Federal judge rules EPA must publish more information about chemicals under review

A Washington, D.C., judge ruled this week that the Environmental Protection Agency must disclose more information than it currently does about chemicals pending review under the Toxic Substances Control Act.

In the ruling, Judge Loren AliKhan of the U.S. District Court for the District of Columbia, a President Biden appointee, sided with a coalition of environmental groups, including the Center for Environmental Health, Defend Our Health, Natural Resources Defense Council, the Sierra Club and the Environmental Defense Fund.

In a November brief, the environmental groups argued that current regulations made it overly complicated for the public to obtain information under the Toxic Substances Control Act (TSCA) about such chemicals.

In 2020, the EDF challenged updated regulations, arguing that under them, companies that submitted their chemicals for review have too much leeway in claiming that information about it is confidential

They also alleged the EPA delayed or failed to make public the records associated with more than 250 applications. Under the new rules, EDF argued, the mandatory disclosures were replaced with a system that allowed the agency to use its own discretion when it comes to transparency.

In her ruling, AliKhan largely agreed with the EDF that the TSCA “creates a freestanding right to information independent from the risk-determination process.”

She ruled that under the law, the EPA is required to make any nonconfidential information contained in an applicant’s pre-manufacture notice publicly available within five days.

The law, she wrote, “vest[s] an enduring right to information that lasts before, during, and after any risk determination” in the same way as the Freedom of Information Act or the Federal Advisory Committee Act.

She also disagreed with the EPA’s argument that the complaint is moot because it has since altered its policies, writing because "there is nothing to prevent the EPA from reverting to its 'old ways,' plaintiffs' claims are not moot.”

"The law mandates timely public access to robust information about new chemicals entering the marketplace to which we may be exposed," Samantha Liskow, Lead Counsel for Healthy Communities at EDF said in a statement to The Hill. "Congress created a ‘freestanding right to information’ submitted by companies who seek federal approval to make new chemicals, the judge ruled. This new ruling will strengthen the public’s ability to exercise that right.”

Updated at 4:58 pm.