Since January 2019, the Environmental Protection Agency (EPA) has received more than 1,200 legally required disclosures about chemicals that present a “substantial risk of injury to health or the environment.” All but one of EPA’s reports on these chemicals have been withheld from the public, as reported by Sharon Lerner in a November 2021 Intercept article.
According to Lerner, EPA received at least 1,240 substantial risk reports since January 2019, but only one was publicly available. The undisclosed reports documented “serious harms, including eye corrosion, damage to the brain and nervous system, chronic toxicity to honeybees, and cancer in both people and animals” as well as environmental risks.
The reports include notifications about highly toxic polyfluoroalkyl substances (PFAS), chemical compounds that are known as “forever chemicals” because they build up in our bodies and never break down in the environment. The Environmental Working Group explains that “very small doses of PFAS have been linked to cancer, reproductive and immune system harm, and other diseases. For decades, chemical companies covered up evidence of PFAS’ health hazards.”
Chemical companies are required by law to provide EPA with any evidence that a chemical may pose a “substantial risk” to public health or the environment. It had been EPA’s regular practice to publish these “section 8(e)” reports, named for a section of the Toxic Substances Control Act (TSCA), in a searchable public database called ChemView. EPA typically posted hundreds of these reports per year but quietly discontinued this practice in early 2019. In response to questions from the Intercept, EPA blamed its inaction on resource and staffing constraints initiated during the Trump administration.
Even internally, EPA’s own staff had difficulty accessing the substantial risk reports, according to two EPA scientists, because they had not been uploaded to the databases most used by chemical risk assessors. “As a result, little—and perhaps none—of the information about these serious risks to health and the environment has been incorporated into the chemical assessments completed during this period,” Lerner reported. “Basically, they are just going into a black hole,” according to one EPA whistleblower Lerner interviewed. “We don’t look at them. We don’t evaluate them. And we don’t check to see if they change our understanding of the chemical.”
Claiming confidential trade secrets and intellectual property rights, chemical companies have long resisted policies that promote public disclosure. Lerner conveyed that “close observers of the industry believe that pressure from companies that held this [stance] was likely what led the Trump EPA to decide to stop publicly posting the reports.” As Eve Gartner, an Earthjustice attorney quoted in the Intercept article, stated, “It is not easy to keep selling your chemicals when people know they likely cause cancer or other serious disease.”
A few legal and industry-related publications have focused on a lawsuit filed in January 2022 by Public Employees for Environmental Responsibility (PEER) to compel EPA to disclose TCSA section 8(e) reports. E. A. Crunden of E&E News first reported that PEER filed the complaint after EPA failed to respond to a Freedom of Information Act request seeking information about the missing reports. However, Crunden reported, “EPA has committed to posting real-time information for industry members regarding the chemical approval process for their products, even as sharing the 8(e) reports has fallen by the wayside.” Kyla Bennett, PEER’s science policy director, who previously worked for EPA, told Crunden, “It is incredible that EPA has funds to post real-time data about the regulatory status of new chemicals for industry’s convenience but does not have funds to alert workers and consumers about substantial health and environmental hazards of these same chemicals.”
Despite the concerns expressed by the EPA whistleblowers, the concealment of 8(e) substantial risk reports to appease chemical industry pressure has been mostly ignored by the corporate media. Apart from “EPA Exposed,” the Intercept’s extensive nine-part investigation of EPA’s dangerous conduct, toxic culture, and tendency to yield to industry pushback, only a handful of niche publications have reported on the matter. Bloomberg Law covered the story in December 2021, citing the Intercept’s reporting. However, the article downplayed the role of chemical industry pressure, instead pointing out that “businesses might need the information to decide whether to purchase a chemical, design an alternative, or improve its health and safety measures.”
Notably, the National Law Review reported on January 8, 2022, that PEER’s original Freedom of Information Act request was “built upon information reported in a November 2021 article in The Intercept.” PEER’s subsequent lawsuit asked the court “to enter an order declaring that EPA wrongfully withheld requested documents and to issue a permanent injunction directing EPA to disclose all wrongfully withheld documents.”
Just weeks after PEER’s complaint was filed, EPA announced in a press release on February 3, 2022, that it would resume publishing 8(e) substantial risk reports in ChemView. Clearly, independent journalism contributed significantly to this outcome. Had it not been for the work of investigative journalist Sharon Lerner at the Intercept, EPA whistleblowers would not have had a platform to share concerns that ultimately led the agency to resume these critical public disclosures.
Sharon Lerner, “EPA Withheld Reports of Substantial Risk Posed by 1,240 Chemicals,” The Intercept, November 1, 2021.
E. A. Crunden, “EPA’s Failure to Disclose Chemical Health Risks Draws Ire,” E&E News, January 5, 2022.
Student Researcher: Zach McNanna (North Central College)
Faculty Evaluator: Steve Macek (North Central College)