Holding its Legal (and Parental) Ground: EPA Responds to the American Chemistry Council's Request for Correction of the BPA Action Plan

Being a parent is not easy, but some of the most difficult moments arise when you know what needs to be done to protect your child and your child has other sentiments. Call it a temper tantrum, a battle of wills, or disobedience, it all evokes a sense of frustration, exhaustion, and, let’s face it, self-doubt. There is that brief moment when you think to yourself, “Wouldn’t it just be easier to let them have their way? Maybe I am being too harsh or paranoid? Is it really going to hurt them?” Unfortunately, for the EPA, these questions and many more weave their way into the complex and detailed decisions that the agency must make on a daily basis in its quasi-parental role. At its core, EPA exists to protect us from dangerous toxins, pollution, and multitudes of health hazards that plague our environment. The “children” with whom EPA deals on a daily basis range in form from individuals to corporations depending on the issue; however, recent events concerning Bisphenol A (BPA), a high production volume chemical used in manufacturing polycarbonate plastics and epoxy resins, starred the American Chemistry Council (ACC) in the role of the strong-willed child.

In March 2010, EPA released its BPA Action Plan, summarizing a variety of scientific findings concerning BPA’s risks and presence in our environment, while also outlining the agency’s intended next steps based on the science. Most of these next steps involved coordinated risk assessment efforts with other government research divisions, such as the National Institute of Environmental Health Sciences, and agencies, like the Food and Drug Administration and the Centers for Disease Control. Additionally, EPA stated that it would “consider” taking steps to place BPA on a Chemicals of Concern List, authorized under section 5(b)(4) of the Toxic Substances Control Act (TSCA) and “consider” initiating an environmental effects test rule under section 4(a) of TSCA. In the grand scheme of EPA’s “parental” authority, the BPA Action Plan was a concerned look and word of caution.

Much like an overly-tired child that cannot tolerate even a cross-eyed look, the ACC threw its own kind of tantrum in the form of a 22-page Request for Correction (RfC) filed on August 2, 2010. The RfC demanded that EPA modify thirteen statements (or alternatively withdraw the entire document) made within the BPA Action Plan, because they allegedly failed to meet the Data Quality Act (DQA) standards, further defined and implemented by the Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency . ACC asserted that the Action Plan should be considered “influential information” and, accordingly, pass a two-step quality test. Using a weight-of-the-evidence approach, these two steps include ensuring that the substance of the information is accurate, reliable, and unbiased, and that the presentation of information is comprehensive, informative, and understandable. (The Guidelines further detail what these two steps or “principles” mean, but also provide a lengthy explanation of EPA’s intention of providing flexibility in the application of these principles.) Nevertheless, ACC went on to allege that “more than a dozen specific errors undermine the scientific conclusions of the BPA Action Plan.” Among others, these “errors” include EPA’s intention to “consider” placing BPA on the Chemicals of Concern list, the agency’s statements that “because BPA is a reproductive, developmental, and systemic toxicant in animal studies and is weakly estrogenic, there are questions about its potential impact particularly on children’s health and the environment,” and EPA’s acknowledgment that some authorities (i.e. Canada and U.S. state governments) have taken interim risk management actions in response to concerns about low-dose exposure, particularly for children.

Showing slow but thoughtful deliberation (or perhaps preoccupation with more pressing matters), EPA issued its official response on June 27, 2011. In a three-page letter and six-page addendum, EPA succinctly refutes ACC’s RfC by pointing out one major flaw in the ACC’s theory: the BPA Action Plan cannot be defined as “influential information.” In support, EPA cites the bulleted-list within the Guidelines that specifically identifies the types of information which would be considered influential. The list includes: (1) information disseminated in support of top Agency actions;  (2) information disseminated in support of Economically Significant actions, (3) major work products undergoing peer review;  and (4) information that the agency wishes to determine constitutes “influential information” on a case-by-case basis. Notably missing from the list is a description of information disseminated to give the public a balanced summary of existing scientific findings about a concerning toxin and EPA’s potential actions it would take in response to these findings.  And that’s what an action plan is: a snapshot of what EPA knows and what it is thinking, issued for the  main purpose, as described by EPA, of “being transparent about the its plans related to future actions being considered.” 

Even though the BPA Action Plan is not considered “influential information” and understanding that the concept of transparency and honest discourse with the public may be a difficult lesson for ACC to grasp, EPA takes the time to go one step further and explain why each alleged “error” does not require correction under the Guidelines. Most of EPA’s explanations centered on three explanations: (1) the BPA Action Plan merely states that EPA will “consider initiating” its rulemaking authority and as such none of the summarized scientific studies would constitute finalized support for the theoretical rulemaking; (2) the main scientific points summarized within the document incorporated a wide array of opinions and studies (often the very same cited by the ACC) and were just that—accurate summaries—and not an official EPA risk assessment or adaptation of findings; and, finally, (3) where EPA did identify issues where further study and investigation would be encouraged based on existing data, these determinations did not constitute EPA’s final determination or reliance on such data. In short, EPA told an overly-tired and worked up ACC, “I’m sorry you are upset, but I know what I am doing and its time for you to take a nap.”

From the many parents out there who are concerned about BPA’s endocrine-disrupting effects and wishing that EPA and other agencies would take a more aggressive approach to regulating this toxin, it is reassuring to see EPA hold its legal and parental ground on the actions it has taken. Transparency and honest discourse with the public allows a concerned parent, such as myself, to feel that EPA is not shirking its own parental duties, but keeping a measured and watchful eye on a potentially dangerous situation, even when faced with a misplaced industry tantrum.