. Nor does it say what types of details the agency needs to substantiate a confidential business information claim, she said.

If the EPA had issued its interpretation of the law through rulemaking, companies could have sought the clarity they need, Hantman said.

Sara Beth Watson, an attorney working in Steptoe & Johnson LLP’s Washington office, pointed to a section of the EPA’s notice that said the agency may promulgate regulations in the future that would provide more information about how to substantiate confidentiality claims.

“More instruction on the form and manner of submission of the substantiation would be helpful,” she said by e-mail.

Objecting to EPA’s Process

Charles Franklin, an attorney with the Washington office of Akin Gump Strauss Hauer & Feld LLP, said the EPA’s notice constitutes “rulemaking” without the opportunity for public comment required by TSCA.

He told Bloomberg BNA that he needed more time to determine whether the EPA’s legal interpretation raised concerns.

To contact the reporter on this story: Pat Rizzuto in Washington, D.C., at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The EPA's notice interpreting TSCA's confidential business information requirements is available at http://src.bna.com/lwK.

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