    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

              REVISITING THE TOXIC SUBSTANCES CONTROL ACT OF 1976

    =======================================================================

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON COMMERCE, TRADE,
                            AND CONSUMER PROTECTION

                                     OF THE

                        COMMITTEE ON ENERGY AND COMMERCE
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               FEBRUARY 26, 2009

                                   __________

                                Serial No. 111-7

          Printed for the use of the Committee on Energy and Commerce

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                        COMMITTEE ON ENERGY AND COMMERCE

                     HENRY A. WAXMAN, California, Chairman

    JOHN D. DINGELL, Michigan            JOE BARTON, Texas
      Chairman Emeritus                    Ranking Member
    EDWARD J. MARKEY, Massachusetts      RALPH M. HALL, Texas
    RICK BOUCHER, Virginia               FRED UPTON, Michigan
    FRANK PALLONE, Jr., New Jersey       CLIFF STEARNS, Florida
    BART GORDON, Tennessee               NATHAN DEAL, Georgia
    BOBBY L. RUSH, Illinois              ED WHITFIELD, Kentucky
    ANNA G. ESHOO, California            JOHN SHIMKUS, Illinois
    BART STUPAK, Michigan                JOHN B. SHADEGG, Arizona
    ELIOT L. ENGEL, New York             ROY BLUNT, Missouri
    GENE GREEN, Texas                    STEVE BUYER, Indiana
    DIANA DeGETTE, Colorado              GEORGE RADANOVICH, California
      Vice Chairman                      JOSEPH R. PITTS, Pennsylvania
    LOIS CAPPS, California               MARY BONO MACK, California
    MICHAEL F. DOYLE, Pennsylvania       GREG WALDEN, Oregon
    JANE HARMAN, California              LEE TERRY, Nebraska
    TOM ALLEN, Maine                     MIKE ROGERS, Michigan
    JAN SCHAKOWSKY, Illinois             SUE WILKINS MYRICK, North Carolina
    HILDA L. SOLIS, California           JOHN SULLIVAN, Oklahoma
    CHARLES A. GONZALEZ, Texas           TIM MURPHY, Pennsylvania
    JAY INSLEE, Washington               MICHAEL C. BURGESS, Texas
    TAMMY BALDWIN, Wisconsin             MARSHA BLACKBURN, Tennessee
    MIKE ROSS, Arkansas                  PHIL GINGREY, Georgia
    ANTHONY D. WEINER, New York          STEVE SCALISE, Louisiana
    JIM MATHESON, Utah                   PARKER GRIFFITH, Alabama
    G.K. BUTTERFIELD, North Carolina     ROBERT E. LATTA, Ohio
    CHARLIE MELANCON, Louisiana
    JOHN BARROW, Georgia
    BARON P. HILL, Indiana
    DORIS O. MATSUI, California
    DONNA CHRISTENSEN, Virgin Islands
    KATHY CASTOR, Florida
    JOHN P. SARBANES, Maryland
    CHRISTOPHER MURPHY, Connecticut
    ZACHARY T. SPACE, Ohio
    JERRY McNERNEY, California
    BETTY SUTTON, Ohio
    BRUCE BRALEY, Iowa
    PETER WELCH, Vermont

                                      (ii)
            Subcommittee on Commerce, Trade, and Consumer Protection

                            BOBBY L. RUSH, Illinois
                                      Chairman
    JANICE D. SCHAKOWSKY, Illinois       CLIFF STEARNS, Florida
        Vice Chair                            Ranking Member
    JOHN SARBANES, Maryland              RALPH M. HALL, Texas
    BETTY SUTTON, Ohio                   DENNIS HASTERT, Illinois
    FRANK PALLONE, New Jersey            ED WHITFIELD, Kentucky
    BART GORDON, Tennessee               CHARLES W. ``CHIP'' PICKERING,
    BART STUPAK, Michigan                    Mississippi
    GENE GREEN, Texas                    GEORGE RADANOVICH, California
    CHARLES A. GONZALEZ, Texas           JOSEPH R. PITTS, Pennsylvania
    ANTHONY D. WEINER, New York          MARY BONO MACK, California
    JIM MATHESON, Utah                   LEE TERRY, Nebraska
    G.K. BUTTERFIELD, North Carolina     MIKE ROGERS, Michigan
    JOHN BARROW, Georgia                 SUE WILKINS MYRICK, North Carolina
    DORIS O. MATSUI, California          MICHAEL C. BURGESS, Texas
    KATHY CASTOR, Florida
    ZACHARY T. SPACE, Ohio
    BRUCE BRALEY, Iowa
    DIANA DeGETTE, Colorado
    JOHN D. DINGELL, Michigan (ex
        officio)

                                 C O N T E N T S

                                  ----------
                                                                       Page
    Hon. Bobby L. Rush, a Representative in Congress from the State
      of Illinois, opening statement.................................     1
    Hon. George Radanovich, a Representative in Congress from the
      State of California, opening statement.........................     2
    Hon. Janice D. Schakowsky, a Representative in Congress from the
      State of Illinois, opening statement...........................     4
    Hon. Lee Terry, a Representative in Congress from the State of
      Nebraska, opening statement....................................     5
    Hon. John Sarbanes, a Representative in Congress from the State
      of Maryland, opening statement.................................     6
    Hon. Tim Murphy, a Representative in Congress from the
      Commonwealth of Pennsylvania, opening statement................     6
    Hon. Phil Gingrey, a Representative in Congress from the State of
      Georgia, opening statement.....................................     7
    Hon. Zachary T. Space, a Representative in Congress from the
      State of Ohio, opening statement...............................     7
    Hon. Henry A. Waxman, a Representative in Congress from the State
      of California, opening statement...............................     8
    Hon. Bruce L. Braley, a Representative in Congress from the State
      of Iowa, opening statement.....................................     9
    Hon. Cliff Stearns, a Representative in Congress from the State
      of Florida, opening statement..................................     9
    Hon. John D. Dingell, a Representative in Congress from the State
      of Michigan, prepared statement................................    11

                                   Witnesses

    John Stephenson, Director, Natural Resources and Environment,
      Government Accountability Office...............................    13
        Prepared statement...........................................    16
        Answers to submitted questions...............................   180
    J. Clarence (Terry) Davies, Senior Fellow, Resources for the
      Future, and Former EPA Assistant Administrator For Policy,
      Administration of President George H.W. Bush;..................    36
        Prepared statement...........................................    38
        Answers to submitted questions...............................   193
    Maureen Swanson, Healthy Children Project Coordinator, Learning
      Disabilities Association of America;...........................    44
        Prepared statement...........................................    46
        Answers to submitted questions...............................   197
    Cecil Corbin-Mark, Deputy Director/Director for Policy
      Initiatives, We Act for Environmental Justice (West Harlem
      Environmental Action)..........................................    52
        Prepared statement...........................................    54
        Answers to submitted questions \1\
    Michael Wright, Director of Health and Safety, United
      Steelworkers...................................................    59
        Prepared statement...........................................    61
        Answers to submitted questions \2\
    Richard Denison, Senior Scientist, Environmental Defense Fund....    73
        Prepared statement...........................................    75
        Answers to submitted questions...............................   203
    Kathy Gerwig, Vice President, Workplace Safety and Environmental
      Stewardship Officer, Kaiser Permanente.........................    90
        Prepared statement...........................................    92
        Answers to submitted questions...............................   217
    Cal Dooley, President and CEO, American Chemistry Council........    95
        Prepared statement...........................................    97
        Answers to submitted questions...............................   218
    V.M. (Jim) Delisi, President, Fanwood Chemical Inc., and
      Chairman, International Affairs Committee, Synthetic Organic
      Chemical Manufacturers Association.............................    99
        Prepared statement...........................................   101
        Answers to submitted questions...............................   224
    Charles T. Drevna, President, National Petrochemical & Refiners
      Association....................................................   105
        Prepared statement...........................................   107
        Answers to submitted questions...............................   234

                               Submitted Material

    Testimony of David Littell.......................................   138
    Executive Summary, Maine Governor John E. Baldacci...............   142
    Public Law, Chapter 643..........................................   144
    Testimony of Stuart Eizenstat....................................   152
    Testimony of PCRM and PETA 2/26/09...............................   155
    Table, Summary Comparison of Existing Chemical Policy Laws.......   165
    Letter of 2/25/09 from CSPA, GMA and SDA.........................   167
    Article 6/30/09, New York Times, ``Need Press? Repeat: `Green,'
      `Sex,' `Cancer,' `Secret,' `Fat' ''............................   169
    Letter of 2/25/09 from Safer States..............................   173
    Letter of 2/25/09 from Washington State Department of Ecology....   177

    ----------
    \1\ Mr. Corbin-Mark did not respond to submitted questions for
      the record.
    \2\ Mr. Wright did not respond to submitted questions for the
      record.

              REVISITING THE TOXIC SUBSTANCES CONTROL ACT OF 1976

                                  ----------

                          THURSDAY, FEBRUARY 26, 2009

                      House of Representatives,
               Subcommittee on Commerce, Trade,
                               and Consumer Protection,
                              Committee on Energy and Commerce,
                                                        Washington, DC.
        The subcommittee met, pursuant to call, at 10:15 a.m., in
    Room 2123 of the Rayburn House Office Building, Hon. Bobby L.
    Rush (Chairman) presiding.
        Members present: Representatives Rush, Schakowsky,
    Sarbanes, Sutton, Gordon, Stupak, Butterfield, Barrow, Castor,
    Space, Braley, Waxman (ex officio), Radanovich, Stearns, Terry,
    Murphy, Gingrey and Scalise.
        Staff present: Robin Appleberry, Counsel; Dick Frandsen,
    Counsel; and Jerry Couri, Minority Counsel.

                OPENING STATEMENT OF HON. BOBBY L. RUSH

        Mr. Rush. The committee will now come to order.
        First of all, I want to welcome the members of the
    subcommittee to our first hearing on the 111th Congress. I am
    honored to chair this distinguished subcommittee and I will
    strive to serve all its members in an honorable way. I truly
    look forward to working with everybody on a productive
    legislative and oversight agenda.
        In this regard, our first hearing of the 111th Congress is
    an ambitious one and represents a new addition to the
    subcommittee's vast jurisdiction. Today's hearing will explore
    the major issues surrounding the Toxic Substances Control Act,
    also known as TSCA. TSCA was enacted in 1976 and originally
    consisted of one title, which today remains at the heart of the
    statute. While Congress over the years has added additional
    titles to TSCA addressing individual chemicals and substances,
    Congress has done very little with regard to Title I. TSCA and
    Title I have never been reauthorized nor has it been reformed,
    and very little oversight has been conducted on the statute's
    effectiveness. Today I hope to start a deliberative process
    that reverses this Congressional inaction of the past.
        By most accounts, TSCA is badly in need of reform. While
    opinions may vary on the degree and nature of the reforms
    needed, there is a broad consensus among a diversity of
    stakeholders that TSCA needs to be reexamined. The scope of
    TSCA is very broad and its intent is indeed very ambitious.
    TSCA is meant to provide adequate data on potential health and
    environmental risk of all chemical substances and mixtures in
    the United States. Furthermore, the statute is supposed to
    provide EPA with adequate regulatory tools to protect the
    public from unreasonable risk of injury to health or the
    environment. It is unfortunate that the statute has seemingly
    been a failure on both of these basic policy goals and
    objectives. Critics contend that TSCA has failed to generate
    data on the health risks of approximately 80,000 chemicals
    currently in use and the approximately 700 new chemicals that
    are introduced into commerce each and every year.
        Even though sections 4 and 5 authorize EPA to force
    companies to test their chemical products and generate data,
    the hoops that the EPA must jump through in order to exercise
    this authority have been much too burdensome. Rulemaking takes
    years to finalize, costs hundreds of thousands of dollars and
    is subject to constant legal action by companies who do not
    want to comply. As the former EPA assistant administrator once
    said, it almost that we have to first prove that the chemicals
    are risky before we have the testing done to show whether the
    same chemicals are indeed risky.
        Furthermore, once EPA has made a determination that a
    chemical poses a health and environmental hazard, they have
    been unable to act on this determination. Section 6 of TSCA
    provides EPA with broad authority to regulate and ban chemicals
    but the burden of proof for action has been so high that
    banning a chemical is virtually impossible, and I think most
    Americans would be very surprised to learn that asbestos, a
    known carcinogen that kills 8,000 Americans each and every
    year, has not been banned by the EPA under TSCA because the
    courts have ruled that EPA did not meet its evidentiary burden
    of proving that asbestos is an ``unreasonable risk to the
    public.'' If TSCA is incapable of providing EPA with the
    regulatory tools to ban asbestos, then the statutes seem to be
    in dire need of serious repair, and I want to make it clear
    that reexamining TSCA is not only good for the public health
    but it is also good for business.
        I do not believe that this hearing should reflect public
    health versus business or environment versus business, and I
    appreciate the innovative spirit of the American businesses and
    further recognize the importance of fostering that innovative
    spirit, especially during these perilous times. The public's
    faith in the safety of its product and chemicals that make up
    those products has been shaken and I believe that reforming
    TSCA and reestablishing that faith will ultimately be a boon
    for American businesses of every stripe, and today's hearing is
    only the first in a series on TSCA. Today we will kick off the
    process in a deliberative manner and I sincerely hope that we
    all can work together in a bipartisan manner.
        I yield back the balance of my time
        Mr. Rush. And now I recognize the ranking member, my
    friend, the gentleman from California, Mr. Radanovich, for an
    opening statement.

              OPENING STATEMENT OF HON. GEORGE RADANOVICH

        Mr. Radanovich. Thank you, Mr. Chairman, and I appreciate
    the fact that you called this hearing today and would like to
    thank all of our witnesses for taking the time out of your busy
    schedules to appear before this subcommittee. This is my first
    hearing as ranking member of the subcommittee and I am very
    excited to work with you, Mr. Chairman, and the rest of the
    members of the subcommittee on the broad range of issues that
    falls under this committee's jurisdiction.
        One of those issues is the regulation of industrial
    chemical manufacturing in what I understand will be the first
    in a series of discussions of the Toxic Substances Control Act,
    TSCA, which was signed into law in 1976. It was revolutionary
    at the time of its passage because it bestowed sweeping
    authority on the Environmental Protection Agency, just 6 years
    old at the time, to regulate interstate commerce and the
    lifecycle of chemicals manufacturing. Congress has barely
    touched the core of TSCA Title I since it was enacted.
    Obviously we all want to make sure that the chemicals produced,
    imported and used in this country are safe. I think it is
    reasonable for us to take a look at TSCA but I would urge
    extreme caution about any efforts to touch what is in the law
    since TSCA authorities are quite sweeping. It could be that the
    law is fine and that more funding and enforcement would cure
    various criticisms. If that is the case, let us be surgical. We
    should not seek out perfectly functioning laws in an effort to
    improve or modernize them when neither is needed. Conversely,
    if something more is needed, we should not use an elephant gun
    to kill a mosquito.
        A timely example of legislative overkill is the recently
    enacted Consumer Product Safety Improvement Act. Members of
    Congress like myself who supported the underlying reason behind
    the legislation are now left scratching our heads in
    frustration as small businesses, thrift stores and boutique
    shops in our districts are being forced out of business by the
    unintended consequence of this otherwise well-intentioned law,
    a terrible situation in any economy, but particularly during
    this recession. Unintended consequences are difficult to avoid
    but when the potential for unintended consequences is foreseen,
    Congress should move cautiously.
        That being the case, a major revision of TSCA, as some of
    our panelists might suggest today, does pose the potential for
    a significant threat to small- and medium-sized chemical
    manufacturers. We should be careful to ensure that all of the
    regulated entities will be able to reasonably comply with
    whatever changes we might make. In retrospect, neglecting the
    ability of all entities to reasonably comply with new
    regulations was a major mistake of the toy bill and is
    something that this committee should look at rectifying.
        Some folks want to point to States that have already acted
    to regulate chemicals. It is well known that my home State of
    California often brags of leading the Nation in a variety of
    progressive environmental and consumer protection laws and
    regulations. Those same folks forget to tell the flipside of
    the story, because as California desperately tries to claw
    their way out of a $42 billion budget deficit, which was
    resolved the other day but in May will be back into deficit
    spending, Congress should think twice before using any of
    California's progressive models as a national standard.
        My experience has been that California's environmental
    regulations have increasingly been a hindrance to the success
    of small businesses and family farms which have had a
    detrimental impact on the State's overall economy.
    Unfortunately, the European model of toxic substance regulation
    is far worse, which is exactly what some of us would like to
    see in this Congress adopt.
        Currently TSCA operates as a risk-based statute and tries
    to mitigate potential problems based on a number of relative
    factors. The European model operates under assumed hazard or
    precautionary principle which assumes every chemical is harmful
    until proven otherwise. To me, this is backwards, bureaucratic
    and a time-consuming way to regulate anything. Appropriately
    prioritizing chemicals based on risk is a vital component to
    effective and efficient EPA regulation. In addition to the
    correct context and risk prioritization, we must be sure that
    sound, safe and reliable science is guiding regulatory
    decisions at the EPA.
        There are some who want to regulate industrial chemicals
    similar to how we regulate pesticides under the Federal
    Insecticide, Fungicide and Rodenticide Act, or FIFRA. My
    Congressional district is one of the largest agriculture-
    producing districts in the Nation, and because of this
    distinction I am well aware of the increasing difficulty
    farmers face when trying to obtain specialty pesticides.
    Certain specialty pesticides have a greater risk placed on them
    because they are applied directly to food that we will
    eventually touch and put in our mouths and digest. However, it
    is important that we appreciate the context and the exposure
    under which industrial chemicals are regulated. Under normal
    use, and unlike FIFRA-regulated chemicals, the general public
    will rarely ever be in a position to ingest the vast majority
    of industrial chemicals. Otherwise Congress is mixing apples
    with oranges.
        Mr. Chairman, there is quite a bit more I would like to add
    as this has been 3 decades since this Congress has seriously
    reviewed this law. I think this hearing is going to be very
    useful and I am looking forward to hearing suggestions on how
    we can improve TSCA's performance while doing so in the least
    burdensome fashion. And with that, I yield back and want to
    thank you, Mr. Chairman.
        Mr. Rush. I want to thank the ranking member and I want to
    thank him for agreeing with me right at the start.
        Our next speaker is my friend, the gentlewoman from
    Illinois, Ms. Schakowsky, for 2 minutes of opening statements.

             OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY

        Ms. Schakowsky. Thank you, Mr. Chairman, for holding this
    very important hearing.
        When President Ford signed the Toxic Substances Control Act
    into law in 1976, it was a major victory for environmental
    protection. For the first time in our Nation's history, tens of
    thousands of chemicals in commerce would be tested to determine
    their long-term effects on human health and the environment.
    However, as we review this law 33 years after enactment, it is
    clear that TSCA needs to be updated and strengthened. In fact,
    the law presents so many problems that since 1991 the EPA has
    not attempted to ban a single chemical under the TSCA statute.
    In a report published last month, the GAO reported that without
    significant reforms to TSCA, ``the nation lacks assurance that
    human health and the environment are adequately protected.''
        Perhaps more troubling about TSCA is the strict burden of
    proof the law requires the Environmental Protection Agency to
    satisfy in order to ban toxic substances. As interpreted by the
    courts, the lengths the EPA must undertaken to meet the burden
    of proof are so onerous that chemicals known to be extremely
    hazardous to public health for decades remain outside the scope
    of TSCA. The perfect example is asbestos. Eight thousand
    Americans die each year from complications associated with
    exposure to asbestos. In 1989, EPA attempted to use TSCA to
    issue a rule to ban the use of asbestos, citing the strong
    evidence of hundreds of studies that conclusively found that
    asbestos was extremely hazardous to workers and the public as a
    whole. Despite the overwhelming evidence, the U.S. Court of
    Appeals reversed the decision, saying the EPA had not fulfilled
    the necessary burden of proof under TSCA. The fact that EPA
    cannot use the law to ban a substance as clearly hazardous as
    asbestos underscores the need for reform. I look forward to
    hearing from both panels today, who will share their research
    and direct experience in dealing with TSCA.
        Mr. Chairman, thank you for holding this hearing. I yield
    back.
        Mr. Rush. Thank you.
        Our next opening statement will be from the gentleman from
    Nebraska, Mr. Terry.

                  OPENING STATEMENT OF HON. LEE TERRY

        Mr. Terry. Thank you, Mr. Chairman. I appreciate this
    opportunity. I think as we progress to see what reforms are
    necessary, the philosophical differences will be lightest touch
    versus heaviest touch.
        I want to relay an experience I had over the district work
    period when I met with a small business owner, a couple, a
    married couple that employed his brother, and it was truly one
    of those family-owned business called Wes and Willie's. I don't
    know if any of you know of this company but they are a kids'
    apparel maker. They have the coolest tee shirt designs and they
    are very popular in a lot of the catalogs that some of us may
    get. This is an example of when we go too fast and don't think
    through our legislation enough, but as a result of the lead-
    based toys we included other chemicals or additives that also
    have to be tested before they are allowed to come back in.
    Unfortunately, this company had to make a decision in order to
    survive that they have offshored some of their apparel making
    and silk screening of the paint design on the tee shirts. Under
    the new rules, every different design is treated as a different
    product and has to be tested at hundreds of dollars per shirt.
    But amazingly, while that is a financial hardship to do that on
    every different design and every different size, there is one
    of the chemicals that is inherent into the paint that is used
    and it is such a light level that it barely reads when tested.
    So the tester said because it is so light, what you have to do
    is produce 10 tee shirts and we will add them up to see if they
    accumulate to a level that would be banned. Now, the silliness
    of that is, how many of us as parents buy 10 of the same tee
    shirts for our kids and that that child wears all 10 at the
    same time, but that is what we cause when we rush into
    something.
        So Mr. Chairman, you are on the right path, it is the right
    idea. Let us make sure that we don't make the mistakes that we
    did in the toy bill.
        Mr. Rush. I want to thank the gentleman.
        Our next speaker is the gentleman from Maryland, Mr.
    Sarbanes, for 2 minutes of opening statement.

               OPENING STATEMENT OF HON. JOHN P. SARBANES

        Mr. Sarbanes. Thank you very much, Mr. Chairman. Thanks for
    holding this hearing. I am looking forward to serving on the
    subcommittee.
        I think obviously there is a need for this review of the
    Toxic Substances Control Act, as we have heard in the testimony
    already. There is a staggering number of chemicals in the EPA
    inventory, 80,000, but of course the data that we have on those
    chemicals and others that are introduced each year, some 700
    additional introduced each year, does not match the degree of
    hazard that is posed by the chemicals. So just getting the
    basic data collected and made available is going to be
    critical, and of course we have heard about the burden of proof
    issues that need to be addressed. All those are going to come
    to light, I think, in these hearings. I appreciate your
    conducting them and I look forward to it.
        Thank you, and I yield back.
        Mr. Rush. The chair thanks the gentleman.
        Our next member of the committee is Mr. Murphy of
    Pennsylvania for 2 minutes of opening statement.

                  OPENING STATEMENT OF HON. TIM MURPHY

        Mr. Murphy. Thank you, Mr. Chairman, for holding this
    hearing on the Toxic Substances Control Act. I look forward to
    hearing testimony from the witnesses on this issue.
        But before I begin, I would like to personally welcome two
    witnesses from the greater Pittsburgh area, Maureen Swanson
    from the Learning Disabilities Association of America, whose
    headquarters are in my district, and Michael Wright of the
    United Steelworkers from Pittsburgh too. Thank you for taking
    the time to come up here. I am looking forward to hearing your
    testimony and your thoughts on protecting children and workers,
    which are two of my top priorities and I am sure the priorities
    shared by all my colleagues but these are not mutually
    exclusively concepts as proper regulation can do both.
        My district is home to many chemical companies that
    directly employ about 8,300 people. These are high-paying jobs
    with the average employee making a family-supporting wage of
    over $73,000 a year. As America continues in this recession,
    these are the kinds of jobs America needs now more than over,
    high-tech, high-paying jobs for the future, and we should deal
    with new legislation that deals with chemicals but we should
    also be careful that we are doing this in a way that keeps
    these jobs here in this country and not drives them overseas
    where there are no regulations to deal with these issues.
        Just about everything we come into contact with throughout
    the day can be traced to chemical companies that help improve
    our lives and make them better. However, we know there are some
    harmful chemicals that are harmful to people, animals and the
    environment and proper controls must be in place. We must
    understand that effects may not always be immediately visible
    and that all necessary precautions must be practiced at all
    times. So I look forward to hearing more about the specifics of
    what we need to do with the Toxic Substances Control Act and
    your thoughts on what we can do to make this environment safer
    for all.
        With that, I yield back, Mr. Chairman.
        Mr. Rush. The chair thanks the gentleman.
        The next member recognized is my friend, the gentleman from
    Michigan, Mr. Stupak, the chairman of the Oversight
    Subcommittee, for 2 minutes of opening statements.
        Mr. Stupak. Thank you, Mr. Chairman, and congratulations on
    your chairmanship, and I will waive my opening statement and
    ask for extra time for questions.
        Mr. Rush. Thank you very much.
        Our next speaker is the gentleman from my birth State, Mr.
    Gingrey, recognized for 2 minutes of opening statement.

                 OPENING STATEMENT OF HON. PHIL GINGREY

        Mr. Gingrey. Mr. Chairman, thank you and thank you for
    holding this hearing, and I also thank Ranking Member
    Radanovich. Obviously these are important issues that come
    before the subcommittee. I have some prepared written remarks.
    It probably would take a little more than 2 minutes and I think
    I will skip those and just speak off the cuff.
        Mr. Chairman, I have a bachelor of science in chemistry
    from Georgia Tech and I am a medical doctor, as my colleagues
    know. I can remember as a youngster seeing Dupont ads on
    television. I think their slogan was ``Better Living through
    Chemistry.'' I believe it was Dupont. But I think what I have
    heard so far in the opening statements of my colleagues is that
    there are concerns and that this is a 30-year-old law and it
    needs to be looked at very carefully and possibly updated. From
    my side of the rostrum, I think what you are hearing is, we
    don't want to overshoot, and I can think of so many things
    since I have been here in my three terms like this Community
    Reinvestment Act back in the late 1970s and the unintended
    consequences of that in light of our current economic
    situation.
        Mr. Chairman, I am very happy as a new member of the
    subcommittee and the committee to be here at this type of
    hearing. I want to hear very carefully from both panels and try
    to learn, but again, I think I agree with my colleagues on this
    side that we really want to make sure that we keep in mind the
    unintended consequences, and if we make some changes that we do
    it in the right way and make sure we strike a proper balance.
        With that, Mr. Chairman, I will yield back.
        Mr. Rush. The next speaker will be the gentleman from Ohio,
    Mr. Space, recognized for 2 minutes of opening statement.

               OPENING STATEMENT OF HON. ZACHARY T. SPACE

        Mr. Space. Thank you, Mr. Chairman.
        I represent a district of small towns and villages in a
    very rural part of Ohio, the hills of Appalachia, in fact, and
    perhaps the best phrase to describe those folks that I
    represent is decent and hardworking, and they I think have a
    right and we have an obligation to ensure that their workplaces
    are safe, their children are not exposed to hazardous
    chemicals, and at the same time that we encourage and promote a
    business environment that will allow some degree of
    profitability. The statement has been made by I believe the
    ranking member that we should not use an elephant gun to kill a
    mosquito, and I certainly couldn't agree more, but at the same
    time we should not use a bug light to kill an elephant, and I
    appreciate the opportunity to hear from our witnesses today on
    TSCA because doing so allows this subcommittee to move forward
    in improving what is at best an outdated law and at worst a
    risk to public health, environmental safety and business
    innovation. I look forward to exposing exactly what is needed
    to bring our toxic substance regulatory policy into the 21st
    century and I am also looking forward to being a part of this
    committee in a proactive approach to this issue.
        Thank you, Mr. Chairman.
        Mr. Rush. The chair thanks the gentleman.
        The chair now recognizes the chairman of the full
    committee, my friend, the gentleman from California, Chairman
    Waxman.

               OPENING STATEMENT OF HON. HENRY A. WAXMAN

        Mr. Waxman. Thank you very much, Mr. Chairman. I want to
    commend you for holding the subcommittee's first hearing in the
    111th Congress on the incredibly important issue of reforming
    the Toxic Substances Control Act of 1976, or TSCA.
        This is an important day for consumers, businesses, workers
    and especially for kids who are most vulnerable to the effects
    of toxic chemicals. Today marks the beginning of a much-needed
    national conversation on the use of chemicals in our
    communities. This conversation is long overdue. For years it
    has been clear that TSCA is not living up to its intent. For
    example, in 1991 the Environmental Protection Agency tried to
    ban the use of asbestos, a known human carcinogen, but EPA's
    efforts were struck down on the grounds they didn't satisfy the
    statute's requirements. The Government Accountability Office
    first recommended changes to make TSCA more effective in 1994.
    Now 13 years later, GAO has added EPA's assessment and control
    of toxic chemicals to its high-risk series list of the
    government programs most at risk for failure. GAO added only
    three issues to its high-risk list this year. The other two
    were the entire financial regulatory system and the safety of
    medical devices and drugs, so that gives you a sense of just
    how urgent GAO believe this problem is.
        This hearing is a good beginning to address the challenge
    of TSCA reform. In the coming months we will look closely at
    the specific provisions of the statute and their
    implementation. We will learn from what has been done in the
    States and in other countries to create a more effective system
    of protecting against the dangers of toxic chemicals. In order
    to be successful, however, we will have to work cooperatively
    to ensure that a reformed TSCA achieves its essential goals to
    protect human health and the environment, to make decisions
    based on sound science and to encourage American innovation and
    leadership.
        We need to get this right. We owe it to our children and
    our grandchildren to protect them from the dangers of toxic
    chemicals, and I look forward to meeting this challenge with
    Chairman Rush, Ranking Member Radanovich, Ranking Member Barton
    and all the members of the committee.
        And finally, let me just say, I know this subcommittee will
    tackle many other important issues this Congress as well, and I
    want to commend Chairman Rush for his leadership on all these
    issues. Thank you, Mr. Chairman.
        Mr. Rush. Thank you, Mr. Chairman.
        The chair now recognizes the gentleman from Iowa, Mr.
    Braley, for 2 minutes.

               OPENING STATEMENT OF HON. BRUCE L. BRALEY

        Mr. Braley. Thank you, Mr. Chairman, and thank you for
    holding this important hearing. It is an honor to serve on this
    subcommittee, and I think it bears mentioning that the title of
    this subcommittee includes the words ``consumer protection.''
    That is the most important responsibility we have when it comes
    to issues of safety, and I can think of no greater indictment
    than what we included on page 3 of the memorandum prepared for
    every member of the committee where it says that in the entire
    period of time that this Act has been in effect, EPA has not
    attempted to ban a single chemical under this bill. And then
    when you see the reference in here to first President Bush's
    former director of EPA general counsel, if after thousands of
    deaths from asbestos exposure it is virtually impossible for
    EPA to regulate any chemical under section 6, what does that
    say about the impact of this legislation.
        It is important for us to have balance, it is important for
    us to rely upon scientific-based regulation, but it is also
    important for us to understand the basic purpose of this
    subcommittee. That is to protect consumers. It is long overdue
    that we take another look at this Act and provide meaningful
    opportunities to protect consumers despite the fact that
    thousands of people have died from exposure to toxic substances
    since 1991, and I yield back.
        Mr. Rush. The chair now recognizes my friend, the chairman
    of the Committee on Science, Mr. Gordon, for the purpose of 2
    minutes of opening.
        Mr. Gordon. Thank you, Mr. Chairman. I will waive my
    statement so that we can start hearing from our witnesses.
        Mr. Rush. Thank you. Now the chair recognizes the gentleman
    from Florida for the purposes of 2 minutes of opening
    statements, Mr. Stearns.

                OPENING STATEMENT OF HON. CLIFF STEARNS

        Mr. Stearns. Thank you, Mr. Chairman, and I look forward to
    the next 2 years and the hearings we are going to have, and I
    appreciate you bringing up this topic, a somewhat controversial
    issue of industrial chemicals and the way they are currently
    regulated in the United States under the Toxic Substances
    Control Act. I know when you look through this, it is going to
    be pros and cons on both sides of this but I think it is
    important we have these witnesses and I appreciate them being
    here.
        The long and short of it is, we probably have to look at
    other models to see if they are working. If we move towards a
    purely European approach to regulate chemicals such as what the
    Europeans are doing with their REACH program, regulation,
    evaluation, authorization and restriction of chemical
    substances, we will have to carefully consider that.
        I serve as the lead Republican on the transatlantic dialog
    with the European Union. Ms. Shelley Berkley from Las Vegas is
    the chairwoman and I am co-chair and we have been actively
    involved with this issue and have to impress upon our European
    counterparts to ensure that the United States cosmetic
    industry, which is a $2 billion industry, was not taken off the
    shelves in Europe due to their new overly burdensome REACH
    requirements and so I put that into perspective, Mr. Chairman,
    because a lot of U.S. industry would be hurt by this REACH
    program that the European Union has implemented.
        So I think we have an opportunity to have a constructive
    discussion today on this very important issue and I thank the
    chairman for this hearing. I yield back.
        Mr. Rush. The chair thanks the gentleman. At this time the
    chair would like an unanimous consent request to enter the
    opening statement of the chairman emeritus, John Dingell, for
    the record. Not hearing any objections, so approved.
        [The prepared statement of Mr. Dingell follows:]

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        Mr. Rush. Now we are privileged to have a fine array of
    panelists to appear before this subcommittee, and we want to
    thank them beforehand for taking the time out from their busy
    schedules to make this first appearance before the 111th
    Congress on this particular issue.
        I want to introduce the witnesses first and then we will
    ask them to have opening statements for 5 minutes of opening
    statements. To my left, to your right, Mr. John Stephenson is
    the director of Natural Resources and Environment of the
    Government Accountability Office, GAO. Mr. Stephenson has been
    the director of the environmental protection issues within
    GAO's natural resources and environment team since October
    2000. Seated next to him is Mr. J. Clarence (Terry) Davies,
    senior fellow, Resources for the Future. Mr. Davies was an EPA
    assistant administrator for policy in the Administration of
    President George H.W. Bush. Seated next to Mr. Davies is Ms.
    Maureen Swanson of the Healthy Children Project, and she is
    coordinator of Learning Disabilities Association of America.
    Seated next to Ms. Swanson is Cecil Corbin-Mark, who is the
    deputy director and the director of policy initiatives for WE
    ACT for Environment Justice, and that stands for the West
    Harlem Environmental Action Group, and Mr. Cecil Corbin-Mark is
    a lifelong resident of Hamilton Heights in Harlem, New York,
    where his family has lived for the last 6 decades. Seated next
    to him is Mr. Michael Wright, who is the director of health and
    safety for United Steelworkers.
        With those introductions, I would ask the panel to begin
    now with their opening statements, and please limit your
    opening statements to 5 minutes and please pull the microphone
    directly in front of you as you speak. The chair recognizes Mr.
    Stephenson.

     TESTIMONY OF JOHN STEPHENSON, DIRECTOR, NATURAL RESOURCES AND
      ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE; J. CLARENCE
     (TERRY) DAVIES, SENIOR FELLOW, RESOURCES FOR THE FUTURE, AND
     FORMER EPA ASSISTANT ADMINISTRATOR FOR POLICY, ADMINISTRATION
        OF PRESIDENT GEORGE H.W. BUSH; MAUREEN SWANSON, HEALTHY
    CHILDREN PROJECT COORDINATOR, LEARNING DISABILITIES ASSOCIATION
      OF AMERICA; CECIL CORBIN-MARK, DEPUTY DIRECTOR/DIRECTOR FOR
      POLICY INITIATIVES, WE ACT FOR ENVIRONMENTAL JUSTICE (WEST
     HARLEM ENVIRONMENTAL ACTION); AND MICHAEL WRIGHT, DIRECTOR OF
                 HEALTH AND SAFETY, UNITED STEELWORKERS

                      TESTIMONY OF JOHN STEPHENSON

        Mr. Stephenson. Thank you, Mr. Chairman and other members
    of the subcommittee. I am pleased to be here today to discuss
    our work supporting the need to improve the Toxic Substances
    Control Act.
        Congress passed TSCA, as many of you have mentioned, in
    1976 to enable EPA to obtain more information on the risk of
    commercially used chemicals and to control those that EPA
    determines may pose unreasonable risk. However, TSCA's
    cumbersome regulatory structure and its high legal evidentiary
    standards have proven difficult for EPA to use to obtain the
    information it needs to effectively assess and control toxic
    chemicals. While TSCA authorizes EPA to review existing
    chemicals, it generally provides no specific requirement,
    timeframe or methodology for doing so.
        Significantly, chemical companies are not required to
    develop and submit toxicity information to EPA on existing
    chemicals unless the agency finds that a chemical may present
    an unreasonable risk of injury to human health or the
    environment. This structure places the burden primarily on EPA
    to demonstrate that a chemical poses a risk rather than on the
    company that produces it to demonstrate that it is safe. The
    procedures EPA must follow to obtain test data from companies
    can take from 2 to 10 years and hundreds of thousands of
    taxpayer dollars to complete. As a result, in 30 years of TSCA
    has used its authorities for only about 200 of the roughly
    80,000 existing chemicals to require testing. Moreover, TSCA
    does not require chemical companies to do toxicity tests for
    the approximate 700 new chemicals introduced into commerce
    annually and companies generally do not voluntarily provide
    such testing. In contrast, the European Union's control
    legislation called REACH generally places the burden on
    companies to provide health effects data on the chemicals they
    produce.
        Our reports include recommendations that the Congress
    consider giving EPA more authority to obtain data from the
    companies producing chemicals and that remains one of the most
    viable options for improving the effectiveness of TSCA, in our
    opinion. While TSCA authorizes EPA to issue regulations that
    may, among other things, limit the production or use of toxic
    chemicals or ban their use, the statutory requirements EPA must
    meet to do this presents a legal threshold that has proven
    difficult for EPA and discourages the agency from using these
    authorities. For example, EPA must demonstrate unreasonable
    risk, which requires it to conduct extensive cost-benefit
    analysis to ban or limit chemical production. Since 1976, EPA
    has issued regulations to control only five existing chemicals,
    and one of these, a 1989 regulation phasing out most uses of
    asbestos, was vacated by the federal courts in 1991 because it
    did not meet the test of substantial evidence. In contrast, the
    European Union and a number of other countries have banned
    asbestos, a known human carcinogen that can cause lung cancer
    and other diseases.
        GAO has previously recommended and continues to believe
    that Congress should consider amending TSCA to reduce the
    evidentiary burden EPA must meet to regulate toxic substances.
    EPA has also limited ability to provide the public with
    information on chemical production and risk because of TSCA's
    prohibitions on the disclosure of confidential business
    information. About 95 percent of the required notices companies
    have provided to EPA on new chemicals contain some information
    claimed as confidential. Evaluating the appropriateness of
    confidentiality claims is time consuming and resource
    intensive, and as a result EPA does not challenge most claims.
    State environmental agencies and others have told us that
    information claimed as confidential would help them in such
    activities as better preparing emergency response personnel to
    deal with high-toxic substances at manufacturing facilities and
    their localities.
        The European Union's chemical control law generally
    provides greater public access to chemical information it
    receives. GAO has previously recommended that Congress consider
    providing EPA additional authorities to make more chemical
    information publicly available.
        In numerous reports over the past several years, we have
    recommended both statutory and regulatory changes to, among
    other things, strengthening EPA's authority to obtain
    additional information from the chemical industry, shift more
    of the burden to chemical companies for demonstrating the
    safety of their chemicals and enhance the public's
    understanding of the risk of chemicals to which they may be
    exposed but little has changed. As a result, in January 2009 we
    added EPA's processes for assessing and controlling toxic
    chemicals to GAO's list of high-risk programs in need of broad-
    based transformation. This list is updated every 2 years and
    released at the start of each new Congress to help in setting
    oversight agendas.
        Mr. Chairman, we applaud you for holding this hearing and
    hope it is a first step toward bringing much-needed changes to
    the way we control toxic chemicals in this country. That
    concludes my summary, and I will be happy to take questions at
    the appropriate time.
        [The prepared statement of Mr. Stephenson follows:]

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        Mr. Rush. Thank you very much.
        The chair now recognizes Mr. Davies for the purpose of 5
    minutes of opening statements.

                    TESTIMONY OF J. CLARENCE DAVIES

        Mr. Davies. Thank you, Mr. Chairman. My name is J. Clarence
    Davies. I am a senior advisor to the Project on Emerging
    Nanotechnologies at the Woodrow Wilson International Center for
    Scholars and a senior fellow at Resources for the Future. The
    opinions expressed here are my personal opinions and do not
    represent the views of those organizations or their funders.
        I commend the subcommittee for holding this hearing. The
    committee's focus on TSCA is timely because of changes taking
    place both at the State level and internationally. States are
    increasingly taking the initiative to deal with toxics.
    Internationally, the European Union's launch of the REACH
    directive has radically changed the requirements for marketing
    chemicals in Europe. The huge impact of technologies that were
    unknown when TSCA was enacted adds to the importance of
    reviewing TSCA now.
        I have followed TSCA from its inception. In 1969 I wrote a
    book which called for a law regulating new chemicals and in
    1970 I wrote the original version of what became TSCA. In the
    past several years I have written three reports on oversight of
    nanotechnology. Each of them is relevant to the subject of this
    hearing and I would like permission to submit them for the
    record.
        Mr. Rush. So granted.
        Mr. Davies. Thank you.
        Before dealing with TSCA's weaknesses, let me note some of
    its strengths. First is the broadness and potential flexibility
    of the law. Its coverage is not limited to any one part of the
    environment, a definite asset, because most chemicals are not
    limited to air or water or land. TSCA also allows EPA to choose
    among a broad range of measures to control chemical risks.
    Another strength is TSCA's reporting mechanism. Section 8(e),
    which requires manufacturers to immediately notify EPA of new
    risk information, is particularly important. I believe that the
    general cost-benefit framework of TSCA needs to be preserved.
    The law deals with products, not with pollutants. Commercial
    products by definition have benefits so limiting their use or
    banning them to prevent adverse effects almost always has
    costs. This fact makes an absolute safety standard unwise
    because the government would be forced to ban chemicals that do
    more good than harm.
        Many of the good things in TSCA are undermined by the
    procedural landmines in the Act. The Act contains difficult,
    perhaps impossible requirements that must be met before a
    chemical can be regulated. For example, EPA must show that the
    regulation is less burdensome than any alternative. All the
    requirements must be supported by substantial evidence in the
    rulemaking record, an extraordinarily high legal criterion.
    These provisions make it practically impossible for EPA to
    regulate existing chemicals. Equally damaging is TSCA's
    implicit assumption that no knowledge or no data is equivalent
    to no risk. Most of the new chemical notices contain no testing
    information. However, as the chairman mentioned, if EPA lacks
    the information to evaluate the risk of the chemical, the
    agency cannot get the information without showing that the
    chemical may present an unreasonable risk. It is a classic
    catch-22 and badly needs to be changed.
        Confidential business information is a third problem area.
    A very large portion of information submitted under the Act is
    classified as confidential. The Act prohibits sharing of
    confidential information with States or with foreign
    governments. The result is that TSCA is less conducive to
    State, federal and international cooperation than any other
    environmental statute.
        EPA estimates that it received notice of about 50
    nanomaterials under TSCA's new chemical provisions because TSCA
    defines a chemical only by its molecular structure and does not
    consider size. Many, perhaps most, nanomaterials are considered
    existing chemicals, not new ones. This is important because the
    TSCA provisions relating to existing chemicals have mostly been
    rendered inoperative. Also, because size is a defining factor
    for nanomaterials, EPA cannot be sure which new chemicals are
    nonmaterials, even though the risks of nanomaterials may be
    quite distinct from both materials. There is a general issue of
    the capability of the existing regulatory systems to deal with
    the new technologies that are emerging at an accelerating pace.
    Nanotechnology is one example. Another is synthetic biology,
    which TSCA also has jurisdiction over in part. A particular
    challenge for EPA will be its ability to assess the risks of
    future complex synthetic organisms that have no counterpart in
    nature and TSCA does not provide adequate authority or tools to
    address those kinds of risks.
        I urge this committee to devote some time and effort to
    consider what new oversight and regulatory approaches are
    needed to deal with 21st century science and technology.
    Considering TSCA's effectiveness is a step in the right
    direction but over the long run we are going to need whole new
    approaches to deal with the new technologies. Thank you.
        [The prepared statement of Mr. Davies follows:]

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        Mr. Rush. The chair thanks the gentleman. And now I have
    been told by the subcommittee staff of a new procedure
    especially at it relates to the oversight aspects of these
    hearings, and that is I am supposed to swear in all the
    witnesses, so I am going to ask the witnesses to please stand
    to be sworn in, and I am going to ask those that testified
    whether or not you want to keep your testimony consistent pre-
    swearing in the same as post swearing in, so if you didn't like
    before, then--excuse me for saying that. I shouldn't have said
    that. We just want you to be consistent in your testimony both
    prior to the swearing in and after the swearing in.
        [Witnesses sworn.]
        Mr. Rush. Please let the record reflect that all the
    witnesses have answered in the affirmative, and now our next
    witness will be Ms. Swanson for the purposes of opening
    statement.

                      TESTIMONY OF MAUREEN SWANSON

        Ms. Swanson. Thank you, Mr. Chairman and Ranking Member
    Radanovich. My name is Maureen Swanson and I direct the Healthy
    Children Project for the Learning Disabilities Association of
    America. I also am here on behalf of the organizations of the
    Learning and Developmental Disabilities Initiative, which I
    have described my written testimony.
        I would like to explain the connection between
    neurodevelopmental disabilities and the need to reform TSCA.
    Certain diseases and disorders including neurodevelopmental
    disorders are increasing among American children. This is
    particularly true of autism and attention deficit hyperactivity
    disorder, or ADHD. On average it costs twice as much to educate
    a child with a neurodevelopmental disability as it does to
    educate a child who does not have these disabilities. A growing
    body of scientific evidence shows that some of this increase is
    due to exposure to toxic chemicals. Most recently, a study by
    researchers at the University of California found that a large
    portion of the increase in the State's autism cases is most
    likely due to toxic chemical exposures.
        Children are especially vulnerable to toxic chemicals.
    Relative to adults, children eat more, drink more and breathe
    more. They spend a lot of time on the ground and they put
    things in their mouths. From conception to early childhood is a
    time of rapid brain development, a time when even a tiny dose
    of a toxic chemical can cause neurological problems that last a
    lifetime. Of the 80,000 chemicals registered under TSCA, about
    3,000 are produced at more than 1 million pounds a year. Of
    these 3,000 chemicals, we know for certain that 10 are
    neurotoxins. They affect brain development. We have good
    evidence that another 200 are neurotoxins but we don't have
    better information or more information because there is no
    requirement under TSCA to test chemicals for effects on brain
    development. Isn't it right for parents to assume that the
    government will protect their children from toxic chemical
    exposures?
        When I talk to people and they find out that the vast
    majority of chemicals used in products are not tested for
    health effects, first they are dumbfounded and then they are
    outraged. I share that outrage. As the mother of a 2-year-old
    and a 4-year-old, I know how hard it is to figure out which
    shampoos and sippy cups and toys are safest for my kids. No
    parent should have to stand in front of a store shelf full of
    toys and guess which ones have toxic constituents and none of
    us should have to pay a premium for a specially made nontoxic
    product. No one should have to buy their way out of health
    risks to their children.
        LDA began its focus on neurotoxins decades ago by
    supporting efforts to get lead out of gasoline. Once lead was
    removed from gasoline, blood lead levels in American children
    dropped dramatically. At the same time, IQ levels increased.
    Another LDA concern is chemicals that are endocrine disruptors,
    particularly those that affect the thyroid gland, which is
    essential for healthy brain development. These chemicals are
    often found in plastics and include phthalates, Bisphenol A,
    dioxins and brominated flame retardants.
        I would like to thank Congress for its bipartisan support
    of the Consumer Products Safety Improvement Act, which will
    keep lead and phthalates out of children's products. This is a
    crucial step toward preventing toxic chemical exposures. TSCA,
    on the other hand, demands that the government prove beyond all
    reasonable doubt that a chemical is toxic after it has been put
    on the market, after it has infiltrated our homes and our
    bodies. We need legislation that requires manufacturers to
    prove that a chemical is safe before it can be used in products
    and before it can put our children at risk. We know that a
    preventive policy works. Lead is just one example. Chlorpyrifos
    is another. Chlorpyrifos is a widely used pesticide and a
    neurotoxin. Since EPA banned its residential use in 2001, a
    study in New York City showed that levels of chlorpyrifos in
    maternal and umbilical cord blood have decreased by a factor of
    10 and the newborns in the study showed an increase in birth
    weight and length, which are measures of healthy development.
        To stem the rising incidence of childhood diseases such as
    asthma, autism and cancer, we need a preventive approach to
    toxic chemical policy that requires manufacturers to test
    chemicals for health effects including neurodevelopmental
    effects and prohibits the use of toxic chemicals that can harm
    the developing fetus, infants and children. For more than 30
    years, TSCA has enabled the chemical industry to take risks
    with our children's health that no parent would ever knowingly
    permit.
        We urge Congress to reform TSCA without further delay and
    provide all our children the opportunity to lead healthier and
    fuller lives. Thank you.
        [The prepared statement of Ms. Swanson follows:]

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        Mr. Rush. Thank you.
        Our next witness is Mr. Cecil Corbin-Mark. Mr. Mark, you
    are recognized for 5 minutes.

                     TESTIMONY OF CECIL CORBIN-MARK

        Mr. Corbin-Mark. Good morning. I want to thank Chairman
    Rush for his leadership on this committee and in bringing this
    issue to the forefront. I also want to recognize and thank Mr.
    Radanovich and likewise to all the other distinguished members
    who are present and here today. And lastly, I want to thank the
    committee staff for their dedication and professionalism.
        So why is a guy from Harlem here to talk to you about Toxic
    Substances Control Act? Quite simply because I have been
    impacted by chemicals and my family has and some of my
    neighbors have. Two quick stories. I can remember a long time
    ago when my mother brought home a chemical curtain, that I
    later found out was a chemical curtain, but a curtain filled
    with superheroes imprinted on it, and I couldn't wait to
    actually take a shower with that chemical curtain. I wanted to
    be in that shower because I thought the superheroes would
    transfer their powers to me and I could join their ranks.
    Instead, what happened was, I came out dizzy, unsure of what
    was happening and filled with a really piercing headache.
        The next story is about my son, the pride and joy of my
    life. I am a doting dad, and my son is in school in New York
    City and is playing on a basketball team. I am across the
    country at a conference in San Francisco and his mom calls to
    say that they have had to rush him to the hospital for an
    asthma attack at a visiting school. In talking to him later
    that day, I asked him what do you remember, what happened, how
    did this happen, and after pressing him he realized one thing
    that he did remember was the smell of pesticides in the
    visiting locker room of his team's locker room.
        I want to share with you that I think that in places like
    the community that I live and work in Harlem, New York, many
    people are exposed to toxics. I live in, as I said, Harlem and
    it is a community of 7.4 square miles and is home to more than
    650,000 mostly low- and middle-income African-Americans and
    Latinos. It is known for its richly diverse population and
    cultural history but the area also bears disproportionate rates
    of disease, air pollution and toxic exposures. Northern
    Manhattan leads the Nation in asthma hospitalizations, low
    birth weight and lead poisoning, to name a few, and diabetes
    and obesity are also raging epidemics in our communities. High
    levels of public assistance in our neighborhoods are a part of
    the fabric and residents often don't have health insurance. And
    while downtown Manhattan may be known for Broadway, the Empire
    State Building, the Statue of Liberty and other iconic
    landmarks, uptown our neighborhoods have auto body shops, dry
    cleaners co-located with residential apartments, diesel bus
    depots across the street from parks and bedroom windows, and
    likewise nail salons and dollar stores with many products that
    contain ingredients capable of disrupting a woman's or a man's
    reproductive system abound in northern Manhattan.
        While I am describing my hometown, I could be talking about
    any place in Texas, Michigan, Louisiana, Ohio, Georgia, you
    name the State, and you might conclude that because these
    facilities or stores are located in our neighborhoods, that
    doesn't necessarily mean that we might be impacted by
    chemicals, but I assure you, you could be wrong.
        I want to just point out a couple of studies, one of them
    from the New York Research Public Interest Group done a couple
    of years ago that documented while upstate is the major
    agricultural production area for New York State, it is in New
    York City that the greatest tons of poundage of pesticides are
    actually used and they are applied to public buildings like
    schools or hospitals. Another one, the New York State
    Department of Health conducted a study in East Harlem and found
    high levels of PERC in apartments where dry cleaners were
    collated. PERC is a volatile organic compound with many health
    effects that moves easily through walls and easily enters the
    bloodstream. The Columbia Mailman School of Children's
    Environmental Health Center that we co-partner with conducted
    studies that looked at 700 mother-children pairs and examined
    dust samples in their homes and found high levels of pesticides
    like chlorpyrifos and diazinon, which transfer readily to the
    fetus, and these were found to reduce birth weight by an
    average of 6.6 ounces. Furthermore, high prenatal exposure to
    pesticides like chlorpyrifos was found to be associated with
    psychomotor cognitive delay and attentional disorders at age 3.
    Early findings from another study projected that the same
    cohort is indicating dibutyl phthalate, which is commonly found
    in perfumes, is staying in mothers' bodies longer than thought.
        Toxic chemicals don't belong in people, and while
    researchers don't have all the answers to what the health
    effects are, environmental justice advocates are mobilizing to
    fix what we see as a flawed chemical system.
        What are the problems in this system? I mean, there are
    many and I have submitted them in my testimony. I urge you to
    read them, but we need a comprehensive regulatory reform for
    toxic chemicals and I ask you to help us in making that
    possible. Thank you.
        [The prepared statement of Mr. Corbin-Mark follows:]

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        Mr. Rush. Thank you very much.
        Our final witness for purposes of opening statements is Mr.
    Wright. Mr. Wright, you are recognized for 5 minutes.

                     TESTIMONY OF MICHAEL J. WRIGHT

        Mr. Wright. Thank you, Chairman Rush, and thank you,
    Ranking Member Radanovich, for the opportunity to testify
    before you this morning.
        My name is Mike Wright. I am the director of health, safety
    and the environment for the United Steel, Paper and Forestry,
    Rubber, Manufacturing, Energy, Allied Industrial and Service
    Workers International Union, and I promise not to use the full
    name again. We are the USW for short. We represent 850,000
    workers in the sectors I just mentioned and many others
    including a majority of unionized workers in the chemical
    industry and hundreds of thousands of workers who use
    industrial chemicals on the job.
        My written statement details my background. Let me just say
    I have been dealing with chemical issues for more than 30
    years, both within my union and internationally, primarily
    through several United Nations organizations.
        I will talk this morning about one mission that affected me
    the most and it still haunts me to this day. I was a member of
    an international team which traveled to Bhopal, India, to
    investigate the December 1984 methyl isocyanate release from a
    Union Carbide plant that took several thousand lives, nobody
    knows how many, in the first few hours, and many more in
    subsequent weeks and continues to claim victims at a rate of
    one or two a week even a quarter century later. In my sleep I
    still see the faces of parents whose children died. I still see
    children left without parents. I can still hear the constant
    coughing of victims who survived but with most of their lungs
    burned away. Two members of that team were from the United
    States, and one thing we quickly realized was, had the Bhopal
    plant existed in the United States, none of the underlying
    causes of the accident, none of them, would have violated any
    OSHA or EPA or any other regulation and that includes the Toxic
    Substances Control Act, even though TSCA was then in force.
    Think about that for a minute. The Toxic Substances Control Act
    wouldn't have controlled the causes, much less prevented, the
    worst toxic substance accident in human history. Much has
    changed since then. We have a lot of laws and regulations which
    chip at the edges but the basic chemical safety law in this
    country, TSCA, the cornerstone on which everything else rests,
    remains unchanged.
        Let me turn to the impact of TSCA or rather the lack of
    impact in the workplace. I am wearing a little lapel pin this
    morning. It is a tiny birdcage with a canary. Thousands of our
    members and many of our supporters wear them. It symbolizes
    what workers have become in relation to toxic chemicals. Before
    the invention of modern testing equipment, miners used to bring
    canaries underground. If the bird died, you knew something in
    the air was toxic and you got out. Today we are the canaries in
    those cages. Others might testify as time goes on in these
    activities about things like Bisphenol A, phthalates, carbon
    nanotubes. All of them may pose serious risk to consumers and
    communities but we are the first to be exposed and we are
    usually the highest exposed. Most epidemiology regarding toxic
    substances uses cohorts of workers. In other words, it is our
    bodies that get counted in these retrospective human
    experiments.
        My colleagues and I in the USW's health, safety and
    environment department visit several hundred workplaces a year
    in all manner of industries. Collectively, we have a lot of
    experience with chemicals and chemical hazards so our members
    depend on us to say whether what they are working with is safe.
    Too often we don't have a clue. OSHA requires labels and
    written information sheets for workplace chemicals but they
    frequently contain almost no useful information beyond acute
    toxicity because the chemicals have never been tested for any
    other effects. Too often we learn the consequences of that
    ignorance only by chance and only too late. My written
    testimony includes several examples of chemicals found to be
    dangerous only because the men and women using them on the job
    died or became critically ill and they are only the very small
    tip of a very large iceberg. The dangers of these chemicals
    were discovered only through unusual circumstances like rare
    medical conditions, an overwhelming number of deaths or a
    chance discussion by workers. We have no idea how many more
    untested chemicals are causing unrecognized illness among
    workers and consumers. In short, the way we now evaluate many
    potentially toxic chemicals is by counting bodies and measuring
    human misery long after those chemicals have been introduced.
    That has to change.
        Let me turn for a minute to economics. Of course, the main
    reason for reforming TSCA is for human health but there are
    also good economic reasons. There will be many who say that we
    can't afford to reform chemical policy, especially not in the
    current economic climate. In truth, we can't afford not to.
    First, there is the economic burden of occupational disease and
    environment disease, which I discuss in my written statement.
    It saps our productivity, destroys the earning potential of our
    families, increases healthcare costs. Then there is the issue
    of competitiveness. Europe has adopted a strong new system
    called REACH and it has been mentioned earlier this morning,
    designed to ensure that chemicals and products made with
    chemicals are safe to manufacture and use. Unless the United
    States follows suit, consumers will ultimately come to trust
    European products more than they trust American products. I
    believe it was the great consumer advocate Esther Peterson who
    said, ``Made in USA should be a guarantee, not a warning.''
        I have great faith in the chemical industry. Our members
    work in the chemical industry. I actually believe all those
    Sunday morning commercials about the human element and the
    innovative potential of American chemistry. I believe we can
    produce chemical products that are safe to manufacture and safe
    to use. Thousands of our members work in the industry. They
    want to make things that are safe for them, safe for their
    kids, safe for the planet. They know that in the long run their
    jobs depend on that as well. The critical first step is the
    reform of our basic chemical safety law, TSCA.
        Mr. Chairman, you, your committee and this Congress can
    make that happen. We urge you to do so, and I want to thank you
    again for the opportunity to testify this morning.
        [The prepared statement of Mr. Wright follows:]

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        Mr. Rush. Thank you very much, and we thank all the
    witnesses. I have been informed by staff that around 11:20
    there will be three votes on the Floor, and these will be the
    only votes of the day. However, the chair would like to proceed
    with its questions and we will get as far as we can before we
    have to go for a vote, but I would also like to ask the
    witnesses if they can possibly remain until we come back from
    the Floor where we will be voting.
        The chairman recognizes himself for 5 minutes. I would like
    to get each of you on the record on a very basic question. Do
    you believe that TSCA needs to be reformed? And please answer
    with a yes or no, starting with my guest and my friend, Mr.
    Stephenson.
        Mr. Stephenson. Yes.
        Mr. Rush. Mr. Davies.
        Mr. Davies. Yes.
        Mr. Rush. Ms. Swanson.
        Ms. Swanson. Yes, Mr. Chairman.
        Mr. Rush. Mr. Corbin-Mark.
        Mr. Corbin-Mark. Yes.
        Mr. Rush. Mr. Wright.
        Mr. Wright. Yes.
        Mr. Rush. All right. I have heard some suggestion the
    problem here is not really the statute, but the problem is
    EPA's interpretation of the statute. It seems to me that after
    30 years of failed efforts to carry out the law through many
    different Administrations of different political stripes, it is
    fair to say that there are some serious problems with the
    statute itself. Do you agree with this conclusion?
        Mr. Stephenson. That it is EPA's interpretation and not the
    law itself? Was that the question?
        Mr. Rush. No, that we have some serious problems with the
    statute itself.
        Mr. Stephenson. Yes.
        Mr. Rush. Mr. Davies.
        Mr. Davies. Yes, I do agree.
        Mr. Rush. Ms. Swanson.
        Ms. Swanson. Yes, I agree.
        Mr. Rush. Mr. Corbin-Mark.
        Mr. Corbin-Mark. Absolutely, I agree.
        Mr. Rush. Mr. Wright.
        Mr. Wright. Yes.
        Mr. Rush. Let me ask you another question and answer as
    briefly as you possibly can. What are the top two or three
    areas of TSCA that you think are in most need of reform? Please
    follow with your reasoning and be as brief as you possibly can.
    Did you hear my question?
        Mr. Stephenson. I think the evidentiary standard that we
    talked about is too high and I think there is room for better
    hearing of information to the public and I think that the
    burden of proof for safe chemicals is tipped entirely on the
    government right now and should be moved more to industry. We
    are not here to endorse REACH. We are only using that as an
    example where the chemical industry is required to provide
    information to show that the chemicals are safe. We think it
    can be risk based. We think it can be production volume based
    but nevertheless the way TSCA works right now, in 30 years it
    has just proven so burdensome that it doesn't serve its
    purpose.
        Mr. Rush. Mr. Davies, would you care to respond?
        Mr. Davies. I agree with Mr. Stephenson. Let me make two
    quick comments. One, in terms of the evidentiary burden, it is
    different from what it is in almost all of the other
    environmental statutes. I mean, arbitrary and capricious is the
    standard used in almost all the environmental statutes, and in
    TSCA it is substantial evidence on the record, which is an
    incredibly high burden, and when you combine that with the
    other requirements in the Act, that is enough to undermine
    everything. The other thing is, again I would just urge the
    committee to pay some attention to things like nanotechnology
    and synthetic biology, which are coming down the track very
    fast. The regulatory system is not equipped to address those
    kinds of problems and we have to try to think through what
    changes are needed to address those things.
        Mr. Rush. Thank you very much.
        Ms. Swanson?
        Ms. Swanson. I would agree that a major area for reform is
    to shift the burden of proof from government and proving that a
    chemical is toxic after it is on the market, shift that to
    industry proving that a chemical is safe before it goes on the
    market. That is just a key element that needs to be reformed.
    Also, we would like to see neurodevelopmental testing
    specifically included as part of the toxicity testing that is
    required by the statute.
        Mr. Corbin-Mark. I think that the one-by-one review
    approach of chemicals that is under TSCA sorely needs to be
    reformed. Many low-income communities and communities of color
    are not impacted by chemicals on a one-by-one basis but through
    their multiple and synergistic effects. I also think that the
    fragmentation that TSCA provides for chemical policy is really
    bad. The fact that some chemicals are regulated in the
    workplace and some chemicals are regulated in food and some
    chemicals are regulated in cosmetics and they are all regulated
    differently is a problem. A chemical is a chemical is a
    chemical. And then lastly, the whole notion of sort of the
    risk-based approach with which our chemicals are dealt with
    under TSCA is a problem. From our standpoint, risk models do
    not often include people of color, they don't include women and
    they often don't include children, some of the most vulnerable
    populations, given some of the things that I have talked about
    in terms of the communities that I work and organize in.
        Mr. Rush. Thank you very much.
        Mr. Wright?
        Mr. Wright. Well, I agree with all of the above, but let me
    add to the list the great trade secrecy burdens that really
    prevent people from getting much information about the
    chemicals to which they are exposed. I also think that a new
    statute should require a lot more testing. Most chemicals are
    tested really only for their acute toxicity and not for
    chronic, long-term effects, and I think we need a combination
    of a risk-based and a hazard-based approach. That is to say the
    reporting should be the reporting by a company of the intrinsic
    hazards of a chemical that they produce whether it is acutely
    toxic, whether it is a neurotoxin, whether it causes cancer,
    and after that is done, after we have that information which we
    need to evaluate the risk, that is when you look at risk and
    that is when you look at how you actually deal with that
    chemical.
        Mr. Rush. Thank you very much.
        The chair now recognizes for 5 minutes the ranking member.
        Mr. Radanovich. Thank you, Mr. Chairman, and again I
    appreciate the testimony of the panel. Let me start off by
    saying I know firsthand on the issue of chronic disease and
    diseases for which you cannot take a pill to get an immediate
    cure. I deal with that in my family as we speak, so I
    understand fully, Ms. Swanson and Mr. Corbin-Mark. I am
    empathetic with your issues and I care about the same things
    that you care about. However, I just want to make sure that
    whatever is done in something like this has to be based on good
    science and it has to be done in such a way that doesn't
    cripple a good industry, and I think those are the points that
    I think I would like to leave you with to make sure that
    whatever is done in a law that is generally accepted the fact
    that it needs to be updated and reformed, that we don't do it
    in such a way that we cripple an entire industry that is
    legitimate out there.
        So I guess, Mr. Stephenson, if I could ask you a question.
    There were either 80,000 or 82,000 chemicals registered--
        Mr. Stephenson. Eighty thousand on the existing chemical--
        Mr. Radanovich. It is 80,000?
        Mr. Stephenson. Yes.
        Mr. Radanovich. In your view, do you think that the
    industry, the chemical industry should be on the hook to prove
    that every one of those by good science is a safe material? Do
    you believe that under the law that the industry should take on
    every one of them and then come back with--
        Mr. Stephenson. I don't think you can apply a one size fits
    all to everything. That has been the complaints of the European
    approach under REACH, that they require too much information on
    some chemicals that are known to be safe. I am not a chemistry
    expert but I think there are ways to segment that family of
    chemicals into those where the chemical industry should be
    required to provide information and those that should not. I
    think EPA has even offered to scrub the list in some way. They
    haven't done that but they could do that.
        Mr. Radanovich. And also in your testimony, was it the
    number 200 that were--200 chemicals that were--
        Mr. Stephenson. Where they actually required additional
    information from industry, and there is a burden of proof on
    EPA and a case that it has to go through and years that it
    takes even to get that. So in 30 years of TSCA, there has been
    200 times where the law has worked to require additional
    information.
        Mr. Radanovich. In your view, knowing what you know about
    the industry, can you give me a sense of--you know, because we
    are looking at 200 to 80,000, somewhere in between there a
    sense of the chemicals that are out there that need to be
    looked at further?
        Mr. Stephenson. The catch-22 that Mr. Davies pointed to is
    the biggest problem. EPA is required to prove the chemical is
    dangerous and it needs information to do that. Well, who has
    the information? The person who produced it does so they can't
    meet that burden without information from the industry so there
    has to be more of a collaboration here for EPA to get the
    information that it needs to do its job more easily than it can
    right now.
        Mr. Radanovich. Thank you.
        Ms. Swanson, you mentioned a list of chemicals, the same
    80,000 that are registered, of course, that is common, 3,000,
    and then 10 that were proven. Can you go over that list and
    give me an idea of what you are talking about in the overall
    chemical world of all those registered on TSCA how many things
    we are looking at here?
        Ms. Swanson. Yes, I mentioned of the 80,000 that are
    registered, about 3,000 are produced at more than 1 million
    pounds annually so these high-volume chemicals, there are 3,000
    of those which might be one good starting point for requiring
    information, and of those 3,000 we know that 10 are neurotoxins
    and there is good evidence to suggest that another 200 are
    neurotoxins.
        Mr. Radanovich. Are those 10 neurotoxins that you know of
    for sure backed by good science and still in products today,
    being manufactured into products today?
        Ms. Swanson. It is backed by a very good body of science
    that in many cases stretches over decades. Some of them are
    not--well, lead is one of the main and most potent neurotoxins
    that we know about and so lead has been gotten out of a lot of
    products certainly, but then some of the others are still being
    used in products today such as the chemicals that come from
    combustion. Those are used in products today. A lot of the
    solvents are known neurotoxins so compounds that are used in
    products like lighter fluid and oils and paint strippers and
    thinners, a lot of those chemicals are known neurotoxins and
    are still being used. So it varies. PCBs are a known neurotoxin
    that has been banned so some of them we have gotten rid of and
    some of them are still being used.
        Mr. Radanovich. My time is expiring but I look forward to
    further questioning after we get done here, but I would like to
    go into a little bit more about a good idea, that the devil
    usually comes in the detail and when you do these regulations
    how they can have an unintended consequence on an industry that
    drives up the cost of purchased goods and such. So there is
    another side of this thing that I would like to continue
    discussing when we get back.
        Thank you, Mr. Chairman.
        Mr. Rush. The chair now recognizes Mr. Sarbanes for 5
    minutes of questioning.
        Mr. Sarbanes. Thank you, Mr. Chair.
        Ms. Swanson, you said in your testimony that many people,
    particularly parents, would be, I think you said, dumbfounded
    and then outraged to learn that there isn't more oversight and
    data available with respect to these chemicals, and I am
    frankly becoming dumbfounded as I learn more about what hasn't
    happened as a result of what the expectations were of TSCA, and
    I would be very interested to hear from anyone that wants to
    comment on it briefly, because TSCA was hailed in the day when
    it was passed as this huge step. What happened? In other words,
    what expectations for what it was going to do were not met and
    how different is the oversight environment now as a result of
    the passage of TSCA, given the interpretations of it compared
    to the way things were before it was passed?
        Mr. Stephenson. I will take a stab at part of it, the
    evidentiary standard we talked about. Just the use of the term
    ``unreasonable risk'' in a legal sense bears a high evidentiary
    burden, one that EPA can seldom meet, and that is why the
    asbestos case is important. They finally spent the 2 to 10
    years that it took to make the case that it needed more
    information only to have it thrown out by the courts by not
    meeting that high evidentiary standard that is spelled out in
    the rule. That is why as a minimum we think that kind of
    language needs to be modified.
        Mr. Davies. Just in terms of the history of the Act,
    basically the sort of fundamental tradeoff made when the Act
    was formulated under the Nixon Administration was a set of very
    broad and sweeping authorities in exchange for a bunch of very
    high procedural hurdles, and the court decisions since then,
    particularly corrosion-proof fittings, which is the 1991
    decisions, made it very clear that in effect those broad and
    fairly sweeping authorities to take action were undetermined
    and negated by the procedural hurdles.
        Mr. Sarbanes. So basically it sounds like a lot of it has
    to do with judicial interpretation subsequent to the passage of
    the Act, which is not an unusual thing to happen. You have
    expectations of what will be changed, and then once it gets
    into the court system, things get more nuanced.
        Let me move on real quick because I got 2 minutes here. I
    was curious, what other--are there analogies on this issue of
    the burden of proof, which now resides heavily on EPA to prove
    that something is unsafe, versus on the manufacturers and so
    forth to prove that it is? Are there analogies to other
    statutes administered by the EPA where you see that sort of
    what I would call imbalance at work or is this one of the more
    egregious instances of where you have got the burdens flipped
    in the wrong direction? That is my view of it.
        Mr. Davies. The two more egregious examples in my mind in
    addition to TSCA are cosmetics and dietary supplements. In both
    cases, the burden of proof is entirely on the agency, in that
    case Food and Drug Administration, and furthermore, the statute
    in effect prohibits any kind of adequate oversight, which is
    even further than TSCA goes, but TSCA is definitely if not the
    most important definitely one of the most important examples
    where the burden of proof problems interfere with the
    effectiveness of the statute.
        Mr. Sarbanes. Thank you. I yield back.
        Mr. Rush. The chair thanks the gentleman.
        I think that we will stand in recess until we return from
    the votes, and we again ask the witness if they will remain for
    the conclusion of this first panel. Thank you. The committee is
    in recess.
        [Recess.]
        Mr. Rush. The committee is called to order. I want to thank
    the panelists and our guests for their patience. I think that
    right now we will recognize Ms. Castor, the gentlelady from
    Florida, for 5 minutes of questioning to the panel.
        Ms. Castor. Thank you very much, Mr. Chairman.
        Thank you to the panel very much for attending today. The
    evidentiary standard obviously is very problematic and you made
    your points very well on that. I would like to move on and have
    a better understanding of the statute, how it forbids EPA from
    sharing information that it obtains, the sharing of scientific
    data that it obtains with the public. Could you all comment on
    that, please?
        Mr. Stephenson. I will take the first shot at it. When a
    new chemical is introduced, the industry has to submit what is
    called a pre-manufacturer notice, and as part of that there is
    actually a box on the form that you check that claims
    competitive business information and we have been told often
    that that is the default and we think if there was more
    guidance or definition as to when that claim could legitimately
    be made or if there was a certification that the industry would
    make to certify the fact that is indeed CBI would be better
    than the way it works now.
        Mr. Davies. That is a key part of the problem but also it
    is made worse because unlike most of the other environmental
    statutes, TSCA doesn't allow EPA to share confidential business
    information with either States or with other national
    governments. In most of the statutes, it says if the State or
    the other national government can provide equivalent protection
    for that trade secret information, then you can share it with
    them. TSCA doesn't have any provision like that. It has a flat
    prohibition on sharing any confidential business information.
    So that combined with the ease with which you can classifying
    something as confidential, that is what contributes to the
    problem.
        Mr. Wright. If I can add kind of another model, the OSHA
    hazard communication standard also has a provision for trade
    secrecy but it has two important provisions. One is that if
    chemical in question, the chemical mixture usually is
    obtainable on the open market and can be essentially, it is
    called reverse engineered, analyzed in a lab to figure out what
    it is, then it is really not much of a trade secret because any
    competitor can do that. So the standard excludes things that
    can be reverse engineered. And second, it provides a provision
    that people with a legitimate need to know that information,
    for example, in our case, a worker representative, a worker
    himself or herself, somebody providing medical treatment can
    also get what would otherwise be confidential business
    information. And those would be good things to include.
        Ms. Castor. Yes, I think it is fairly obvious that we can
    modernize the statute to better serve the public, especially
    when it comes to information that families need to understand.
    It is true that since TSCA was adopted in 1976 that it has only
    led to one group of chemicals that have been subjected to a ban
    because of its properties?
        Mr. Stephenson. The example we use, there has only been
    five in total, and I don't know what chemical classes those
    were in but even of those, the corrosion fitting case that
    dealt with asbestos, the courts threw that out because it
    couldn't meet the high evidentiary standard within the law. The
    courts didn't address whether the asbestos was safe or not.
    Like courts often do, they just showed that it didn't meet the
    standards in TSCA.
        Ms. Castor. Mr. Stephenson, in your written testimony, you
    gave an example of formaldehyde, and I think it would be very
    helpful to take just a minute and explain that circumstance of
    the formaldehyde in wood coming from China that now cannot go
    to other countries but continues to be marketed in the United
    States.
        Mr. Stephenson. Well, you are getting even beyond TSCA into
    assessing the toxicity of chemicals as well and there are many
    ways you can do that. It doesn't fall under TSCA. That process
    is also broken at EPA, the integrated risk information system
    process, and formaldehyde is a case where the research is
    compelling but not compelling enough for EPA to regulate, so
    that is sort of related but a little bit different issue.
        Ms. Castor. My time is running out. I recommend that you
    all review this case of the wood now that other countries are
    able to regulate and keep out of their countries because of the
    toxic chemicals contained therein but it is still coming to the
    United States including some of the trailers that were provided
    to Katrina victims.
        Mr. Stephenson. Absolutely. That is true of asbestos too.
    Nearly every other country in the world has banned it. We have
    not.
        Ms. Castor. Thank you, Mr. Chairman.
        Mr. Rush. Seeing that there are no more members, I want
    just to thank this panel. This will conclude your testimony,
    and I want you to understand that all witnesses should be
    prepared to respond to written follow-up questions submitted by
    members of the subcommittee. I again want to thank you so much
    for your patience and you really helped us along. You provide a
    real service to the American people by your presence here
    today. Thank you, and may God bless you in your travels.
        As the first panel departs, I would ask that the second
    panel be prepared now to come and join us at the witness table.
    I want to advise the second panel that they will be testifying
    under oath, and as a result of that, would you please rise to
    be sworn in?
        [Witnesses sworn.]
        Mr. Rush. Please let the record reflect that all witnesses
    have responded in the affirmative. Please take your seats.
        I want to introduce the witnesses beginning at my left,
    your right. Mr. Richard Denison is the senior scientist for the
    Environmental Defense Fund. Ms. Kathy Gerwig is the vice
    president of Workplace Safety and Environment. She is the
    stewardship officer at Kaiser Permanente. An ex-Member of the
    House is with us here, Mr. Cal Dooley. Mr. Dooley is now the
    president and CEO of the American Chemistry Council. He served
    in the House from 1991 to 2005, representing the 17th and 20th
    districts of California. He didn't represent them all at the
    time. Mr. V.M., Jim, DeLisi is the president of Fanwood
    Chemical Incorporated. He is the chairman of the International
    Affairs Committee for the Synthetic Organic Chemical
    Manufacturers Association. Mr. Charles T. Drevna is the
    president of the National Petrochemical & Refiners Association.
        I would ask that the panelists now provide a maximum of 5
    minutes of opening statements beginning with Mr. Denison.

     TESTIMONY OF RICHARD DENISON, SENIOR SCIENTIST, ENVIRONMENTAL
     DEFENSE FUND; KATHY GERWIG, VICE PRESIDENT, WORKPLACE SAFETY
     AND ENVIRONMENTAL STEWARDSHIP OFFICER, KAISER PERMANENTE; CAL
      DOOLEY, PRESIDENT AND CEO, AMERICAN CHEMISTRY COUNCIL; V.M.
     (JIM) DELISI, PRESIDENT, FANWOOD CHEMICAL INC., AND CHAIRMAN,
      INTERNATIONAL AFFAIRS COMMITTEE, SYNTHETIC ORGANIC CHEMICAL
     MANUFACTURERS ASSOCIATION; AND CHARLES T. DREVNA, PRESIDENT,
              NATIONAL PETROCHEMICAL& REFINERS ASSOCIATION

                      TESTIMONY OF RICHARD DENISON

        Mr. Denison. Thank you, Chairman Rush and Ranking Member
    Radanovich for holding this hearing today.
        I would like to do three brief things in my testimony
    today. I want to start with a story about one chemical. In
    fact, it is the chemical that Congresswoman Castor was just
    speaking about that illustrates why reform of TSCA is so
    urgent. I then want to briefly describe several structural
    problems with TSCA that help to explain why EPA has been unable
    to act effectively to ensure chemical safety. And finally I
    want to describe how U.S. policies are falling behind those of
    the rest of the world, putting U.S. companies at risk of losing
    access to global markets and putting all of us at risk of
    becoming a dumping ground for unsafe products made elsewhere in
    the world.
        That brings me to the story about that one chemical. The
    United States imports vast amounts of plywood from China that
    is made using formaldehyde-based adhesives, a chemical known to
    cause cancer, to exacerbate asthma and to cause numerous other
    respiratory ailments. Some of that plywood ended up in the
    infamous FEMA trailers to which so many people were forced to
    flee in the wake of Hurricane Katrina. That toxic exposure
    turned what was already a national scandal into a true debacle.
    The plywood China sells to the United States cannot legally be
    sold to Japan or the European Union nor can it be sold even for
    domestic use in China, and that is because all of those
    countries have enacted strong regulations that restrict the
    release of formaldehyde. As of January of this year, California
    also enacted such regulations.
        Now, China exports a low-formaldehyde version of this
    plywood to Japan and the European Union but it continues to
    enjoy a market for its more toxic product here in the United
    States. Domestic makers of low- or even formaldehyde-free
    plywood can't compete with those cheap imports from China so we
    are hurting American businesses that have found safer
    alternatives to this use. Last year EPA was petitioned by 5,000
    citizens to take the California regulations and adopt them
    nationally. EPA promptly denied that petition. It said that the
    information available on formaldehyde, one of the best-studied
    chemicals in all of commerce, was insufficient. As bad as that
    sounds, what is worse is that EPA is likely right. EPA must
    show that a chemical presents an unreasonable risk as defined
    under TSCA and interpreted by the courts, and I think many
    other witnesses have already alluded to the fact that that
    burden is so high that it essentially is impossible to meet.
    Over the history of TSCA, EPA has banned only one group of
    chemicals, PCBs, and that was because Congress legislated the
    ban. It has partially restricted four other sets of chemicals
    in the 33-year history. In the 1980s EPA tried to ban asbestos,
    as we have heard, and it was immediately challenged by industry
    and the courts overturned that decision.
        A lot has been said about that already but I want to add
    two other things. First, EPA took over 10 years to develop that
    regulation and they amassed a 45,000-page documentary record of
    the risks of asbestos. Despite that, the courts found EPA had
    not met its burden under TSCA. Now, it has become fashionable
    in some circles to argue that the problem with TSCA is that EPA
    hasn't been trying hard enough or hasn't been doing a good
    enough job. I ask you, if 45,000 pages of documentation and 10
    years of regulatory development is not enough to ban a chemical
    like asbestos, what is? Something is badly broken. TSCA has
    never been significantly amended in the 33-year life it has
    lived despite enormous changes in our chemicals economy and our
    state of knowledge about chemicals. One example. We now know
    that all Americans including newborn infants carry hundreds of
    synthetic chemicals in their bodies, some at levels that we
    already know are high enough to cause harm in laboratory
    animals. The more chemicals we look for in people, the more we
    find, and yet government nor industry can tell us how those
    chemicals got there nor can they adequately explain what their
    impact will be on our health. TSCA fails to provide EPA with
    the authority it needs to develop information to identify not
    only unsafe chemicals but safe chemicals that could be
    substitutes for the risky ones and TSCA forbids EPA from
    sharing that information even with other levels of government,
    as we have already heard. Companies are largely free to claim
    the information that they deem confidential. Those claims are
    rarely, if ever, reviewed or even required to be justified up
    front, and even the name and identity of a chemical that is
    being submitted because of a study that shows high risk, the
    identity of that chemical can be hidden from the public.
        EPA had to resort to voluntary programs, given these
    constraints that it has to operate under. The most notable of
    these is the High Production Volume Challenge program. Now, we
    supported that when it was launched a decade ago.
        Mr. Rush. Will you please bring your testimony to a close?
    You are over the 5 minutes. Please bring it to a close.
        Mr. Denison. But that program--I will wrap up very quickly
    here. That program has failed to deliver the data because it is
    a voluntary program. I want to just end by saying that lest you
    think that what we are looking for with TSCA reform is a
    heavier hand of government, the largest failing of TSCA is the
    dysfunctional market it perpetuates, one that is ill informed
    and does not allow anyone who needs to make good decisions
    about chemicals access to the information to make those good
    decisions. Thank you very much.
        [The prepared statement of Mr. Denison follows:]

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        Mr. Rush. Thank you very much.
        Ms. Gerwig, please, 5 minutes.

                       TESTIMONY OF KATHY GERWIG

        Ms. Gerwig. Mr. Chairman and distinguished members of the
    subcommittee, thank you very much for inviting me to testify
    today. I am Kathy Gerwig. I am vice president and environmental
    stewardship officer for Kaiser Permanente. That is the Nation's
    largest integrated healthcare delivery system. We provide
    comprehensive health services to 8.7 million people in nine
    States and the District of Columbia.
        At Kaiser Permanente, we recognize that a healthy
    environment is critical to the health and wellness of every
    person. We are dedicated to environmental sustainability as we
    believe it has direct positive effects on individual and
    community health. We lead and support innovative efforts to
    decrease pollutants and enhance the environment. This year we
    will spend about $13 billion on purchased products and
    services. We lease or own more than 65 million square feet of
    real estate. We have a 10-year capital plan of more than $30
    billion.
        Despite this leverage, we have experienced limitations in
    achieving our goal of using products and materials that are
    environmentally sustainable. We have developed our own
    chemicals disclosure document that is required for all of our
    large purchasing contracts. This disclosure asks suppliers for
    information on the categories of persistent bioaccumulative
    toxic compounds, carcinogens, mutagens, reproductive toxins and
    specific chemicals of concern such as mercury, polyvinyl
    chloride, phthalates, Bisphenol A and halogenated flame
    retardants. When the information is provided by suppliers,
    there are many times that it is not meaningful due to the
    vendor's lack of knowledge, trade secret caveats or the absence
    of safety information for thousands of chemicals in commerce
    today.
        We are also challenged by suppliers' claims that a product
    is green when it doesn't meet our environmental criteria. For
    example, a product that saves energy, which is good, might be
    made of vinyl, which creates dioxin pollution. Starting in
    1997, Kaiser Permanente spent 10 years virtually eliminating
    mercury, a neurotoxin, from our operations. We now use digital
    thermometers and blood pressure devices. The mercury in
    esophageal dilators was replaced with tungsten by that
    industry. Now there is emerging evidence that tungsten is
    related to leukemia in towns near tungsten mining operations.
    This is an example of a large effort across the healthcare
    sector to replace a known hazardous material which may be
    resulting in the unintentional use of potentially hazardous
    material.
        Another example includes the replacement of products
    containing di(2-ethylhexyl) phthalate, or DEHP, which is used
    as a plasticizer in flexible medical devices such as
    intravenous tubing and bags. DEHP can leach from the plastic,
    posing health risks. Our project began in 2001 when evidence
    was available to show that DEHP is a potential reproductive
    toxicant to neonatal males. We identified alternatives,
    conducted clinical trials before we were able to begin using
    products free of DEHP.
        For more than 10 years, Kaiser Permanente has been working
    to reduce our use of vinyl products because vinyl creates
    dioxin pollution when it is manufactured or incinerated. In
    2004 we were instrumental in driving the creation of a vinyl-
    free carpet suitable for healthcare settings. It was a multi-
    year effort that took considerable time and resources on our
    part. We now contract exclusively with a vendor that created
    that product and we have installed approximately 10 million
    square feet of this carpet in our facilities.
        When we were testing alternatives to hard surface flooring
    made from vinyl, we had to actually invent our own testing
    protocol and use in-house certified industrial hygienists to
    perform tests to understand the health impacts of the
    alternatives. As we strive to use products that are not
    harmful, we invest significant time and resources. That degree
    of investment is simply not feasible for most products and
    materials we buy nor is it possible for smaller organizations
    that don't have the resources and skills that Kaiser Permanente
    has developed over the decades. Mechanisms are needed to
    support downstream users such as us in procuring safer products
    and materials for our needs.
        Mr. Chairman and members of the committee, thank you for
    this opportunity and I look forward to answering any questions.
        [The prepared statement of Ms. Gerwig follows:]

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        Ms. Sutton [presiding]. Thank you, Ms. Gerwig.
        Mr. Dooley.

                        TESTIMONY OF CAL DOOLEY

        Mr. Dooley. Thank you, members of the subcommittee. My name
    is Cal Dooley and I am president and CEO of the American
    Chemistry Council, and our council represents about 140 member
    companies that produce almost 85 percent of the chemicals
    manufactured in this country.
        I would just ask you to briefly consider the role that
    chemicals played in your lives today. Chemical products are
    fundamental to the clothes you wear, the way you got to work
    this morning, the electronic products that you communicate
    with, the chair you are sitting on, the protective finish on
    the dais and the desk. Chemicals are the medicines that help
    save lives, the safety equipment that protect our children and
    our military forces, and the insulation in the lightweight
    vehicles that reduce greenhouse gas emissions and save energy.
        ACC and its members share your goal of protecting human
    health and the environment from risks associated with some
    chemicals. In the vast majority of cases, however, chemicals
    can be and are used safely. While ACC believes that TSCA has
    been protective of health and the environment, there are good
    reasons why Congress should consider modernizing the statute.
        First, it is clear that the public for a variety of reasons
    does not have confidence that the regulatory system is
    adequately ensuring the safety of the products they use.
    Second, science and technology of testing and detecting
    chemicals has advanced considerably since TSCA was enacted and
    we can more effectively incorporate these new capabilities into
    a modernized regulatory system. And third, modernizing TSCA
    will make the best use of emerging developments in science and
    technology and protect our Nation's interests in an innovative,
    competitive chemical industry.
        My simple message to the subcommittee this morning is that
    ACC and its member companies are prepared to work with you in
    modernizing TSCA. I would like to quickly address a few of the
    areas where Congress should focus its attention in considering
    changes to TSCA. We are committed to having the appropriate
    hazard, use and exposure information necessary to make
    decisions about safe use and we think the approach should be
    reflected in law. In general, we think it is appropriate to
    have more information about those uses where there are or may
    be exposures to humans or the environment. Information
    requirements should be driven by use and exposure patterns. We
    support new detection methodologies like biomonitoring. We
    think the federal chemical management system should be robust
    enough to apply that data and other relevant information in a
    prioritization process that allows a focus on key health and
    safety concerns like potential exposures to children. EPA
    should use hazard, use and exposure information to determine
    the safety of priority chemicals for their intended uses.
        Safety assessments conducted by EPA should not simply rely,
    however, on hazard as a sole determinant of the outcome. As an
    example, consider a single chemical that might be used in many
    different applications, maybe from bullet-resistant vests and
    goods that are used in the retail marketplace to a chemical
    input in an industrial process. While the hazard
    characteristics are clearly the same regardless of the
    application, the exposure and risk considerations will vary
    significantly. This simple example helps illustrate the
    questions that a federal chemical management system must be
    capable of addressing. For example, what additional information
    is needed to ensure that the chemical can be used safely for
    its intended purpose? On what basis should EPA make a decision
    that it is safe? How should EPA weight the relative hazards and
    risks of the alternatives? And how can we ensure that the
    decisions are made in a timely manner and that they protect
    health and the environment and the national interests and
    technological innovation?
        In ACC's view, a robust federal chemical management system
    must be capable of providing chemical manufacturers, users, the
    public and the government with the answers to those questions.
    Those are the questions that we are committed to addressing and
    we are also committed to working with you toward the goal of
    modernizing TSCA. Thank you.
        [The prepared statement of Mr. Dooley follows:]

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        Ms. Sutton. Thank you, Mr. Dooley.
        Mr. DeLisi.

                        TESTIMONY OF V.M. DELISI

        Mr. DeLisi. Good afternoon. It is a pleasure being before
    this distinguished subcommittee. My name is Jim DeLisi and I am
    president of Fanwood Chemical located in Fanwood, New Jersey.
    Fanwood Chemical is a member of SOCMA, the leading trade
    association representing the batch and custom chemical
    industry.
        Our industry makes a $60 billion annual contribution to the
    U.S. economy and contributes to the chemical industry's
    position as the Nation's leading exporter. SOCMA supports EPA's
    and Congress's fundamental goal of protecting health and the
    environment. SOCMA members are prepared to do our part in that
    effort. We are pleased to have this opportunity to share with
    you our perspective on revisiting the Toxic Substances Control
    Act. As I will explain today, SOCMA agrees with many that TSCA
    needs to be revisited and certain aspects of EPA's TSCA program
    could be improved but a sweeping overhaul like implementing
    Europe's REACH is unnecessary and would be unwise. Since its
    enactment, TSCA and its unreasonable-risk standard have
    generally stood the test of time as a flexible law that has
    protected human health and the environment without crippling
    innovation.
        First, I would like to start by saying that any evaluation
    of TSCA should consider the contributions the chemical industry
    has made in providing the United States with one of the highest
    standards of living in the world, even as overall indices of
    public health and environmental quality have improved.
    Secondly, any evaluation should also take into account the vast
    amount of data that have been submitted by our industry to the
    EPA and to other agencies such as the FDA, DOT, OSHA, Consumer
    Products Safety Commission under other statutes that regulate
    our industry. Lastly, it should look at how this balance
    between protecting human health and the environment and
    preserving innovation has been achieved and how it can be
    maintained. SOCMA believe this balance has been and will
    continue to be achieved by a chemicals policy that is
    fundamentally guided by science in a careful assessment of
    risk. Data requirements have been driven by the intended and
    foreseeable use and disposal of a chemical. This fundamental
    approach should be maintained when considering a revised
    approach to chemical risk management.
        One area of TSCA that has faced substantial criticism is
    the reporting requirements applicable to industry. In
    particular, many believe that EPA does not have sufficient
    authority under TSCA to request data. SOCMA disagrees with this
    claim but we do believe that data gathering is an area worthy
    of improvement and that we should reconsider what is the best
    approach to gathering data and information on chemicals. In
    order to do this, Congress should look at how EPA currently
    implements TSCA and consider how the program could be enhanced.
        Before amending TSCA to create new obligations for EPA,
    Congress should also explore whether EPA can better leverage
    activities going on outside of the TSCA program, whether
    occurring under federal agencies like FDA or abroad. For
    example, companies are embarking on a massive project to
    generate standardized test data for European REACH program.
    Through collaborative data-sharing efforts, EPA should be able
    to take advantage of the work done for that program just as
    other countries can leverage the work conducted here. Why
    should the United States want to duplicate testing that is
    already being conducted? A collaborative approach should be
    promoted by Congress.
        This leads me to the Chemical Assessment and Management
    Program, better known as ChAMP, the voluntary program to which
    the United States committed in 2007 along with Canada and
    Mexico under the Security and Prosperity Partnership. Through
    this program, EPA is prioritizing chemicals by hazard and risk
    in order to systematically decide what further action may or
    may not be required. EPA is already well down the path of
    implementing this program. ChAMP is also addressing the TSCA
    inventory. EPA has initiated action to reset the TSCA inventory
    to more accurately identify chemicals in commerce. Many people
    do not realize that at any given time, significantly fewer than
    the roughly 80,000 chemicals currently on the inventory are
    likely to actually be in commerce. For example, the last
    inventory update reported only 6,200 chemicals in commerce
    during 2005. Admittedly, that does not include materials
    produced on a single site at less than 25,000 pounds a year.
    Nevertheless, this important fact is conveniently ignored by
    those who try to show that TSCA is inadequate, who claim that
    the inventory reflects the number of chemicals in commerce and
    then compare that number to the number of existing chemicals
    that have been studied by EPA under section 4.
        In closing, SOCMA has pointed out several main areas of
    TSCA that are being enhanced and we would urge you to focus
    your current inquiry on how to better implement existing
    authorities and activities. SOCMA believe that TSCA will not
    require a complete overhaul but could be enhanced by new
    challenges. Thank you, and I look forward to taking questions.
        [The prepared statement of Mr. DeLisi follows:]

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        Mr. Rush. Mr. Drevna.

                     TESTIMONY OF CHARLES T. DREVNA

        Mr. Drevna. Chairman Rush, Ranking Member Radanovich and
    the rest of the subcommittee, thanks for having us here. My
    name is Charlie Drevna. I am president of NPRA, the National
    Petrochemical & Refiners Association. Our member companies
    produce the basic chemicals that are the building blocks of the
    thousands of finished products that help make our lives simpler
    and safer. NPRA welcomes the opportunity to provide its
    perspective on the Toxic Substances Control Act, which is one
    of the key laws that can directly affect the marketplace, both
    for chemicals and for finished products.
        Congress enacted TSCA in 1976 as an effort to categorize
    and evaluate the risk that chemicals may pose to humans and the
    environment. NPRA believes that the intent of Congress in
    crafting the statute was to construct a scientifically based
    chemical risk management program that was protective of human
    health and the environment while also allowing the development
    of products that will enhance health, safety and the
    environment. NPRA fully understands the committee's desire to
    examine TSCA's implementation and where necessary make the
    appropriate modifications to the statute to ensure that its
    goals and objectives are realized.
        We live in an era where global competition and rapid
    technologic change now unfortunately coupled with a
    debilitating financial crisis are calling into question the
    business and political foundations upon which our prosperity
    has rested for decades. NPRA believes we must ensure the
    overarching goals of TSCA are achieved while at the same time
    promoting innovation in creating life-saving or -enhancing
    products, promoting economic growth and strengthening American
    competitiveness in the global marketplace. We are confident
    that these goals are complementary, not mutually exclusive, as
    some would say, and NPRA pledges to work with Congress and with
    all stakeholders to ensure the desired outcome.
        Recently, several groups have called for a substantial
    overhaul of TSCA to make it more like the system recently
    adopted in Europe, otherwise known as REACH. While I agree that
    we could all benefit by first reviewing and then perhaps
    reforming TSCA and updating certain sections, I do not believe
    that a wholesale rewrite is necessary, especially given the
    fact that systems like REACH are largely new and untested. We
    have not yet begun to see what the impact of REACH will have on
    chemicals management in the E.U. or its effect on a European
    economy. My written testimony further elaborates on this point.
        NPRA believes that a more pragmatic approach to TSCA reform
    will result in a better chemicals management system and still
    achieve the original intent of Congress. Key areas to explore
    while examining TSCA reform include information sharing,
    information collection and use, and a statutory recognition of
    EPA's own best practices and timelines for action. For example,
    EPA could share confidential business information with other
    types of government officials, both domestic and foreign, as
    long as that information is afforded the same level of
    protection required of EPA. NPRA would not object to changes in
    the statute that would allow for better information sharing.
        Another area that could be updated is how EPA collects
    information and prioritizes future work. Under TSCA, EPA is
    given the authority to collect information on the hazards,
    potential exposures and risks of chemicals. However, the
    statute does not mandate that the information be collected in
    any particular order nor does it require EPA to collect and
    disseminate the information in a timely manner. In addition,
    test rules could be updated to reflect EPA's own best practices
    and specific timelines for action. Test rules could also
    institutionalize a tiered, targeted and risk-based approach,
    which has proven over time to be the most effective and
    efficient chemicals policy.
        NPRA urges this subcommittee to consider the approaches
    used by Canada and the United States under the Security and
    Prosperity Management Program, otherwise known as ChAMP, and at
    EPA it is also undertaking and making significant progress.
    This innovative program should be afforded the opportunity to
    work and produce the desired results.
        The last area I would like to address is EPA resources for
    TSCA implementation. While many say the statute is flawed or
    outdated, I contend that a lack of sufficient funding has been
    every bit as big a problem as any challenge imposed by
    statutory language. EPA must be given the resources to
    appropriately manage chemicals in commerce.
        In conclusion, I believe that if we take a careful,
    thorough look at TSCA and the history of its implementation
    along with the funding requirements associated with this kind
    of complex and technical work, we will find a strong statutory
    framework. I think if we work together as stakeholders in a
    transparent process and give this effort the time and thought
    that it deserves, we will end up in this Nation with a
    chemicals management system that is unparalleled. I thank you
    for your attention and the opportunity to be here today and
    look forward to your questions.
        [The prepared statement of Mr. Drevna follows:]

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        Mr. Rush. The Chair thanks all the witnesses. I recognize
    myself for 5 minutes for the purposes of questioning the panel.
        I would like to ask each one of you on the record the same
    basic question that I asked the first panel. Do you believe
    that TSCA needs to be reformed? Please answer yes or no
    beginning with Mr. Denison.
        Mr. Denison. Yes, I do, Mr. Chairman.
        Mr. Rush. Ms. Gerwin.
        Ms. Gerwin. Mr. Chairman, my organization has not taken a
    public policy position.
        Mr. Rush. Cal Dooley.
        Mr. Dooley. We support modernization and reform, yes.
        Mr. Rush. Mr. DeLisi.
        Mr. DeLisi. We support revisiting the statute.
        Mr. Rush. Mr. Drevna.
        Mr. Drevna. Mr. Chairman, we support the revisiting, then
    if necessary the reform. I think it has to be a stepwise
    process.
        Mr. Rush. Mr. Denison, it sounds to me like there are a lot
    of problem with this statute. It looks that way to me.
    Furthermore, it sounds to me like these are generally problems
    that cannot be fixed by having EPA take a different approach to
    interpreting the statute or getting a few more staff. At the
    same time, others have suggested that the problem here is not
    really the statute, that the problem is EPA's interpretation of
    the statute. Now, what do you believe? Do you believe that the
    statute really needs to be rewritten or do you think that
    changes at the EPA will address all these problems and
    concerns?
        Mr. Denison. Mr. Chairman, I believe that the problems with
    TSCA are fundamentally structural and inherent to the language
    with the addition that legal interpretation of those standards
    has made matters even worse and has confounded the
    Congressional intent, as evidenced in the original statute. But
    the problems are structural in that they require such heavy
    burdens on the agency in terms of both resources and evidence
    that they effectively take provisions that would work if those
    burdens were not so high and make them unworkable. For example,
    the requirement that EPA must face to require a company to test
    a chemical is so onerous in terms of having to first have
    evidence that that chemical may pose a risk in order to require
    information, the catch-22 that was alluded to earlier is in
    operation. Even if that were not there, the fact that a rule to
    require testing has to go through full notice and comment
    rulemaking and takes many hundreds of thousands of dollars to
    develop and 2 to 10 years to develop means that when we are
    dealing with tens of thousands of chemicals, we simply can't
    rely on a system that has that level of burden placed on the
    agency and that level of resource required.
        Mr. Rush. Ms. Gerwin, you mentioned in your testimony about
    the difficulties that your company is facing trying to move
    toward using safer chemicals, and I applaud your company's
    efforts. You describe tremendous costs that Kaiser Permanente
    has taken on in this effort including hiring your own
    industrial hygienist and coming up with the testing protocols
    to test the safety of products and chemicals that you use. This
    sounds to me like it is a very large burden that you have
    assumed. Are you aware of any other companies that are doing
    similar things? Do you think that a smaller company would be
    able to do what you have done?
        Ms. Gerwin. It is a significant use of our time and
    resources to do the kind of testing that we have done, and I
    think there are other organizations that take on some similar
    tasks. I don't know of any that actually go to the lengths that
    we have gone to for so long. As I had mentioned in my
    testimony, we have been doing this for more than a decade, and
    I think smaller organizations would find it to be an extreme
    burden on their resources to try to do the kind of work that we
    are doing. So it is an investment on our part that we are
    making in order to achieve the goals that we want to achieve
    and it represents an organizational burden of time and
    resources.
        Mr. Rush. Are you aware of any other companies besides
    Kaiser, your company, that are doing similar things?
        Ms. Gerwin. I am not aware of any organization that is
    doing the amount of testing that we are doing but I know that
    there are other organizations and some healthcare organizations
    that are focusing on single chemicals or single products.
        Mr. Rush. The Chair now recognizes the ranking member for 5
    minutes of questioning.
        Mr. Radanovich. Thank you, Mr. Chairman.
        I want to welcome the panel and thank you for being here. I
    want to preface the discussion that we have by quoting a New
    York Times article that was printed on June 30, 2008, and it is
    regarding the hyperbole of taking on difficult subjects like
    this. It starts out by saying ``Need press, repeat, green, sex,
    toxic, cancer, secret and fat.'' Those are the things that get
    attention on the press, and the reason I am saying that is
    because when you start talking about, a previous witness
    mentioned the idea of the shower curtains that were a problem
    emitting odors and it was later on debunked in total because
    after they went into and found out that there was nothing
    behind the accusation that it could be releasing as many as 108
    volatile chemicals, and this is the scary part about getting
    into changes like this. Most people here agree that TSCA needs
    to be looked at, but what I don't want to see is a repeat of
    the Consumer Products Safety Act where you end up putting an
    incredible burden on industry, raising their costs in
    association with this. So again, you know, this is the red flag
    that needs to go up when the consideration of the revision of
    something like TSCA needs to happen.
        I do have a couple of questions. Mr. Denison, when you
    mentioned on the issue of asbestos, was it TSCA that prevented
    asbestos from--as I understand the regulations that were being
    sought after had failed in court. Wasn't it shoddy workmanship
    on the part of EPA that brought that case to the court that
    ended up preventing the listing of asbestos?
        Mr. Denison. Congressman, it absolutely was not. EPA spent
    more than a decade and millions of dollars developing that
    regulation. It amassed, as I said, a 45,000-page record of
    documentation. What the court found was on several levels that
    the agency had not examined every possible alternative to
    asbestos in every possible use of asbestos on the market, and
    if you read that court decision and the analyses that have been
    done of it, you find very quickly that the amount of work that
    the agency would have had to have done to have met the
    statutory requirements as interpreted by the courts was simply
    impossible to reach.
        Mr. Radanovich. Let me read the court decision. It says,
    ``We note that of all the asbestos bans, the EPA did the most
    impressive job in this area both in conducting its studies and
    in supporting its contention that banning asbestos products
    would save over 102 lives. Were the petitions only questioning
    the EPA's decision to ban friction products like brake pads, we
    would be tempted to uphold the EPA.''
        Mr. Denison. Well, in that particular case, I am not
    familiar with that particular passage but I think what they
    were saying was that the standard of evidence that was required
    under the statute was only met according to the court in that
    one area. That doesn't mean that that is the only area that EPA
    looked at the risks or looked at the benefits but that is how
    high the bar was.
        Mr. Radanovich. Thank you, Mr. Denison.
        One of the other questions, I want to repeat this
    throughout this hearing because I think it needs to be a
    mantra, the previous witness had mentioned the awful accident
    in Bhopal, India. I fail to see any part of TSCA that had
    anything to do with that accident or where that law came into
    it but you bring up these sexy things that get press and you
    alarm people and it opens the door to regulations that can be
    not really done surgically to make a law better but it brings
    it in with a meat cleaver and makes a mess out it. So that is
    the caution that I want to make, that is, if we move forward in
    regulation that it works for everybody and it keeps a
    legitimate, good industry and allows them to continue to
    thrive.
        So with that, Mr. DeLisi, I would like to ask you a
    question. I come from the point of view that managing risk is
    not as simple as removing risk but rather gets into the
    business of risk-risk tradeoffs. Could you please tell me if
    you agree with this risk-risk tradeoff concept as it relates to
    the regulation of chemicals, for example, maybe formaldehyde?
        Mr. DeLisi. Absolutely. Frankly, I would not want to be a
    regulator that had to try to make some of these decisions, but
    when you replace a chemical, you need to understand completely
    what the tradeoffs are and some of the things that have been
    suggested for replacement, things like benzene, I mean, if you
    don't have benzene you don't have Tylenol. So there needs to be
    a careful study of the tradeoffs that are being made, things
    like tires. We all understand the risks. Tires can explode. I
    was on the New Jersey Turnpike yesterday and a truck lost a
    tire that exploded. We face that every day. So we all face risk
    tradeoffs in our lives every day and also involved in the
    chemical industry too.
        Mr. Radanovich. Thank you, sir.
        Mr. Chairman, I see that I am over time so I would request
    one more round of questioning.
        Mr. Rush. The chairman is committed to a second round of
    questions for those members who can't complete their line of
    questioning in the 5-minute time.
        Mr. Radanovich. Thank you so much, Mr. Chairman.
        Mr. Rush. The Chair now recognizes Ms. Schakowsky of
    Illinois.
        Ms. Schakowsky. Thank you, Mr. Chairman.
        First let me apologize to the panel for not being in the
    room for your testimony. I think as Mr. Dooley is well aware,
    that won't prevent me from asking questions, even if it should.
        Mr. Denison, this is directed to you. Actually, they all
    are. As we have heard from several members today, everybody
    supports the use of good science I think it is instructive to
    the committee to be aware of the recent observations of a
    committee of the National Research Council. In a 2006 report
    entitled ``Toxicity Testing for the Assessment of Environmental
    Agents,'' the committee stated, ``TSCA authorizing EPA to
    review existing chemicals for toxicity and exposure information
    on them is typically so incomplete that it does not support the
    review process. The basis for establishing priorities and
    requiring testing for industrial chemicals in the United States
    has not progressed much over the last 20 years.'' I am
    wondering if you agree with this assessment of the scientific
    experts.
        Mr. Denison. Congresswoman, I do very much. I believe the
    National Academy was one of the first to sound the alarm about
    the lack of data way back in the mid-1980s and pointed out that
    TSCA was failing even then to generate the information needed
    to base good scientific decisions about chemicals on and that
    report that you alluded to just 2 years ago simply says that we
    have not made much progress in the intervening 2 decades in
    terms of tackling that basic problem. The Academy has also
    issued a set of reports over the last few months on risk
    assessment as managed by the Environmental Protection Agency
    and it has found that there are major problems with the
    assumptions that EPA uses and with the lack of ability for EPA
    to recognize that people are exposed to multiple chemicals at
    the same time, not just one chemical at a time.
        So I think the good science mantra that we hear here is
    absolutely a need that requires TSCA reform because TSCA is not
    using the best science, and I think that we have an opportunity
    here to bring our chemicals management program into the 21st
    century in terms of using the best science out there to drive
    these decisions. So the notion that good science is only
    practiced by industry somehow or that this is a one-sided issue
    is not the case.
        Ms. Schakowsky. This all may have come up already in
    testimony, so were we to do in a perfect world the kind of
    review that is necessary, it wouldn't just be chemical-by-
    chemical review, we would also be looking at the cumulative
    effect and the interactions as well?
        Mr. Denison. That is right. We are exposed to multiple
    chemicals from multiple sources all at the same time and yet
    our assessment methods and our way of going about getting data
    on chemicals one at a time does not lend itself to elucidating
    the question, what is the impact of all of that cumulative and
    aggregate exposure? So there is a lot of new science going on
    here that could begin to answer that question. We need to
    incorporate that best science into the way EPA assesses
    chemicals.
        Ms. Schakowsky. We worked a lot in this subcommittee and
    committee on the Consumer Products Safety Commission
    Improvement Act, and I have hear some suggest that we shouldn't
    worry about levels of a particular chemical in a particular
    product such as phthalates in rubber duckies because it is far
    too low to have any impact. How are we to respond to that kind
    of charge?
        Mr. Denison. Well, it is a very good question. I think the
    emphasis that the associations at this table just made on the
    need to look at use of chemicals and making decisions about
    them I hardly endorse. The problem has been that we have done a
    very lousy job as a Nation in understanding what we can be
    exposed to and how. The phthalates in plastics, the brominated
    flame retardants used in our furniture are all chemicals that
    for decades we were told there would be no human exposure to
    those chemicals. They absolutely would stay put and we would
    never be exposed to them. We have found out how wrong those
    assumptions were. So I think part of the reason why I call for
    much more comprehensive information about chemicals including
    the use of chemicals, because I agree that is very important,
    is because without that information, we make wrong assumptions
    that prove wrong only decades later when essentially the entire
    human population has been exposed to those chemicals and we
    still don't know what the risks are.
        Ms. Schakowsky. Well, this is a new area of jurisdiction
    for our subcommittee that we look very much forward to working
    on. I thank all of you for your input and testimony.
        Mr. Rush. The Chair now recognizes Mr. Sarbanes.
        Mr. Sarbanes. Thank you, Mr. Chairman.
        Thank you all for your testimony. I am trying to understand
    how TSCA is viewed from sort of different quarters, and I
    imagine there are some people who would say that it is a joke.
    If you were just at lunch with somebody, Mr. Denison, and they
    said oh, yeah, TSCA, you know, that regulates chemical safety,
    would you, well, that is really kind of a joke or would you say
    it is an open secret that it doesn't really do much, or do you
    say well, that is a reasonably good statute that just needs
    some upgrading and overhauling? Just kind of put it in a
    vernacular for me.
        Mr. Denison. Congressman, I think I would probably aim
    toward the middle of the three statements that you made. I
    think it is largely an open secret that this policy has not
    been sufficiently protected, that EPA has not been able to get
    the information it needs and has not been able to act on that
    information when it does happen to obtain it. So I don't know
    that it is a joke. I think the intent at the time and the
    policy statements in TSCA are very solid. The problem has been
    that it simply has not delivered on the promises it made, and I
    think that is inherent in the statute that has not been looked
    at for essentially 3 decades. So we have to go back and figure
    out why it didn't work and fix those structural defects.
        Mr. Sarbanes. Let me ask you about REACH because a couple
    people have alluded to that, some with a sense of alarm, and I
    would ask anyone on the panel to speak to this. Is REACH too
    far, is that overreaching to go to REACH? I mean, how much of a
    burden would that really represent? Describe that burden in
    terms of there might be an initial period of assimilating the
    new standards but presumably over time you can make the
    gathering of information, the presentation of safety data and
    other things part of the course of your operations such that it
    would not be so burdensome. And I don't know that REACH is the
    answer. It just that it has been invoked a couple of times as a
    standard either to be concerned about or to reach for. So
    again, anybody can speak to that.
        Mr. DeLisi. I would like to make a couple of comments on
    that. First, many of the things that have been discussed this
    morning and this afternoon are not regulated by TSCA. There was
    a lot of discussion this morning about exposure to biocides and
    insecticides and things like that, which are regulated under
    FIFRA, not under TSCA, and my understanding from my friends in
    the ag chemical industry is, there are broad reviews being
    undertaken on a whole swath of ag chemicals under the FIFRA
    statute. There was some reference this morning to some cleaning
    products and some consumer goods. I don't think TSCA was ever
    envisioned to be involved in that. That is the Consumer
    Products Safety Commission and other places where things are
    reasonably well regulated.
        REACH is a significant overreach because of the deadlines
    and the way things are put together under REACH and the so-
    called substance information exchange forums. When the E.U.
    proposed REACH, they expected to have somewhere around 30,000
    products and 300,000 pre-registrations. What they ended up with
    is 2.5 million pre-registrations of 150,000 products. Until the
    world gets a chance to see if REACH can work, 3 or 4 years from
    now we may all be sitting here saying REACH is an outstandingly
    good way to regulate chemicals and be recommending it to
    Congress and EPA to look at it, but I think the E.U. needs a
    chance to test it and see if it works. There are many of us
    that believe it is going to have a substantial detrimental
    effect on the E.U. economy all the way up the line.
        Mr. Dooley. Congressman Sarbanes, I would just encourage
    the committee--Stu Eisenstadt has submitted a statement for the
    record that deals with REACH and I encourage you to read it. It
    includes some of the information that Mr. DeLisi also
    addressed, but I would also encourage the committee to look not
    only at REACH but look at the Canadian system that they are
    currently putting in place because they are somewhat different,
    and I think they are instructive in terms of how we think we
    can be most effective in modernizing our TSCA system.
        One of our concerns about REACH is, is that it doesn't
    really embrace a prioritization system. You know, we always are
    going to have to recognize that, you know, a regulatory agency
    such as EPA is going to have limited resources. We ought to be
    targeting those resources and focusing our greatest concern on
    those chemicals that are chemicals of concern, that might be
    those that are persistent, that are biocumulative and that we
    ought to also then have a prioritization where you are going to
    require more information from my member companies when you have
    these high chemicals of concern, which REACH doesn't address
    effectively. The Canadian system takes a much different
    approach where they have analyzed about 23,000 different
    chemicals. They identified 4,000 or so that we ought to be
    focusing most of our attention on. When we are talking about
    modernizing TSCA, we think that has to be one of the
    fundamental components of it. You know, let us set up a system
    where we are providing more information and data out there. Let
    us identify those chemicals which we should be most concerned
    with in terms of the health risks. Let us ensure that EPA has
    the resources and the ability to make a safety assessment of
    those chemicals that are going into the marketplace because
    ultimately, you know, my manufacturers, my companies want to
    ensure that Kaiser has the confidence in the products that they
    are using and they are going to have the confidence when they
    are assuring that the private sector is providing the right
    information and EPA and the regulatory process is doing the
    appropriate science-based assessment of the safety of those
    products.
        Mr. Sarbanes. Thank you.
        Mr. Denison. Could I briefly address that, Congressman?
        Ms. Schakowsky [Presiding]. Yes.
        Mr. Denison. REACH is a reality. It is in place and it
    changes the dynamic of many of the issues we are talking about
    as we look at TSCA reform. So most of the chemical industry is
    global in nature and many of the companies represented by the
    associations at this table do business in Europe. They are
    already going to have to comply with REACH. They are going to
    have to develop the data that it requires. That makes our lift
    that much easier. You know, we don't have to reinvent the
    wheel, and I totally agree with Mr. Dooley, we shouldn't be out
    there testing chemicals that have already been tested in
    Europe. So I think REACH, regardless of how good or bad a model
    people think it is, it changes the entire chemical global
    economy in a way that has to be recognized and has to be taken
    into account in terms of how we think about TSCA reform. The
    idea of getting to all of the chemicals in commerce which REACH
    is trying to do I think is fundamentally where we need to go.
    How fast we can get there and how we do it and how we
    prioritize that, those are all great areas for discussion. But
    we have to get to that point.
        Ms. Schakowsky. My friend, Mr. Stearns from Florida.
        Mr. Stearns. Thank you, Madam Chair.
        Mr. DeLisi, is it unfair to say that since the World Trade
    Organization will make it very tough to ban articles in
    commerce, if we ban chemicals in the United States, the
    manufacturers of those chemicals in the United States will go
    somewhere else, but the products for which the chemicals were
    made will still wind up being sold in the United States, and if
    so, why?
        Mr. DeLisi. Basically the United States consumer will look
    for the best value they can get, and if you take a chemical out
    of commerce in the United States that produces a product that
    the consumer wants to buy and they can get the same finished
    product, the same finished article from India, China or Korea
    or anyplace else, that material will find its way to the United
    States market and the United States will have lost the ability
    to produce that product and the WTO would make it very
    difficult to ban the importation of that article as long as
    there was no exposure to that particular product.
        Mr. Stearns. Do you want to add to that, Mr. Drevna?
        Mr. Drevna. I would like to add one thing to that and maybe
    augment it a bit, and again, you know, I think we are all
    sitting at the table, and the first panel, I think we don't
    disagree on a lot. It is how we get there that is the important
    thing and do it the right way. But in follow-up to Mr. DeLisi's
    comment, if you don't make the finished product, if you don't
    have the chemical here, you are not going to make the finished
    product here, and if you start going down the food chain, so to
    speak, you are not going to have the building blocks made here
    either, my members, the petrochemical producers. So if we don't
    do this right, we will be ceding our entire manufacturing base
    to foreign suppliers. So these are the kinds of things I think
    that Ranking Member Mr. Radanovich was speaking about, that
    whatever we do, let us do it right. From the industry side
    here, we are not sitting here saying don't do anything to TSCA,
    leave us alone, you have beaten us up over the last 30 years.
    No, we are not saying that at all. We all have the same
    objective, I hope, because if not, we shouldn't even be here.
    But let us make sure we do it right so from Mr. Denison's side
    of the table, and I don't want to put sides on this thing, that
    we get to where he and his group want to go but we still
    maintain a strong manufacturing base and employment in this
    country. And again, they are not mutually exclusive.
        Mr. Stearns. Mr. DeLisi, small- and medium-sized companies,
    can they do the REACH themselves?
        Mr. DeLisi. It is almost impossible. The setup under REACH,
    all the testing work has to be done in so-called substance
    information exchange forums, many of which have more than 4,000
    or 5,000 members, and so what is happening is that consortia
    are being formed to do some of the testing and in many
    instances the consortia are being controlled by very large
    European companies and sometimes they are not allowing U.S. and
    other producers equal access to the data. It is going to be
    very, very difficult to figure out how small- and medium-sized
    companies can survive under REACH-like requirements.
        Mr. Stearns. Maybe we can talk about, I guess REACH is just
    starting in Europe. Can you tell me the laboratory capacity in
    Europe maybe after REACH went into effect? Has this allowed the
    European chemical manufacturers to innovate with better or
    safer chemicals or more carbon emission-friendly efforts like
    alternative energy or green energy? What is the status here?
        Mr. DeLisi. Well, it has been widely published that most,
    if not all, the laboratory capacity in Europe is being diverted
    to REACH testing requirements, and in fact a lot of the
    laboratory capacity all over the world is being diverted to
    that and so it is not doing other kinds of things that may or
    may not have a better result.
        Mr. Stearns. So you are saying basically they are not
    innovating and they are not necessarily providing safer
    chemicals, they are just complying with all the regulations?
        Mr. DeLisi. There is only a limited amount of resource to
    put into R&D activities and a lot of it right now is being
    diverted into REACH.
        Mr. Stearns. So if that happened in the United States, do
    you expect the same thing to happen here that is happening in
    Europe?
        Mr. DeLisi. Undoubtedly.
        Mr. Stearns. Is your contention that the main difference
    between REACH and TSCA is not section 6(c) requirements to
    consider other factors but rather whether sound, high-quality
    and repeatable science underpins the regulation rather than
    unsubstantiated research or gaps in the data? A very contorted
    question. The main difference between REACH and TSCA.
        Mr. DeLisi. The main difference between REACH and TSCA is,
    there is no grandfathering under REACH and so it requires
    complete testing data sets to be done on everything that is
    going to continue to be in commerce regardless of the inherent
    hazards or known on the products. So it is requiring the
    redoing of an awful lot of effort that is reasonably well known
    by industry.
        Mr. Stearns. Mr. Drevna, do you want to comment on that
    too?
        Mr. Drevna. Well, you know, I only go to say that, you
    know, and I will agree with Mr. Denison, if it is already done,
    why duplicate it, and to force that on every manufacturer in
    the United States will cause paralysis.
        Mr. Stearns. Thank you, Madam Chair.
        Ms. Schakowsky. My friend, Ms. Sutton, the Representative
    from Ohio, is next.
        Ms. Sutton. Thank you, Chairwoman Schakowsky.
        Mr. Denison and all of you, it has been alluded to here
    today, and I think that most Americans would be shocked that
    asbestos is not currently banned. I think that they would be
    surprised to learn that. A week or so ago we had a hearing in
    another area but I am noticing a pattern here, and it dealt
    with the tainted peanut butter that has resulted in a
    salmonella outbreak across this country killing people where I
    live, and we learned then, or I know because I knew it because
    we introduced a bill last year to give the FDA mandatory recall
    authority, which people were likewise shocked to understand
    that our government didn't have the authority to recall things
    when they know that there is a problem, that it is voluntary,
    that we expect companies to just do what is in the best
    interest of the American public and perhaps sometimes they live
    up to that more than others. Certainly some do, some obviously
    do not.
        And then you come and tell us about the issue of
    formaldehyde in plywood, and I just have to get more
    information about this. You made a reference to the United
    States becoming a dumping ground for unsafe products and you
    used the example of the plywood coming in from China, plywood
    that does not even reach standards that allow it to be utilized
    in China or Japan or other parts of the world, but it is coming
    to the United States. And I guess my first question is this. It
    is coming to the United States because it is cheaper?
        Mr. Denison. Yes, that is the primary reason. Those
    adhesives are less expensive than the safer alternatives and
    they reduce cost and there are other reasons that have to do
    with why it is being made in China in the first place that make
    it cheaper as well.
        Ms. Sutton. And I would love in another venue to talk about
    those other reasons because, you know, I am a person that
    thinks frankly our international trading system isn't living up
    to the promise that perhaps it could but another day and
    another time.
        Okay. So it is coming in because of its cost, lower cost,
    it is being imported. I assume that it has been banned for use
    in these other countries because of data that exists that shows
    it is dangerous, correct, so we know it? And what is the
    liability for a company that is choosing because it is cheaper
    to import this which we know is toxic for the American people?
    Can you give us an idea about what potential consequence that
    company has when, you know, years from now people suffer and
    die because we are allowing it to come into the country?
        Mr. Denison. Well, I do think that the contrast between
    asbestos and an example like formaldehyde is an important one.
    Part of the reason that asbestos despite the fact that it was
    not banned is actually largely off the market, it is creeping
    back in in a few places but it is largely off the market, is
    because of liability that the companies that made it and used
    it face. But that is a very special case because asbestos
    causes a signature disease that can be linked directly to
    asbestos exposure. Most chemicals are far more complex than
    that and the ability to go to court and say this chemical
    caused that person to get that disease is very limited. That is
    part of the new science that we have to incorporate into the
    way we think about chemicals because we can't wait until we can
    have absolute proof that chemical X is the sole cause of
    disease Y in order to regulate. Formaldehyde is in that case
    where we know it is linked to many different diseases, and in
    fact actually there the evidence of its ability to cause cancer
    is established firmly. But I think we have to adapt our model
    and the way we think about chemicals and this burden of proof
    to reflect the reality of the science that we now know about
    chemical exposures and effects.
        Ms. Sutton. Well, I appreciate that and I would love to
    follow up with you after the hearing. Thank you.
        Mr. Denison. I would be happy to.
        Ms. Schakowsky. Now a new member to this Congress and to
    this committee, Mr. Scalise.
        Mr. Scalise. Thank you, Madam Chair.
        Mr. Dooley, we have had some testimony in other
    subcommittees where the effects of energy regulation is being
    considered, what effects that would have on various industries,
    and there were a few industry members of your organization that
    had talked about the various problems they have had as energy
    costs went up but also as some of these changes are being
    anticipated and what that meant to jobs in the United States
    and in some case layoffs here and other cases people making
    decisions to move operations overseas so as not to be regulated
    in an overly burdensome way, and I think as we look at TSCA and
    revisit the changes that might be made and we realize the
    importance of being cautious that we address problems without
    being over-regulatory in a way that actually creates jobs that
    are safe jobs in this country. How is your industry looking at
    this and what things have you seen already or what concerns do
    you have about how that may impact jobs for businesses that are
    playing by the rules, doing things right but concerned about
    over-regulation?
        Mr. Dooley. I think what our industry is supportive of is a
    modernization of our chemical management system that is done in
    a manner which enhances the public confidence that consumers
    and users of our products have, that also ensures we are
    enacting a system that is science based and is efficient and
    also embraces a risk-based approach, and we think we can do
    that through this modernization that would accomplish a lot of
    the objectives of all parties that have testified today. But
    there are some areas which we think are critical in order to
    maintain the investment in the United States in the development
    of these innovative and technological advances that are
    contributing to the U.S. chemical industry being at the leading
    edge of, you know, a lot of the energy efficiency technologies
    that are being developed.
        And if I can just touch a little bit of where we at, which
    is again, as I have stated before, is that, you know, we are
    committed to providing the appropriate data. You know, there
    needs to be some improvements in what we have seen in the past.
    We need, though, to ensure that we are prioritizing when we are
    providing all that data, unlike what REACH does where you have,
    you know, millions of these applications that are coming in, is
    that you need to be, you know, targeting those chemicals that
    should be the greatest concern, and then when you have those
    chemicals that are the greatest concern, it might be
    formaldehyde, it might be asbestos, it might be something else,
    is it doesn't mean that those chemicals or products are going
    to be dangerous in all applications because some applications
    might not have an exposure to humans and so then you are going
    to have to have a system that will allow you to go down and to
    identify where those chemicals are at risk, those exposures
    which we should be concerned with so that we can also
    incorporate that data that can help us manage that. And the one
    thing that also brings into play is, is like REACH is taking
    more of what we refer to as a hazard-based approach, that if
    you have a chemical that is identified as a chemical of
    concern, is that you could ban it for all applications versus
    just those applications which result in an exposure that could
    result in a problem. And that is a system that we think if you
    put in place will ensure that our industry can continue to be
    competitive internationally.
        Mr. Scalise. And I think there are some--ethanol is an
    example where used at a high level it is very dangerous but it
    is actually very prevalent in a number of products that are
    used across the board at a low level and it causes no problem,
    so obviously the dosage, the amount is something that has
    really go to be focused on.
        Mr. Dooley. And that is a great example. We had Ms. Swanson
    with the Learning Disabilities Association which talked about,
    you know, some of their concerns with neurological impacts of
    various chemicals. Ethanol is in fact a chemical that has been
    demonstrated if used in excess to cause fetal alcohol syndrome,
    a neurological disease, and something nobody wants to, you
    know, see occur. But ethanol is also a naturally occurring
    product in apple juice. If you took it to the extreme and took
    a hazard-based approach because ethanol created a neurological
    response, you would end up then again in the extreme banning
    apple juice and a lot of other, you know, natural products
    which actually have no risk or pose no risk to consumption. And
    so that is the challenge we face here is, you know, how do we
    put together a system where we provide the adequate
    information, we have those exposures which create a risk and a
    problem and ensure that we are providing that level of safety.
        Mr. Scalise. And I think that is a concern, that we take a
    responsible approach that encompasses all those variables
        I will yield back. Thank you.
        Ms. Schakowsky. Representative Castor of Florida.
        Ms. Castor. Thank you, Madam Chair.
        I would like each of you on the panel to just state very
    briefly whether or not you support as part of the modernization
    of TSCA the shifting of the burden of proof to the chemical
    manufacturer rather than forcing EPA to assume complete
    responsibility for determining risk.
        Mr. Drevna. Ms. Castor, I think a lot of that is already
    being done. There has been talk that a REACH-like approach
    would take all the burden off the government and put all the
    burden on the industry. The industry is more than willing to
    give the appropriate data and to do what is right but that is
    not going to relieve government, the EPA, whatever authority
    you deem necessary to handle these myriad of laws, that they
    can't get data from other sources, and they do, and I think
    there is either a miscommunication or a misunderstanding with
    how much data EPA has and what they have done with it. They
    have got tons of data.
        Ms. Castor. So is that a yes or a no?
        Mr. Drevna. I am sorry. Yes, we think that the industry has
    and will step up more to the plate.
        Ms. Castor. And you would support a statutory change?
        Mr. Drevna. If it is done--again, as I said before, if it
    gets to the end, the result without extra burdens, without
    making it non-competitive vis-`-vis international and keeping
    the American economy strong and growing or hopefully get back
    to that.
        Mr. DeLisi. I agree basically with what has been said and I
    think at the end of the day that burden is going to need to be
    shared.
        Mr. Dooley. I would just echo that. It is an inevitably
    going to be a shared responsibility. Our board at the American
    Chemistry Council has adopted a position where EPA needs to be
    in a position of assessing the safety of the products that we
    put into the marketplace. So, you know, we are willing to
    accept a much greater responsibility than is currently required
    under statute but it will inevitably have to be a shared
    responsibility.
        Ms. Gerwig. And I think where the burden of proof should
    not exist is at the end-user level, which is the experience
    that I have been describing at Kaiser Permanente. So I think
    the discussion that others on the panel have been having about
    perhaps a shared collaborative approach would be a good one.
        Mr. Denison. I do think in a legal basis, the industry
    needs to have the burden of proof, but I absolutely agree, EPA
    needs to play an oversight role of that that is very careful.
        I do want to say, there have been, with all due respect, a
    number of major inaccuracies stated about REACH. It does
    prioritize. It does not require the same data for all
    chemicals. It has some aspects that are driven by hazard but
    its fundamental framework is risk based, not hazard based, and
    it does consider uses of chemicals in deciding whether or not
    to restrict a particular use.
        Ms. Castor. Thank you, and I have one other question. I
    would ask you to submit your answers for the record because I
    think it is going to be a more involved answer. I would ask you
    all to explain why since the adoption of TSCA in 1976 only one
    group of chemicals has been barred.
        With that, I will yield back my time.
        Ms. Schakowsky. Thank you.
        At this point let me ask unanimous consent to submit a
    number of documents including those from Mr. Radanovich and
    others into the record.
        [The information appears at the conclusion of the hearing.]
        Ms. Schakowsky. Mr. Radanovich has asked to have one more
    question, and you may.
        Mr. Radanovich. Thank you, Madam Chair.
        Mr. Dooley, welcome to the panel and back to Congress. Cal
    and I shared a district in California, a big ag producing
    district, so I have got a FIFRA question. But I wanted a real
    quick once, since we are running out of time and going to vote,
    on the change-o-meter if zero is no change to TSCA and 10 is
    change like the Consumer Products Safety Act, where would you
    be in the zero to 10 range?
        Mr. Dooley. That is tough because that is always going to
    be relative, and, you know, I could say that 50 percent but Mr.
    Denison might think my 50 percent is only 25 percent. But, you
    know, I would contend that TSCA is not broken but is in dire
    need of modernization and we think that it provides a good
    foundation to move forward, and so I will go with a 50 percent
    change-o-meter.
        Mr. Radanovich. Real quickly, Mr. Dooley, if FIFRA--there
    is a lot of people that feel that the FIFRA, which deals with
    pesticides, agriculture stuff, that the rules of FIFRA ought to
    just be flipped into TSCA and that be done. Can you state
    whether or not that would be a great idea or not?
        Mr. Dooley. Well, we would be very, very cautious about
    going down that path, again because of the--it wouldn't in many
    cases be effective at enhancing the public safety of our
    products, but I would say again that when you go through a
    process of prioritization and you do find a chemical that is of
    great concern because it might be an endocrine disruptor, it
    might be biocumulative, is that we are going to have to have a
    different standard in terms of the amount of data that the
    industry is going to have to provide and the scientific
    research and assessment of those products. We don't contend it
    would be FIFRA necessarily but it will be a higher standard
    than what is currently being provided under TSCA.
        Mr. Radanovich. All right. Thank you, Mr. Dooley, and Madam
    Chair, I yield back.
        Ms. Schakowsky. Thank you. At this point let me thank our
    panel for their testimony, we appreciate it very much, and the
    hearing is adjourned.
        [Whereupon, at 1:46 p.m., the subcommittee was adjourned.]
        [Material submitted for inclusion in the record follows:]

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