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

by 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:

[T]he 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.

Be the first to comment on this entry.
We ask for your email address so that we may follow up with you, ask you to clarify your comment in some way, or perhaps alert you to someone else's response. Only the name you supply and your comment will be displayed on the site to the public. Our blog is a forum for the exchange of ideas, and we hope to foster intelligent, interesting and respectful discussion. We do not apply an ideological screen, however, we reserve the right to remove blog posts we deem inappropriate for any reason, but particularly for language that we deem to be in the nature of a personal attack or otherwise offensive. If we remove a comment you've posted, and you want to know why, ask us ( and we will tell you. If you see a post you regard as offensive, please let us know.

Also from Matthew Freeman

Media relations consultant Matthew Freeman helps coordinate CPR's media outreach efforts and manage its online communications. His media relations experience in Washington spans more than 30 years, and his client list includes a range of organizations active on the environment, education, civil rights and liberties, health care, progressive organizing in the interfaith community, and more.

CPR's 2018 Op-Eds

Freeman | Dec 27, 2018 | Regulatory Policy

Shapiro Takes on Pruitt's Pseudo-Transparency Rule

Freeman | May 29, 2018 | Regulatory Policy

CPR's 2018 Op-Eds, Part One

Freeman | Apr 11, 2018 | Regulatory Policy

What Creates the Cost, Mr. President?

Freeman | Jan 31, 2018 | Regulatory Policy

The Center for Progressive Reform

2021 L St NW, #101-330
Washington, DC. 20036

© Center for Progressive Reform, 2015