Scholars with the Center for Progressive Reform have written a letter to Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein asking that OIRA conclude its review of the proposed listing of bisphenol A (BPA) under the Toxic Substances Control Act (TSCA). Stating that the review has been “delayed far longer than Executive Order guidelines allow,” the June 20, 2011, letter was apparently prompted by an earlier U.S. Chamber of Commerce letter that urged OIRA to suspend the Environmental Protection Agency’s (EPA’s) consideration and initiation of all TSCA listings.  

The center scholars note that the listing, which includes “chemicals of concern,” informs the public about EPA’s current thinking about these chemicals and could lead to a notice of proposed rulemaking (NPRM) that would invite public comment. According to the letter, the Chamber pays “lip service” to such transparency, but “its goal is to head off issuance of an NPRM.” The scholars claim, “The Chamber is attempting to squelch, rather than advance, debate on these important issues. If the Chamber believes that EPA’s science is flawed, it should make those arguments in a formal public comment process. The Chamber’s current tactic serves only to generate more work for both OIRA and EPA while obfuscating and delaying the important health and safety information on which EPA seeks public input.”

According to the letter, BPA “is used in the manufacture of many consumer products and has been shown to be a reproductive and developmental toxicant.” The scholars observe that a TSCA listing requires less evidence than a rulemaking and takes issue with the Chamber’s contention that EPA lacks the legal authority to list or consider listing chemicals in the absence of the more rigorous evidentiary support required for a rule. The Chamber was apparently concerned about a TSCA listing forming the basis for potential tort actions or advocacy group litigation, to which concern the scholars respond, “[P]lacement on the chemicals of concern list provides potential litigants with no additional statutory grounds for relief. Rather, such placement indicates to both the public and industry that EPA believes these particular chemicals warrant further study and investigation because of their potential effects.”