[Senate Hearing 111-1229]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 111-1229

                  BUSINESS PERSPECTIVES ON REFORMING 
                       U.S. CHEMICAL SAFETY LAWS

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

                                 HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON SUPERFUND, TOXICS
                        AND ENVIRONMENTAL HEALTH

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 9, 2010

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] 


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED ELEVENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             MIKE CRAPO, Idaho
AMY KLOBUCHAR, Minnesota             CHRISTOPHER S. BOND, Missouri
SHELDON WHITEHOUSE, Rhode Island     LAMAR ALEXANDER, Tennessee
TOM UDALL, New Mexico
JEFF MERKLEY, Oregon
KIRSTEN GILLIBRAND, New York
ARLEN SPECTER, Pennsylvania

                    Bettina Poirier, Staff Director
                 Ruth Van Mark, Minority Staff Director
                              
                              
                              ----------                              

       Subcommittee on Superfund, Toxics and Environmental Health

               FRANK R. LAUTENBERG, New Jersey, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
AMY KLOBUCHAR, Minnesota             MIKE CRAPO, Idaho
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri
KIRSTEN GILLIBAND, New York
ARLEN SPECTER, Pennsylvania
BARBARA BOXER, California (ex 
    officio)
                            C O N T E N T S

                              ----------                              
                                                                   Page

                             MARCH 9, 2010
                           OPENING STATEMENTS

Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     1
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     8
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................     9
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................    93

                               WITNESSES

Fisher, Linda J., Chief Sustainability Officer, DuPont...........    10
    Prepared statement...........................................    12
Williams, Howard, Vice President, Construction Specialties, Inc..    18
    Prepared statement...........................................    20
    Responses to additional questions from:
        Senator Boxer............................................    23
        Senator Inhofe...........................................    24
Bosley, Beth D., Managing Director, Boron Specialties............    27
    Prepared statement...........................................    29
    Response to an additional question from:
        Senator Boxer............................................    35
        Senator Whitehouse.......................................    36
    Responses to additional questions from Senator Inhofe........    38
    Response to an additional question from Senator Vitter.......    41
Hawkins, Neil C., Sc.D., Vice President, EH&S and Sustainability, 
  the Dow Chemical Company.......................................    42
    Prepared statement...........................................    44
    Responses to additional questions from Senator Boxer.........    51
    Response to an additional question from Senator Whitehouse...    52
    Responses to additional questions from Senator Inhofe........    53
Drevna, Charlie, President, National Petrochemical and Refiners 
  Association....................................................    56
    Prepared statement...........................................    58
    Response to an additional question from Senator Boxer........    77
    Responses to additional questions from:
        Senator Inhofe...........................................    77
        Senator Vitter...........................................    79
Gerwig, Kathy, Vice President, Workplace Safety and Environmental 
  Stewardship Officer, Kaiser Permanente.........................    81
    Prepared statement...........................................    83
    Responses to additional questions from Senator Boxer.........    85
    Response to an additional question from Senator Inhofe.......    85

                          ADDITIONAL MATERIAL

Written testimony of iGPS Company, March 9, 2010.................   100
Letter to Senators Boxer, Lautenberg, and Inhofe and U.S. 
  Representatives Barton, Whitfield, Waxman, and Rush from the 
  Adhesive and Sealant Council, Inc., et al., March 8, 2010......   105

 
      BUSINESS PERSPECTIVES ON REFORMING U.S. CHEMICAL SAFETY LAWS

                              ----------                              


                         TUESDAY, MARCH 9, 2010

                               U.S. Senate,
         Committee on Environment and Public Works,
                         Subcommittee on Superfund, Toxics 
                                  and Environmental Health,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Frank R. 
Lautenberg (chairman of the Subcommittee) presiding.
    Present: Senators Lautenberg, Vitter, Carper, and 
Whitehouse.

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Good morning, and welcome to the third 
oversight hearing on the Toxic Substances Control Act in the 
Subcommittee on Superfund, Toxics and Environmental Health.
    We began this push to reform the toxic substances law a few 
months ago after a review with EPA Administrator Lisa Jackson. 
Ms. Jackson reminded us that the current law does not provide 
her agency with the tools it needs to protect the public from 
hazardous chemicals.
    We also heard from the experts at the Centers for Disease 
Control. They told us that most Americans are walking around 
with hundreds of industrial chemicals coursing through their 
bodies. We also learned that the Government Accountability 
Office has identified the Toxic Substances Control Act as a 
high risk area of the law. And I don't know whether we need any 
reminders, but this law was originally written in 1976. A long 
time has passed without a lot of action to support it.
    Today as we cap off the hearings on this law, known as 
TSCA, we will hear--I am pleased to say--from the business 
community. What we hear might be a surprise. Executives at some 
of the world's leading chemical companies have determined that 
the status quo is not working for them, either. As a former CEO 
I know that executives have two major duties: to do what is 
right for your clients, your customers, while doing right for 
your company and your country. Reforming this broken law is an 
opportunity to do both.
    The current law is not good for the environment, it is not 
good for our health, and it is ultimately not good for 
business. The reason is clear: the American people are more and 
more concerned about chemicals ending up in their bodies. 
Parents in particular are dismayed that the Government is 
powerless to require testing of chemicals that are going into 
our children's bodies.
    Many of the chemicals we use in our daily lives, perhaps 
even most--are safe. But our current law does not allow the EPA 
to draw a bright line between chemicals that are safe and 
chemicals that are toxic. So consumers are left confused and 
worried. This uncertainty hurts businesses all the way down the 
supply chain.
    It hurts the chemical industry, which is critical to our 
economy. This industry is a major part of the American 
manufacturing base. It sustains jobs across the country, and it 
creates products that save lives.
    In my home State of New Jersey the chemical industry 
employs more than 70,000 people. Nearly 1,500 New Jerseyeans 
work for DuPont, the company that is represented at the witness 
table today. The current law also harms major companies that 
use chemicals in their products, and they are joining the drum 
beat for reform also.
    I want to insert a letter into the record from the trade 
association that represents companies like Procter and Gamble, 
S.C. Johnson and Honeywell. These companies ``support the 
development and implementation of a gold standard in the United 
States for chemical management policy.''
    [The referenced letter follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Lautenberg. I look forward to hearing from our 
witnesses about why reforming our chemical laws is good for 
business.
    Now I speak to my colleagues on the Committee. Throughout 
these hearings, I have noted the constructive comments of 
Republican friends. They have said that my bill to reform TSCA 
must set up a system that assesses chemicals based on risk, not 
just hazard, and it will. And you have said the bill must 
encourage innovation, and it will. And you have said that the 
bill must be based on good science, and it will.
    And after taking into account the testimony we hear today I 
intend to introduce a bill that lays out a vision for strong, 
effective and pragmatic regulation of chemicals. But the 
introduced bill will be an invitation for all to play a part--
friends on the Republican side, as well, obviously, as those on 
the Democrat side. I look forward to working with Senators on 
both sides of the aisle to refine the bill so it makes our 
environment cleaner, our children healthier and our economy 
stronger.
    So now, before we hear from this important panel, I will 
turn to other members for any opening statements.
    Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Yes, thank you, Mr. Chairman. It is great 
to see you back, and thank you for this hearing.
    As we move forward with this discussion, I want to stress a 
point you mentioned, which is the absolute critical importance 
of sound science. All being focused on sound science is 
important to, first, achieve maximum protection for U.S. 
citizens, achieving the overarching goals of ensuring human 
health and a safe environment, and also preserving 
competitiveness in the chemical industry in the global 
marketplace. We must work to ensure that our legislative 
efforts are paired with the appropriate resources also needed 
to update our chemical risk management framework and that 
scientists at EPA are getting those resources and getting the 
science right.
    I am really glad the industry is interested in seeing TSCA 
reformed. Over the last several months numerous industry 
leaders have come into my office to discuss this need for 
reform, doing it in a way that protects health and 
competitiveness. It is important to note in that regard that 
more than half of the patents issued for chemical industry 
innovation over the last 5 years were authored by U.S. 
entities.
    I want to quickly reiterate for the record what I have said 
before in this Committee about the five overarching principles 
that I think are important in this work. No. 1, I think EPA has 
to redo their inventory of chemicals in commerce. There aren't 
80,000 chemicals in significant commerce, as we often hear. The 
number may be closer to one-quarter of that. And we need to 
know what it is and what they are, and then focus on them.
    No. 2, a European registration evaluation authorization of 
chemical substances, a REACH-style program, I think would 
likely kill innovation in the U.S. and is a real recipe for ham 
stringing small and medium sized manufacturers in particular.
    No. 3, assuming REACH is the wave of the future is entirely 
premature and could actually impair human safety by preventing 
critical products, helpful products in terms of safety from 
entering the marketplace.
    No. 4, if the EPA decides to use any given study as a 
reason for limiting of terminating the use of a certain 
chemical, the results of that study need to be repeatable and 
proven in further supporting studies.
    And No. 5, if the EPA is going to decide to utilize 
resources to re-review a chemical prior to the necessary 
mandated review period, that review sure as heck should be 
based on sound science and not just a New York Times article 
that uses politicized science from an environmental group. I am 
particularly talking about the atrazine episode. I think what I 
just said is a fair characterization of that, trying to scare 
the public.
    So I look forward to this discussion. I will be keeping 
those principles in mind as we have the discussion and work on 
the bill, and thank you, Mr. Chairman.
    Senator Lautenberg. Thank you, Senator Vitter.
    Senator Whitehouse, welcome.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chairman.
    First of all, let me thank you for holding this hearing and 
for your continuing and determined interest in protecting 
Americans from the onslaught of new chemicals that are turned 
out year after year after year after year, and whose use in our 
food supply and in our medications and in products that 
children and seniors and all Americans have access to is poorly 
enforced. We are way, way, way, way behind. We have a chemical 
safety deficit in this country, and we need to catch up. You 
are one of the most determined leaders in this, and I am 
delighted to join you at this hearing.
    Senator Lautenberg. Thank you very much for being with us.
    I now would like to start hearing from our witnesses. I 
will tell you in advance that votes are scheduled on the floor 
of the Senate. We are going to have to defer at some point. So 
we will try to move things along. If we do have to recess, I 
would ask your patience and your participation. It is not a 
scheme to keep us from being heard, I can tell you that.
    So I would like to call first on Ms. Fisher. Ms. Fisher is 
Vice President for Safety, Health and Environment for DuPont; 
Mr. Williams, Vice President, Construction Specialties; Ms. 
Bosley, Managing Director of Boron Specialties, testifying on 
behalf of the Society of Chemical Manufacturers and Affiliates; 
Dr. Hawkins, Vice President for Environment, Health and Safety 
at Dow Chemical; Charles Drevna, President of the National 
Petrochemical and Refiners Association; and Ms. Kathy Gerwig, 
Vice President for Workplace Safety with the Kaiser Foundation 
Health Plan.
    We ask you to present your testimony within 5 minutes. If 
it breaks the rule a little bit, we will be kind. Otherwise, 
the punishment is too difficult to discuss in public here. But 
please try to keep your remarks to 5 minutes.
    Ms. Fisher, we invite you to speak first.

  STATEMENT OF LINDA J. FISHER, CHIEF SUSTAINABILITY OFFICER, 
                             DUPONT

    Ms. Fisher. Thank you, Senator Lautenberg.
    My name is Linda Fisher, and I am currently Chief 
Sustainability Officer for DuPont. As you know, I spent many 
years at EPA, including managing the Office of Pesticides and 
Toxic Substances.
    I have had the opportunity recently to be very involved 
with the American Chemistry Council's review of TSCA, and I 
fully support the recommendations that they have put forward.
    DuPont is a diverse, 208-year-old company. We use a wide 
variety of chemicals to make products for markets that include 
agriculture, buildings, transportation, electronic goods and 
consumer products. We believe it is time to update TSCA.
    Now, this is a shift in the position that industry has 
taken over the past several years, and there are a few reasons 
for that change. I bring these reasons to the Committee because 
they really have started to shape how industry feels about TSCA 
reform.
    First of all, there is a growing awareness in the public, 
as you mentioned, Mr. Chairman, about the exposure to chemicals 
through products. That concern is being felt in the marketplace 
as consumers exercise their own buying decisions.
    Second, chemical regulation is rapidly moving across the 
globe to countries including China and Canada and the European 
Union. Some of these regulatory schemes are imposing 
significant administrative burdens on companies. They will soon 
result in the generation of substantial amounts of data and 
risk management decisions that will have global impacts.
    We should not cede to the European Union or China or any 
other country the responsibility to set global chemical policy. 
The U.S. should lead on sensible, risk based and cost effective 
environmental policymaking.
    Third, in the absence of reforms to TSCA we are seeing 
evolving State programs and chemical-specific actions that are 
quite honestly creating a lot of uncertainty in our 
marketplace. As with every environmental legislation, I am sure 
we will have a big debate over preemption. But I think we all 
know that if there is a strong, Federal regulatory review of 
chemicals, the kind that will build confidence in the public, 
there will be much less incentive for the States to act in this 
important area.
    In a reauthorized TSCA we need a regulatory program that 
provides greater public and market confidence in the safety of 
our chemicals with more timely, predictable and transparent 
decisions by EPA. Modernizing TSCA will be difficult and 
complex. It is important that we get it right with a 
deliberative stakeholder process.
    And Mr. Chairman, I do want to compliment you and your 
staff for reaching out to those of us in industry and listening 
to our concerns.
    Let me highlight some of the key elements of modernizing 
TSCA. Data gathering under TSCA is currently cumbersome and 
time consuming. A modernized TSCA should allow EPA to get the 
data they need when they need it. We hope that they would 
leverage the data that we have generated from industry and the 
data that will be generated through the REACH program. Then if 
there are data gaps we would ask that EPA have the authority to 
collect that authority as quickly as they need to.
    We also would like a statute and regulatory program that 
minimizes animal testing and again makes data available to the 
public.
    EPA should be directed, under new language, to 
systematically assess existing chemicals on a prioritized basis 
to evaluate the safety of exposures associated with those uses 
and to make risk based decisions, integrating both hazard and 
exposure. But what should happen after EPA completes its safety 
assessment? Under TSCA section 6, it has proven quite difficult 
for the agency to address exposures to specific chemicals where 
it is warranted. EPA should have a range of risk management 
tools that would allow them to reduce exposures to appropriate 
levels in the most cost effective manner. That would include 
reducing exposures from plants, improve manufacturing controls 
as well as restrictions on particular chemical uses.
    In doing so, EPA could reduce unacceptable levels of 
exposure by those actions that are most cost effective and that 
best preserve the beneficial uses of chemicals.
    We hope that Congress will avoid presumptive bans and 
rigid, prescribed legislative phase-outs of chemicals. We think 
that that ignores risk and most importantly, ignores the 
realities of transitioning to new products to receiving needed 
consumer and regulatory approvals and modifying manufacturing 
facilities to bring new chemicals to the market. Such actions 
could lead to unnecessarily disrupting markets and reducing 
public access to important products in the marketplace.
    The agency should focus on, again, the most effective ways 
to reduce exposures and to target areas of concern to the 
public. Along with changes to the PMN program and the CBI 
provisions of TSCA, which I talk about in my testimony, we 
think these measures would constitute a significant change in 
how EPA regulates chemicals and will build confidence in the 
public in the safety of the products that they use every day.
    I thank you for the opportunity to speak with you this 
morning. Many in industry again recognize the need to reform 
TSCA. The time has come to bring our statutes in the U.S. more 
on par with what is going on in the rest of the world. It will 
be challenging. It is going to be difficult process for both 
industry and the Government. But we do look forward to working 
with you as you amend the statute and with EPA as they move to 
implement the program.
    I thank you.
    [The prepared statement of Ms. Fisher follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Lautenberg. Thank you.
    Mr. Williams.

  STATEMENT OF HOWARD WILLIAMS, VICE PRESIDENT, CONSTRUCTION 
                       SPECIALTIES, INC.

    Mr. Williams. Thank you, Chairman Lautenberg, Senators, 
staff, Committee.
    I am Howard Williams, Vice President and General Manager of 
Construction Specialties, Pennsylvania division. We are a small 
multi-national. We are about $300 million a year, 1,600 staff 
across the world, operate from 25 sites in 19 countries. So 
being able to compete from all of those sites is very important 
to us.
    Equally important, too, is that we are in the construction 
market that is 14 percent of our gross domestic product. Within 
this marketplace, TSCA reform has an opportunity to inform and 
to enlarge the architectural building product market.
    Elimination of persistent and bioaccumulative toxins is at 
the forefront of our built environment purchasing programs, 
building construction programs, for both private as well as 
what is going on within the Government sector. Federally 
mandated environmental preferable purchasing looks at PBTs, as 
do the LEED green building standards by which most of our 
Federal buildings, State and private buildings are constructed.
    Broad based adoption of these green building standards has 
resulted in really very well documented and unprecedented 
benefits to the economy, to human health, as well as our 
environment. The same engine, this construction market engine 
that produced these results has an opportunity to greatly 
benefit human health as we go forward with a new chemical 
program.
    A side note example is that in 2003 Kaiser Permanente, one 
of our very largest customers, came to us and said, if you 
would like to continue to sell product to us--and they are a 
major customer--then you need to develop a product that has no 
polyvinyl chloride in it, or risk losing our business. Within a 
year's time, we managed to do that. It is a product that the 
health care product as a whole embraced.
    Now here we are 7 years later, we have been able to develop 
a PBT-free product that coincides with where the marketplace is 
at this time.
    So awareness and materials chemistry within the 
construction market are rapidly expanding. For almost every 
building product with perhaps the exception of a two by four, 
chemistry is involved within that building product. The 
consumer awareness of what is going on with chemistry, they are 
making their decisions of what is going on, where they are 
buying off the shelf. But they really don't have a lot of 
opportunity to make the decision as to what is in the chemistry 
in their homes or in the hospital rooms or in their children's 
schools. That chemical effect, or that chemical question, is 
now embedded in a number of building standards, LEED green 
building products, Green Guide for Health Care, the 
Collaborative for High Performance Schools, and Practice Green 
Health.
    The consensus based programs that answer these questions 
started off looking at off gassing and then made a rapid move 
to looking at, let's eliminate what is off gassing. They reject 
some of the toxic effects. The best practices that they have 
developed are in harmony with executive orders. They are also 
in harmony with Federal purchasing standards. It is a time of 
people benefit environmentalism, and TSCA reform has an 
opportunity to weigh in very heavily on that.
    Just within the green building product market, the green 
building product market is about a $10 billion per year 
marketplace. So we do need a clear identification of chemicals 
of high and low concern. We need--as manufacturers, we need 
reliability of that information. We need greater disclosure of 
chemicals of high concern so that we can make our product 
development questions, we can answer them and we can take that 
information to our specifiers.
    I know that there are, certainly, within everyone's paths, 
some non-chemical hazards here. From a business standpoint, I 
think easing some of us into reform by giving us an opportunity 
to disclose things to perhaps a third party that we don't want 
to show to our competitors. This confidential business 
information I know is at the forefront of a question mark here. 
But I think the reality is, manufacturers need to have that 
opportunity to either disclose it or disclose it to a third 
party so they can product their information.
    The NGOs that are involved--the NGOs are the voices of 
those of all of us, if we had the time to study and to 
personalize this information. The NGOs are saying the same 
things that we would be saying: it affects our lives, it 
affects our children.
    The other part is, as a taxpayer, I would really prefer 
that, as a taxpayer, I not have to pay for this, that it be a 
part of--we in industry have the profit opportunity; we in 
industry should bear the expense and let the consumers make the 
decisions.
    So reform, again, just making data available to us, 
identifying the chemicals of high concern and low concern, so 
that we all know what is safe and what is good. I would say 
that the buildings industry is really in a position today to 
partner with Federal Government and to help make this happen. 
Standards are being developed and emerging every day that work 
toward this, a high identification and a high level of change.
    So I thank you for inviting me to testify today.
    [The prepared statement of Mr. Williams follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Lautenberg. Thank you very much, Mr. Williams.
    Ms. Bosley, we will hear from you, please.

     STATEMENT OF BETH D. BOSLEY, MANAGING DIRECTOR, BORON 
                          SPECIALTIES

    Ms. Bosley. Good morning, Chairman Lautenberg and members 
of the Subcommittee. I am pleased to testify before you today 
on behalf of the Society of Chemical Manufacturers and 
Affiliates.
    Since 1921 SOCMA has served the batch chemical industry 
with over 300 member companies. Those companies are usually 
small or medium sized businesses. We make a $60 billion impact 
to the U.S. economy, and we contribute to the chemical 
industry's position as one of the Nation's largest exporters.
    First, I need to state that no one in the chemical industry 
wants a chemical that they manufacture or produce to cause harm 
to human health or the environment. Our families live in the 
communities near our plants, and we use the thousands of 
products that are made possible by modern chemistry.
    Chemical innovations benefit many U.S. industries and 
enhance American competitiveness in global markets. Without 
U.S. based innovations, advantages such as lightweight 
transportation components, low emission paints and detergents 
that work in cold water would not be possible today. Our 
Nation's ability to reduce its carbon footprint will also 
depend heavily on the technology and innovation from a vibrant 
chemical industry.
    The United States leads chemical innovation and is a leader 
in research and development, improved manufacturing techniques 
and process safety advances that are designed to reduce the 
impact of chemicals on human health and the environment. Our 
position as exporter and innovator is threatened by sharply 
increased competition from countries with lower resource costs, 
lower wage standards and lax regulations. This is more than an 
economic threat. Losing our manufacturing base to these 
developing countries does not make the American public safer. 
We need only read the headlines to find examples where foreign 
manufacturing has increased risk to U.S. individuals and 
decreased public confidence.
    Modernized chemical regulation must take into account 
American industrial competitiveness not only to avoid losing 
jobs but also so that production is not pushed beyond the reach 
of U.S. law.
    Many TSCA critics point to REACH legislation as a model for 
TSCA reform in the United States. But REACH is fundamentally 
flawed in that it does not prioritize by risk. Therefore, a low 
risk chemical will be screened with the same priority as a high 
risk chemical in the same volume threshold.
    In contrast, Canada, through its use of a categorization 
and prioritization process, was able to demonstrate that over 
80 percent of the chemicals in commerce in Canada did not 
present undue risk to human health or the environment. This 
approach allowed Canada to then systematically assign to the 
remaining chemical substances a priority for more in depth 
review.
    Two principles are essential to a sustainable chemical 
management law that won't eliminate jobs or deter economic 
growth. TSCA priorities should be established based on risk, 
and emphasis should be placed on existing authority.
    Basing priorities and regulatory criteria on scientific 
evaluation of hazard and exposure factors is critical. If a 
chemical is highly toxic but used only in strictly controlled 
industrial environments, then the risk to public health is 
readily manageable.
    One mechanism needed first is an inventory reset, which was 
part of EPA's ChAMP program. Of the over 80,000 chemicals now 
listed on the inventory, EPA estimates that only about 20,000 
of these are presently in commerce.
    Another TSCA mechanism that has worked is EPA's New 
Chemicals program. They have successfully reviewed 35,000 
chemicals without impeding innovation that is crucial to 
American competitiveness. Through this program, manufacturers 
submit pre-manufacture notices, and these chemicals undergo a 
risk based review by EPA. The fact that limited data is 
available during the PMN process can be expected given the 
early stage of development during which the PMN must be filed. 
This does not mean that the manufacturer has stopped testing, 
or it is selling products with inadequate health and safety 
data.
    EPA has pioneered efforts using modeling and Structure 
Activity Relationships to help inform agency decisions. The 
scientists at EPA are extremely knowledgeable, and they make 
regulatory decisions based on conservative interpretation of 
their model data. Studies show that EPA's extensive modeling 
capabilities align closely with or are more conservative than 
measured test data.
    It is important to emphasize that EPA is not limited to 
existing data and models when reviewing new chemicals. They 
have the authority to require companies submitting PMNs to 
generate and submit specific health data, and they have done so 
when they felt information was needed.
    SOCMA members are proud of our track record in protecting 
our workers and communities. We favor a regulatory model that 
builds on the effective public-private relationship between EPA 
and industry to assess and manage chemical safety.
    In summary, this model should involve risk based 
prioritization, proven regulatory mechanisms and existing 
authority. EPA should not be burdened with the determination 
that each chemical is safe for its intended use, and above all 
EPA needs adequate funding. The biggest weakness in the TSCA 
program today is lack of resources, not lack of authority.
    I would like to thank you for the opportunity to discuss 
this pragmatic approach, and I look forward to your questions.
    [The prepared statement of Ms. Bosley follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Lautenberg. Thank you very much, Ms. Bosley.
    Dr. Hawkins, we would like to hear from you now, please.

 STATEMENT OF NEIL C. HAWKINS, SC.D., VICE PRESIDENT, EH&S AND 
            SUSTAINABILITY, THE DOW CHEMICAL COMPANY

    Mr. Hawkins. Thank you. Chairman Lautenberg and members of 
the Subcommittee.
    I am pleased to testify today on an issue that is 
critically important to the Dow Chemical Company and to me 
personally, product safety. I am responsible for Dow's product 
safety programs and compliance with chemical product safety 
laws in the U.S. and around the world.
    Dow is a leading global manufacturer of advanced materials. 
We supply customers in over 160 countries. Our diverse 
chemistry can be found in applications that range from food 
ingredients to electronics to water purification, alternative 
energy including wind and solar, and personal care products.
    As a global company, Dow goes well beyond compliance. Dow's 
2015 sustainability goals include a progressive product safety 
leadership goal for which we publicly report our progress. We 
also have product stewardship management systems in place to 
ensure our products are safe for their intended uses.
    Despite our collective efforts key stakeholders seem to 
lack confidence in the Federal regulatory system. For example, 
we continue to see an uptick in legislative proposals at the 
State and local level to ban specific chemical applications. 
Often these fixate on chemicals that have been in commerce for 
decades and are relatively well studied. It seems ineffective 
to take an ad hoc chemical by chemical approach to product 
safety under the assumption that data rich chemicals are risky 
and that alternatives must be safe.
    Contrast that with the approach of other countries which in 
the last few years have required a comprehensive look at all 
chemicals in commerce to determine those uses that deserve 
special regulatory scrutiny.
    We believe the U.S. law responsible for ensuring the safety 
of chemicals in commerce, TSCA, is in need of reform. We are 
not alone in our view. Dow has worked side by side with members 
of the American Chemistry Council, the value chain and with NGO 
stakeholders to call for modernization of the statute. ACC has 
developed comprehensive principles for TSCA reform, which we 
fully support.
    First and foremost, we believe the Federal program ought to 
screen all chemicals in commerce to identify those chemicals 
and their uses that should be evaluated against a minimum 
safety standard. This type of screening process would help 
focus Government resources on priority chemicals and uses 
believed to pose the greatest risk.
    An ideal chemical safety program would base safety 
decisions on the weight of scientific evidence. Research would 
be judged on the basis of scientific merit and quality without 
regard for funding source or where studies were conducted. At 
Dow, for example, we have hundreds of scientists with expert 
knowledge of the products we manufacture. Our analytical tools 
are considered the best in the world, and our toxicology 
laboratory has been operating for more than 70 years, well 
before testing was required by any government.
    Quality research must be used, and everyone, not just the 
industry, should be held to common quality standards.
    Finally, reform should not only ensure that chemicals are 
safe for their intended uses, it should also provide incentives 
for sustainable chemistry--carrots, not just sticks. At Dow 
sustainable chemistry refers to a cradle to cradle approach--
that drives all of us to use resources more efficiently and 
safely and minimize our total footprint. It builds on well 
established principles for green chemistry which are recognized 
by EPA.
    As we consider changes to TSCA, we should explore 
incentives for sustainable chemistry, such as a collaborative 
Federal R&D program and development of tools to advance 
improvements in all aspects of a product's life cycle. The 
sustainable solutions for tomorrow are in our laboratories 
today. Let's find ways to bring them to market sooner through 
incentives.
    We recognize that it is much easier to agree on general 
principles than specific legislative language, and the details 
are very important in this case. As Congress takes a hard look 
at TSCA, multi-stakeholder dialogue will speed us to meaningful 
reform. Collaboration is the quickest path to our common goal, 
a stronger and more effective chemicals regulatory program in 
the United States.
    Thank you for the opportunity to testify today.
    [The prepared statement of Mr. Hawkins follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Lautenberg. Thank you very much.
    Mr. Drevna, we welcome your testimony.

STATEMENT OF CHARLIE DREVNA, PRESIDENT, NATIONAL PETROCHEMICAL 
                    AND REFINERS ASSOCIATION

    Mr. Drevna. Thank you and good morning, Chairman 
Lautenberg. It is really good to see you, sir. And Senators 
Whitehouse and Vitter, thank you for having us here today.
    I am Charlie Drevna, President of NPRA, the National 
Petrochemical and Refiners Association. We are a national trade 
association representing virtually all U.S. refiners and the 
vast majority of domestic petrochemical manufacturers, who 
produce the chemicals that serve as the building blocks for 
everything from clothing and medicine to plastics and 
computers.
    Again, I appreciate the opportunity to appear before you 
here today.
    NPRA considers the current Federal chemical regulatory 
framework to be a solid foundation for protection of human 
health and the environment. NPRA also understands the 
Subcommittee's and others desires to example TSCA 
implementation and where needed consider the modifications to 
the statute. We support reasonable modernization of our 
Nation's chemical risk management policies.
    However, we believe that a wholesale rewrite of TSCA is 
neither necessary nor desirable. In support of my views my 
written statement goes into great detail on a number of these 
things. Rather than simply summarize that information, I would 
like this morning to focus on several items that NPRA supports 
regarding the modernization of TSCA.
    A strong legislative framework is critical to creating a 
successful chemicals management regulatory program and requires 
deliberate and careful consideration due to the complexity of 
the issues and their broad impacts on all parts of the American 
economy. To that end, NPRA supports an open and transparent 
process of updating our chemical risk management laws so that 
all stakeholders, including EPA and other relevant Federal 
officials, NGOs, the affected business community and Members of 
Congress and their staff can work together to update this 
statute. Only through such an open and inclusive dialogue can 
we be assured that steps toward modernization remain 
constructive. The end result will be a more effective chemicals 
policy management.
    To ensure that kind of open and inclusive discussion needed 
to make TSCA modernization a success I strongly believe that 
any initial proposal should begin in the form of a discussion 
draft rather than a formally introduced bill. I fear that 
premature introduction of legislation may result in political 
lines being drawn in the sand which would ultimately impede 
meaningful discussion and potentially even negate progress. A 
discussion draft will enable a constructive dialogue among all 
stakeholders and allow the best ideas and principles to be 
brought forward.
    NPRA also believes that all stakeholders should have a 
clear idea of what EPA has in terms of information and tools 
and what the agency needs. Although some claim that EPA is not 
able to effectively collect information on the risk of 
chemicals, the agency has in fact obtained a wealth of valuable 
chemical hazard and exposure information over the years through 
its new chemicals program, consent agreements, voluntary 
programs like the HPV Challenge and data call-ins. The HPV 
Challenge alone resulted in the collection of hazard 
information for more than 2,100 high production volume 
chemicals, which represent 95 percent of all chemicals in 
commerce by volume.
    Additionally, NPRA supports a TSCA dialogue focused on 
risks and not just the hazards a chemical may have. Hazards 
only speak to the intrinsic properties of a substance, while 
risk involves the likelihood of a substance to cause harm. As 
an everyday example of this, consider the automobile. By their 
very nature, cars are hazardous. They are large, heavy objects 
propelled by a highly flammable fuel. Yet when operated 
properly and in a safe manner the risk posed by automobiles is 
far outweighed by the benefits provided by modern 
transportation.
    By the same token while many of the chemicals used to make 
products that enhance and improve our lives may have hazardous 
properties, the risks posed by those substances have been 
minimized by controls employed by the manufacturing community.
    Finally, as we take steps to modernize our Nation's 
chemicals management policy care must be taken to ensure that 
TSCA continues to achieve its overarching goals of protecting 
human health and the environment while at the same time 
promoting innovation and economic growth of the United States. 
Here, Senator, in your opening remarks, we agree 100 percent. 
NPRA believes that these goals are complementary and not 
mutually exclusive.
    There are also those who would like to see the United 
States adopt a program similar to that approach used in Europe 
under REACH. In reality, REACH is an unproven program that is 
already so much of a burden that the French government has set 
aside 600,000 Euros to help small businesses deal with it.
    Mr. Chairman and members of the Subcommittee, we are a 
Nation of innovators. When it comes to crafting sound, 
effective, responsible chemical risk management policy, we as a 
Nation can do better than REACH.
    Thank you for your time. I look forward to your questions.
    [The prepared statement of Mr. Drevna follows:]
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    Senator Lautenberg. Thank you very much, Mr. Drevna.
    Ms. Gerwig, we look forward to hearing from you.

STATEMENT OF KATHY GERWIG, VICE PRESIDENT, WORKPLACE SAFETY AND 
      ENVIRONMENTAL STEWARDSHIP OFFICER, KAISER PERMANENTE

    Ms. Gerwig. I would very much like to thank Chairman 
Lautenberg and members of the Subcommittee for inviting me to 
testify before you today.
    My name is Kathy Gerwig. I am Vice President of Workplace 
Safety and the Environmental Stewardship Officer for Kaiser 
Permanente, the Nation's largest integrated health care 
delivery system. Our mission is to provide high quality, 
affordable health care services and to improve the health of 
members that we serve. Our commitment to the issues the 
Subcommittee is exploring today is an important and integral 
part of this mission.
    At Kaiser Permanente we understand that healthy communities 
and a healthy environment are critical to the health and 
wellness of every person. We are dedicated to environmental 
sustainability because it has direct, positive effects on 
individual and community health. Since the organization was 
founded in 1945, we have worked to curb our overall impact on 
the environment by using safer chemicals, building greener 
hospitals, reducing waste, purchasing locally grown food and 
using sustainable energy. We believe that through our practices 
we can promote the creation and adoption of safer chemicals and 
sustainable materials in a way that supports a healthy economy, 
healthy environment and healthy people.
    Kaiser Permanente spends $14 billion annually on products 
and services. Despite this leverage we have experienced 
limitations in achieving our goal of using products and 
materials that are environmentally sustainable. To address the 
lack of chemical safety information our procurement and supply 
staff developed a supplier disclosure process that is used for 
major medical product purchases across our entire system. This 
disclosure is unique because we require information on a 
product specific basis. The information to be disclosed 
includes whether the product contains heavy metals, halogenated 
flame retardants, polyvinyl chloride, or PVC, diethylhexyl 
phthalate or DEHP, or ingredients contained on California's 
Proposition 65 list of chemicals that cause cancer or 
reproductive harm.
    We also ask for information on the supplier's safer 
alternatives. The process requires comprehensive vendor 
education and aggressive demands for safety and ingredient 
information. Another challenge we face is that many products 
that are labeled green are made from chemicals without adequate 
or any safety testing. A truly green product is one that is 
environmentally and biologically benign throughout its life 
cycle.
    Kaiser Permanente was the first health system in the U.S. 
to contract for patient controlled analgesia sets that are 
totally free of PVC and DEHP. This is significant because we 
purchase the equivalent of 18 miles of tubing annually. While 
the cost of this change reflected a savings over our prior 
contract, it would have been even less expensive to buy tubing 
that was made from PVC and DEHP. Balancing pricing with 
environmental and public health considerations is always a 
challenge.
    To address chemicals found in fabrics, we created a 
sustainable fabric alliance program to embed environmental 
considerations into choosing fabric and fabric vendors. The 
considerable time and resources committed to this work was 
justified because there was no other way for us to ensure that 
our fabrics were free of chemicals of concern.
    We also support safer chemicals through research. Our 
division of research conducted the first study to look at the 
effect of high levels of workplace exposure to bisphenol-A, or 
BPA, on the male reproductive system in humans. This recent 
study adds to the body of evidence questioning the safety of 
BPA, a chemical used in the production of polycarbonate 
plastics and epoxy resins found in baby bottles, plastic 
containers, the lining of cans used for food and beverages, and 
in dental sealants. Kaiser Permanente purchases baby bottles 
that are free of BPA, and we continue to push for safer 
alternatives to products that contain BPA.
    As we strive to advance an economy where the production and 
use of chemicals are not harmful for humans and the environment 
Kaiser Permanente invests significant time and resources. That 
degree of investment is simply not feasible for most products 
and materials we buy, nor is it possible for most organizations 
that don't have the resources and skills that we have developed 
over the decades. Mechanisms are needed to support downstream 
users in procuring the safest products and materials for our 
needs.
    Mr. Chairman and distinguished members of the Committee, 
thank you for the invitation to testify here today. I look 
forward to answering any questions you may have.
    [The prepared statement of Ms. Gerwig follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Lautenberg. Thank you very much, Ms. Gerwig.
    I want to say that your testimony, the testimony from each 
one of you was worth hearing. I assure you, we listened 
carefully.
    I also want to say if I was to play the role of the school 
teacher, the class was excellent; timing was wonderful. You did 
a great job in meeting the rigid standards of our time 
requirements.
    Ms. Fisher, in our oversight hearings, two main problems 
have arisen over and over. First, that EPA cannot get all of 
the data it needs on chemical safety, and second, EPA cannot 
adequately regulate risks from chemicals. Are you in agreement 
that EPA should be able to acquire more safety data on 
chemicals and restrict the use of high risk chemicals?
    Ms. Fisher. Thank you, Mr. Chairman. I think the way TSCA 
is currently drafted it requires a lot of process and 
rulemaking for EPA to gather the data it might need to assess 
chemicals. Similarly, when the agency moves to take risk 
management decisions the tools are there but the way they are 
currently drafted, they become very time consuming. I think 
that has led to the frustration that the public feels and 
sometimes, quite honestly, industry feels, in getting them to 
make a decision.
    Senator Lautenberg. Under current law, EPA bears the burden 
of proving that a chemical is unreasonably dangerous before the 
agency can restrict it to protect public health. Even EPA's 
effort to ban asbestos failed to meet this heavy burden. Should 
the chemical companies have the responsibility to prove that 
their products are safe before us, Ms. Fisher?
    Ms. Fisher. Absolutely. I think the industry should have 
the burden to show that the products they are bringing to the 
market are safe.
    Senator Lautenberg. Dr. Hawkins, how do you feel about 
that?
    Mr. Hawkins. I think the burden of proof should rest with 
the private sector, with industry. So that I definitely agree 
with.
    But I do also believe that EPA needs to have the authority 
and power when there is a use of a chemical that they believe 
creates risk that needs to be regulated and stopped that they 
have the authority to act. And so it is really two-pronged. We 
have the responsibility to provide the information and the 
substantiation of the safety. But we do need decisions on the 
tail end as well.
    Senator Lautenberg. The one thing that I gleaned from the 
testimony overall is to be careful about the way a TSCA reform 
should be developed. I assure you that casual carelessness is 
not the place we want to be. Sound science, we want that to be 
the top indicator as to what it is we should proceed with.
    So the cautionary notes that we get, I hear those as well. 
But I assure you that we don't want to produce a product that 
is just a product. We want to produce a product that has value. 
We want to produce a product that will prevent lots of diseases 
that children seem to be acquiring, whether it is cancer, 
neuro-behavioral, asthma, et cetera. We know that there is a 
significant influence on materials in human development. We 
want to make sure we do whatever we can to protect our 
children, including my 10 grandchildren and everybody else's 
grandchildren across this country.
    Ms. Gerwig, because the Government is not adequately 
reviewing the safety of chemicals your company has spent an 
enormous amount of money trying to ensure that you are not 
exposing patients to dangerous chemicals. I note that the 
material in gloves was changed. I wasn't aware of that. It 
sounds simple when you have done the right thing, I must say.
    Would requiring chemicals to be reviewed by EPA scientists 
reduce costs and do you think improve profitability for 
companies like yours?
    Ms. Gerwig. Shifting the burden away from downstream users, 
such as us, and pushing it toward the EPA and toward chemical 
manufacturers would certainly allow us to allocate our 
resources to providing health care as opposed to looking at the 
substances that are in the products that we use.
    Senator Lautenberg. Ms. Fisher, I am not picking on you, 
but we do want to hear from you further. Chemicals that we call 
PBTs buildup in our bodies, fail to break down over time and 
are known to be toxic. Other governments have taken action to 
restrict most uses of these PBTs without putting these 
chemicals through a traditional risk assessment process. Should 
we provide a way to reduce the use of PBTs quickly, without 
waiting for the risk assessment process to run the course? Are 
they so dangerous?
    Ms. Fisher. First of all, Mr. Chairman, EPA has done a lot 
to regulate many of the PBTs that have historically been in 
commerce under a number of different statutes. I think that we 
have to be careful how we construct TSCA. You want EPA to make 
prompt decisions based on good science. But to make the proper 
risk management decisions they are going to have to understand 
where the exposures are coming from.
    We really do want them to comment on where people are being 
most exposed. So they need to have enough information to make 
those calls.
    Senator Lautenberg. Thank you.
    Senator Whitehouse, you have acquired 7 minutes' worth of 
time to balance our discussion here.
    Senator Whitehouse. Thank you.
    I thank all the witnesses for their testimony. I was 
particularly struck by the testimony of the representatives 
from DuPont and Dow, the great chemical companies of our 
country, who both said, Ms. Fisher from DuPont, the time to 
modernize TSCA has come, and Dr. Hawkins for Dow, Congress 
should reform TSCA; there is an emerging consensus that reform 
is necessary. So I think that puts us in a good position to 
move forward.
    I have a number of questions. The first has to do with 
protections from foreign competition. Whenever heightened 
environmental and safety standards are proposed for American 
companies, we very often hear back that, well, we really 
shouldn't do that because it puts us at a competitive 
disadvantage with other countries.
    I would rather solve that problem with protections at the 
border to make sure that harmful products are not imported to 
our country than I would by continuing to allow American 
industry to make unsafe products in a sort of international 
race to the bottom of product safety. I would love to have your 
advice, and I would be delighted to take this as a question for 
the record, if you wanted to have a moment to think about it, 
and to write down what your specific recommendations would be, 
what we should be doing to assure that our products that are 
imported meet our safety standards.
    In that context, I would also like to ask each of you--each 
of your organizations, anyway--to take a look at the Foreign 
Manufacturers Legal Accountability Act, which is a bipartisan 
piece of legislation proposed by me and Senator Sessions of 
Alabama, that would require foreign competitors of American 
companies that import their products into our country to do 
something as simple as to file an agent for service of process 
so that as one of the witnesses mentioned--I think it was you, 
Ms. Bosley--when the sulfide contaminated wall board or the 
lead painted toys come into our country, and somebody is 
injured as a result, they can find relief and a remedy from the 
importing company.
    We had an Alabama contractor here reporting that to protect 
his own reputation he had to make good on the sulfide damage 
that was caused by the Chinese defective sulfide contaminated 
wall board. But there was no way he could find anybody to get 
any compensation from. In many cases there are very arcane 
laws; you have to translate the complaint into the foreign 
nation's language. We should require a simple agent for service 
of process here. We do it for American corporations; we should 
require it for foreign corporations.
    If there are other steps you think we should take, I would 
be very interested in those. I think it really is important 
that we not allow international competition to degrade into a 
race to the bottom of safety.
    Ms. Gerwig, thank you for what Kaiser is doing. I hope that 
we can use the Kaiser process as a benchmark for where TSCA 
could and should go. Clearly, a great number of the chemicals 
that you require notification of through your supplier 
disclosure process are ones that are not presently restricted 
through EPA's chemical analysis review, correct?
    Ms. Gerwig. Correct.
    Senator Whitehouse. So you are ahead of them. And you have 
based your decisions, presumably, on sound science, correct?
    Ms. Gerwig. Sound science, credible evidence that is 
available to us that shows their connections between those 
chemicals and disease.
    Senator Whitehouse. And in particular, thank you for your 
work on latex gloves. You mentioned that in your testimony. As 
somebody who has seen a child standing outside of an emergency 
room bleeding in the rain because they had not yet cleared a 
latex-safe pathway for that child through the emergency room, I 
think for families who have latex sensitivity around the 
country, that was a wonderful thing for you to help lead on.
    Ms. Bosley, you said in your testimony something that I was 
interested to read. I just want to highlight it. Let me know if 
it is in fact what you meant. ``Because of the vast number of 
chemicals and applications we do not think that EPA should be 
burdened with a determination that each chemical is safe for 
its intended use.'' Did you really mean to say that?
    Ms. Bosley. I do. I believe that industry should be 
responsible for knowing the uses. EPA should certainly provide 
the regulatory authority and the guidance and the oversight. 
But it is industry who should determine whether a chemical is 
safe for its intended use.
    Senator Whitehouse. We should rely on the manufacturer to 
determine the safety of the product? How well did that work out 
with tobacco? How well did that work out with lead?
    Ms. Bosley. There are certainly chemicals that are due for 
more scrutiny than are industrial chemicals. I think that is 
where the risk prioritization comes into play. If you have a 
chemical that has a very high risk potential EPA can take more 
time and do much more due diligence on the safety of that 
chemical for its intended use.
    But for the vast majority of industrial chemicals that are 
used in a strict industrial environment, that level of 
authority would not be necessary. I think it would just seize 
up EPA, frankly.
    Senator Whitehouse. I am a little bit surprised. I assumed 
that there was, I don't know, some mistake here. Because there 
are so many chemicals, we don't think EPA should be responsible 
for determining whether a chemical is safe for--isn't that the 
purpose of environmental regulation, is to assure that a 
chemical is safe for its intended use?
    Ms. Bosley. That is the purpose of things like FDA, 
certainly for food, and for food contact items and for drugs. 
It is the position of EPA through its program for pesticides. 
That universe of chemicals is much smaller. And once again the 
risk is much higher. These are chemicals that are meant to be 
ingested, that are meant to be injected and the risk for human 
exposure is much higher.
    If you consider a chemical that is used to manufacture, 
perhaps a certain industrial polymer that will never be used in 
a consumer product, that type of use is where the vast majority 
of industrial chemicals are.
    Senator Whitehouse. So to put a limiter on that sentence, 
we do not think that EPA should be burdened with the 
determination that each chemical is safe for its intended use, 
where its use is not intended to expose that chemical to the 
public, is really what you mean to say?
    Ms. Bosley. That is right. It is all about that risk 
prioritization and risk determination. That is--looking at the 
hazard of the chemical in association with its exposure 
potential.
    Senator Whitehouse. In terms of a reasonable new chemicals 
fee that would go to EPA to support this, do you have a 
proposal in mind on that or any vehicle that would actually 
assure that those funds ended up at EPA?
    Ms. Bosley. At this point, I think the PMN fee, the pre-
manufacture notice fee is $2,500. It goes to the Treasury, not 
EPA. That is, I think, a fundamental flaw in the situation. 
There are certainly other fees that EPA could assess. I know 
confidential business information is a difficult premise for 
EPA to maintain. It is very burdensome for EPA to maintain 
confidential business information. Perhaps they would like to 
charge for that service.
    Senator Whitehouse. My time has expired, Chairman.
    Senator Lautenberg. If you have another question, we have 
time. I have a couple.
    Senator Whitehouse. Let me just ask one more about the 
question of the confidential business information. There has 
been a lot of static about that. I am told that 16,000 
chemicals in the TSCA inventory are classified as confidential 
business information, which has the effect of restricting 
information on the toxicity of those chemicals even with State 
and local public health officials, which really doesn't seem to 
make a lot of sense. Clearly, if somebody wished to stall and 
create additional cost and bureaucratic burden on the regulator 
there is a strong incentive to upgrade the confidential 
business information claim and make that a point of dispute.
    Is anybody comfortable with the confidential business 
information standard as it presently exists, and what 
suggestion do you have for repairing it so that it more 
prudently reflects chemical risks and the access for 
particularly State and local public health officials to that 
information?
    Ms. Bosley. The public face of any chemical is really its 
material safety data sheet. Those are public documents that are 
available on most manufacturers' Web sites; if not on their Web 
sites then certainly from a call to the manufacturer. That 
toxicity data is not confidential with respect to OSHA. It is 
on every material safety data sheet. The entire study is 
certainly not there; it would be too cumbersome to put it 
there. But the results of that study are there; all available 
toxicity data is required by OSHA to be public information. 
That information is available to anybody who would like it.
    Senator Whitehouse. So it is your position that no further 
disclosure of confidential business information, no change in 
that process at EPA is justified at this stage?
    Ms. Bosley. No. As I said, I think it is extraordinarily 
burdensome for EPA to maintain confidential business 
information. I think it is important that they do where it is 
necessary. But I think, for instance, that there may be a 
sunsetting of confidential business information that would be 
appropriate.
    Senator Whitehouse. So you don't think the where it is 
necessary the line is being drawn correctly at the moment, that 
needs to be adjusted?
    Ms. Bosley. That is correct.
    Senator Whitehouse. You had your hand up? Same answer. Very 
good.
    Senator Lautenberg. Thanks very much, Senator Whitehouse.
    I just have a couple of things here. Dr. Hawkins, new 
techniques for testing chemicals are being developed so that 
scientists can obtain faster and more accurate results without 
relying on animal testing. These techniques will also be far 
less expensive than existing animal testing. How will these 
techniques affect the volume and the quality of safety data 
that you can provide to EPA?
    Mr. Hawkins. Actually, we are very excited and test and 
prototype many of these advanced approaches you are describing 
as well as other approaches like structure activity 
relationships and looking at mechanisms of how chemicals work. 
But it is very important that you brought that up because this 
whole issue of animal welfare is very important. We work with 
many stakeholders from the animal welfare community relative to 
our tox lab.
    So as TSCA is reformed we need to be careful that we are 
only calling for tests with animals that uniquely need to be 
done with animals. At the same time we need to make sure that 
the non-animal testing yields valuable information and are 
validated. We work on that with suppliers and are aggressively 
pursuing those.
    Senator Lautenberg. You mentioned also, Dr. Hawkins, in 
your testimony that American companies should not be 
disadvantaged by competition from outside the country. Is there 
a disadvantage now to American companies as a result of our 
lack of testing or verification of the quality and safety of 
the products?
    Mr. Hawkins. I think we are heading into a period here with 
REACH being implemented. That is still an experiment. It is a 
big experiment. But it is ongoing. As to how that might change 
the global chemical marketplace, American chemical industry and 
related industries are big exporters. So as you get into these 
elaborate regulatory systems in a place like Europe or Canada 
or elsewhere I think there is a potential for us being 
disadvantaged if our system is not cognizant of the receiving 
end. We are big exporters, all of us. So we need to be 
cognizant of that.
    Senator Lautenberg. Mr. Williams, current law allows 
chemical makers to hide health and safety data from the public 
and companies like yours by making broad claims of confidential 
business information. How would limiting these claims to 
legitimate business secrets help companies like yours?
    Mr. Williams. It is a great question, because I have a good 
example. We use McDonough Braungart Design Chemistry, cradle to 
cradle certifications. We have particular material, an 
adhesive, that is used in our products. We approached the 
adhesives manufacturer and said, we want to know what is in 
there. And they absolutely refused. We offered a non-disclosure 
agreement, no, we are not going to give it.
    They did sign a non-disclosure agreement with McDonough 
Braungart Design Chemistry, because they were willing to reveal 
to someone that wasn't about to--they thought we were going to 
copy their material, they thought we were going to give their 
information to someone else and create a competitor against 
them. So I think the need for businesses to be able to 
disclose, in perhaps a safe environment, is highly important.
    But we need to know that information. We absolutely must 
have that information in order to make the environmental and 
health claims that we make. We have gone through businesses 
that have required us to sign non-disclosure agreements before 
we get in the door, and they have all said, what we do here is 
confidential; no one else does it; it is proprietary. Well, we 
have walked through 43 other businesses that are doing the very 
same thing.
    Some of our proprietary claims in business are as much in 
our own thinking and our own pride in authorship, and then 
there are the real ones that are relative to simply not wanting 
to tell our competitors what we are doing. So I believe reform 
needs to take that into consideration because various 
manufacturers think they are going to need to be eased across 
that threshold and understand that doing this is very 
important. It is essential. And yet doing it in a safe way of 
protecting that competitive information, there has to be a 
means of doing that.
    Senator Lautenberg. Thank you. Thank you all, each of you, 
for your testimony.
    What we are discussing here today is essential to at least 
warrant to the public that we are trying to do whatever we can 
to protect them. The anxiety that now accompanies pregnancy is 
quite a different condition than some time ago when we counted 
fingers and toes and things of that nature and said, OK, there 
is a healthy baby. And we must do whatever we can to assure 
those who would bear children, to assure those children's 
development, that we have done everything possible. We know 
there is a presence of materials in almost everybody across our 
Nation. We must do whatever can to protect that development of 
that child, to protect the health and well-being of people 
across our country.
    There is no secret that things like diabetes and asthma 
have shown growth. And I am not suggesting here that it is a 
chemical product. But nor can we say that no, and I think 
Senator Whitehouse's commentary about the things that have been 
left over the years to industry, and I salute the industry, I 
think it is a wholesome, necessary industry in our society, the 
chemical industry. But when we talk about things like asbestos 
and the kinds of fights that we had to establish the fact that 
asbestos is so lethal. And we saw it in the State of New 
Jersey, where we have a huge industrial presence.
    So my thanks to each one of you. This hearing is concluded. 
It is of great value to us in trying to develop a process, a 
way to get things done without enough of a benefit to add some 
more burden to the business of doing business. Thank you all.
    [Whereupon, at 11:13 a.m., the Subcommittee was adjourned.]
    [An additional statement submitted for the record follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    Chairman Lautenberg, I am very pleased to see you here 
today and am glad to know you are feeling well.
    As we consider legislation aimed at modernizing the Toxic 
Substances Control Act (TSCA), Congress must avoid creating new 
burdens that hurt consumers and the economy. This principle is 
especially important today as the economy continues to struggle 
and unemployment remains near 10 percent. So, thank you for 
having this hearing, Mr. Chairman. It is critical that we 
listen to private sector concerns and consider ideas from the 
business community. I'd like to request that the written 
statement of the American Chemical Council be entered into the 
record.
    TSCA regulates thousands of basic chemicals and compounds--
chemicals that are the foundation of our way of life and on 
which our economy, health and welfare depend. I believe that 
TSCA is a fundamentally sound statute. But it is 30 years old, 
and the science of chemical risk assessment has evolved. As 
you've heard me say before, I am open to the idea of 
modernizing the Act.
    The chemical industry has set out principles for reform. 
And in previous hearings I also laid out principles. Let me say 
this again: in order for me to accept changes to TSCA, the 
revisions must be based on risk assessment using the best 
available science, must include cost-benefit considerations, 
must protect proprietary information, and must prioritize 
reviews for existing chemicals.
    I have high expectations that the perspectives we hear 
today will focus on sound science, risk based decisionmaking 
and prioritization of review. Let it be known, however, that I 
do not want to hear suggestions that create artificial 
advantages favoring one sector over another--in other words, 
please do not give us ideas that create an uneven playing field 
among companies or products or cause economic harm to 
consumers.
    I look forward to hearing from the witnesses on their 
productive and constructive ideas for reforming TSCA. Welcome 
to the Committee.

    [The referenced statement follows:]
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