Chamber of Commerce Gets the Law Wrong in its Argument to the White House Against Listing BPA as a Chemical of Concern

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 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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