The Pollution in Your Drinking Well May Be Syngenta's "Trade Secret"

EPA says it can tell you how much of the herbicide atrazine may be in your drinking water - but you will have to swear not to tell anyone. It's the law.

Or at least that's how EPA and the pesticide companies read a 1978 amendment to FIFRA, the nation's main pesticide law.

Before they get an EPA registration (license) to make and sell a pesticide, companies must do tests to determine whether the pesticide harms human health or the environment. These tests are costly, and companies have an interest in not allowing competitors to use data they have paid for in registering their own competing products. FIFRA does not allow competitors to do this without paying for the privilege.

But FIFRA also allows companies to claim that a sweeping array of health and environmental data amount to trade secrets or proprietary information. Company efforts to keep this information hidden caused environmentalists to howl during the 1970s. The result was an odd compromise in the 1978 FIFRA amendments. On the one hand, the provision required EPA to disclose this information to the public - but, on the other hand, it allowed the EPA to withhold from disclosure any information claimed by the company to be a trade secret (and deemed by EPA to be such).

The Catch-22 is a provision that says the EPA administrator can't disclose pesticide health and environmental studies to anyone without first requiring them to sign an affidavit promising that they will not purposefully or negligently allow it to be delivered to any multinational pesticide producer. That seems pretty much to prohibit publication in any form. Multinationals can read.

The issue came up when journalists sought to tell U.S. readers in the Midwest and elsewhere how much of the weedkiller atrazine was in their water. As part of its re-registration of atrazine, manufacturer Syngenta Crop Protection had taken some 10,000 water samples in some 40 watersheds, where they occasionally spiked above EPA "levels of concern."

In her Dec. 9, 2007, Washington Post article on the subject, reporter Juliet Eilperin noted that - while she had acquired the Syngenta data (and disclosed some details) she really couldn't share it all because of the restrictions. Jim Jones, a deputy assistant administrator in EPA's pesticide office told Eilperin that Syngenta claimed some of the water sampling data to be proprietary information, and thus subject to the non-disclosure affidavits.

• "High Weedkiller Levels Found in River Checks," Washington Post, Dec. 9, 2007, by Juliet Eilperin.
• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), section 136(h).
• EPA nondisclosure affidavit form and explanatory text.
• Previous Stories: WatchDogs of Feb. 23, 2005, and Dec. 19, 2003.