Companies withhold info more often for dangerous chemicals, C&EN finds

Companies claim that the amount of a chemical they use, produce, or import is confidential more often if it’s one that the US Environmental Protection Agency has determined poses a significant risk to human health or the environment, according to a C&EN analysis.

C&EN analyzed US chemical production and import data from 2012 to 2023 under the Chemical Data Reporting (CDR) program of the Toxic Substances Control Act (TSCA) and looked at how often companies marked their yearly production volume as confidential business information (CBI). Compared with all chemicals reported under TSCA, companies withheld production volumes from the public between 6 and 21 percentage points more frequently for compounds that the EPA deemed the highest priority for safety evaluation when Congress overhauled the law in 2016.

This means that for some of the most harmful chemicals, the public is less likely to be aware of how much a nearby company is handling.

Keeping this information from the public is incredibly problematic, says Tosh Sagar, a senior attorney at the environmental advocacy group Earthjustice. Cases in which a company is working with a particularly toxic chemical are where the public’s right to know potentially has a high impact, he says. Routinely, companies will withhold how much of a chemical they’re using, their name, and where the plant is located as confidential information in their TSCA reporting data, Sagar says. “If you’re in one of these communities, you have no way of knowing that that stuff is about to come into your community and potentially poison you, your neighbors, your water, your air,” he says.

But industry members say that companies sometimes need to keep manufacturing details private to protect their trade secrets from competitors. “You can do intelligence gathering on the competition by looking at what’s in the CDR,” says Richard Engler, director of chemistry at the law firm Bergeson & Campbell. Information such as what chemicals a company is using and how much might give away important details of a new or proprietary reaction or process, he says.

This balance between the public’s right to know and industry’s right to preserve business interests has been a topic of debate since Congress overhauled TSCA, including its CBI rules, in 2016. Ten years later, some of the CBI permissions that the EPA granted to businesses are coming up for renewal. In addition, TSCA’s rule on charging companies fees for evaluating chemicals expires in September, which lawmakers see as an opportunity to rework the law again.

It’s not clear to what extent, if any at all, this potential reworking might change CBI rules. The process will be thorny, given that advocacy and industry groups disagree on what some details in the CBI rules mean, what changes should be included in future bills on TSCA, and how to compromise on what chemical information can be withheld from the public and what needs to be shared.

Confidential claims on production volumes higher for TSCA top chemicals

The EPA requires chemical manufacturers and importers to report their chemical production, import, and use every year, and the agency publishes the results every 4 years. These reports make up the CDR database that provides information to the EPA about production, use, and worker exposure to chemicals in the US, says Maria Doa, senior director of chemical policy at the Environmental Defense Fund, an advocacy group.

The EPA uses the information for a number of things, but most importantly to prioritize chemical risk evaluations, she says. “It helps people focus on the high-production-volume chemicals or information on chemicals of concern because the database has lower thresholds for reporting for chemicals of higher concern,” she says.

For most chemicals, companies must file CDR data if they use 11,340 kg or more per year. For chemicals that are highly toxic or have other special considerations under TSCA, this threshold drops to 1,134 kg. The TSCA top 10 list falls under the lower-threshold category. It includes chemicals such as perchloroethylene, 1,4-dioxane, methylene chloride, and N-methylpyrrolidone (NMP), which have been linked to a variety of adverse health outcomes.

For the 2020 to 2023 CDR period, US companies filed reports for 8,541 chemicals. The EPA requires companies to file a report for each use of a chemical, which means that one company often submits more than one report per chemical it uses. C&EN’s analysis looked at the number of reports per chemical.

There are two categories of reports: industrial use, and consumer and commercial use. Industrial use means products sold by companies for other companies to use. Consumer and commercial use mean products sold by companies for consumers to use.

According to C&EN’s analysis of 2012 to 2023 CDR data, companies claimed CBI for a chemical’s production volume 6–21 percentage points more frequently when reporting on a top 10 TSCA chemical than when reporting on all TSCA chemicals. Industry reports differed slightly from consumer and commercial reports. For the top 10 TSCA chemicals, reports on industrial-use chemicals had CBI for production volume 2–8 percentage points more often than consumer- and commercial-use chemicals did across all 12 years.

C&EN also isolated reports in which companies withheld both the production volumes and company names as CBI. In these cases, companies claimed CBI for the top 10 TSCA chemicals a lower proportion of the time than for all chemicals. For industry reports, companies claimed CBI for both company name and production volume 2–4 percentage points more often for all chemicals than for just the top 10 chemicals. For consumer and commercial reports, companies claimed CBI for both company name and production volume in about the same percentage of cases for a few years and up to 2 percentage points more frequently for all chemicals than for the top 10 TSCA chemicals for most other years.

The EPA also tracks national production volumes for TSCA chemicals but reports these as a range instead of a single number. This practice is to prevent competitors from back calculating how much of a chemical a company claiming CBI might be using, Doa says.

C&EN analyzed the production volumes of the TSCA top 10 priority chemicals from industry and consumer and commercial reports not claiming CBI, and compared them with the aggregate ranges reported by the EPA. Of these, only 1-bromopropane, 1,4-dioxane, methylene chloride, and NMP had complete data from 2012 to 2023.

For all four chemicals, the nationally aggregated production volumes are higher than the reported production volumes, but how much higher varies greatly. For some chemicals and years, the low end of the range is about the same as the reported production volumes. But for some, such as from 2020 to 2022 for 1-bromopropane, the higher end of the EPA’s aggregated range is over 100 times higher. In some cases, the reported production volume for a chemical was zero, meaning that companies withheld how much of that chemical was produced, imported, or used in all the reports that year. This omission translates to millions of kilograms of compounds per year that the public doesn’t know about.

Confidential business information rules? It’s complicated

A company will ask the EPA to withhold information as CBI when it concludes that disclosing that information would expose trade secrets, Engler says. For example, scientists at a company may have found a specific, valuable use for a chemical that they don’t want competitors to figure out. “If a chemical is listed on the public portion of the inventory, you cannot protect the chemical identity,” Engler says. “The only way to protect the connection between the chemical and the use is to claim CBI for either the company name, the use of the chemical, or both.”

There’s some variability in the extent to which companies claim CBI for production volume, Engler says. Companies in highly competitive sectors tend to claim all production volume as CBI, while others are less concerned and tend to not claim CBI. He also says companies might claim CBI for production volume for the 10 prioritized TSCA chemicals more often because there’s a lot of visibility on these compounds.

But what companies are allowed to claim as CBI, what they’re not allowed to, and what they need to justify are subject to a lot of EPA rules. There are two “can claim” CBI buckets, Doa says. “Bucket 1 is information that is presumptive CBI.” That means a company can claim CBI without having to give the EPA a reason, she says. What goes in that bucket are things like production volume, the supplier of a chemical, and the physical form of a chemical a company is using.

In the other bucket are categories for which CBI is not presumed. For these, a company must substantiate to the EPA why that information should be withheld from the public, Doa says. Information in this bucket includes company name, location, and even the name of the chemical.

“If you do not want your company associated with the production of something that’s listed on the public portion of the inventory, you can claim your company name as CBI, but you have to explain to EPA why that is,” she says. For example, a company must make a case to the EPA that releasing the information to the public would cause it “substantial harm to the competitive position” of the company, according to CDR filing rules (PDF). The company must show the EPA that it is taking precautions to protect this confidentiality itself, she says. “They have to show they’re not making empty claims,” Doa says.

The EPA doesn’t explicitly define what substantial harm to the competitive position means in its guidance for companies wishing to claim CBI. “The EPA is not an expert on competitive harm,” Mark Duvall of the law firm Beveridge & Diamond says. Instead, the agency says it’s up to the CBI claimant to show this harm, he says.

Earthjustice’s Sagar argues that this approach allows companies to claim CBI in cases in which it’s not necessary. “What you see is abuse of the system by the companies,” which have “an overly sensitive and overly capacious view of what constitutes substantial harm,” he says.

The public’s right to chemical information is a balancing act

Under the Emergency Planning and Community Right-to-Know Act (EPCRA), companies storing or handling hazardous chemicals must provide safety information to local emergency responders and report any toxic chemical releases. The Toxics Release Inventory (TRI), meant to inform the public about toxic chemical releases either as waste or pollution, falls under EPCRA.

The information in the TRI is related to what’s in the CDR but doesn’t give the same level of insight, Engler says. The TRI has some information about what a company is storing on-site, but unlike the CDR, it doesn’t tell you how much the company is using, he says. “The TRI is telling you what comes out of a facility, but it doesn’t tell you what went in.”

When TSCA was going through its rehaul a decade ago, there was a lot of discussion about what should be allowed to be confidential and what shouldn’t, Engler says. “There was a recognition of seven things [that] are presumptively CBI, which companies shouldn’t have to justify because they contain sensitive information,” he says. A company’s production volume is one of them because it can clue competitors in to its market share. “It can give information on who the dominant business on the market is or allow business intelligence into what your competitors are doing,” Engler says.

Whether CDR production volume data are right-to-know information has been the subject of much debate in the past, Engler says. “People disagree, but the statute is clear that the company has the right to keep those volumes confidential,” he says.

But Sagar argues that a company’s production volume of a chemical should be available to the public. To the local community, there’s a big difference between 2,000 and 20,000,000 kg of a potentially harmful chemical being used at a chemical plant, he says.

The public can theoretically get information from the CDR that’s listed as confidential, but people would have to submit a Freedom of Information Act request to the EPA, Duvall says. If the EPA refuses the request, then the only recourse left is to sue the EPA for the information, he says.

Future confidentiality rules subject to potential TSCA revamp

The EPA reviews every CBI claim that companies file regarding chemical identity and 25% of all other CBI claims, Duvall says. According to data on CBI claims from the EPA, the agency fully approved about 58% of CBI requests between June 22, 2016, and Jan. 1, 2026. It denied 28% of requests and partially approved 14%.

If a CBI claim is granted, it comes with an expiration date, often 10 years after the company applies for CBI protection. The 2016 TSCA overhaul brought companies claiming new CBI protections, and many of them are about to expire.

So far, the EPA has released two lists of expiring CBI claims—one made up of claims set to run out between June 22 and July 31, and one with claims expiring by Aug. 31. Companies whose CBI claims are up for renewal have 30 days to submit new justifications to keep their CBI status.

“The EPA is required to review 100% of those renewal claims,” Engler says. “Then after that, if EPA grants the renewal, then nothing. There’s no new disclosure. If the renewal claim is not made, then the CBI claim is lost.” But a company can file an appeal if the EPA doesn’t renew a CBI claim, he says.

Some members of Congress are looking at the Sept. 30 fee authority reauthorization as a chance to make broader changes to TSCA. Both the House of Representatives and the Senate have introduced discussion drafts of bills to change TSCA. If the bills are passed, they could implement changes that would shape how the CDR looks in coming years.

What these changes might have in store for CBI rules is yet to be seen, Engler says. “There are legitimate needs to protect information via CBI,” he says. “And there are good reasons for some [information] to not be eligible for that protection.”