COMMENTARY | The EPA is Hiding Behind Industry Secrets

Tim Whitehouse

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The EPA is Hiding Behind Industry Secrets

This week, during Sunshine Week, we are highlighting a disturbing trend by government agencies and industry to use the “Confidential Business Information” as a shield to keep important health, safety, and product information secret and out of the hands of the public.

Sunshine Week is a national initiative organized by the National News Leaders to educate the public about the importance of open government and the dangers of excessive secrecy. Unfortunately, the overuse of Confidential Business Information, or CBI, is the latest scourge to undermine the goals of Sunshine Week.

At PEER, we have noticed how governments increasingly use CBI claims to keep basic chemical safety information out of public view.

Recently, for example, the Environmental Protection Agency (EPA) asked for public comments, as required by law, on a series of applications called significant new use notices that Inhance Technologies filed with EPA to create toxic PFAS (per- and polyfluoroalkyl substances) during a process used to strengthen plastic bottles and containers.

This information was naturally of interest to us, as we are suing Inhance, with the Center for Environmental Health, for generating toxic PFAS when fluorinating plastic containers in violation of federal law. However, when EPA asked for public comments on these new use notices, virtually all the information EPA provided to the public was either “sanitized” or blacked out as confidential business information.

The fact that EPA is seeking public comments on documents that it refuses to show the public makes a mockery of the public review process. Since being called out on this Kafkaesque situation, EPA and Inhance have backpedaled a bit and released more information. Still, large swaths of information on the safety of Inhance’s process remain hidden from public view.

Unfortunately, what we have experienced in our work with EPA is the norm, not the exception.

One shocking example of recent CBI abuse by EPA involved a so-called “climate-friendly” alternative fuel. Sharon Lerner of ProPublica recently wrote about how EPA gave a Chevron refinery the green light to create fuel from discarded plastics as part of its Renewable Fuel Standard Program, a program meant to reduce greenhouse gas emissions and combat climate change.

It doesn’t take a chemist to know that creating fuels by melting plastics and adding new chemicals to this concoction won’t reduce greenhouse gas emissions. But the process that EPA has approved is worse than meets the eye. EPA records obtained by ProPublica and The Guardian reveal that the production of this fuel could emit air pollution so toxic that 1 out of 4 people exposed to it over a lifetime could get cancer.

Sharon Lerner’s exposé raised an important question — what health risks may exist from other waste-based fuels recently approved by EPA? When ProPublica and The Guardian tried to find out, EPA refused to turn over their records on waste-based fuels subject to “consent orders,” going so far as to even withhold submitter names and chemical structures.

Something is wrong here. These consent orders are documents that EPA issues when it finds that new chemicals or mixtures may pose an “unreasonable risk” to human health or the environment, together with the EPA’s instructions for mitigating these risks.

In keeping this information secret, EPA cited confidential business information and trade secret rules. Apparently, taxpayers are supposed to subsidize these new green fuels but aren’t allowed to know what these fuels are or the risks they pose to all of us.

The laws governing the government’s handling of confidential information are complex and not easily understood. And we can all admit there is information that the government should generally keep private, such as customer lists and specific business processes.

But too often, we find that the government sides with the industry to keep vital health and safety information from the public under the guise of CBI. As a result, we often find agencies like EPA actively working to further private corporate interests at the expense of the public good.

Sunshine Week is a reminder that the government isn’t supposed to work this way. It is also a reminder to all of us working in the environmental space that fighting for an open and transparent government must always be a fundamental part of our work.

Tim Whitehouse, Executive Director of PEERTim Whitehouse is the Executive Director of PEER. Among other things, Tim formerly served as an EPA enforcement attorney.

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