[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
energycommerce.house.gov
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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
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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.]
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