States Want Access to Chemical Trade Secrets Before Spills

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By Pat Rizzuto

States could soon respond quicker to chemical accidents armed with information EPA has. But first, they’ll have to prove they can protect chemical makers’ trade secrets.

States don’t yet know what data get they’ll get or the steps they’ll have to take to access that information, but the Environmental Protection Agency is expected to spell out those requirements in guidance coming soon, a state official told Bloomberg BNA.

Previously, states responding to emergencies had to get a company’s “blessing” before the EPA could share that information, Ken Zarker, an environmental manager with the Washington State Department of Ecology, told Bloomberg BNA. States want broad access to the available information, and they want to be able to have access approved before an emergency, said Zarker, who is coordinating an Environmental Council of the States group working with the federal agency about its upcoming guidance.

Changes Congress made in 2016 to the Toxic Substances Control Act should change that. The amended law gives states, local governments, tribes, emergency responders, and health care professionals greater access to companies’ confidential business information if certain requirements are met. For example, EPA can share proprietary data if the state requesting the information proves it can protect the confidentiality of that data.

“Having timely access to this information is important in making informed regulatory decisions,” Jamie Kritzer, communications director for North Carolina’s Department of Environmental Quality, told Bloomberg BNA.

Monthly Phone Calls

Officials from California, Kentucky, Maine, Minnesota, Oregon, and Texas are among those who’ve held monthly telephone calls with the EPA to understand the information the agency has and TSCA’s trade secret protection provisions, according to Zarker and information EPA provided Bloomberg BNA.

West Virginia officials and residents, for example, would have welcomed information more quickly after Freedom Industries leaked about 10,000 gallons of a coal processing chemical into the Elk River in 2014, Zarker said. The spill left more than 300,000 residents without drinking water for days.

Many states, including North Carolina, want more information about perfluorinated chemicals being detected in their waters, Zarker said.

Ideally, once a state has met the requirements the EPA will set out in its coming guidance, that state could get information right away when warranted, he said.

Companies Get Heads Up

The EPA doesn’t have a specific timeline for its release, according to a statement it provided Bloomberg BNA. The agency has routinely met with states, the National Tribal Toxics Council, and regions to outline the new expanded CBI access provisions, EPA said.

The agency also has discussed its plans with chemical manufacturers, but has not shared draft materials, the EPA said.

Once the process is in place—except in emergency situations—companies affected by the release of the confidential information will be notified before it is released, the agency said.

States Prepare

States are preparing to get information they’ve not had the opportunity to see before, Zarker said. Originally under TSCA the EPA couldn’t disclose information claimed as confidential to anyone, including state officials, although the federal agency and companies worked out a process to give officials information following emergencies.

Possible applications include obtaining toxicity data that could help them protect workers, communicate hazards, or access the risks of a particular chemical exposure situation, he said.

“Until we start to see the data, use it, it’s hard to know how we would do so,” Zarker said.

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

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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