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EPA Can Keep Formaldehyde Health Assessment Under Wraps (1)

June 21, 2021, 2:43 PM; Updated: June 21, 2021, 4:24 PM

The U.S. Environmental Protection Agency has no obligation to share its study of the risks of inhaling formaldehyde with Public Employees for Environmental Responsibility, because the document sought is only a draft, a Washington federal court ruled.

The agency identified the 2018 version of its formaldehyde assessment as a draft, and the version precedes the EPA’s official statement on the chemical’s health risks, according to the U.S. District Court for the District of Columbia. The document also contains red lines and comment bubbles, which also indicates a draft document, the court said June 18.

The Freedom of Information Act has an exemption that protects agencies from sharing “pre-decisional, deliberative documents,” according to the ruling. In this case, the 2018 assessment “reflects a preliminary view rather than a final decision” on the effects of formaldehyde, and therefore is protected by the deliberative process privilege, the court said.

PEER argued that releasing the document wouldn’t cause any harm. The EPA said in response that disclosing the assessment could make staff less likely to freely discuss scientific analysis. The document’s release could also confuse the public because it may reveal staff opinions that don’t represent the agency’s final conclusions, according to the EPA.

The court agreed with the agency, saying it identified two harms that the deliberative process privilege is meant to prevent.

PEER also said the EPA prepared a formaldehyde assessment that is ready for public release. But the argument over whether this other document was properly withheld falls outside the agreed-upon scope of the lawsuit, the court said. The record also shows that document doesn’t exist, according to the ruling.

Kevin Bell, staff counsel for PEER, said in a statement Monday that it has been 30 years since the EPA completed any assessment of the safe exposure levels for formaldehyde.

“At the current rate, it will be several more years before EPA is likely to provide any assistance in protecting workers and consumers from unsafe and potentially lethal levels of exposure,” Bell said.

Judge Beryl A. Howell issued the opinion.

The Justice Department represented the EPA. PEER represented itself.

The case is Pub. Emps. for Envtl. Resp. v. EPA, D.D.C., No. 1:18-cv-02219, 6/18/21.

(Adds comment from PEER staff counsel in seventh and eighth paragraphs.)

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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