[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

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

                               Witnesses

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

                           Submitted Material

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

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


          REVISITING THE TOXIC SUBSTANCES CONTROL ACT OF 1976

                              ----------                              


                      THURSDAY, FEBRUARY 26, 2009

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

            OPENING STATEMENT OF HON. BOBBY L. RUSH

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

          OPENING STATEMENT OF HON. GEORGE RADANOVICH

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

         OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY

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

              OPENING STATEMENT OF HON. LEE TERRY

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

           OPENING STATEMENT OF HON. JOHN P. SARBANES

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

              OPENING STATEMENT OF HON. TIM MURPHY

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

             OPENING STATEMENT OF HON. PHIL GINGREY

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

           OPENING STATEMENT OF HON. ZACHARY T. SPACE

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

           OPENING STATEMENT OF HON. HENRY A. WAXMAN

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

           OPENING STATEMENT OF HON. BRUCE L. BRALEY

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

            OPENING STATEMENT OF HON. CLIFF STEARNS

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

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

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

                  TESTIMONY OF JOHN STEPHENSON

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

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

                TESTIMONY OF J. CLARENCE DAVIES

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

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

                  TESTIMONY OF MAUREEN SWANSON

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

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

                 TESTIMONY OF CECIL CORBIN-MARK

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

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

                 TESTIMONY OF MICHAEL J. WRIGHT

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

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

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

                  TESTIMONY OF RICHARD DENISON

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

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

                   TESTIMONY OF KATHY GERWIG

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

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

                    TESTIMONY OF CAL DOOLEY

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

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

                    TESTIMONY OF V.M. DELISI

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

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    Mr. Rush. Mr. Drevna.

                 TESTIMONY OF CHARLES T. DREVNA

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

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

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