[Senate Hearing 112-984]
[From the U.S. Government Publishing Office]
S. Hrg. 112-984
LEGISLATIVE HEARING ON THE
SAFE CHEMICALS ACT
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND, TOXICS
AND ENVIRONMENTAL HEALTH
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
NOVEMBER 17, 2011
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
FRANK R. LAUTENBERG, New Jersey JOHN BARRASSO, Wyoming
BENJAMIN L. CARDIN, Maryland JEFF SESSIONS, Alabama
BERNARD SANDERS, Vermont MIKE CRAPO, Idaho
SHELDON WHITEHOUSE, Rhode Island LAMAR ALEXANDER, Tennessee
TOM UDALL, New Mexico MIKE JOHANNS, Nebraska
JEFF MERKLEY, Oregon JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York
Bettina Poirier, Majority Staff Director and Chief Counsel
Ruth Van Mark, Minority Staff Director
Subcommittee on Superfund, Toxics and Environmental Health
FRANK R. LAUTENBERG, Chairman
MAX BAUCUS, Montana MIKE CRAPO, Idaho
THOMAS R. CARPER, Delaware LAMAR ALEXANDER, Tennessee
JEFF MERKLEY, Oregon MIKE JOHANNS, Nebraska
KIRSTEN GILLIBAND, New York JOHN BOOZMAN, Arkansas
BARBARA BOXER, California, (ex JAMES M. INHOFE, Oklahoma, (ex
officio) officio)
C O N T E N T S
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Page
NOVEMBER 17, 2011
OPENING STATEMENTS
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 3
Carper, Hon. Thomas, U.S. Senator from the State of Delaware..... 5
Gillibrand, Hon. Kristen, U.S. Senator from the State of New York 6
Merkley, Hon. Jeff, U.S. Senator from the State of Oregon........ 7
Baucus, Hon. Max, U.S. Senator from the State of Montana,
prepared statement.............................................
WITNESSES
Sturdevant, Ted, Director, Department Of Ecology, State Of
Washington..................................................... 8
Prepared statement........................................... 11
Responses to additional questions from:
Senator Boxer................................................ 24
Senator Carper............................................... 28
Senator Inhofe............................................... 29
Brody, Charlotte, Director Of Chemicals, Public Health And Green
Chemistry, Bluegreen Alliance.................................. 32
Prepared statement........................................... 34
Responses to additional questions from:
Senator Boxer................................................ 37
Senator Carper............................................... 39
Senator Inhofe............................................... 40
Dooley, Cal, President and Ceo, American Chemistry Council....... 42
Prepared statement........................................... 44
Responses to additional questions from:
Senator Carper............................................... 65
Senator Inhofe............................................... 68
Matthews, Robert, Counsel, Consumer Specialty Products
Association.................................................... 75
Prepared statement........................................... 77
Responses to additional questions from:
Senator Carper............................................... 85
Senator Inhofe............................................... 87
Denison, Richard, Senior Scientist, Environmental Defense Fund;
Safer Chemicals, Healthy Families Coalition.................... 91
Prepared statement........................................... 93
Responses to additional questions from:
Senator Boxer................................................ 107
Senator Carper............................................... 110
Senator Inhofe............................................... 113
ADDITIONAL MATERIAL
Statements:
Business Alliance Committed to Finding the Right Approach to
Updating TSCA.............................................. 153
American Cleaning Institite.................................. 156
Edison Electric Institute.................................... 158
National Council of Churches................................. 160
National Petrochemical & Refiners Association (NPRA)......... 161
Society of Chemical Manufactures & Affiliates................ 166
Dr. Paul A. Locke; Associate Professor at John Hopkins
Bloomberg School of Public Health.......................... 170
Physicians Committee for Responsible Medicine................ 175
S.C. Johnson & Son, Inc...................................... 182
OVERSIGHT HEARING ON THE BROWNSFIELD'S PROGRAM - CLEANING UP AND
REBUILDONG COMMUNITIES
----------
WEDNESDAY, OCTOBER 19, 2011
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Toxics and
Environmental Health,
Washington, DC.
The committee and subcommittee met, pursuant to notice, at
10 a.m. in room 406, Dirksen Senate Office Building, Hon. Frank
Lautenberg [chairman of the subcommittee, presiding.
Present: Senators Lautenberg, Inhofe, Crapo, Carper,
Cardin, Whitehouse, Barrasso, Udall, Merkley, and Gillibrand.
OPENING STATEMENT OF HON. FRANK LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. We welcome the witnesses. Obviously, I
guess we all think that when we have an issue before the
public, that we all think it is very important. Needless to
say, I am not going to differ with the usual routine here.
I will start off on what I hope will be a good setting for
the birthday of my colleague and friend, Senator Inhofe. He is
younger than I by a few years. It is not noticeable, I know,
but take my word for it. There is a degree of envy, and we wish
him happy birthday. We have had I won't say it is a unique
relationship, but it is one that we don't agree necessarily on
all the subjects, but we agree on respect for one another and
it is always great to work with Senator Inhofe.
During the past 2 years, this Committee and the
Subcommittee have held five hearings that identified serious
problems with the Toxic Substance Control Act, known as TSCA.
And today, we are starting to look for our solutions to those
problems and discuss them publicly.
In our previous hearings, we uncovered dangerous and costly
deficiencies in TSCA and this Committee heard from CDC
officials who told us their scientists found 212 industrial
chemicals, including six carcinogens coursing through America's
bodies. Twice, we have heard from EPA Administrator Lisa
Jackson, who told us under current law that her agency lacks
the tools it needs to regulate high-risk chemicals.
And we heard from others who shared their anxiety about
having no system for determining which everyday chemicals might
hurt them or their children.
TSCA is so severely flawed that the nonpartisan Government
Accountability Office testified that it is a ``high-risk area
of the law.'` Our hearings also revealed the status quo does
not work for the chemical industry either. In the hearing last
February, executives from Dow and DuPont, two major chemical
companies, testified in support of reform in part because of
the difficulties their companies face operating under different
rules and in different States.
We heard similar messages earlier from the chemical maker
BASF and S.C. Johnson, the global consumer product company. We
heard from colleagues on both sides of the aisle who agree that
TSCA must be revised to work better for businesses and the
health of our citizens.
Now, I first introduced legislation to address TSCA's
shortcomings in 2005. Since then, my legislation has evolved
through scientific advances and feedback from various other
sources, including the chemical industry. At a hearing nearly 2
years ago, I told this Committee the bill should be considered
an invitation to all to play a part, and I meant it seriously.
I invite colleagues with whom we might have some sharp
differences, let's sit down and talk about it. This is
important enough that we want to keep the door open and we will
listen to ideas or views that others have.
Many Members on our side offered ideas that are included in
the newest version of my bill and I am pleased that most of the
Committee's Democrats are now co-sponsored. We also heard from
Senator Vitter, who said that TSCA reform legislation must be
based on sound science and called for more input from the
National Academy of Sciences on chemical risk assessment.
So this year's version of the Safe Chemicals Act mandates
that EPA use the best available science, as defined by the
ongoing work of the National Academies. Last summer, Senators
Inhofe and Barrasso raised concerns about inadvertently
depriving our economy of chemicals that are essential to daily
life. And I mentioned something here that was, as they say, up
front and personal. When I had six courses of chemotherapy last
year and I was mighty glad to meet the chemicals, I can tell
you, and they treated me nicely.
So we know that there is lots of value that comes from
chemicals, and we want to be sure that we don't get in the way
of availability of those products, but we do want to watch out
for those that might bring harm instead.
As a result, we have included provisions to ensure the
continued availability of chemicals for critical or essential
uses. Concerns were also raised about our proposal for
prioritizing certain chemicals for safety review, so we
completely overhauled that section of the bill.
Earlier this year, Senator Inhofe and I met about trying to
make this bill bipartisan. And he suggested a process for
getting more ideas from industry and others on the table.
Throughout the summer, our staffs held 10 meetings with
representatives from industry, from labor and environmental
groups on different sections of the Safe Chemicals Act. Those
meetings increased understanding of the bill's strengths, as
well as areas that could be improved.
Today's hearing is an opportunity for the witnesses and
Members of the Committee to take the next step toward a
bipartisan bill. And if there are concerns with something in
the Safe Chemicals Act, I hope that you will either offer a
suggestion for improving it or commit to working through the
details with us in the next 2 weeks.
The bottom line is this: This legislation establishes a
strong, but practical system for guaranteeing the safety of
chemicals, many of which end up in our bodies and the bodies of
our children and we remain open to other ways of achieving our
shared goal of a system that improves safety and encourages
continued innovation and growth in the chemical industry.
But we have got to get going. We have to act soon. I plan
to call for a vote in this Committee in the near future and I
hope that we will be able to address any concerns that might be
raised today so we can approve a bipartisan bill that
encourages the use of chemicals that help and protect our
children from the chemicals that harm.
Senator Lautenberg. Is Senator Crapo going to be here
shortly, do you know?
Senator Inhofe. I am sitting in for him.
Senator Lautenberg. Oh, OK, a birthday treat for Senator
Inhofe. He can fill in.
Senator Inhofe. Thank you. Thank you.
As I understand it, Mr. Chairman, this is a joint full
Committee and Subcommittee, so that would be appropriate.
OPENING STATEMENT OF HON. JAMES INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. I appreciate the comments you made, and I
know that it isn't only on my birthday that I get those
comments because it surprises a lot of people that Senator
Lautenberg and I are very good friends. We have a mutual
respect, and we know the areas where we disagree. And I think
it is appropriate the way he is doing this.
The stakeholders meetings were very thoughtful. We learned
a lot from the participants as efforts to modernize TSCA
continue in the future. These discussions will undoubtedly help
to build a foundation for eventual reforms. The participants
were candid and forthcoming with their unique viewpoints and I
look forward to building an agreement around that. And I think
that is a good start, bringing the people in to talk about
these things.
While we often heard very conflicting ideas from
stakeholders on how TSCA should be modernized, we also
identified a few areas of potential common ground and I think
that that warrants further discussion. Although our hearing
today is on S. 847, which is not incorporated in what we have
learned from the stakeholders process, it is a starting point,
I recognize that.
It is a battle, given the unemployment rate hovering around
9 percent and numerous costly new regulations coming from this
Administration that we make sure that any toxic reforms help to
not only protect human health, but jobs and the economy. That
has got to be part of the consideration as we develop this
thing.
My interest in TSCA modernization, which I have said
before, is in large part due to TSCA's broad reach over
chemical manufacturing and its potential and real impacts on
the economy. TSCA regulates the manufacturing, the
distribution, use and disposal of chemicals, authority that
covers thousands of transactions and decisions by thousands of
people every day, and I have consistently said that TSCA must
be accomplished with a broad base of support, including
industry up and down the value chain. It also must take into
account the small-and medium-size businesses that could be
affected the most if the law is updated improperly.
Our witnesses today represent a few of the stakeholders we
heard from in the course of our meetings that we had. They
possess a wide range of perspectives on TSCA modernization and
its implementation, but we must not forget that there are
plenty of other groups that have strong interest in this, other
stakeholders as well.
At this time, I would like to ask unanimous consent to
place into the record the statements from the American Cleaning
Institute, the Grocers Manufacturers Association, the Society
of Chemical Manufacturers and affiliates, and the National
Petrochemical and Refiners Association.
Senator Lautenberg. Without objection.
[The referenced documents follow:]
Senator Inhofe. While I believe it is time to bring this 35
year old statute into the 21st century, it is also important
that we do it right, and I am sure that this is a good start in
that, Mr. Chairman.
Thank you.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe,
U.S. Senator from the State of California
I would like to begin by thanking Senator Lautenberg for
scheduling a legislative hearing on S. 847 the Safe Chemicals
Act of 2011. I would also like to thank him and his staff for
inviting us to co-host a series of listening sessions, which
included not only our staffs, but representatives from industry
and the environmental community.
The stakeholder meetings were very thoughtful and we
learned a great deal from the participants. As efforts for
modernizing TSCA continue in the future, these discussions will
undoubtedly help to build a foundation for eventual reforms.
The participants were candid and forthcoming with their unique
viewpoints and I look forward to building agreement around some
of the many challenges facing TSCA reform moving forward.
While we often heard very conflicting ideas from
stakeholders on how TSCA should be modernized, we also
identified a few areas of potential common ground, and I think
that warrants further discussions. Although our hearing today
is on S. 847--which has not incorporated what we learned in the
stakeholder process or addressed many longstanding concerns--I
am encouraged that this bill helped begin a constructive dialog
that may help lead to a workable bill which down the road could
pass both the House and Senate and become law.
It is vital--given an unemployment rate hovering around 9
percent and numerous costly new regulations coming from this
administration--that we make sure any TSCA reforms help to not
only protect human health, but jobs and the economy. My
interest in TSCA modernization--which I have said before--is in
large part due to TSCA's broad reach over chemical
manufacturing and its potential, and real, impacts on the
economy. TSCA regulates the manufacturing, distribution, use,
and disposal of chemicals--authority that covers thousands of
transactions and decisions by thousands of people every day.
I have consistently said that TSCA modernization must be
accomplished with a broad base of support, including industry
up and down the value chain. It also must take into account the
small and medium size businesses that could be affected the
most if the law is updated improperly. Our witnesses today
represent a few of the stakeholders we heard from in our
meetings. They possess a wide range of perspectives on TSCA
modernization and its implementation but we must not forget
that there are plenty of other groups that have a strong vested
interest in this effort and need to be considered as well.
At this time I would like to ask unanimous consent to have
statements from the American Cleaning Institute, the Grocery
Manufacturers Association, the Society of Chemical
Manufacturers and Affiliates, and the National Petrochemical &
Refiners Association--all of whom also participated in the
stakeholder meetings--inserted into the record.
While I believe it is time to bring this 35 year old
statute into the 21st Century, it is equally as important that
we do it the right way without harming American innovation or
shipping jobs overseas.
My principles for reform remain the same: any modernization
of TSCA should be based on the best available science; use a
risk-based standard for chemical reviews; include cost-benefit
considerations; protect proprietary information; and must
prioritize reviews for existing chemicals.
These are principles I have stood by for many years and I
think are vital to a successful TSCA modernization process that
is appropriately protective, predictable, efficient, and
revives confidence in our Federal chemical management system.
Again, I appreciate Sen. Lautenberg's work on this issue
and his willingness to gather information in a constructive,
bipartisan nature. I look forward to hearing from the witnesses
today.
Senator Lautenberg. Thanks very much.
Senator Carper.
OPENING STATEMENT OF HON. THOMAS CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thank you, thank you. And I want to join
all of our colleagues in wishing Jim happy birthday. It is a
joy to here with you today. And I think a great gift that gets
him out of the conversations between--of both our Chairman and
Senator Inhofe on, and with your staffs, it would be a great
gift for our Country.
I just want to commend you for the time and energy that you
and your staffs are putting into this. These are important
issues that I care a lot about. I know others do as well.
Every day in this Country, manufacturers use, as we know,
various chemicals to make everything from carpets to cosmetics,
cars, water bottles, dishwashing soap, and we need these
chemicals to keep our manufacturing base strong. We also need
to make sure that we are using and disposing of them safely.
As others have said, it has been more than 30 years since
we revisited the Toxic Substance Control Act, and that is far
too long when we consider how much more we manufacture and use
chemicals today and how much more we understand today about
those chemicals.
Industry, environmental and public health leaders, the
Obama administration, several of our colleagues in Congress,
including me, all agree that current law is not sufficient and
it is time that the Toxic Substance Control Act is modernized.
From what I understand, the principles for TSCA reform that
have been outlined by the chemical industry, the NGO community
and other stakeholders are remarkably similar, and that is
encouraging. I believe that there is a path forward to
reforming TSCA that we can address, that will enable us to
address the needs of our diverse stakeholders on this issue,
including our constituents.
Senator Lautenberg has introduced, as we know, a bill to
strengthen our chemical safety law that has gone through
several iterations. I think it is not just a good start, but it
is a good process that is underway. And I just want to say to
Senator Inhofe that I look forward to working with both of you
and with our colleagues here in the Senate in our efforts to
try to pass strong chemical safety legislation.
I look forward to hearing from our witnesses today,
especially the guy in the middle, with whom I was pleased to
serve in the House lo those many years ago. Cal, it is
especially nice to see you. Welcome one and all.
Thanks so much.
Senator Lautenberg. Thanks very much, Senator Carper.
We will proceed with the witnesses. Welcome. Each of you
brings experience and obviously a point of view.
Oh, my goodness, surprise.
Senator Gillibrand I think was the next arrival and we look
forward to hearing from you.
OPENING STATEMENT OF HON. KRISTEN GILLIBRAND,
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. Thank you, Senator Lautenberg, for your
leadership on such an important issue, one that very deeply
affects our constituencies and the whole Country. I appreciate
that the Committee is going to examine the Safe Chemicals Act
which aims to modernize TSCA. And I, too, have read the studies
and reports that have found toxic chemicals in everyday
products.
Since TSCA became law more than 30 years ago, we have seen
an unacceptable rise in childhood cancers, learning
disabilities, birth defects, allergies, asthma, autism and
infertility. Our children are being exposed to hundreds of
chemicals before they are even born. Umbilical cord blood
samples show exposure to over 200 chemicals from BPA, which is
found in plastic bottles, flame retardants which are used in
electronics and in furniture, and PCBs, a known carcinogen that
has remained in our soil and water decades after it has been
banned.
Congress can no longer afford to ignore the failures of
TSCA to prevent public health any longer. The issue of the
effectiveness of our Nation's chemical regulations is extremely
important to all Americans and in particular to mothers like
me. We must stand with parents across the Country who have
joined together to demand better from their elected leaders.
It is just not good enough for the Federal Government to
sit on the sidelines while States are forced to fill in the
void and take matters into their own hands. In my home State of
New York, the State legislature passed critically needed
reforms, like protecting babies from toxic chemicals, BPA in
baby bottles and other cancer-causing chemicals found in
nursing pillows and in baby carriers. In all, 25 States across
the Country have passed 80 chemical safety laws in 9 years,
with overwhelming majorities and strong bipartisan support.
I applaud this action at the State level, but we need a
national policy that ensures chemicals in products are safe in
every State and for every family.
The legislation we are examining today, the Safe Chemicals
Act, changes the current paradigms to put the burden on proving
a chemical is safe on industry and provides that our regulators
need to finally allow this law to work as it was intended. As
the legislation moves forward, it is essential that the final
product make meaningful reforms that will give comfort to
consumers that the products that they purchase for their
families are safe.
Mr. Chairman, earlier this year, I heard the story of Mira
Brouwer, a young girl from Ithaca, New York, who at the age of
just 4 years old passed away as the result of complications in
the treatment for brain cancer. Faced with the loss of her
young daughter, her mother, Chistine Brouwer, founded Mira's
Movement. It is an organization to raise awareness of pediatric
cancer.
[Audience interruption.]
Senator Gillibrand. I agree. I agree with you.
[Laughter.]
Senator Gillibrand. Mira's mother shared her story and her
questions and concerns about what could have contributed to her
daughter's cancer. She pored through study after study that
identified the potential links between chemicals in our
environment and such cancers, just like the one that took
Mira's life. We owe it to Mira and thousands of the children
who are facing similar ailments to ensure that the products
that we produce in this Country and that we purchase for our
families are safe.
Thank you, Mr. Chairman, for looking at this important
issue.
Senator Lautenberg. Thank you very much.
Senator Merkley.
OPENING STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM THE STATE OF OREGON
Senator Merkley. Thank you, Mr. Chair. Senator, your
leadership on this issue has been extremely important, and your
commitment to modernizing the Toxic Substance Control Act so we
can protect our families from exposure to dangerous toxins is
terrific. So thank you for doing that.
Oregon has been a leader among the States in attempting to
limit toxic chemicals, ranging from flame retardants to
mercury, cyanide and so forth. But we are not satisfied. Our
families are not satisfied with the protection from dangerous
chemicals that exist currently.
Oregon is among the top five in the Nation for adult asthma
rates, the top 10 for breast cancer, near the top for autism,
and these kinds of diseases are linked to toxic chemicals in
our environment.
The shocking part for me is that the Environmental
Protection Agency has been unable to protect our families from
exposure because the Toxic Substance Control Act does not
provide EPA with the necessary tools to collect data on
chemical risk and effectively regulate the most toxic
chemicals.
And who are most impacted by this? It is consumers and
families across America who don't know if they are using
products that could be harmful to their health.
Reforming TSCA makes common sense. We know that many
American companies currently have to prepare to abide by the
REACH law in Europe, which requires much higher control of
chemical toxins. We know that many States, as my colleague just
referred to, have gone out on their own to try to pass laws, as
New York has, as Oregon has, as so many have, because of the
vacuum in Federal policy. It makes sense to have a Federal
policy to regulate toxic substances that actually works.
So I look forward to the hearing today and to doing all I
can to help take this important bill forward to protect the
health of Americans across this Nation.
Senator Lautenberg. Thank you very much, Senator Merkley.
And now we ask our witnesses to make their statements.
Today, we are going to hear from a range of experts who have
significant experience in chemical safety: Mr. Ted Sturdevant,
Director of the Washington State Department of Ecology;
Charlotte Brody, Director of Chemicals, Public Health and Green
Chemistry for the BlueGreen Alliance, a national partnership of
labor unions and environmental groups; and Mr. Cal Dooley,
President and CEO of the American Chemistry Council; Mr. Robert
Matthews, a partner in the law firm of McKenna Long & Aldridge,
and counsel to the Consumer Specialty Products Association; and
Dr. Richard Denison, Senior Scientist for the Environmental
Defense Fund.
And we welcome you.
And Mr. Sturdevant, you are the first, and please give us
your testimony.
STATEMENT OF TED STURDEVANT, DIRECTOR, DEPARTMENT OF ECOLOGY,
STATE OF WASHINGTON
Mr. Sturdevant. Thank you, Chairman Lautenberg, Ranking
Member Inhofe and Members of the Committee for this opportunity
to testify. I am Ted Sturdevant, the Director of the Washington
State Department of Ecology.
It is very significant that this Committee is willing to
open the conversation on TSCA reform and I applaud you for the
open and inclusive dialog that you have had to date. And I want
to particularly recognize the leadership of Senator Lautenberg
for offering this legislation, and to Senator Inhofe for
supporting such an inclusive dialog.
This is a critical issue for the States and I appreciate
the chance to share our perspective.
So today, what I would like to do is talk about why States
care so much about TSCA reform; what we have had to do in the
face of an outdated TSCA; and speak just a little bit about the
preemption of States' authority in this arena.
So why do States care about TSCA? As State environmental
agencies around the Country, part of our job is to protect
people and the environment from harmful exposure to toxic
chemicals. When those chemicals come from a pipe or a
smokestack, we know what to do. We have the tools to deal with
that. But when they come from ubiquitous products like foam and
furniture or the plastic casings of a television or toys, we
don't have the tools to deal with those.
We can't intercept chemicals that leave products and get
into our public waterways via wastewater or stormwater runoff
with potential human exposure along the way. We are just not
good at that.
So as we grow concerned about a particular chemical or
chemicals in our States, we face a very difficult choice. And
that is, do we tackle that chemical or chemicals with
inadequate tools and resources or do we look the other way? And
more and more, what you are seeing are States deciding to act
and step up to this. So even with those inadequate tools, that
is the pattern we are seeing in the States.
But our preference is for a third option, and that is for a
Federal system that works. So I want to share an example of
what we face and really how ill-equipped we are to deal with
this kind of thing. In Washington State, we are undertaking a
massive effort to restore and protect Puget Sound, the Nation's
second-largest estuary. And in the city of Tacoma, which sits
on Commencement Bay in the Sound, we have spent over $100
million cleaning up contaminated sediments in the bay. And last
year, for the first time, we started to see improved health in
those sediments, which was great news.
But at the same time, we are seeing phthalates come in via
stormwater runoff and settle on top of those sediments.
Phthalates are plasticizer chemicals that are used in a wide
variety of consumer products. And they are endocrine disrupters
which can have harmful reproductive and development effects.
So I don't mean to open the debate about the science of
phthalates, but we are concerned about these things getting
into the food chain in Puget Sound and concerned about impacts
on people that harvest food from Puget Sound.
So the problem here is that we don't know what to do about
it. We don't have the tools. We don't have any means of really
doing anything about that particular source of pollution. And
we don't have any means of protecting that investment that we
have made in the bay. And I think that this is exactly the kind
of problem that should be addressed by TSCA and don't have
confidence that it will be.
So even without the right tools, as I said, States are
tackling these challenges more and more. In the last 8 years,
18 States have passed chemical policy legislation and I think
it is fair that we will continue to see those kinds of efforts
in the upcoming legislative session.
And it is important to note that this has not been a
partisan issue at the State level. The votes on these things
have been strongly bipartisan because it is a public health
issue.
Now, before I conclude, I want to speak briefly to the
issue of preemption of States' authority. Given the patchwork
of regulations that is taking hold across the Country in
States, some people believe that absolute preemption of States'
authority is necessary. I understand the concern, sympathize
with the concern, but disagree with that approach for two
reasons.
First, as you said, TSCA has not been reformed for 35
years, so the States have been the folks that have filled that
gap in the meantime and we need to have the authority to do our
job, to deal with the unanticipated challenges of the future
that TSCA may not address, even a reformed TSCA may not
address.
And second, we are not doing this because we don't have
anything better to do. We are doing this because we think we
have to, because these challenges exist that are not getting
addressed.
So I believe that if there is a national solution to this
problem, preemption of States' authority really becomes a non-
issue because we will then direct, I think, our scant resources
elsewhere. And we appreciate that the proposed bill preserves
States' authority.
We also appreciate the sensible approach of requiring
minimum data-sets on chemicals and showing that they meet
safety standards. The bill's provisions for sharing data with
States, while maintaining confidentiality and enabling EPA to
deal with the highest-risk chemicals are also appreciated.
So TSCA reform is a big deal for the States. Last year, the
Environmental Council of the States unanimously passed a
resolution calling for TSCA reform, and that represents the
environmental agencies of all the States across the Country. I
don't believe we have ever seen such broad agreement that TSCA
needs to be fixed, whether your aim is to protect public health
or the environment, or to have a more consistent, predictable
playing field for businesses across the States. The solution to
all these things I think is modernizing TSCA.
Senator Lautenberg. Your full statement will be included in
the record, so please forgive me because we want to move
quickly.
Mr. Sturdevant. I was done and I appreciate the
opportunity.
Senator Lautenberg. Your testimony was excellent to this
point. We look forward to having it in the record.
[The prepared statement of Mr. Sturdevant follows:]
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Senator Lautenberg. Ms. Brody, welcome.
STATEMENT OF CHARLOTTE BRODY, DIRECTOR OF CHEMICALS, PUBLIC
HEALTH AND GREEN CHEMISTRY, BLUEGREEN ALLIANCE
Ms. Brody. Chairman Lautenberg, Ranking Member Inhofe and
Members of the Committee, thank you for the opportunity to
appear before you. I am Charlotte Brody, a registered nurse, a
mother, and the Director Chemicals, Public Health and Green
Chemistry for the BlueGreen Alliance, a unique partnership of
11 labor unions and four environmental organizations.
We bring together 15 million Americans in pursuit of good
jobs, a clean environment, and a green economy. We support the
passage of the Safe Chemicals Act because it can create some of
the middle-class manufacturing jobs that our Country so
desperately needs. Between 1992 and 2010, more than 300,000
chemical manufacturing jobs disappeared in the United States.
Employment feel 38 percent in the chemical industry at a time
when all manufacturing declined by 24 percent.
Among the union partners of the BlueGreen Alliance, the
steelworkers represent the majority of organized workers in the
chemical industry. Two other BlueGreen Alliance union partners
also include some chemicals workers in their ranks. These
unions and their members depend upon the existence of an
American chemical industry. We need more Americans making
chemicals and more people using chemicals made in America.
We support the Safe Chemicals Act because we believe it
will spur innovation and the invention of a new generation of
safer chemicals that can be produced in the United States.
I started practicing as a registered nurse around the time
that TSCA became law. If I had practiced nursing the way I did
then, I would be in prison for gross negligence and
malpractice. That is how much as have learned about disease and
treatment since then.
What have we learned about human disease and chemicals? Let
me just use the example of Agent Orange. Decades ago, I worked
with young soldiers coming back from Vietnam. Those who had
been exposed to Agent Orange were informed that their skin
rash, core acne, was the only problem they would have from
their exposure. That is what the science told us then. But over
the last 40 years, new knowledge keeps showing us how wrong we
were.
Now, Vietnam veterans who were exposed to Agent Orange,
even those who didn't have the skin rash, can be compensated
for one kind of leukemia, two kinds of lymphoma, four other
kinds of cancer, as well as diabetes, a type of heart disease
and Parkinson's disease. The V.A. also recognizes as
compensable spina bifida, a defect of the developing fetus that
results in incomplete closure of the spine in the children of
Vietnam veterans born decades later. One chemical; so many
diseases, including in children born decades later.
Forty years ago, we simply didn't understand that chemicals
could do that. Allowing our Nation's chemical management system
to remain lost in the 1970's is its own form of negligence. The
punishment for this negligence is cancer, birth defects,
infertility, asthma, and nervous system disorders. But the
sentence is being doled our indiscriminately to workers, babies
in utero, the people who live at the fence-line of chemical
plants, and millions of other chronically ill Americans,
including people each of you were sent here to represent.
The Safe Chemicals Act would modernize TSCA to reflect what
we have learned about chemicals and human health since the
1970's. The bill's safety standard of reasonable certainty of
no harm from aggregate exposure captures the way good science
works and underscores the legislation's intent to make
chemicals safe.
Especially important for the members of the BlueGreen
Alliance is that workers are identified as part of the
vulnerable populations protected under that standard. The
prioritization system and tiered use of data do a good job of
tackling the huge problems created by decades of unregulated
chemicals and starting to solve that problem with a worst-first
approach.
I represented the BlueGreen Alliance in the stakeholder
process that Senators Inhofe and Lautenberg co-hosted this year
and I comment both of you and your staffs for creating a
careful, reasoned and reasonable dialog.
I was trained as an OB/GYN nurse and I still think like a
nurse. I know that the Senate has become a deeply partisan
place and the proposal that would give the EPA more power to
protect are not popular in every office. But the Safe Chemicals
Act is fundamentally not about politics. It is about mercury in
breast milk. It is about phthalates in newborn babies cord
blood. And it is about the creation of new set of American
manufacturing jobs making chemicals that are 21st century safe.
Doing nothing is a negligent act.
Thank you.
[The prepared statement of Ms. Brody follows:]
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Senator Lautenberg. Thanks very much.
Mr. Dooley, we look forward to hearing your testimony.
STATEMENT OF CAL DOOLEY, PRESIDENT AND CEO, AMERICAN CHEMISTRY
COUNCIL
Mr. Dooley. Thank you for the opportunity to testify on
behalf of the American Chemistry Council, our member companies
and their nearly 800,000 employees about the need to modernize
the Federal system that regulates chemicals. We appreciate the
efforts of Senators Lautenberg, Inhofe and other Members of
this Committee, and we appreciate the chance to discuss our
views about the Safe Chemicals Act.
As I told this Committee in February, ACC strongly supports
efforts to reform the 35 year old Toxic Substance Control Act.
Over the years, public confidence in TSCA has diminished,
contributing to misperceptions about the safety of chemicals,
ill-conceived State laws, unnecessary product de-selections,
and baseless litigation. Safety is a top priority of our Member
companies. We need an effective and reliable chemical
regulatory system that will instill in policymakers, our
business partners, and the public the same level of confidence
in the products that we have.
Over 2 years ago, ACC released 10 principles for
modernizing TSCA. These principles created a road map to a
modern chemical regulatory system that will protect public
health and the environment, while preserving the ability of
American chemicals companies to drive innovation, grow jobs,
and compete in the global marketplace.
In recent months, ACC and other stakeholders have engaged
with bipartisan Committee staff to discuss our respective
positions about legislation to update TSCA. We appreciate and
would like to commend Ben Dunham from Senator Lautenberg's
staff, and Dimitri Karakitsos from Senator Inhofe's staff for
their professional management of these discussions.
Unfortunately, though, today we are discussing a bill that
remains very similar to the bill that was introduced in 2010,
which we consider unworkable. As we discussed during that
process, there are several fundamental flaws in the
legislation.
No. 1, the safety standard. The bill's standard for
reasonable certainty of no harm from aggregate exposure for all
chemicals would be virtually impossible to meet. If EPA were
required by TSCA to consider the aggregate exposure to
substances from every industrial, commercial and consumer
product use of a chemical substance, regulatory paralysis would
ensue.
No. 2, new chemicals. There is a broad consensus even among
TSCA critics that the program to evaluate new chemicals is
working. In spite of this, the legislation would prescribe
significant new data requirements for all new chemicals before
they could come to market. It would also extend EPA's time to
evaluate this data, keeping these chemistries in a State of
limbo.
If EPA is unable to complete its work in a timely manner,
and this is an agency that is known to struggle with deadlines,
the chemical would effectively be barred from entering the
market. Manufacturers are certain to seek more manageable
regulatory environments and produce new chemicals, including
green chemistry developments and other potentially
revolutionary new products, in other countries to avoid
prohibitive costs and uncertainty.
No. 3, minimum data-sets. The bill would create an enormous
burden on EPA and on the manufacturers, with little benefit, by
requiring a minimum data-set for all chemicals. Instead, EPA
should collect data that is needed on specific types and
classes of chemicals, as well as to take advantage of the
massive amount of data that the agency already has access to.
No. 4, prioritization. The bill's prioritization proposal
lacks rigorous criteria and makes no mention of integrating
current knowledge about hazards, risk and exposure, three
factors that are critical to informed regulatory decisions. ACC
recently proposed a transparent and scientifically sound
prioritization process to determine which chemicals should
receive full safety assessments, so EPA can focus its resources
where they are most needed. We believe our prioritization
proposal would be more effective than what has been proposed in
S. 847 and have the details in our written statement.
Reform of TSCA is an important priority, but one that must
be done right. Chemistry will be the source of clean energy,
improved infrastructure, efficient transportation, medical
advancement, and a strong defense, among a lot of other
applications. An ill-conceived regulatory system such as that
which would be created by S. 847 would undermine America's
ability to develop and produce these transformational
technologies and would put the jobs of today and tomorrow at
risk.
Even though S. 847 is not the answer, ACC and the industry
remain fully committed to TSCA reform. We believe we can
develop legislation that will give consumers confidence, that
learns from the success and mis-steps of reforms undertaken by
other countries, and that fosters innovation and job creation.
Thank you for the chance to express our views on this
critical subject and we look forward to continued collaboration
on this issue.
[The prepared statement of Mr. Dooley follows:]
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Senator Lautenberg. Thanks very much, Mr. Dooley.
Mr. Matthews, I'd like to hear from you.
STATEMENT OF ROBERT MATTHEWS, COUNSEL, CONSUMER SPECIALTY
PRODUCTS ASSOCIATION
Mr. Matthews. Thank you, Senator. My name is Bob Matthews.
I am with McKenna Long & Aldridge, where I have the privilege
to serve as counsel for CSPA. Indeed, it is a privilege to
testify on their behalf before this Committee.
I want to make it clear, I think it already is, that CSPA
supports TSCA modernization and it does so for several reasons.
I will list three of them.
First, as has been echoed by several of the Senators in
their comments, there is an erosion of public confidence, and
that comes back to CSPA more than most industries because we
are the branded companies. It is our products that are on
retail shelves. It is our products which are in all of our
homes, in our kitchens in our bathrooms and so on. And so when
consumers are not confident about chemicals in their products,
we feel that directly.
Second, we think that the Federal Government should
reestablish its role as the primary source of chemical
management regulation in this Country. I echo comments
previously stated in that regard.
Third, we think there is an opportunity for the United
States to reestablish its global leadership in chemical
management. A chemical management system should be based on
risk-based analysis of chemicals and establishing standards on
the basis of risk should not be limited to considerations only
of hazard, as we have seen in other jurisdictions.
I do want to say a word about the process that we have been
involved in, and we have been involved in multiple stakeholder
discussions, including not the least of which is the process
that Senators Lautenberg and Inhofe have led and directed. We
appreciate that. We think those discussions have been positive
and constructive. We salute your staffs who have done an
excellent job in moving that process along. They are very good
at what they do.
And we have had similar processes with the NGO's. Richard
Denison to my left and others from the NGO community have
reached out to us and we to them and productive discussions are
going on there as well.
We aren't there, Senator, I must say. We are trying hard.
We have moved. They have moved. And the key to those
discussions has been, and I think it is a word, I apologize if
I forgot who used it, but one of the Senators used it this
morning. The key is to find solutions. And to do that, we have
to understand what is the Safe Chemicals Act? What are its
goals? And are there, where we have problems or we have
concerns about the way it is written, are there alternative
approaches that can solve those same problems and achieve those
same goals?
In that spirit, those discussions have been productive and
I believe we have made progress. We still have a ways to go,
and that is clear.
I want to talk about two issues that our trade association,
our member companies have focused on in particular. And the
first falls directly out of the notion that this should be a
risk-based system. Well, if you are going to do risk analysis,
you need more than just hazard data. You need to understand how
those chemicals are being used, where they are being used, and
what exposures are being created by those uses. That
information comes right back to our industry because we are the
companies who are placing those products with those substances
on the marketplace.
So the issue of use and exposure information is one that
CSPA understands must be part of a modern TSCA, and indeed, we
have for several years promoted the idea that this industry
should come forward with additional information. And we have
said so in our position papers and in the discussions with the
stakeholders and with Senate Staff, we made clear that we are
prepared to step forward under new legislation. And indeed, we
have very specific proposals in that regard that we have placed
on the table.
And the last issue I want to briefly address, Senators, is
sort of the natural fallout from that last point, which is we
understand we need to come forward with substantial additional
information under a modern TSCA. Inevitably, however, when we
do that, some of that information will be confidential. And the
protection of confidential information is critical to this
industry.
The examples we typically throw around, I am not smarter
than these examples, so I will just use them: Coke and its
formula; WD-40; PostIt Notes. Those formulas have been held
proprietary by those companies who developed those formulas for
decades. In the case of Coke, I think it is probably a century
by now. It is just as important to those companies today as it
was then to protect those interests.
So we are concerned that there are not enough rigorous
protections in the proposed legislation. Here again, however,
we think there are ways to come at that issue where we can find
solutions and provide the right balance on both the submission
of information to the agency and the protection of that
information to protect the interests of our member companies.
I will be pleased to discuss any of those issues further
during question and answer.
Thank you.
[The prepared statement of Mr. Matthews follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lautenberg. Thanks very much.
Mr. Denison, we look forward to hearing from you now.
STATEMENT OF RICHARD DENISON, SENIOR SCIENTIST, ENVIRONMENTAL
DEFENSE FUND; SAFER CHEMICALS, HEALTHY FAMILIES COALITION
Mr. Denison. Thank you, Mr. Chairman, Ranking Member
Inhofe. I am testifying today on behalf of both Environmental
Defense Fund and the Safer Chemicals Healthy Families
Coalition, a broad coalition of over 300 health, environmental
and environmental justice organizations and leading businesses
that represent more than 11 million Americans, including the
very young voices you heard in the back of the room a bit
earlier.
Mounting evidence of problems calls into question the
safety of thousands of chemicals that we encounter in our
everyday lives. Here are but a few examples of these problems.
Scientific researchers increasingly link chemical exposures
to serious diseases that are become more prevalent, including
childhood leukemia and brain cancers, which have risen more
than 20 percent since 1975; and fertility problems, which now
affect 40 percent more women than they did in 1982.
Eighty percent of all new chemicals reviewed by EPA are
reviewed without access to any health or environmental
information. That is because the U.S. is virtually the only
developed Country in the world that does not require a minimum
set of safety information to accompany a new chemical.
Residents in low-income communities and communities of
color like Mossville, Louisiana, which is surrounded by 14
different chemicals plants, are routinely exposed to far higher
levels of deadly chemicals like dioxin, vinyl chloride and
benzine than is the general population. And yet such
disproportionate impacts are not required to be accounted for
when the government assesses the risks of those chemicals.
These problems can be ascribed to the failures of TSCA.
They would also be ameliorated by the adoption of the Safe
Chemicals Act. It provides a framework for a systematic
solution to a set of problems that will only be addressed, if
at all, through piecemeal actions. We support the legislation
because it strike a balance between the need to fully protect
public health, including the most vulnerable among us, with the
need to encourage innovation and safer chemicals, and the needs
of the chemicals marketplace and consumers and the public for
better information, with the need to protect legitimate
confidential information.
Since the Act was first introduced in 2010, it has evolved
substantially to reflect input from a variety of stakeholders.
Changes have been made that both boost its health protections
and make it more workable and ease its implementation. I give a
number of examples of those positive changes in my written
testimony. I also detail how the reforms of the Safe Chemicals
Act would fix the major flaws of TSCA.
But let me now turn and emphasize in my oral statement the
opportunity we see to capitalize on what is a truly remarkable
consensus among a broad array of stakeholders that Congress
must reform this law. The need is urgent because it is not only
failing to provide health protections, it is failing to provide
industry with a stable environment in which to conduct its
business, and its customers with confidence in the safety of
its products.
We recognize that reform must meet the needs of a variety
of stakeholders, and that is why our coalition has been deeply
engaged in dialog with the industry. We have ongoing dialogs
with the American Chemistry Council, with the Consumer
Specialty Products Association and its members. We have met for
many days over the past 6 months to narrow our differences.
Eight members of our coalition traveled to the headquarters of
both the Dow Chemical Company and Procter and Gamble to hear
first-hand about their businesses and understand their
perspectives for TSCA reform.
We strongly have endorsed and support the bipartisan
leadership shown by Chairman Lautenberg and Ranking Member
Inhofe to convene a process of stakeholders to explore how we
can move this bill forward in a way that is truly bipartisan.
Let me say that while the details of many of the dialogs we
are involved in are confidential, we have made substantial
progress. In our dialog with CSPA, we are on the cusp of
agreeing to recommendations for legislation to deal with the
issues that Bob just mentioned: confidential business
information and reporting of robust information on the use of
chemicals.
Based on my deep involvement in these dialogs, I believe
there is not a single issue that we cannot find the solution
to. EDF and our Coalition would welcome the opportunity to
share the bridging concepts we have identified, along with the
companies with whom we have engaged.
We urge the Members of this Committee to act now to forge
and advance bipartisan reform legislation in this Congress. It
represents a once-in-a-generation opportunity to create a new
chemical management system that sustains our health, our
environment and our economy.
Thank you very much.
[The prepared statement of Mr. Denison follows:]
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Senator Lautenberg. Thanks very much, Mr. Denison.
And I thank each one of you.
It is interesting to hear some divergent views, not
unexpected. This is a complicated subject, but it is I think
less than help to solve our problems as to look at
unenforceability, that kind of thing. I mean, I believe, and it
was summarized by a couple of you, and that it is the number of
people who have expressed concern, the number of conditions
that violate our sense of what is right in terms of our
responsibilities.
There is no doubt in my mind and minds of responsible
scientific units, scientific bodies that there are problems
lurking out there. And in the design for us to try to deal with
those, does a single child's endangerment require a bill passed
in here, a piece of legislation? Probably not, but when you
start to see it all over the Country and the statistics tell
you that there are problems with fertility and problems with
this, and exposure, of course, Ms. Brody, to Vietnam, that is a
classic in American history and the chemical business.
But, look, my mission, and I said it earlier, and I think
that Senator Inhofe and I have set the kind of a platform that
says say what you want; say what you believe. But keep an open
ear to what is going on. Keep you eyes open as to what is going
on with the fright that exists over the condition of children.
There is one statement that wasn't really a statement. It
was the child's voice. We loved hearing that. I have 13
grandchildren.
So I ask Ms. Brody, the chemical industry employs more than
70,000 people in my State of New Jersey. I want to protect
these employees, their jobs and their health. And you are a
member of the United Steelworkers Union and a representative of
other unions that work with chemicals. How many people are in
the steelworkers union?
Ms. Brody. The steelworkers union has about 1 million
members right now.
Senator Lautenberg. And the total membership of your allied
groups?
Ms. Brody. Between the 11 unions and four environmental
organizations, 15 million people all together.
Senator Lautenberg. How might reforming TSCA, as we
propose, affect employment in these industries?
Ms. Brody. Earlier this year, Senator Lautenberg, we did a
study of the economic benefits of a green chemical industry in
the United States. And we commissioned the University of
Massachusetts-Amherst to really tell us what was going on in
the chemical industry and what could TSCA reform do positively
or negatively to impact that industry.
Because first and foremost, we need each of our members
working and we need to do something about the economic crisis
in the United States. And what we found is that unemployment in
the chemical industry didn't start to go down during the great
recession of 2008, but actually has been dropping since 1992.
So that 38 percent of the jobs that used to be there aren't
there anymore, and that this happened while the chemical
industry stayed profitable at 4 percent per year during that
entire time.
And that what had been going on is that the chemical
industry had stayed profitable by cutting costs, by cutting
research and development costs so that they were less than half
of industry overall, and by cutting labor costs and putting
people out of work.
And the TSCA reform actually, by moving us from a time when
the smart money in the chemical industry is on making the stuff
you were making 40 years ago, to a new day when making safer
chemicals lets you create more market share; could actually put
people back to work and turn those numbers around.
Just one point that we noticed in this, the only part of
the American chemical industry that has been growing jobs and
growing in profitability is the most regulated part, the part
of pharmaceutical chemicals, including a lot of people working
in your State who actually are employing more people every year
in the one part of the industry where companies have to prove
that their products are safe before they are put on the market.
Senator Lautenberg. Thank you.
Mr. Dooley, over the summer, the American Chemistry Council
suggested alternative language for one small, but important,
part of the Safe Chemicals Act. Providing that kind of specific
proposal increases the odds that we can find a bipartisan
middle ground. Now, are you willing to commit to providing
specific alternatives to all the other sections of the Safe
Chemicals Act that you strongly criticized?
Mr. Dooley. We have been involved in constructive
discussions through the process that was sponsored with you, as
well as with other stakeholders. And I think that we have seen
progress at a very high level in terms of general concepts on a
host of issues.
But unfortunately, we think that this is an issue of such
complexity that it is going to take a significant period of
time to really resolve all those very, very complex and
difficult issues. And we have provided the example, one of the
most recent examples was attached to our testimony, was I think
the most comprehensive proposal for a prioritization process
that we submitted to the Committee, as well as to EPA.
We are committed to do that on a host of issues.
Senator Lautenberg. Yes, but again, will you provide your
specific alternatives?
Did you hear my question?
Mr. Dooley. Yes, I did. We will provide the information and
our ideas in the appropriate fashion.
Senator Lautenberg. Thank you very much.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
I have just two questions, one that I am going to ask Mr.
Dooley. It is nice to be with you again. You have a lot of
people up here with whom you have served in the past.
I am concerned, and you have addressed this, but not
thoroughly enough, about how this could adversely affect new
products. That is what I am concerned about. I have always
taken great pride that we try to be ahead of the rest of the
world, and could you address that for me?
Mr. Dooley. I would be delighted to. I would like to use
maybe our greatest concern about the underlying bill, with the
safety standard which would require us to provide with a
reasonable certainty and no harm a chemical from all aggregate
exposures.
Basically, what the intent of this legislation is to adopt
the same policy and procedures that we use for pesticides,
where you actually have a risk cup. I was a farmer prior to
coming to Congress. I dealt with pesticides. And when you
registered a pesticide, you had a limited number of
applications on a limited number of crops for a product that
was going to be biologically active and try to kill either a
bug or a weed. You could define those pathways of exposure.
That process does not work on industrial chemicals that
have thousands and thousands of pathways of exposure. And I
will provide this to the Committee at an appropriate time, but
we have a chlorine tree here, which shows the hundreds and
hundreds of different products that chlorine is used in. Now,
if you use the proposal of the safety standard that is under
this legislation, it would require anyone that was going to be
making a new products or a new mixture that had chlorine in it,
they would have to do an aggregate assessment of the exposures
resulting from not just their new product, but from all uses in
commerce today.
And so if you think about it for a minute, chlorine is in
this water. It is an integral part of trying to make sure it is
pure. Chlorine is in the varnish that is on your desk. Chlorine
is in the semiconductors that are in your phone.
So does chlorine, if you had this risk cup perspective,
does the chlorine that is in the water, does it fill it up this
much? In the ink, does it fill it up this much? In the
semiconductors, does it fill it up this much? Maybe in the
batteries in your pacemaker, does it take it up to the top?
And so you have a new innovative company out there that has
a new application for chlorine that might be the cutting edge
technology that is going to ensure that the U.S. manufacturers
are going to be the lead in solar cell technology, yet the risk
cup is full. And so where do they go? How do they ensure that
they can get approval from EPA? How can even a startup company
that has limited resources and capacity, how do they even have
the ability to assess the aggregate exposure?
This bill with this safety standard is a prescription to
deny the U.S. manufacturers' ability to be at the forefront of
innovation and creating jobs.
Senator Inhofe. Thank you, Mr. Dooley. This might be my
birthday, but I don't have a pacemaker.
[Laughter.]
Senator Inhofe. One last question, a little bit over our
time, but I just want to ask Mr. Matthews, because I have heard
it stated very times that States are ill-equipped to deal with
these things. And the term that has been used is ``a complex
maze of regulations across the Country.'`
Could you address that?
Mr. Matthews. I would be pleased to do that. I think
Senator Gillibrand indicated numbers I hadn't even seen before.
There were something like 25 States that have adopted 80
different chemical management laws over the last 9 years. And I
think we heard testimony from Mr. Sturdevant that that is a
difficult issue for States to take on because they don't
necessarily have all the tools to address the toxicity of
chemicals and to understand the use and exposure information
that I referred to.
And that this would be best done at the Federal level where
we can marshal resources one time in this Country, not
duplicate that, and assure that at whatever the standard
actually is, we have uniformity in that regard so that a
company like a S.C. Johnson or a Procter and Gamble, which has
products in all the retail shelves and in all of our homes, can
have one 50-State strategy, instead of a strategy across
multiple States, now 25 and growing, for formulation, for
labeling and so on.
So I think on both sides of the issue, it is both
unburdening the States in a very difficult area. It is reducing
the resources in this Country that are being applied to doing
that from potentially 50 down to one Federal Government role.
And it is industry that will be able to, in our industry in
particular, to market their products knowing that if they meet
the Federal standard, they will have provided a safe product to
the marketplace.
Senator Lautenberg. Senator Cardin, please.
Senator Cardin. Well, first, Senator Lautenberg, let me
thank you for your leadership on this issue. You have been
incredible in pointing out the risk factors and putting a face
on it as to the individuals who are impacted by what we do, by
our failure to provide adequate protection. So I thank you very
much and I thank you for holding this hearing.
Mr. Dooley, it is nice to see you again. I respect very
much your views. I was interested in your oral response, but I
read your written statement also where you point out that the
Toxic Substance Control Act needs to be changed. I looked at
what happened in my own State of Maryland with BPA, where
because of the inability of the national government to provide
safety standards, the State had to act.
It is not the ideal circumstance. The ideal circumstance is
to have the Federal Government provide the blanket protection
we need for the Nation, allow States to be able to push the
envelope if they can, but to know that there is the backstop at
the national level. We don't have that today.
So I very much value your judgment, and I want to followup
on the Chairman's point, that we need to work together. We need
to make sure that we encourage innovation. I am all for that.
But I was disappointed by your response to Chairman Lautenberg
because you said it could take a lot of time. Too many people
are affected by this. We have to get this moving. We can't say
let's wait another decade for a study to come back and then
determine what we should be doing at the national level.
This is a safety issue. And we need your help and we don't
have time. And we need to do this in a bipartisan manner. I
agree with that. But you have the expertise, but you also have
the credibility so that we could get something done sooner
rather than later that will help the people of this Country and
help job growth in this Country.
So I just encourage you to have a greater sense of urgency
than at least I interpreted from your reply.
Mr. Dooley. Well, I guess, Senator, I would respond is that
I think it is unfortunate that we are having a hearing on this
legislation today; a bill that is very similar to that which
was introduced 2 years ago; a bill that we have been involved
in extensive discussions with Senator Lautenberg and his staff,
explaining what our concerns and objections were; that we have
had extensive conversations with the NGO community, telling
them what our concerns and objections were, as well as some
ideas in terms of how they can improve it.
And when we are faced with a situation, if we would have
seen maybe another iteration that showed some progress, the
tenor of our comments might be a lot different.
Senator Cardin. And I would point out, if we had your bill
before us so that we could take a look at it and compare it, I
think it would be more constructive. The Chairman challenged
you to come forward with recommendations. It is not one-sided
here.
Mr. Dooley. And we have provided significant
recommendations. I would be delighted to meet with you and your
staff and explain. And in terms of the safety standard that you
have proposed here that we object to, we have an alternative.
Senator Cardin. The question is this. Here is the point.
You say in your statement that the current law needs to be
reformed. If the industry truly believes that, then you need to
come forward with what you believe is necessary, and respond
point by point to what Senator Lautenberg has put in his bill
so that we can sit down here and try to make some sense out of
this.
But if your objective is to defeat legislation, if that is
your objective, then I understand what you are doing. But if
your objective is to get legislation enacted, I don't
understand what you are doing.
Mr. Dooley. Our objective is to see the modernization of
TSCA in a way that provides the appropriate level of safety,
ensuring the safety of the chemicals that are used for their
intended purposes that are in commerce. And ensuring that we
can do so in a manner that allows this U.S. chemical industry
to continue to be at the forefront of innovation.
Senator Cardin. I accept that.
Mr. Dooley. They are not mutually exclusive.
Senator Cardin. I accept that. Then I just urge you to be
more forthcoming on your recommendations so that we can try to
get to where the real problems are, and try to get the ability
at the national level to provide the safety standards that
allow innovation, which is what the industry needs and what the
American public needs.
That is why I just urge you to be more open so that we can
get answers to the issues that have been raised. We don't want
to continue under the current system that puts such a burden on
States to act because of the failure of the Federal Government
to provide the basic protection that is needed.
Mr. Dooley. The only thing I will conclude, this is my last
comment. Sometimes I would say we have been providing answer.
We have been providing solutions to what the industry likes and
would like to see, which we think would be appropriate.
Unfortunately, they are not the answers that some of the
authors and some of the proponents of the legislation,
supporters of the legislation that we are testifying on today
want to hear. And so just because they are not embodied in this
legislation doesn't mean that this industry hasn't been
offering what we think are concrete solutions and proposals.
Senator Cardin. I appreciate that. I will make one final
observation here. It is clear in this political environment,
the way we get legislation enacted is for both sides to come
together. This Committee has a history of working together on
issues. We just passed out a surface transportation bill by an
18 to zero vote. It contains some things in there I don't like.
It contains some things in there Senator Crapo doesn't
particularly like, but we were able to get it done.
If there is a good-faith effort to get legislation enacted,
then participate with us. If you objective is to make sure
nothing gets through this Congress, then I understand what you
are saying. But be straight with us as to what your objective
is.
Your testimony leads me to believe that you want to see
reform passed by the U.S. Congress and signed into law. If that
is the case, I don't know where you are on this issue. I know
Senator Lautenberg's bill. I have read Senator Lautenberg's
bill. I would welcome specifics, rather than just saying no,
this doesn't work; this doesn't work; this doesn't work. What
works?
And I will just conclude by saying, Ms. Brody, I
appreciated your response to say that regulation does create
jobs if we do it in the right way. Thank you for that point.
Senator Lautenberg. Thanks very much.
Senator Crapo.
Senator Crapo. Thank you very much, Mr. Chairman.
Again, I want to thank you for holding this hearing today,
and specifically, I want to convey my thanks to you for being
willing to work with us in a bipartisan fashion.
Senator Cardin is right. We have an incredibly toxic
political environment here in Congress right now, but this
Committee is one of the committees where that brutal toxicity
has not yet been able to rear its head. We have some fights and
obviously we have some different points of view, but we have, I
think, a good-faith intention on the parts of all of the
Members on this Committee to try to find the common ground and
build the consensus to make progress in the ways that will
benefit our Country on all of these issues.
And I just want to relay that message to all of the
stakeholders on this issue. I believe that the Members of this
Committee are sincere. And I will say to my colleagues on the
Committee, I think that the stakeholders whom I have worked
with are sincere and want to find a solution to the problems
that we face. And so I will tell you, that is the only way that
we will be able to move forward, particularly in this political
climate.
So I just wanted to make that comment. I wish Senator
Inhofe was here so I, too, could wish him happy birthday, but I
will do that privately as I get a chance to do so a little bit
later.
With regard to the questions I have, I think I will start,
Mr. Matthews, with you. TSCA was designed to be a chemical
management statute, and we are moving into a focus now on
approaching it in the light of protecting workers and first
responders and so forth, at least in one context of the
discussion.
Could you discuss those dynamics as to how do we try to
move forward and achieve that re-focus?
Mr. Matthews. Yes, Senator, thank you.
Yes, I agree with the premise that TSCA is a chemical
management statute. It is worth reflecting on the fact that
there are other statutes and other agencies besides EPA who
have a role in some of the issues which are being or would
propose to be addressed through the Safe Chemicals Act, and
that is an area of concern that there would be overlapping and
inconsistencies.
It is a big job to define the right standard, to run
chemicals through the criteria that would be adopted for
safety, and to define what a safe use of those chemicals is.
And Senator, you may have been absent when I was talking
about what we think is needed here is substantial additional
use and exposure information, and to some extent that will
cover some of the areas that you have identified of concern.
So I don't think there is an inconsistency in the notion
that this law can and perhaps should provide enough data so
that there is a fuller picture of where it is being used, how
it is being used, and the exposures that are being created.
But at some point, I would say, Senator, that the line has
to be drawn where while that is true, if we start to regulate
workplace exposures we are going to run into conflict with
OSHA, and that is probably, I will say in my judgment, more
trouble than it is worth. I think OSHA is a robust statute and
can and is being administered appropriately.
One other specific you mentioned I think was emergency
workers. And I will say this, we have discussed that issue. It
is a little down in the weeds, if I may say that, but it is an
important issue, but it is below the level of trying to find
common ground. That is not the driver.
But it has come up, for example, in the context of
confidential business information. And in that context, we have
talked about there will be circumstances where speed and the
disclosure of information is critical, and are there ways in
which that can be accomplished while, again, still protecting
proprietary considerations.
And I think we have begun to identify some of those
alternatives. And again, I would use the word, as other
Senators have here, it is all about finding solutions to the
problem which we mutually agree must be addressed through this
law.
Senator Crapo. Well, thank you. And let me just raise
another issue. It kind of relates to the unintended
consequences issue, but right now we are seeing, in my opinion,
in the Federal Government, at the Federal level across many
different industries and issues, an explosion of regulatory
activity.
Now, I understand that there are different points of view
about the impact of that activity on the economy and on safety
and soundness and other factors. One concern that I have is
that as we move forward in looking at what the proper statutory
and then ultimately regulatory climate should be, is that we
have a multiplicity of agencies with jurisdiction over same or
similar activities.
Not in this area, but we have been doing a lot of activity
in the financial arena recently in terms of regulatory
activity, and there are some companies who deal with as many as
five or six or seven regulators. And in some cases, they
actually have different definitions of the same kinds of
activities and different requirements on the same activities
that are impossible to meet. In other words, they can't meet
one without failing to meet the other. And we run into these
inconsistencies in the regulatory world.
I don't know the answer to this question, but do we face
that kind of risk here in terms of the potential for not
identifying accurately where the jurisdictional boundaries are
between different agencies?
Mr. Matthews. Senator, if that question is directed to me,
I would be pleased to say yes, we do face that. I think earlier
testimony about the States stepping into the vacuum and
creating many different rules for similar chemicals and similar
products is one example of that.
I think at the Federal level, as we just mentioned, the
notion that a substance may be used in different products and
suddenly that implicates OSHA; that implicates FDA
considerations and other agencies. It is a reality. There is no
perfect solution to that. But I do think that care needs to be
taken in adopting a reform TSCA that we don't, with respect,
that Congress does not go too far in creating additional
conflicts where, again coming back to the purpose and goal,
this is chemical management legislation and I think that that
needs to remain the focus.
But I must underscore again, at the risk of repetition,
that the information that will come to the agency will be
substantial; will have implications elsewhere; and certainly
this law as drafted, if I recall, permits under defined
circumstances the sharing of that information with other
agencies which have the appropriate authorities to address some
of those other issues.
So I do agree that this is a consideration and we just need
to keep our eye on that ball as we go forward.
Senator Crapo. Thank you. I know some of the others may
want to respond to this, but my time is up, so maybe in a next
round I can get further into that.
Senator Lautenberg. Thanks very much.
Senator Udall?
Senator Udall. Thank you, Senator Lautenberg. And I thank
you for holding this hearing and know that you are always
looking out for your children and grandchildren and concerned
about these kinds of impacts, chemicals on them; and also
looking out for consumers. So I appreciate your laying a bill
out there.
I also am concerned about this matter that was brought by
first the Chairman and then by Senator Cardin. And I think
there is definitely an issue of urgency. Maybe I should just
approach this a little different way because I think the thrust
of the question is still the same, though.
While EPA maintains a list of chemicals under TSCA, which
is nearly 80,000 chemicals that are out there, only 200 have
ever been examined under the Act and only five banned. Testing
by the Centers for Disease Control and Prevention has found
more than 212 industrial chemicals in the bodies of most
Americans.
And there have been a lot of television programs. I
remember one Bill Moyers did where he went and got his blood
tested and he said, ``I'm walking around with all these
chemicals and I am a guinea pig.'` And I think people have seen
that and they know that is out there and they are concerned
about that.
And of these 212 industrial chemicals in the bodies of most
Americans, including at least six known carcinogens and dozens
have been linked to cancer, birth defects and other adverse
health effects, GAO has called TSCA a :high-risk area of law
ripe for reform.'`
So my question is, Mr. Dooley and Mr. Matthews, are you
advocating for our body burden of chemicals to go up over time?
So are you saying 10 years from now, instead of 212, we should
have 400? It is kind of a simple question, yes or no.
Are you pushing for, because that is what the urgency is
here is to try to say we are in an unacceptable situation.
There is I think some suggestion here that we may mark up this
bill. If you are marking up a bill, you want to see language.
And I think it is very urgent that we see something more than
just criticism of the particular language that is in the bill.
But please, on the body burden question. That is just a yes
or no question, Cal.
Mr. Dooley. It is a no.
Senator Udall. So you are not advocating for it to go up?
OK.
Mr. Dooley. No. The issue, Senator, is that we have to have
a system in place.
Senator Udall. And are you concerned about it?
Mr. Dooley. We are absolutely concerned about it, and we
think, and that is what we are advocating for the modernization
of TSCA. There has to be a system in place that ensures that we
can do an evaluation of the safety resulting from a combination
of evaluating the hazard and exposure of a particular chemical;
understanding in terms of what it the exposure resulting from
use of that chemical for its intended purposes; understanding
at what level and threshold that chemical might pose a risk to
health and safety.
And then when we make a determination through the
regulatory process and EPA having the authority there, they
determine that this risk of exposure is too high, well, then we
have to put in place controls. We totally support that. And we
are doing that today when we are engaged with EPA in submitting
new chemicals for approval. EPA has a lot of authority to do
this today. And we work with them, trying to ensure that we are
responding appropriately.
But it is, you know, I will be honest. I take offense when
anyone would even insinuate that our industry is supporting an
increase in the body burden of chemicals over a period of time.
Senator Udall. Well, that is where we are headed right now.
Where do you think we are headed? Because it has been going up
year after year. We put TSCA in place in 1976 and what has
happened since then? TSCA and the regulatory agencies don't
have the ability. You know that. They do not have the ability
to pull chemicals off. One of the most dangerous chemicals was
asbestos. We had a failure to regulate under TSCA. It is a
carcinogen, outright carcinogen.
So I don't think you can sit there at the table and say,
oh, yes, we want to see them pulled off. They are going up and
up and up.
Mr. Dooley. There needs to be a process in place, which we
support, where you would have a scientific evaluation of the
exposures of the chemical that we have determined that pose a
safety or environmental risk. There needs to be a process in
place that ensures that the industry can manage those exposures
in a fashion that ensures that the threshold of that exposure
and the amount of those, the body burden of those does not pose
a health and safety risk.
Senator Udall. I am really sorry. I have run over time
here. Mr. Chairman, I wish I could stay and hear more of the
testimony and hear Senator Carper, who I know is a great
champion for consumers on this. I am going to have to leave,
but you need to pursue this bill. We need to mark up this bill.
We need to move forward with this.
Thank you.
Senator Lautenberg. Thanks. And while you are still here,
Senator Udall, the conclusion from our friend Mr. Dooley, I
think it is summarized broadly that this is a prescription for
failure. And when we give it that kind of an umbrella, the sun
is not going to shine through there, but we will talk more.
Please, we are anxious to hear from Senator Carper.
Senator Carper. Thanks, Mr. Chairman.
I am not going to pick on former Congressman Dooley. His
reputation in the House was actually somebody who was pretty
good at working across the aisle and pretty good at coming to
consensus.
And I am going to ask you, and then I am going to ask the
other four witnesses as well, to join in just answering a
couple of questions. And one of those is what would you say is
maybe the largest outstanding issue that the environment and
public health communities and industry need to come together on
in order to further strengthen this proposal, but to also get
it passed? At the end of the day, we need to enact something.
And would you just respond to that? And I will ask our
other witnesses to do the same.
Mr. Dooley. I would contend that really the most important
issue that we need to come to grips on and find a consensus on
is on the safety standard, is where we contend that the
reasonable certainty of no harm from aggregate exposures we
think will lead to paralysis on the regulatory agency. It is
not conceivable for industry to meet, and so we need to see
some modification of that for a workable solution.
Senator Carper. All right. Let me ask Mr. Sturdevant.
Mr. Sturdevant. I would echo that. I think getting the
right safety standard that ensures that, A, it has to be a
safety standard that can be met; but B, just flipping this
paradigm where we put chemicals out there and then see what
happens over the course of year, I think moving that up front
so we know that these chemicals are safe before going into
commerce is the right thing.
Senator Carper. All right.
Ms. Brody.
Ms. Brody. I agree it is the safety standard. But I have
been doing this long enough that I remember when the American
Chemical Council and its previous names was opposed to TSCA
reform. And it is only under Mr. Dooley that that position has
changed. So I appreciate the leadership that has created that,
but I have sat in too many rooms like this where the chemical
industry said that TSCA was working perfectly well and that all
chemicals in use were safe.
So I think the safety standard is a really important
conversation, but I think we have to actually sit down and say
if reasonable certainty of no harm from aggregate exposure
isn't the right standard, what other words give the American
people what this law is supposed to do, a way of knowing that
chemicals in use are safe.
Senator Carper. OK. Thank you for those comments.
Mr. Matthews.
Mr. Matthews. Senator, I agree that the safety standard is
at the heart of it all. I would just add that for this statute
to work, it has to be, we think, a risk-based approach. And for
risk-based determinations to be made, the system needs better
use and exposure information. Our industry has said we
understand that and we are prepared to come forward and provide
that information, and we think that will make a substantial
difference.
Second, having said that, we are extremely concerned about
the provisions in the proposed legislation on confidential
business information. We are concerned that it will be a
disincentive to innovation; that it sets artificial timelines
for the expiration of proprietary information that in many
cases is unrelated to a timeline. And so that, and that are
other aspects of the CBI issue that concern us.
And on one related point, I would like to say a word about
new chemicals. While that is primarily an issue that ACC has
championed, there is a very direct affect on the downstream
community. And that is that if they can't innovate, we can't
innovate. We rely on our suppliers to help us find the right
products that our customers and consumers are interested in
buying, and we don't want to stay with the same products that
have been on the shelves, I think, for the last 40 years was
the reference.
And so we echo the concern that the new chemicals program
if it is working should not be so radically changed as to make
it a disincentive to develop newer, greener, safer chemicals.
Those are my thoughts.
Senator Carper. All right. Well said. Thanks.
Mr. Denison.
Mr. Denison. Thank you, Senator. In my view, the most
important issue is to ensure that a reformed TSCA uses the best
available science to make decisions about chemicals. Many of
the issues that are in contention are actually recommendations
of this Nation's highest scientific body, the National Academy
of Sciences, that calls on EPA to assess the aggregate risks of
chemicals, that we are constantly looking at one use of a
chemical at a time and we are looking at an average population
exposure, rather than protecting the most vulnerable
populations that may be more susceptible or more highly
exposed; and rather than understanding that people are being
exposed to chemicals from multiple sources.
I think we have to find a way to make a workable approach
to dealing with aggregate exposure, because I would agree with
Mr. Dooley that it is more complicated than it is in the
pesticide area. But the notion of pretending like we can look
at one use of a chemical at a time and not look across those
uses and aggregate it is simply inconsistent with the best
available science today as it is being even practiced today by
the USEPA.
Senator Carper. OK. Thank you all for responding.
Mr. Chairman, my time is expired, and I don't have time to
ask this question or at least get answers for it. But I at just
want to put it on the table and then will followup in writing.
But over the last couple of years, several nations, I think
among them Canada, Australia, maybe Korea, China, parts of
Europe, and some other countries have undertaken reforms of
their own nation's chemical safety laws. And the question I
will ask you to answer for the record is: What can we learn
from them? What should we drill down on and take away from
those experiences?
I used to say when I was Governor that some other, whatever
issue we are working on in Delaware, I used to say some other
State has solved this issue. They figured it out. They solved
it. What we have to do is find them and figure out what they
did. And so I think that might be helpful as well.
I have a couple of other questions. That is one of them,
but thank you all very much for coming here. We need to address
this. We need to find a way to come together. And my hope is
that under the leadership of our Chairman and Senator Crapo,
Senator Inhofe and a lot of people's good will, we can do this.
Senator Lautenberg. Yes, we will keep the record open for
some time and would ask that anything submitted to you in
writing, please as prompt as you can, as fully as you can.
Now, we are pleased to have Senator Whitehouse with us.
Senator.
Senator Whitehouse. Thank you, Chairman Lautenberg and
Ranking Member Crapo. I am delighted to be here with you and I
appreciate the work that you both have done to try to come
together on a TSCA reform bill.
My question is for Mr. Dooley about the American Chemistry
Council. It is my understanding, correct me if I am wrong, that
the American Chemistry Council has not yet come up with
proposed statutory language that would propose the changes that
you think are necessary; that your contribution so far has been
more that of a critique of the existing language than a
proponent of an alternative.
My specific question is, if I am correct about that, would
you provide the Committee with a detailed redline of the Safe
Chemicals Act this year so that we can see specifically what
your proposal is and have that to work with as we try to move
forward.
Mr. Dooley. We would be prepared, as we have been engaged
in substantive conversations on how we think that we can most
effectively move forward with a modernization of TSCA. And we
can offer suggestions in terms of how we think the legislation
should be constructed.
Senator Whitehouse. Would you put those suggestions in
writing in legislative format so we can be specific about them?
Mr. Dooley. In terms of serving in Congress and now serving
in the outside world, we obviously have some concerns about
what is the prerogative of the institution, versus an outside
entity in terms of responsibility. My view is that it is your
prerogative and the Committee's and Congress's prerogative in
terms of actual drafting of legislative language. But we are
certainly committed to be a partner to help ensure that in your
construct of that language it would reflect our policy
priorities would be.
Senator Whitehouse. This is nobody's first rodeo here, and
we have all certainly been involved in legislative matters in
which the private sector has a very specific point of view.
Indeed, from time to time, we are presented with legislation
that has actually been drafted by industries.
So I think the question about the prerogative is one that
really by the boards and it is really more a matter of
willingness. And I would urge you to do what you can to try to
put your desires and wishes into a redline markup format. I
think that is the most effective way for you to engage. I
believe you want to be constructive. I think if you don't put
ideas forward, but are simply sniping from the woods on the
sides, it doesn't create the image of somebody who is trying to
be constructive.
People can say no and move the ball around all day long,
but it is a positive effort to go through the trouble, as we
have all discovered when we are drafting legislation, to try to
put something in writing. And I think it would be an important
sign of good faith and good will and a desire to make progress
on the part of the industry if you would reconsider that and
put something into writing.
I think it puts you in a much better position and a much
fairer position, and it lets the other interests who are
engaged in this discussion have a sense of where you really
stand and that you are not just kind of in the weeds saying no
to things. And I don't think that is the place you want to be,
but I think unless you do that, that is the place where you end
up being.
Mr. Dooley. I just think it is kind of interesting that it
was over a year ago, I guess, that there were a lot of folks
concerned that we would be working with some Members of
Congress that we thought would be more aligned with our
interests and having them introduce a bill that would reflect
our interests. And I think a lot of folks determined that that
would be counterproductive to a process going forward.
Senator Whitehouse. That is not our process. We now have a
bill and we are simply asking for a redline proposal.
Mr. Dooley. And I guess this where there is just a note of
frustration. We have met with Members of this Committee staff
on the majority side. They are pretty aware of what we think
needs to be, and we have given them ideas and suggestions. We
haven't given them legislative language, but they are not
reflected in the draft that we have today. And that is not
necessarily because of a lack of specific suggestions that we
have offered, but it is a fundamental disagreement on the
direction to go.
So I don't want people to think because we haven't
necessarily provided specific legislative language that we
haven't engaged in offering some pretty specific solutions, but
there could be that they are not reflected in the legislation
because there is a fundamental disagreement.
Senator Whitehouse. Well, my time has expired, but I
continue to believe that it would be both advisable and helpful
to the process if you would take your wishes for this
legislation and actually make them public and write them down
in a way that everybody can look at and comment on them.
Thank you.
Senator Lautenberg. Thanks very much, Senator Whitehouse.
You weren't here before, but we are still planting what I will
say is old ground here.
Mr. Dooley, you have been here. You know it isn't, and the
reason you don't get to pick out the people that you want to do
these things, you don't have the votes. That is fairly simple.
And you are a smart fellow and you know that as much of a bite
of the apple as you would like to take, that it is never going
to be a majority.
So please do what you can to respond, and where we fail,
you know, point that out in more specific terms, but be as I
think you see running through here, a little more constructive
instead of unenforceable and that kind of thing. Figure out
ways to get it done. You have a powerful organization there and
we are happy to see you here, but with your compliments about
my staff and the other Members' staffs here, I thought we were
maybe going to clean house. But I have thought it through, and
they are really very good, as you described them in the
beginning.
[Laughter.]
Senator Lautenberg. So we will go on with a couple of
questions that I have, and Senator Merkley is back, and Senator
Crapo is still here.
I would like to ask Mr. Denison a question. The Safe
Chemicals Act as prescribed would require the industry to
demonstrate the safety of new chemicals before they enter the
market. And some have criticized that that requirement is too
burdensome and have suggested preserving TSCA's current
approach to new chemicals.
What is needed in terms of new chemicals to have some
strength in this program?
Mr. Denison. Thank you, Senator.
I think given the limited authority and capacity that EPA
was given under TSCA, it has done as good a job as it can in
trying to address new chemicals coming onto the market; 1,500
notices are received every year. EPA has to process those
within 90 days. And one of the major flaws is that it has, in
almost all cases, no data that is submitted along with those
chemicals by which it can make a decision about whether to
allow that chemical on the market or impose conditions.
The other countries in the developed world require a
minimum set of safety information to come in when a chemical is
filed. And that is something that the Safe Chemicals Act would
address by requiring a level of information.
Now, the bill indicates already that the level of
information ought to be tiered and varied based on the nature
of the chemical, how much is produced, how it is going to be
used, and what else is known about it. So I want to emphasize,
it is not a one-size-fits-all requirement. It would set an
extremely high bar for any new chemical to get on the market,
but there needs to be sufficient information for EPA to make a
reasoned decision.
Moreover, TSCA fails to have a mechanism by which EPA can
readily revisit a new chemical after it is on the market should
its production or use pattern change significantly. Only if it
goes through an onerous regulatory process for each and every
chemical can it get that kind of look-back provision, the
ability to look again at a chemical if its use has expanded,
for example, into a consumer product category that it wasn't
used in before.
The bill would provide an ability for EPA to look at those
chemicals, and again this is consistent with the approach taken
in other countries. Canada, which the American Chemistry
Council and other industry players have often pointed to as a
model program, actually does have a process by which chemicals
as they enter into commerce and their use expands, more data
are required and the government is required to re-review those
chemicals in a tiered fashion.
We think that kind of an approach could balance the need to
ensure that you are not stifling innovation and overly impeding
the introduction of new chemicals, but at the same time ensure
there is some significant degree of safety assured of those
chemicals before they get embedded in our economy, when it is
very hard to do anything about it.
We need that gate to be at the beginning of the process and
not wait until we find some problem 10, 20 years later to
actually ensure the safety.
Senator Lautenberg. Mr. Sturdevant, the Safe Chemicals Act
would preserve the ability of a State to go beyond the Federal
standard on chemical safety to protect our citizens. How would
establishing the strong Federal system on chemical safety
affect the ability to establish the State-level regulations?
Where might the States come in there, because we are trying to
preserve an option for the States that they see a greater need
for supervision?
Mr. Sturdevant. I think with the changes envisioned in the
bill, with a stronger Federal system, the need for the States
to engage in these activities would decline I am sure. I think
that there would still be cases where the ability to address
problems that are occurring in particular States should be
maintained. But I think that what we would see instead is just
sort of a more normalized State-Federal relationship like we
see with a whole bunch of other statutes where there is good
Federal backstops and then States can tailor regulations
accordingly in their own States.
So I think that we would see that kind of normalized
relationship where States address problems if and when they are
needed, as opposed to trying to address the fundamental
challenges that we have all been talking about here today that
really need to be addressed at the Federal level.
So I think that a result from me and my agency would be we
would end up spending less time and energy on these efforts
because we know that they are being addressed at the Federal
level.
Senator Lautenberg. Thank you.
Senator Crapo, do you have something?
Senator Crapo. Yes, Mr. Chairman.
I just wanted to make an observation, a comment, and the
witnesses can comment on this if they would choose. But it
seems to me that there is sort of a consistent message point
coming from the Democratic side of the aisle to the Chemistry
Council here that they have to come forward with statutory
language or their response is not acceptable.
Although it is not unheard of for participants or
stakeholders on an issue to propose statutory language, I don't
know that I recall very many cases in which a Committee has
demanded that and sort of set that bar as the bar of proper
participation on an issue.
I would tell you that if the effort is to create the
impression that failure to come forward with a proposed
alternative statutory proposal is the only acceptable way to
engage on that issue, I think that is wrong. I can say that the
American Chemistry Council and other stakeholders have been in
my office many, many times to discuss this issue. I know that
they are sincere about wanting to move forward.
As far as I am aware, their concerns have been very, very
well expressed. And I believe that every Member of this
Committee knows what the conflicts are in terms of
disagreements about the issues with regard to the statute.
So I just felt like I had to say that because I felt like
there was an impression being created that there was not an
engagement or that there was not a willingness to try to work
toward finding a solution and that has certainly not been my
experience.
Senator Lautenberg. If I might, just a quick response. I
think that if you have a chance to look through Mr. Dooley's
testimony and his commentary, I got the impression that it was
thought by Mr. Dooley that we weren't paying enough attention
to what they were offering. So my response was to say, OK, give
us some statutory language here. But that isn't intended to be
a word-for-word kind of thing. It is, OK, give us the challenge
to what you see.
And we invite the participation of Mr. Dooley just because
we have some differences here. And I think that it is fair for
you to voice your organization's views, but on the other side,
you have seen the run-through here, including friends on both
sides of the aisle, as to, OK, don't like it.
Be more specific about what it is and maybe even do an
evaluation that says, OK, we are willing to dismiss the fact
that science says that there are some episodes of health
problems as a consequence of fairly active use of some chemical
here or there.
What we are trying to do, and trying very hard to do, is
begin. I started off in my comments this morning with we want
an open process and you are included in that opening,
obviously. But I think it has to be more specific as to not
only what you don't like, but how would you fix it. And I think
that is a reasonable request.
Senator Crapo. My only comment was to the effect that it
has been my impression that there has been very aggressive and
extensive engagement from all sides. This is an issue on which
I have seen a tremendous amount of activity. And I thought that
there was an impression being created that was not accurate and
I don't want that impression left in this hearing, that any of
the participants and stakeholders have not been very engaged in
trying to help make their positions and their proposed
approaches known to the Committee.
Senator Lautenberg. Fair enough.
Senator Whitehouse. If I might add, I don't doubt for a
moment that there has been heavy engagement. I think it helps
with the transparency of the engagement when there is actual
language that is produced. That is my only point.
Senator Lautenberg. Senator Merkley.
Senator Merkley. Thank you, Mr. Chair.
I wanted to explore a little bit the interaction between
American companies and the current chemical regulation regime
in the European Union. And I was wondering, Ms. Brody and Mr.
Sturdevant, if you could describe succinctly some of the
distinctions between the European system and the current
American system? Of course, recognizing that our American
companies are already engaged in, if you will, working with or
within the framework that is laid out in Europe.
Ms. Brody. Let me just start. Thank you for the question,
Senator.
Virtually all of the major players in the American chemical
industry are global companies and are selling to the European
Union and other markets.
You would agree with me, Cal?
And so all of them are looking at the new law in Europe,
REACH, and figuring out how to test their chemicals and if
their chemicals will meet the REACH safety standard. So I think
it actually adds to this discussion about if the Safe Chemicals
Act as written isn't the right language for the American
Chemistry Council, what is? Because we have this statute moving
in Europe and in other countries that is new and provides a
place to start with in thinking about how can American chemical
law add to what is already going on in other parts of the
world.
And I think it is very appropriate to look at how much
money the American chemical industry is already spending to
test their chemicals for the European market and to figure out
how every single dollar that is being spent there can add
information to what we could do to get the kind of exposure,
information and use information that we need about chemicals in
the United States, and to do that in an important new way.
I think it is important to add, though, that European
chemicals law was as broken as American chemicals law still is.
And the European Union and its new Parliament took strong
action with the opposition of the American Chemistry Council
hard and heavy against REACH being enacted. But now that it is
the law of the European Union, there is a whole lot we can
learn from that and build on in what we do in TSCA reform.
Senator Merkley. OK, great.
Mr. Sturdevant.
Mr. Sturdevant. My knowledge of REACH is quite general so I
won't go into specifics. But one thing that has come out of
REACH that I think is both worth looking at very hard and has
already been beneficial is the amount of information that is
coming out of the reporting required there. So that has been
one of the key challenges for us at the State level is gaining
access to information. So REACH is actually providing us
information that we haven't had access to before.
And I certainly understand the concerns expressed by Mr.
Matthews about information and sharing too much information,
and that inhibiting innovation. I think that there is a lot of
room for improvement in the current law on confidential
business information, how that is kept confidential. I think
that there is a happy medium to be found here and REACH could
perhaps inform that.
Senator Merkley. Thank you.
And to anyone on the panel who would like to comment on it,
my impression is that the effort has been made to craft this
bill that is before us in a fashion that the information
prepared on chemicals for Europe would satisfy the U.S. law. Do
you all share that view or do you have a different view? It
would be helpful.
Mr. Denison. I think there has been a concerted effort to
ensure that we not reinvent the wheel or create a system that
requires duplicate testing, et cetera. There is absolutely
information coming from REACH that will be directly relevant in
the U.S. and we should make sure that our EPA has the authority
to get access to that information and that it is used in
informing and meeting the requirements that industry faces in
providing minimum information.
So the bill I think goes very far in describing a variety
of types of information, including existing information being
developed under other jurisdictions that could be used to
satisfy the data requirements under this bill. So it would only
be the gaps that remain after that other information is
factored in that would be a new burden, if you will, on the
American industry.
We have an advantage in going second here because the
European Union has gone first. And they are taking a lot of
arrows in the back because of that. But that actually makes the
lift for the U.S. under TSCA reform that much easier.
Senator Merkley. Mr. Matthews and Mr. Dooley, I think both
of your associations have members who export products to
Canada, which has yet a different structure, and to Europe. Any
insights on how those reporting requirements are going? And
also the degree to which essentially as information is
developed for that market, whether that also then largely would
address the requirements that we are seeking here in this Act?
Mr. Dooley. Just a couple of comments. One on the REACH.
Obviously, all of our companies are participating, complying
with that. There is the data that we are providing to meet
those requirements. I would say that based on our analysis of
the legislation, the 847, it is unclear whether or not that
data would be similar or identical. And obviously, we would be
interested in seeing to the greatest extent possible a
harmonization of those data requirements.
But I would also cite that we would look to the Canadian
model as being the preferred model over the REACH in that it
does embrace a much more of a prioritization process where you
would focus the resources of EPA, as well as the private
sector, on those chemicals of the greatest concern, that we
think would then lead to greater, more positive developments
ensuring safer chemicals in commerce.
So we think the Canadian model is actually one which is,
from our perspective, would work better from a regulatory
context, achieving a similar level of safety outcomes, and
would also be more cost-effective and efficient from the
industry perspective.
Senator Merkley. Thank you.
Senator Lautenberg. The record will be kept open.
Before closing the hearing, I ask unanimous consent to have
Senator Boxer's statement to be put in the record.
[The prepared statement of Senator Boxer was not received
at time of print.]
Senator Lautenberg. And the letter from the United
Steelworkers, from the American Nurses Association, and a
statement from the Procter and Gamble Company.
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Senator Lautenberg. And with that, I thank all of you. I
thought it was certainly an interesting meeting, but I think it
is one that will help us move our legislation along.
And Mr. Dooley, we wait to hear from you and any of you who
have further comments you would like to make in writing.
Thank you very much.
The meeting is closed.
[Whereupon, at 11:55 a.m., the committee was adjourned.]
[Additional material submitted for the record follows.]
Statement of Hon. Max Baucus,
U.S. Senator from the State of Montana
Chairman Lautenberg, thank you for holding this important
hearing today on S. 847, the Safe Chemicals Act of 2011.
The Toxic Substances Control Act (TSCA) needs to be
reformed. There is a broad consensus that it is outdated. And
this bill is an appropriate starting point for that effort.
I have heard many times in recent years from Montanans who
are passionate about improving chemical safety. Parents from
across Montana, and mothers in particular, are worried about
the products that surround their children. Montanans who suffer
acute chemical sensitivity would lead better lives with a more
transparent system. And I never forget the many Montanans
touched by the nightmare of the asbestos contamination of the
town of Libby, Montana--and the clear failure of TSCA to
address the toxicity of asbestos.
TSCA is not adequately protecting Americans, and it is our
obligation to fix it. Congress should give EPA better tools to
keep our families safe, including strong up-front requirements
for obtaining data about chemicals and the ability to
prioritize the risk of different chemicals.
Looking forward, the more we can do to promote green
chemistry innovation, the more new jobs we will create,
technology we will export, and families we will keep safe.
Rivertop Renewables in Missoula, Montana, is a perfect example
of this kind of innovation. A balanced bill ought to ensure
that homegrown companies like Rivertop can continue to lead the
chemical industry.
Thank you again for your hard work in crafting this bill
and keeping the process inclusive. I look forward to working
with you toward an agreement in this committee.
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