In May 2010, EPA sent a draft “Chemicals of Concern” list, including bisphenol A (BPA) and five other chemicals, to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. The proposed list would be the first time EPA has used its authority under the Toxic Substances Control Act (TSCA) to publish such a list of chemicals that “may present an unreasonable risk of injury to health or the environment.” Today marks one year since OIRA exceeded the 120-day deadline for completing its review of EPA’s proposed chemicals of concern list.
The proposed list has met with fierce industry resistance, even though being added to the list only requires some minor additional reporting requirements. Between Jun. 2010 and Jan. 2011, OIRA hosted eight meetings to discuss the proposed list. Of those meetings, seven were with industry groups and trade associations including ExxonMobil, Dow Chemical, the American Chemistry Council, and the Society of the Plastics Industry. One meeting was with public health and environmental advocacy groups including the American Association of Intellectual and Developmental Disabilities, and the Natural Resources Defense Council. Listing carries no regulatory action. Manufacturers are required to comply with some additional reporting requirements, but only if EPA conducts additional rulemaking.
Industry groups object to chemicals being listed because they say the substances might obtain a stigma. But considering the chemicals on the list – BPA, phthalates, and flame retardant polybrominated diphenyl ethers (PBDEs) – many of these already have a stigma because they have for years been linked with harmful health effects. Ultimately, stigma is not a strong argument, and attaching stigma to these chemicals is at least part of the point. EPA has a responsibility to protect human health and the environment from hazardous chemicals, but its legal authority to regulate and reduce exposures to chemicals is weak under TSCA. The next best thing the agency can do is inform the public, and encourage companies to seek less dangerous alternatives.
The Chamber of Commerce also argued that EPA was exceeding its legal authority. The Chamber misread the law, as we previously explained.
Under Executive Order 12,866, OIRA has 90 days to review rules, but it can ask for a single 30-day extension from the agency. The Executive Order doesn’t impose a legally-binding deadline, so OIRA routinely extends reviews long past the 120-day mark. Still, it is very unusual for OIRA to hold up a rule for this long. Long OIRA reviews have been used as a strategy to delay regulations or prevent them from ever being released. After a long review, OIRA may simply tell the agency to withdraw a rule, or tell the agency to go back to the drawing board. It’s time for OIRA to let EPA publish a proposed list, and finally open the process to open public comment. Isn’t a year more than enough for the behind-the scenes lobbying phase?