As part of its ongoing campaign to derail health, safety, and environmental regulations that it regards as inconvenient to industry, the Chamber of Commerce sent a letter earlier this month to Cass Sunstein, Administrator of the White Hosue Office of Information and Regulatory Affairs, calling on him to push the EPA to suspend an initiative to list BPA and several other substances as "Chemicals of Concern." Today three Member Scholars of the Center for Progressive Reform sent a letter to Sunstein, arguing that the Chamber had misread the law and calling on Sunstein to allow EPA to publish the proposed rule so that the public can comment on it.
EPA is considering listing BPA and four other chemicals using its authority under § 5(b)(4) of the Toxic Substances Control Act (TSCA). Each of the chemicals (or classes of chemicals)—BPA, Hexabromocyclododecane (HBCD), Nonylphenol (NP) and Nonylphenol Ethoxylates (NPEs), Phthalates, and Polybrominated Diphenyl (PBDE)—poses significant health and safety risks that the EPA has rightly determined warrant public dissemination.
In their letter today, CPR Member Scholars Noah Sachs, Rena Steinzor, and Wendy Wagner lay out how the Chamber misreads the law in its demand that the EPA promulgate specific standards prior to proposing § 5(b)(4) listings. TSCA sets a clear standard, that the EPA Administrator may list any chemical that she finds “may present an unreasonable risk.” That “may present” standard is used throughout TSCA, and no court has ever forced the agency to define the term numerically, as the Chamber demands.
The Member Scholars also write that the Chamber’s lawyers misread the law by asserting that EPA is exceeding its authority in moving to list the chemicals:
The Chamber inexplicably conflates TSCA § 5(b)(4) with § 6(a) by asserting that “EPA lacks the legal authority” to list or consider listing chemicals “absent sufficient evidence to support a § 6(a) rule.” These two sections of TSCA grant the Agency different regulatory powers (to list as a “chemical of concern” and to restrict or ban, respectively) and require that EPA satisfy correspondingly different evidentiary burdens. Section 5(b)(4) allows the Administrator of EPA to publish a list of chemicals of concern after determining that a chemical may present an unreasonable risk of injury to health or the environment. When the Administrator lists a chemical under § 5(b)(4) a manufacturer may be subject to several data-submission requirements that act to give EPA more information for assessing the risks posed by the listed chemical. There is no limit placed on the amount of the chemical that can be manufactured and a § 5(b)(4) listing in no way leads to a ban, real or imagined.
The Member Scholars go on to call on Sunstein to conclude OIRA's review (which the Scholars note has gone on longer than is permitted by Executive Order deadlines) so that EPA can move ahead with the rulemaking process. To date, only government officials have seen the text of the proposed rule because, under standard procedures, draft notices of proposed rulemaking are not made public during the OIRA review process. The Chamber demands that OIRA further delay public notice-and-comment. CPR’s scholars ask that the proposal be published in the Federal Register, so that everyone affected by the proposal may read and comment on it.
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Matthew Freeman | June 20, 2011
As part of its ongoing campaign to derail health, safety, and environmental regulations that it regards as inconvenient to industry, the Chamber of Commerce sent a letter earlier this month to Cass Sunstein, Administrator of the White Hosue Office of Information and Regulatory Affairs, calling on him to push the EPA to suspend an initiative […]
Matthew Freeman | June 17, 2011
The Washington Post reports today on the White House’s latest failed effort to extract political gain from the President’s misguided “regulatory look-back,” led with disturbing enthusiasm by Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs. The story tells us a lot about the thinking of the man who controls access […]
Robert Verchick | June 12, 2011
Copenhagen—Denmark’s famed “Little Harbor Lady,” or in English, “Little Mermaid,” has had her share of antics and perils. She’s been photographed by millions in Copenhagen’s harbor, carted off and shown at the 2010 World Fair in Shanghai, beheaded (several times), dynamited, splashed with pink paint, and enveloped in a Burqua. An environmental nerd for all […]
Yee Huang | June 10, 2011
The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued […]
Matt Shudtz | June 9, 2011
EPA announced Wednesday that staff from the Office of Chemical Safety and Pollution Prevention are making good on a promise to give the public increased access to health and safety studies about the toxic chemicals that pervade our lives. I applaud EPA for their work. Until Congress reforms TSCA to free EPA’s hand in regulating toxic chemicals, […]
Ben Somberg | June 7, 2011
How easy it is to make fun of those out-of-control, unelected government bureaucrats! The examples of their wild behavior are just so plentiful. Here’s Tim Pawlenty in his big economic speech this morning (prepared remarks, video): Conservatives have long made the federal bureaucracy the butt of jokes. And considering some of the bureaucrats in Washington, […]
Robert Verchick | June 5, 2011
Bonn–At a climate conference in Germany, with lager in hand, I was prepared to ponder nearly any environmental insult or failure. But rat pee? Really? The urine of rats, as it turns out, is known to transmit the leptospirosis bacteria which can lead to high fever, bad headaches, vomiting, and diarrhea. During summer rainstorms in São Paulo, Brazil, […]
James Goodwin | June 3, 2011
In testimony before the Senate Committee on Homeland Security and Governmental Affairs in mid-April, Cass Sunstein, Administrator of the White House’s Office of Information and Regulatory Affairs (OIRA), was asked to comment on a much-disputed $1.75 trillion estimate of the annual cost of federal regulations. The number comes from a report commissioned by the Small […]
Dan Rohlf | June 3, 2011
Few things in politics are certain, but it’s a safe bet that Barak Obama will not carry the state of Utah in his 2012 re-election bid. But despite its dismal electoral prospects in the state, the Obama Administration knuckled under to pressure from Utah and other western Republicans this week when Secretary of Interior Ken […]