"Did the EPA drop bisphenol A from the list in eight days because of lobbyists? First of all, if the EPA or any government agency reversed a decision like this in eight days it would be a grand miracle on the scale of the Genesis seven day creation myth. Or at least worthy of an Olympic gold medal. Really..."
Post Updated 2/19/10 to include new references.
The EPA, Skewered For First TSCA Action in Decades:
On December 30th, the Environmental Protection Agency (EPA) posted action plans for four chemicals: phthalates, perfluorinated chemicals (PFCs), polybrominated diphenyl ethers (PBDEs), and short-chain chlorinated paraffins. (No really! It gets better :-) ) An action plan signals that the EPA intends possible regulation because the chemical poses a hazard. Chemical companies complained bitterly. The EPA also listed two more chemical action plans in the development process, for benzidine dyes/pigments, and bisphenol A. Scientific American commented at the time:
"This is a big deal because it is the first time since TSCA was passed in 1976 that the EPA has made such a move. To date, the agency has only successfully used TSCA to restrict or ban five of the 80,000-plus chemicals on its inventory"
However this week, the Milwaukee Journal Sentinel criticized the EPA's December chemical action plans, questioning why bisphenol A wasn't on the top four list: The EPA's "move" was "drawing suspicion", explains the paper:
"the head of the Environmental Protection Agency had been talking tough in one speech after another last fall about the need to protect the public from such chemicals, particularly BPA...but when the agency's list came out Dec. 30, identifying four chemicals that would face stricter labeling and reporting requirements, BPA was not among them..."
Writes MSJ: "Critics say the Dec. 22 meeting might have been why BPA was dropped from the top of the agency's list".
BPA is on the agency's list. But to the Journal-Sentinel's question, why is it not first up in the most recent round of action plans? Did lobbyists pressure OMB/OIRA to change EPA's stance on Dec. 22?
Now, Suddenly, The EPA Turns on A Dime?
The paper cites as the deciding factor a meeting of plastic and chemical lobbyists with the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA):
"Eight days after a meeting between chemical industry lobbyists and Obama administration officials, federal regulators put off including bisphenol A on a list of dangerous chemicals that would be subject to stricter regulation"
The Center For Progressive Reform also forwarded the idea that the EPA was influenced to remove BPA from its chemical action plans list in a blog posted January 22:
"on December 22, just before EPA was about to release its first four chemical action plans, activists from American Chemistry Council and representatives of a major BPA producer met with officials at OIRA to plead the case for BPA's safety."
Did the EPA drop bisphenol A from the list in eight days? First of all, if the EPA or any government agency reversed a decision like this in eight days it would be a grand miracle on the scale of the Genesis seven day creation myth. Or at least worthy of an Olympic gold medal. Really.
But, lets look back to last fall, to a much quoted speech given by Lisa Jackson to the Commonwealth Club in San Francisco. The MSJ quoted the speech in their article. At the time, we wrote in "The EPA Speaks To Me" that Jackson's speech, like the president's sweeping public orations, promised something for everyone:
"The more I read, the more Jackson's speech looked like a veritable public relations jambalaya. She spoke to those committed to wetlands, spotted owls, to asthma sufferers, climate change, to those concerned about coal and gas emissions, to the Clean Air Act, to trash incineration, dioxins, pesticides, green chemistry, research, unions, medical professionals, public health groups, industry, environmentalism, to those who want jobs, fast food packaging, to unborn children, African Americans, Native Americans, Latinos and postal workers, as well as everyone who emails public comments to the EPA or who's concerned about health care or health..."
I commented at the time that her speech was clearly a "marketing tool and conversation generator but not a public policy statement." We could get mad about a lot of things in her speech, I'm sure, if we took it as public policy commitment.
If Only Talking Made Policy
Of course, in that speech Jackson did mention bisphenol A, saying: "Every few weeks, we read about new potential threats: Bisphenol A, or BPA - a chemical that can affect brain development and has been linked to obesity and cancer..." Or, as the Milwaukee Journal Sentinel sees it: "The first chemical on her list: BPA." But, writes MSJ: "In the end, though, her agency settled on four other chemicals to target first for the action plans." (emphasis ours)
So as MSJ says, it's true, "first" Jackson did mention BPA. Then she said "pthalates", then "dioxins, then "lead" (each once). One of the Journal-Sentinel's sources labeled EPA's stance as "curious". I'm as cynical as anyone, but lets look at Jackson's rhetorical choices.
San Francisco was the first in the nation to attempt action on bisphenol A and phthalates. Jackson was at the San Francisco Commonwealth Club talking to (I guess) some commoners -- not chemists or policy wonks. "Bisphenol A" and "pthalates", "dioxin", and "lead" would be recognizable and appreciated by the crowd. True, she didn't explicitly mention "polybrominated diphenyl ethers (PBDEs) including the commercial versions of pentabromodiphenyl ether (c-pentaBDE), octabromodiphenyl ether (c-octaBDE), and decabromodiphenyl ether (c-decaBDE)" -- the flame retardants in the first batch of four EPA action plans. But had she, the crowd, eyes glazing over, probably would have slumped into trance instead of thinking the EPA was their friend and ally. Whether you view this as PR or marketing or just common sense, its elementary communication. And as an aside -- why no concern about the EPA's omission of lead or dioxin in the first batch of action plans?
Sept. 29th: EPA Announces Four Chemical "Action Plans". Sept. 30th: Names Chemicals
As for the EPA's choice of which chemicals would be targeted first, on September 29, 2009 , the EPA issued a press release" right after Jackson's speech, announcing its intention to issue four action plans in December:
"The EPA has identified an initial list of chemicals for possible risk management action and anticipates completing and posting an initial set of four action plans in December. It will complete and post additional chemical action plans in four-month intervals thereafter."
On September 30, 2009, the EPA issued another press release, naming the four chemicals of top interest, the same ones that it produced action plans for in December:
"EPA today announced a series of actions on four chemicals raising serious health or environmental concerns...The agency's actions represent its determination to use its authority under the existing Toxic Substances Control Act (TSCA) to the fullest extent possible...In addition to phthalates, the chemicals EPA is addressing today are short-chain chlorinated paraffins, polybrominated diphenyl ethers (PBDEs) and perfluorinated chemicals, including PFOA.
So in a September 30th press release, the EPA named the same four chemicals that were in the December 30, 2009 action plan announcement. Then did the American Chemistry Council (ACC) really sway the EPA's BPA decision in a meeting December 22nd with OMB/OIRA, eight days before the EPA's action plan announcement?
The Chemical Lobby, BPA & The EPA: Economics Factors?
To me, aside from the overly conspiratorial premise of the article, the Milwaukee Journal-Sentinel and CPR valuably point the public's attention to some enviable industry access. The ACC sent five representatives to meet with four OMB,OIRA staff; and SABIC, a Saudi BPA manufacturer, sent two. The ACC apparently sent a letter requesting the meeting dated November 3rd. This is news: If you're a chemical lobby group or a Saudi BPA manufacturer, you can get a meeting with OMB/OIRA in a month and a half.
ACC also submitted a slim bibliography(.pdf) of research sources. The ACC submissions show the industry's dedication to a relentlessly one-sided messaging on chemical safety.
Six of fifteen studies in the bibliography have ACC's Steve Hentges (meeting attendee and ACC lobby spokesperson, who has relentlessly messaged about BPA safety) listed as the senior author (not unbiased). Three industry related studies intend to prove that BPA degrades quickly, which is an important criteria for EPA action plans. At least four other studies with various aims are authored by groups sponsored by plastics, BPA or chemical foundations. It's true, as the MSJ writes, most of the studies authors have industry affiliations. There are hundreds of other studies to choose from which wouldn't bolster the ACC's arguments one tiny little bit. (Although to be fair, the ACC is a chemical lobby group -- not an unbiased journalist, a point I'd hope the EPA recognizes)
But the ACC included one study from Ryan et al published in Toxicological Sciences (Online October, 2009), that is an EPA study conducted by EPA employees. This study concludes that low-dose bisphenol A does not alter puberty, fertility, or anatomy and sexual behavior in rats, compared to the estrogen control. Several groups dispute this study because, for one, the strain of rat is not as sensitive to low-dose estrogen" (.PDF Update 02/19/10). However the study's sponsoring author has disputed their claims (which are longstanding) to Trevor Butterworth of Stats.org, which has been doing PR on behalf of the bisphenol A industry. We previously discussed Stats.org's role in several posts.
If anything might dissuade the EPA from acting on BPA it would be its own studies (which they didn't need the ACC to highlight.) The senior author on the study, L. Earl Gray Jr., also testified before the EPA in 2008, emphasizing that his level of "concern" (an agency measure of potential harm) about bisphenol A exposure was less that his level of concern for phthalates exposure. Industry groups have touted Ryan's and Gray's work. If the Ryan and Gray's study methodology is in question, no activist has been too public about it (Update 02/19/10: A letter in Toxicological Sciences published 02/17/10 explains the problem with rat strain.) Perhaps more media focus should be placed here, on the EPA's own study.
The ACC letter requesting the meeting asks for chemical industry participation in the EPA decision making process (a request that seems rather unnecessary given the easy access industry does have). The letter also asks EPA to "be sensitive to the potential and foreseeable negative effect on the marketplace...the market impact on bisphenol A demonstrates this is a serious and real concern." Of course this is the primary goal of ACC, to urge the EPA not to impact any one of 80,000 chemicals' markets.
The EPA, in contrast, has said that its priority is to "review all chemicals against safety standards that are based solely on considerations of risk - not economics or other factors." (emphasis ours). It will be interesting to see how the EPA decides on bisphenol A, and whether its considerations to "risk" will include industry consideration to economic factors - or not. However just the fact that OMB and EPA were willing to sit with the ACC lobby group shows a willingness to listen to their (always) economic arguments.
The EPA -- Total Pushover?
I don't think I'm particularly naive in these matters, we've been following industry influence on policy for a while, especially BPA, which we've been following since 2005. We've specifically written about EPA apparently backing off of regulation under pressure from OIRA/OMB several times before.
But I'd be surprised if the EPA turned their intentions for BPA around based on this meeting. First, it appears from their press releases that they had already concluded back in September which four chemicals were first up for action plans. The idea that they would be so swayed is practically absurd, given the transparently, almost lazily, self-interested documents submitted by industry. Somehow I have more confidence in this EPA then to think they changed action plans based on those almost disrespectful pleas. But they do, now, have their own scientists saying that BPA isn't as dangerous as phthalates.
Clearly the EPA is not quite committed to regulating BPA as activists want. But it has put $30 million towards EPA research. It's also conducting its own studies. Hundreds of science studies provide evidence that BPA is harmful, but there are enough impacts from EPA decisions on industry that the agency needs to continue its BPA investigation. However, consider dioxins, another chemical the EPA mentioned in its Commonwealth Club speech. Dioxins are proven to be carcinogenic, a far more damning research finding than has to date been applied to BPA, but the EPA is still struggling to contain their use. On BPA, I'd be the first to say that there's enough research, as would many states and communities. But federal policy-making is not science. So is it more than poppycock to suggest that the EPA was singularly pressured by one ACC meeting to change its mind on BPA?
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