As of June 8, 2011, the U.S. Environmental Protection Agency ("EPA") has made public the names of more than 150 chemicals, the identities of which were previously considered protected as confidential business information. Historically, the names of these chemicals were redacted from health and safety reports available on the EPA's Web site. Pursuant to the Toxic Substance Control Act ("TSCA"), chemical manufacturers, processors and distributors are required to submit reports to the EPA if they know a chemical may pose a threat to health or the environment. The reports are available to the public; however, the chemical names may be redacted if the EPA approves a company's request that the name be kept private for confidential business reasons.

As part of its efforts to strengthen its chemical management program and promote transparency relating to potential risks posed by chemicals in commerce, the EPA has declassified certain chemical identities listed in 104 health and safety studies. The newly public chemical names are for substances used in dispersant formulations and consumer products, including air fresheners, as well as nonstick, stain-resistant and fire-resistant materials.

While some companies are proactively relinquishing confidentiality claims, the EPA is contacting others to request they voluntarily disclose the information. In January 2010, the agency issued guidance explaining its intent to deny confidentiality claims for chemical identity. One month later, the EPA notified five companies that the chemical identities the companies asserted were confidential did not qualify for confidential treatment pursuant to the TSCA and that the EPA intended to disclose the information within a specified period of 30 days or less. The letter informed recipients that the EPA would disclose the information unless the recipient brought an action in federal court for either judicial review of the determination or to obtain a preliminary injunction. The EPA further stated that if its determination was upheld or the recipient failed to obtain the injunction, the information would be made public.

The EPA's actions are part of its broader overhaul of its chemical management program. For the first time ever, the EPA has provided free public access to the consolidated TSCA Inventory available on the EPA Web site. A new online tool allows the public to search the EPA's database containing more than 10,000 documents to identify chemicals that the public may come in contact with every day. In the meantime, the EPA continues to encourage the industry to voluntarily declassify chemical identities in health and safety studies on file with the agency.

For more information on the EPA's trend toward greater transparency or for specific inquiries regarding the confidentiality provisions under the TSCA, please contact any of the Day Pitney attorneys listed in the sidebar.