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Two federal agencies in the US have agreed to share confidential business information (CBI) about the manufacture of chemicals that are produced and imported, in efforts to improve the protection of workers who may be exposed to a new chemical substance.
Under section 5 of the Toxic Substances Control Act 1976 (TSCA), the EPA is responsible for making a determination as to the risks of new chemical substances. The EPA is responsible for classifying the substances accordingly.
However, the EPA requires the OSHA’s assistance in relation to workplace chemical exposure.
Under section 14 of the TSCA, the EPA must consult with the OSHA before adopting any restrictions in relation to a chemical substance which the EPA has made a determination on to address workplace exposure.
This involves the EPA sharing TSCA CBI with the OSHA. That CBI is required by the OSHA in order for it to fulfil its duty to protect health and/or the environment.
According to Tuesday’s memo, the EPA and the OSHA have agreed to coordinate on activities related to section 5 determinations and exemptions. This will be led by the EPA, though the procedures to implement this coordination will be established through a “collaborative process”.
Examples of the coordination include communications between the agencies related to workplace exposures identified in section 5 reviews, updates on the EPA’s activities related to workplace exposures, and on-going consultations between the agencies.
Both the EPA and OSHA will educate their respective relevant employees on the applicable standards and regulations that may be impacted by their communications under section 5, and the EPA will provide initial and annual training on the protection of TSCA CBI to the appropriate OSHA employees.
On receiving CBI from the EPA, the OSHA will protect it according to the procedures set out in the TSCA CBI Protection Manual and 40 CFR § 2.209, which covers the special circumstances in which the disclosure of confidential information can be made between federal agencies.
Though the MOU will remain in effect for three years, it may be extended or modified at any time by mutual written consent. The EPA or the OSHA can terminate its participation in the MOU by providing 30 days’ written notice to the other.
News of the MOU follows the EPA’s announcement that it is reopening a 2017 regulation which enabled chemical manufacturers to keep the specific identity of certain compounds secret from the public and competitors.
The revival of the 2017 regulation will give chemical manufacturers a renewed opportunity to protect the confidentiality of the chemicals they make or import.
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US Environment Protection Agency, US Occupational Safety and Health Administration, Toxic Substances Control Act, confidential business information