EPA’s Coming Announcement on BPA

In response to a question at a National Press Club appearance on Monday, Lisa Jackson said that the EPA would be finalizing an action plan on BPA in the "very near future."

As I noted here in January, the EPA had announced in September that it would be releasing action plans on a number of chemicals, including BPA, but when the first group of plans was released in late December, BPA was not among them. I raised a red flag because EPA had sent six draft chemical action plans to White House's Office of Information and Regulatory Affairs (OIRA) on December 14, OIRA hosted a meeting with BPA industry lobbyists a week later, then the BPA action plan was absent from the list of plans released on December 30. OIRA had no business reviewing the chemical action plans in the first place since they are not regulatory actions covered by EO 12,866.

Last week, Sen. Chuck Schumer put some pressure on EPA and OIRA, asking Administrator Jackson for a written explanation regarding the “confounding decision” to hold back the BPA action plan. Now that the BPA action plan has been released from OIRA’s grip (Inside Story, 3/4/10) and delivered to EPA for publication, what can we expect it to say?

At a hearing last month, EPA’s James Jones stated that BPA might be added to the Contaminant Candidate List under the Safe Drinking Water Act. Adding BPA to the list of chemicals that might one day be regulated under the SDWA is not much of a plan for action. In the three CCLs published since the 1996 SDWA amendments, EPA has listed 215 contaminants, reviewed 21 for potential regulatory action, and determined regulations are necessary for zero. (The three CCLs include notorious contaminants like perchlorate, MTBE, and a variety of other industrial and agricultural chemicals.)

The BPA chemical action plan is also expected to say that EPA is working on a “test rule” under TSCA § 4. The eventual content of the test rule will reveal a lot about EPA’s relationship with the BPA industry. Under § 4, EPA can require chemical manufacturers and processors to do toxicological studies on a chemical if the chemical (A) may present an unreasonable risk of injury to human health or the environment, or (B) is manufactured or imported in large volumes and there are high human or environmental exposures. (EPA also has to show that current knowledge about the chemical’s toxicity is insufficient and the proposed testing is necessary, but those pieces won’t be as interesting.) It’s likely that EPA will take the second route to a BPA test rule, since it’s far less controversial. Based on data submitted to EPA by industry in the 2006 TSCA Inventory Update, BPA is produced or imported in quantities exceeding one billion pounds per year, it is found at hundreds of sites, and thousands of workers are exposed.

But EPA could take a more aggressive position by basing their test rule on a determination that BPA may present an unreasonable risk of injury. Other federal agencies – FDA and NTP in particular – have expressed some concern about the human health effects of BPA, and an official statement from EPA that the chemical may present an unreasonable risk would force BPA manufacturers and processors to re-think their strategy of doggedly insisting that BPA is plainly safe despite the growing evidence to the contrary. And on the flip side of that argument, if EPA goes with the less controversial exposure-based test rule, it will give the BPA industry a great opportunity to latch on to the absence of a “may present an unreasonable risk” determination to say that BPA is safe.

I doubt EPA will tip its hand in the soon-to-be-released action plan, but if it does, the result will certainly say a lot about the BPA lobbyists’ ability to sway EPA decisionmaking through closed-door meetings at OIRA.