[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
   REGULATION OF EXISTING CHEMICALS AND THE ROLE OF PREEMPTION UNDER 
         SECTIONS 6 AND 18 OF THE TOXIC SUBSTANCES CONTROL ACT

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 18, 2013

                               __________

                           Serial No. 113-83


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov


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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

RALPH M. HALL, Texas                 HENRY A. WAXMAN, California
JOE BARTON, Texas                      Ranking Member
  Chairman Emeritus                  JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois               BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania        ANNA G. ESHOO, California
GREG WALDEN, Oregon                  ELIOT L. ENGEL, New York
LEE TERRY, Nebraska                  GENE GREEN, Texas
MIKE ROGERS, Michigan                DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
MICHAEL C. BURGESS, Texas            MICHAEL F. DOYLE, Pennsylvania
MARSHA BLACKBURN, Tennessee          JANICE D. SCHAKOWSKY, Illinois
  Vice Chairman                      JIM MATHESON, Utah
PHIL GINGREY, Georgia                G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana             JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington   DONNA M. CHRISTENSEN, Virgin 
GREGG HARPER, Mississippi            Islands
LEONARD LANCE, New Jersey            KATHY CASTOR, Florida
BILL CASSIDY, Louisiana              JOHN P. SARBANES, Maryland
BRETT GUTHRIE, Kentucky              JERRY McNERNEY, California
PETE OLSON, Texas                    BRUCE L. BRALEY, Iowa
DAVID B. McKINLEY, West Virginia     PETER WELCH, Vermont
CORY GARDNER, Colorado               BEN RAY LUJAN, New Mexico
MIKE POMPEO, Kansas                  PAUL TONKO, New York
ADAM KINZINGER, Illinois             JOHN A. YARMUTH, Kentucky
H. MORGAN GRIFFITH, Virginia
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Ohio
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina

                                 7_____

              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
PHIL GINGREY, Georgia                PAUL TONKO, New York
  Vice Chairman                        Ranking Member
RALPH M. HALL, Texas                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania        DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
ROBERT E. LATTA, Ohio                JERRY McNERNEY, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia     JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
BILL JOHNSON, Ohio                   HENRY A. WAXMAN, California (ex 
JOE BARTON, Texas                        officio)
FRED UPTON, Michigan (ex officio)

                                  (ii)


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     1
    Prepared statement...........................................     2
Hon. Paul Tonko, a Representative in Congress from the State of 
  New York, opening statement....................................     3
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    99

                               Witnesses

Mark A. Greenwood, Principal, Greenwood Environmental Counsel, 
  PLLC...........................................................     5
    Prepared statement...........................................     8
    Answers to submitted questions...............................   109
William K. Rawson, Partner and Chair, Chemical Regulations, 
  Product Strategy and Defense Practice, Latham & Watkins, LLP...    22
    Prepared statement...........................................    25
    Answers to submitted questions...............................   114
Jennifer Thomas, Director, Federal Government Affairs, Alliance 
  of Automobile Manufacturers....................................    36
    Prepared statement...........................................    38
    Answers to submitted questions...............................   117
Justin Johnson, Deputy Secretary, Vermont Agency for Natural 
  Resources, On Behalf of the Environmental Council of the States    45
    Prepared statement...........................................    47
Lemuel M. Srolovic, Chief, Environmental Protection Bureau, 
  Office of New York State Attorney General......................    52
    Prepared statement...........................................    54
Linda Reinstein, President/CEO and Co-Founder, Asbestos Disease 
  Awareness Organization.........................................    64
    Prepared statement...........................................    66

                           Submitted Material

Letter of September 17, 2013, from Kathryn Alcantar, Campaign 
  Director, Californians for a Healthy and Green Economy, to Mr. 
  Waxman, submitted by Mr. Shimkus...............................   100
Statement, dated July 24, 2013, of Californians for a Healthy and 
  Green Economy, submitted by Mr. Shimkus........................   101
Letter of September 18, 2013, from Linda Lipsen, Chief Executive 
  Officer, American Alliance for Justice, to Mr. Shimkus and Mr. 
  Tonko, submitted by Mr. Shimkus................................   104
Resolution of ECOS, ``Reforming the Toxic Substances Control 
  Act,'' dated September 17, 2013, submitted by Mr. Shimkus......   106


   REGULATION OF EXISTING CHEMICALS AND THE ROLE OF PREEMPTION UNDER 
         SECTIONS 6 AND 18 OF THE TOXIC SUBSTANCES CONTROL ACT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 18, 2013

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 2:05 p.m., in 
room 2123 of the Rayburn House Office Building, Hon. John 
Shimkus (chairman of the subcommittee) presiding.
    Members present: Representatives Shimkus, Murphy, Latta, 
Harper, McKinley, Bilirakis, Johnson, Tonko, Pallone, Green, 
DeGette, McNerney, Schakowsky, Barrow, and Waxman (ex officio).
    Staff present: Nick Abraham, Legislative Clerk; Jerry 
Couri, Senior Environmental Policy Advisor; David McCarthy, 
Chief Counsel, Environment and the Economy; Andrew Powaleny, 
Deputy Press Secretary; Chris Sarley, Policy Coordinator, 
Environment and the Economy; Jacqueline Cohen, Democratic 
Senior Counsel; Greg Dotson, Democratic Staff Director, Energy 
and Environment; and Kara van Stralen, Democratic Policy 
Analyst.

  OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Shimkus. I call this subcommittee hearing to order, and 
I want to thank you all for coming. I ask unanimous consent 
that all members of the subcommittee have 5 days to submit 
their opening statements for the record, and I recognize myself 
for 5 minutes.
    Today's hearing continues the subcommittee's examination of 
the Toxic Substances Control Act, including statutory 
provisions, regulatory implementation, and practical outcomes. 
On June 13, our subcommittee held a hearing on the history and 
impact of Title I of TSCA. On July 11, the subcommittee 
explored regulation of chemicals before they enter commerce, 
under TSCA Section 5, and protection of sensitive business 
information, under TSCA Section 14. I believe these hearings 
have helped us understand a law as complex as it is broad.
    Our focus now is on regulation of chemicals once they are 
in commerce, under TSCA Section 6, and the role of Federal pre-
emption, under TSCA Section 18.
    These two sections of TSCA have been subject to a great 
deal of discussion. Notwithstanding the testimony of three of 
our witnesses at the July 11 hearing that TSCA Section 5 is 
doing a fine job reviewing and, if necessary, limiting the use 
of new chemicals, some argue that TSCA is broken and because 
TSCA Section 6 has not produced more bans or other limits on 
chemicals. Others, including some on our panel today, suggest 
that concern is overstated.
    EPA has been more active issuing regulations on TSCA 
Section 5 new chemicals than it has been on TSCA Section 6 
ones, but it has issued regulations under Section 6. Charlie 
Auer, who testified in our June 13 hearing stated that TSCA 
Section 6 ``had surprising early success in efforts between 
1978 and 1980.'' The question is, What has changed?
    Today we explore just what TSCA Section 6 asks EPA, 
including what ``unreasonable risk'' is and whether this is a 
novel concept under Federal law. We will also examine 
requirements in the law regarding the application of ``least 
burdensome'' regulations. We will study the role of risk 
assessment and cost-benefit analysis, how and whether it is 
done, and what role it plays in the final rulemaking decision.
    Understanding Section 6 and its link to the pre-emption 
provisions in TSCA Section 18 is also important. If EPA has 
taken action to test a chemical or regulate a new existing 
chemical in commerce, TSCA forecloses State action unless the 
State or locality meets one of four criteria. In many areas the 
States should handle local pollution issues, because they have 
a wealth of experience and capability to do so. But chemical 
regulation is not an area where States have traditionally taken 
a lead role because of the impacts on interstate commerce.
    In our June TSCA hearing, witness Beth Bosley said TSCA is 
a law about products, not pollution. TSCA vests EPA with 
authority to regulate risks to humans and the environment from 
chemicals that are not otherwise covered by some more targeted 
statute. TSCA is about making interstate commerce in chemicals 
work for all of us.
    I thank all our witnesses for appearing today, and look 
forward to their insights about the appropriate roles of the 
parties and the uniqueness of TSCA in this respect. I urge 
members to take today's opportunity to learn the fundamentals 
of these Sections of the law.
    And now I want to thank the panel. Once I get through with 
our opening statements, I will then do the introductions of 
each one of you. We do appreciate you being here. There is kind 
of an excitement of trying to address a 30-year-old law that we 
haven't really revisited in many years. I spent a lot of time 
during the break talking to various diverse groups of 
interested parties, so I think it is an exciting time and it 
really reinforces the need to at least have these hearings, 
become more educated, learn from you all, and see if we can 
move to bring a very old law kind of up to date.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    Today's hearing continues the subcommittee's examination of 
the Toxic Substances Control Act,including statutory 
provisions, regulatory implementation, and practical outcomes. 
On June 13, our subcommittee held a hearing on the history and 
impact of Title I of TSCA. On July 11, the subcommittee 
explored regulation of chemicals before they enter commerce, 
under TSCA section 5, and protection of sensitive business 
information, under TSCA section 14. I believe these hearings 
have helped us understand a law as complex as it is broad.
    Our focus now is on regulation of chemicals once they are 
in commerce, under TSCA section 6, and the role of Federal pre-
emption, under TSCA section 18.
    These two sections of TSCA have been subject to a great 
deal of discussion. Notwithstanding the testimony of three of 
our witnesses at the July 11 hearing that TSCA section 5 is 
doing a fine job reviewing and, if necessary, limiting the use 
of new chemicals, some argue that TSCA is broken because TSCA 
section 6 has not produced more bans or other limits on 
chemicals. Others, including some on our panel today, suggest 
that concern is overstated.
    EPA has been more active issuing regulations on TSCA 
section 5 new chemicals than it has been on TSCA section 6 
ones--but it has issued regulations under section 6. Charlie 
Auer, who testified in our June 13, hearing stated that TSCA 
section 6 ``had surprising early success in efforts between 
1978 and 1980.'' The question is, What has changed?
    Today we explore just what TSCA section 6 asks of EPA, 
including what ``unreasonable risk'' is and whether this is a 
novel concept in Federal law. We will also examine requirements 
in the law regarding the application of ``least burdensome'' 
regulations. We will study the role of risk assessment and 
cost-benefit analysis, how and whether it is done, and what 
role it plays in any final rulemaking decision.
    Understanding section 6 and its link to the pre-emption 
provisions in TSCA section 18 is also important. If EPA has 
taken action to test a chemical or regulate a new or existing 
chemical in commerce, TSCA forecloses State action unless the 
State or locality meets one of four criteria.
    In many areas the States should handle local pollution 
issues, because they have a wealth of experience and capability 
to do so. But chemical regulation is not an area where States 
have traditionally taken a lead role because of the impacts on 
interstate commerce.
    In our June TSCA hearing, witness Beth Bosley said TSCA is 
a law about products, not pollution. TSCA vests EPA with 
authority to regulate risks to humans and the environment from 
chemicals that are not otherwise covered by some more targeted 
statute.
    TSCA is about making interstate commerce in chemicals work 
for all of us. I thank all our witnesses for appearing today, 
and look forward to their insights about the appropriate roles 
of the parties and the uniqueness of TSCA in this respect. I 
urge members to take today's opportunity to learn the 
fundamentals of these sections of this law.

    Mr. Shimkus. With that, I would recognize the ranking 
member from New York, Mr. Tonko, for 5 minutes.

   OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Tonko. Thank you, Mr. Chair, and good afternoon. Thank 
you, Chair Shimkus, for holding this important hearing. Thank 
you to the members of our panel for participating and sharing 
information. I am especially pleased to have Mr. Srolovic from 
the New York State Attorney General's Office here with us 
today. As one who served in the New York State Assembly for 25 
years, we work closely with the agency, so it is good to have 
you here.
    This afternoon, we will hear from witnesses on Section 6, 
the regulation of hazardous chemical substances and mixtures, 
and on Section 18, preemption. As I observed in previous 
hearings, and as we have heard from previous witnesses, the 
Toxic Substances Control Act has not worked well. We have too 
little information about many of the chemicals we encounter 
every day. Even when it becomes common knowledge that a 
chemical is harmful, the Environmental Protection Agency does 
not have sufficient authority to restrict or ban that chemical 
from the market.
    Under the current law, individual States retain sufficient 
authority to act independently on behalf of their citizens. 
Although some States' actions are not permissible under Section 
18 of the current law, it has been possible for States like New 
York to take action to restrict or ban harmful chemicals. In 
the absence of Federal actions, States have filled the void. 
States have used their authorities to protect the public when 
chemicals are found to indeed cause harm.
    While it is good to know that State governments are 
watching out for their citizens, the Federal Government should 
be an active participant in this effort and be providing a 
uniform level of protection for all citizens. The major 
failings with current law have little to do with the provisions 
that define the relationship between Federal and State action 
on toxic chemicals. They stem from the lack of a strong safety 
standard to protect the public and our environment. Section 6 
of TSCA does not provide EPA with the tools needed to ensure 
that chemicals in commerce are safe.
    I am sure we will hear more about Section 6 and its 
failings from some of our witnesses today. Chemicals that are 
harmful should be removed from the market and make way for 
safer alternatives. Revision of this law is long overdue. I 
hope we will be able to make changes that will provide the 
assurances of safety desired by the public and the incentive 
for innovation and regulatory certainty needed by industry.
    Thank you again, Mr. Chair, for holding this important 
hearing. We have another fine group of witnesses on this panel 
this afternoon, and I thank you all for participating in this 
hearing. I look forward to hearing your testimony, and with 
that, I yield back.
    Mr. Shimkus. Gentleman yields back his time. The chair 
seeks anyone on the Majority side for an opening statement. 
Seeing none, chair looks to the Minority side. Seeing no member 
interested in an opening statement, we will turn to you all.
    I just hearken back to my opening statement and trying to 
sort out the different sections and what they are doing and why 
they are doing, which reemphasizes the fact that why we invited 
you here, to help us try to make sense of all these provisions 
and where they work and where there may be questions about 
perfecting aspects of the law.
    So let me welcome you all here. The first one we will 
recognize for 5 minutes, Mr. Mark A. Greenwood, who is the 
principal with Greenwood Environmental Counsel in Washington, 
DC. Sir, your full statement is in the record. You are 
recognized for 5 minutes for an opening statement. We won't 
be--we will be very patient on the time unless you go 
extraordinarily long and then we will have--we will start 
gaveling. So you are recognized for 5 minutes.

     STATEMENTS OF MARK A. GREENWOOD, PRINCIPAL, GREENWOOD 
  ENVIRONMENTAL COUNSEL, PLLC; WILLIAM K. RAWSON, PARTNER AND 
   CHAIR, CHEMICAL REGULATIONS, PRODUCT STRATEGY AND DEFENSE 
  PRACTICE, LATHAM & WATKINS, LLP; JENNIFER THOMAS, DIRECTOR, 
      FEDERAL GOVERNMENT AFFAIRS, ALLIANCE OF AUTOMOBILE 
MANUFACTURERS; JUSTIN JOHNSON, DEPUTY SECRETARY, VERMONT AGENCY 
 FOR NATURAL RESOURCES, ON BEHALF OF THE ENVIRONMENTAL COUNCIL 
    OF THE STATES; LEMUEL M. SROLOVIC, CHIEF, ENVIRONMENTAL 
 PROTECTION BUREAU, OFFICE OF NEW YORK STATE ATTORNEY GENERAL; 
  AND LINDA REINSTEIN, PRESIDENT/CEO AND CO-FOUNDER, ASBESTOS 
                 DISEASE AWARENESS ORGANIZATION

                 STATEMENT OF MARK A. GREENWOOD

    Mr. Greenwood. Chairman Shimkus, Ranking Member Tonko, and 
members of the committee, thank you for the opportunity to 
testify here today. My name is Mark Greenwood, I am an 
environmental lawyer, and I have the dubious pleasure of saying 
I have worked on TSCA for 25 years. Now that is a long time. 
Some of it was in private practice where I advised clients on 
many issues, but it also was during my time at EPA. I was the 
Associate General Counsel for Pollution Prevention and Toxics, 
and I was in pesticides. I was also Director of the Office of 
Pollution Prevention and Toxics as well. This is the part of 
EPA that actually regulates under TSCA.
    I am going to be addressing Section 6 in my comments here 
today. Obviously that is a very important section. It is the 
section under which the Agency does regulate existing 
chemicals. But I think as you alluded to, Mr. Chairman, it is 
also important politically because when people say that TSCA is 
a broken statute, they tend to refer to Section 6. And so it is 
all the more important to understand how it has worked and the 
structure of the law.
    I am going to talk about three general issues that are 
within Section 6, the first being the unreasonable risk 
standard, which is the basic guideline for regulation. Under 
Section 6C, what that means is EPA has to weigh four factors: 
the health and environmental risk of substances, the benefits 
of those substances, the availability of alternatives, which 
also includes their risks, and the reasonable and ascertainable 
economic consequences of the rule. I think it is important to 
recognize up front that this is not a standard that is unique 
to TSCA. In fact, if you look across Federal law, you will find 
that a vast majority of the laws that regulate products in 
commerce include either the unreasonable risk standard per se, 
or a set of factors that essentially replicate the factors I 
just mentioned.
    Certain aspects of this standard are really not that 
controversial. Everybody, of course, assumes we want to look at 
environmental risks and health risks. The alternatives are also 
a very important consideration, because it tends to determine 
whether any change would be a significant technological change 
for industry, and the risks associated with those is an 
extremely important consideration, because if you take an 
action against one chemical that pushes people into another 
chemical that is more risky, of course, that was not a good 
result.
    There is an area of, I think, controversy which primarily 
comes up in the area of how to consider the benefits of a 
product and the cost issues. Now what that very quickly tends 
to go to is the issue of cost benefit analysis. TSCA does not 
require cost benefit analysis, but it is a framework in which 
that certainly would be allowed. One of the things I think is 
important for you to consider as you think about how this Act 
would work is recognize that for over 30 years, the Executive 
Branch has pursued various executive orders on regulation that 
require cost benefit analysis. So that is part of the framework 
in which EPA and other agencies will be working. And so I think 
for your purposes, it is really important to think about your 
view of cost benefit analysis when you are trying to decide 
whether this unreasonable risk standard makes sense.
    Now the second area I would like to talk about is something 
called the least burdensome alternative. Basically Section 6 
says EPA shall regulate, but it must try to find the least 
burdensome alternative in its regulatory strategy. Now as a 
general matter, Federal agencies probably think this is fairly 
reasonable. In my corner, this would be called smarter 
regulation. You want to try to find a way of achieving your 
environmental objective, your health objective without having 
major disruption in the economy and in the society, if you can. 
That is a worthy goal. It makes sense. I think most people 
agree with it.
    Now, this is the one area that I would focus on where I 
would say that the decision corrosion-proof fitting, which is 
the decision related to asbestos, did some damage to what EPA 
can do, because essentially the corrosion-proof fitting case 
says that in order to meet this standard of least burdensome 
alternative, it is up to EPA to look at essentially each 
alternative that could possibly be less burdensome than the 
alternative they are considering. Now, that is a much bigger 
job than EPA and other agencies generally do, and it is broader 
than the obligations under the executive order. So this is 
becoming, I think, a very serious issue for consideration. I 
can absolutely tell you when we first looked at the corrosion-
proof fitting decision at EPA, this was the issue that stuck in 
everybody's mind because it looked to us like it could be a 
process of what we call paralysis by analysis, which we would 
have to be looking at many, many options doing many and many 
cost benefit analyses on each one and there was a deep concern. 
So again, I think this is one of those key issues that you want 
to think about and ask the question, here we have a very broad 
principle of least burdensome alternative that makes sense to 
many people. Now the question is in implementation, how can you 
run something like that so it does not create unreasonable 
analytical obligations for an agency who needs to act.
    A third topic I will just mention briefly is the procedures 
that are in Section 6. Now as you are probably aware, most 
Federal agencies do rulemaking through notice and comment 
rulemaking. That procedure is required under Section 6, but 
there is an additional set of requirements in Section 6 which 
would call for a legislative hearing, something like an event 
like this where EPA people ask questions of people who are 
participating, but also an opportunity for cross examination, 
which creates a sort of trial type of proceeding inside the 
rulemaking. Now, there is not a lot of history on this one. It 
was really only used once, which was in the asbestos rule. I 
participated in that particular proceeding. I will say that 
there was probably a bit more heat than light in that 
proceeding, and I am not sure how valuable it was. But I think 
this is the kind of issue that you want to think about, whether 
or not the procedures that are there add value and are 
warranted.
    So with that, I thank you again for having the chance to 
testify, and I look forward to your questions.
    [The prepared statement of Mr. Greenwood follows:]

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    Mr. Shimkus. Thank you very much.
    Now I would like to recognize Mr. William Rawson, Partner 
and Chair, Chemical Regulations, Product Strategy, and Defense 
Practice with Latham and Watkins here in Washington, DC. Sir, 
you are welcomed. Again, your full statement is in the record. 
You are recognized for 5 minutes.

                 STATEMENT OF WILLIAM K. RAWSON

    Mr. Rawson. Thank you, Chairman Shimkus, Ranking Member 
Tonko, and distinguished members of the committee. Thank you 
for inviting me to testify today on the subject of the Toxic 
Substances Control Act. I have practiced environmental law, 
particularly in the area of TSCA, for 25 years, and have co-
authored two TSCA desk books published by the Environmental Law 
Institute. I am testifying today solely on my own behalf. I do 
have some preparative remarks, and I will use those to keep me 
within the time limits.
    I do understand that the purpose of the hearing today is 
not to address specific legislative proposals or to advocate 
any specific changes, but rather to share perspectives on the 
current statute, particularly Section 6 and Section 18, and I 
will address in my remarks both sections.
    Starting with Section 6, it is certainly true that there 
have been a few rulemaking actions undertaken by EPA under that 
section, and this has contributed to the erosion of public 
confidence in the statute and the failed asbestos rulemaking. I 
would urge the committee to take a very close look at the 
corrosion-proof fittings decision, however, because I think it 
demonstrates that EPA in that rulemaking had committed 
procedures in such areas that compelled the court to set 
portions of the rule aside.
    I will address three requirements in Section 6. The first 
is least burdensome requirement. As. Mr. Greenwood has 
testified, that is, in fact, the way most agencies try to 
regulate, to engage in smart regulation, meaning impose the 
requirement that meets the regulatory objective while imposing 
the least burden. It is quite similar to the language that we 
see in Executive Order 13563, which directs agencies to 
identify and use the best and most innovative and least 
burdensome tools for achieving regulatory ends. The executive 
order directs each agency to tailor its regulations to impose 
the least burden on society consistent with obtaining 
regulatory objectives. So that part of the statute is good 
policy consistent with what we see in executive orders issued 
by this and previous administrations.
    Secondly, concerning unreasonable risk, as Mr. Greenwood 
has described, this also is a standard found common in many 
environmental health and safety statutes, and it also parallels 
language that we find in the executive orders, including the 
one cited in my testimony. It is very similar to the standard, 
for example, that EPA uses when regulating non-food use 
pesticides, and I will read that standard. It requires EPA to 
consider any unreasonable risk to man or the environment from 
the pesticide, and to take into account the economic, social, 
and environmental costs and benefits of the use of any 
pesticides. So we can see similarities between the standard in 
TSCA and the standard in other environmental statutes. And 
Executive Order 13563 similarly directs EPA and other executive 
agencies to take into account benefits and costs, both 
quantitative and qualitative, and to propose or adopt a 
regulation only upon a reasonable determination that its 
benefits justify its costs.
    The third aspect of Section 6 I will address briefly is the 
fact that it places the burden on EPA to demonstrate the need 
for regulation. This also is not unique. When EPA promulgates a 
standard, for example, under the Clean Air Act, it typically 
carries the burden to demonstrate why the particular control or 
level of protection that is proposed is necessary to protect 
human health. EPA does apply very conservative health 
protection methodologies when making risk-based findings under 
TSCA or any environmental statute, and courts typically give 
EPA wide latitude to makes those kinds of judgments.
    I think it is important to recognize that before the failed 
asbestos rulemaking, EPA had successfully promulgated several 
Section 6 rules, albeit on a much smaller scale. No legal 
challenge. It is important to note in the corrosion-proof 
fittings case that the court actually started with a 
presumption of validity of the rule and upheld portions of the 
rule, and set other portions, major portions aside because of 
the procedural assumption of errors to which I alluded earlier 
and that are described in my testimony.
    It is certainly true that conducting a rulemaking under 
TSCA or any environmental statute is very challenging, but one 
of the lessons of corrosion-proof fittings, in my judgment, is 
that we should not easily or lightly put procedural or 
substantive requirements aside, as they help ensure the quality 
or integrity of any rulemaking and any resulting regulatory 
decision. In my judgment, changes to Section 6 should not 
simply make it easier for EPA to ban chemicals, but should 
support sound regulatory decisions that meet all of the 
objectives of the statute.
    I would urge that the number of rulemaking actions taken 
under TSCA Section 6 is not necessarily the right metric for 
evaluating the adequacy of the statute, because it doesn't 
recognize the many times EPA has evaluated chemicals and 
decided no action is needed because there were no significant 
risks or the chemical was a low concern for further action. It 
also doesn't recognize what EPA has accomplished in other parts 
of the statute, voluntary product stewardship initiatives and 
the like. All of these are described in EPA's Web site, and I 
would direct the committee's attention to that Web site for 
more information.
    The big concern that I would raise with TSCA is that I feel 
EPA needs a strong mandate to do something about the backlog of 
chemical--assessments of existing chemicals. A clear mandate 
and adequate resources are needed, in my judgment, to enable 
EPA to assess in a timely manner the potential risks to health 
and the environment from chemicals that are present in commerce 
in significant quantities, and that mandate should direct EPA 
to prioritize so that the highest number of high priority 
chemicals can be addressed as quickly as possible, or within 
reasonable timeframes.
    I will quickly close with one comment on preemption, and 
that is it has played a very limited role under TSCA to date 
because it only comes into play when EPA has acted under 
Sections 4, 5, or 6, and States that typically have not been 
active with respect to testing TSCA Section 4 or new chemical 
regulation TSCA Section 6, and relatively few actions have been 
taken under Section 6, putting aside the regulation of PCBs, so 
it hasn't been a significant issue yet. But the preemption 
provision in TSCA is, in fact, similar to preemption provisions 
in other statutes and it is a well-accepted concept.
    Thank you very much.
    [The prepared statement of Mr. Rawson follows:]

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    Mr. Shimkus. Thank you very much.
    I would like to now recognize Ms. Jennifer Thomas, Director 
of Federal Government Affairs for the Alliance of Automobile 
Manufacturers here in Washington, DC. Same thing, your written 
statement is in the record and you have 5 minutes. Thank you 
for coming.

                  STATEMENT OF JENNIFER THOMAS

    Ms. Thomas. Thank you, Chairman Shimkus, Ranking Member 
Tonko, and members of the subcommittee. My name is Jennifer 
Thomas and am I the Director of Federal Government Affairs to 
the Alliance of Automobile Manufacturers, which is a trade 
association that represents 12 auto makers that make roughly 
three out of every four new vehicles sold in the U.S. each 
year. On behalf of the Alliance, I appreciate the opportunity 
to offer our views on TSCA and the need for one national 
program for chemical regulation.
    Not only are auto makers producing more fuel efficient and 
safer cars than ever, we have also made tremendous strides in 
reducing the amount of substances of concern from autos. For 
example, for more than a decade, auto makers have maintained an 
industry focus, global substance of concern list, and tracking 
database to actively reduce their usage in global production. 
The industry has invested more than $30 million on these 
systems, which now tracks more than 2,700 substances, to ensure 
that restricted substances are not in our products. Auto makers 
have eliminated the use of lead wheel weights, mercury-
containing switches, asbestos-lined brake pads, and are 
currently phasing out the use of deca as a flame retardant, and 
working to identify an alternative brake friction material to 
replace copper. But we recognize that there is more work to do.
    TSCA remains the only Federal environmental statute that 
has not been substantively revised. We support modernizing TSCA 
in part because inaction at the Federal level is creating an 
environment in which States feel compelled to go out on their 
own to regulate chemicals, creating a patchwork of State 
standards. As you might suspect, such a patchwork presents 
great obstacles to effective chemical management for large 
industry sectors, in particular, manufacturers of complex 
durable goods, such as autos. The Alliance strongly believes 
that modernizing TSCA to avoid a balkanized approach to 
chemical management is more in line with today's manufacturing 
realities.
    The average auto has 30,000 unique components, and each 
individual component is comprised of multiple chemicals and 
mixtures. Many components are obtained from our suppliers as 
finished products, which are then integrated into the vehicle. 
Auto makers recent steps to streamline production and reduce 
costs through common design and platform sharing resulted in 
better products for our customers and allowed us to stay 
competitive in this global market. An overwhelming array of 
State chemical regulations, rather than one Federal chemical 
management program, increases costs, hinders flexibility, and 
reduces competitiveness. Multiple State programs also have the 
potential to conflict with stringent fuel economy and safety 
standards. To meet the aggressive 54.5 miles per gallon fuel 
economy standards by model year 2025, auto makers will be 
relying on lightweight materials like plastics that contain 
multiple chemical components. Auto makers spend billions of 
dollars annually on R&D to advance fuel efficiency, innovate 
new safety technologies, and develop more sustainable materials 
before the need of any regulation. A myriad of State programs 
has the potential to derail this progress by shifting the 
industry's focus from R&D to regulatory compliance. We readily 
acknowledge that States have a very important role to play, and 
the Alliance supports a process by which States can address 
their specific chemical concerns with EPA in a common 
scientifically-based framework under TSCA. Legislative efforts 
to modernize TSCA should seek collaborations with States to 
achieve product safety, yet continue to maintain strong Federal 
preemption provisions. A unified national program would provide 
much-needed regulatory certainty while ensuring that products 
and chemicals are uniformly safe across all 50 States.
    Moving forward, it is critical that any legislative efforts 
to modernize TSCA consider the unique concerns of complex 
durable goods manufacturers. Currently, article exemptions are 
in place for most TSCA requirements. However, we are noticing a 
significant trend at the State level targeting not just 
chemicals, but consumer products or articles. The Alliance 
urges the committee to consider establishing clear standards 
for the regulation of articles under TSCA and support the 
continued use of existing article exemptions in most 
circumstances.
    Finally, legislation modernizing TSCA should allow 
sufficient lead time to investigate and qualify viable 
alternatives, maintain a de minimus threshold of .1 percent for 
chemical control actions, and provide an exemption for 
service--for automotive service parts. Such an exemption would 
avoid any disruption in the supply of thousands--hundreds of 
thousands of replacement parts and allow auto makers to 
continue to fulfill customer warranties and replace existing 
fleet.
    The Alliance appreciates the opportunity to offer our views 
on TSCA and the need for one national program for chemical 
regulation. We stand ready to work with this committee on any 
efforts to modernize this important policy. Thank you again, 
and I look forward to any questions you might have.
    [The prepared statement of Ms. Thomas follows:]

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    Mr. Shimkus. Thank you.
    Chair now recognizes Mr. Justin Johnson, Deputy Secretary 
for the Vermont Agency for Natural Resources from the great 
State of Vermont. Sir, you are welcome and you are recognized 
for 5 minutes.

                  STATEMENT OF JUSTIN JOHNSON

    Mr. Johnson. Thank you, Chairman Shimkus and Ranking Member 
Tonko, and the other members of the committee. It is a real 
honor to come down and speak to you about this today. I am the 
Deputy Secretary of the Agency of Natural Resources in Vermont, 
but today I am representing the Environmental Council of the 
States, which is made up of the leaders of the State and 
territorial Environmental Protection Agencies.
    Just yesterday, ECOS passed a resolution on this matter at 
our annual meeting over in Arlington, and I will be summarizing 
that position today.
    First of all, I would say that ECOS members are very keen 
to see reform of TSCA. It is very important to us for a number 
of reasons, which I will spell out. In particular, we have four 
top issues of concern: preemption, chemical assessments, the 
safety standard, and CBI, which I know is not the specific 
topic today and you have addressed before, but that is also an 
important one.
    Preemption is the number one topic, simply because States 
do not want to lose the ability to act to restrict a chemical 
in order to prevent harm to the public or the environment. This 
ability to act is important to States as a backstop to either a 
Federal program that does not work as intended, or a Federal 
program that acts slowly or fails to act when reliable 
scientific data indicates that action is needed. Without this 
ability to act, the only recourse would be to come back to 
Congress to do what we are doing, and it is a very high bar 
indeed. Retaining our ability to act does not mean that 50 
States with 50 different chemical laws is the outcome. States 
are only looking to have the ability to act on chemicals in a 
way that their legislatures, governors, and people deem 
appropriate. It is expensive and time consuming to take these 
actions, and the way States are these days, we are not looking 
for more work, but we will act if we need to to protect 
citizens.
    States have lost confidence that TSCA works as thoroughly 
or as quickly as it ought to, leaving States to pass their own 
laws and rules on chemical management. However, if TSCA did 
work thoroughly and quickly, there would be much less incentive 
for States to act with additional requirements. State authority 
would be preserved, but seldom invoked. As a practical matter, 
implementation of a comprehensively reformed TSCA will render 
the State implementation issue largely moot, as States will 
focus their increasingly limited resources on other priorities.
    During the last 20 years, however, States have acted to 
fill the regulatory void of the Federal level, illustrating the 
vitally important role States play in providing a backstop to 
Federal inaction. With regard to the current impact of TSCA 
Sections 6 and 18 on the exercise of States action or on common 
law authority, we suggest that because EPA has acted on so few 
chemicals under TSCA, preemption of State authority has not 
been an issue to date.
    States believe that for TSCA to work well, there are at 
least three other key requirements. Chemical assessments need 
to be conducted. There are thousands of chemicals that the EPA 
hasn't acted on. Currently, EPA must conduct reviews of new 
chemicals to determine if they are a threat. Because of the 
current TSCA requirements for EPA to generate most of the data 
itself, this burden is beyond the Agency's capability and so 
very few get reviewed. Most chemicals simply pass into 
commerce. When this happens, States may see a problem with some 
of these and then act. The key, then, is for EPA to prioritize 
and review high priority chemicals, then it can focus on the 
chemicals of greatest concern. But EPA doesn't currently have 
the resources to conduct this process, so industry should 
supply some or all of the needed data. This is why ECOS says 
that TSCA reform should ensure that the burden is effectively 
placed on manufacturers.
    The safety standard burden of proof should be less onerous. 
Currently, States think that the action standard the EPA is 
held to is too high in their ability to restrict a chemical's 
use. Currently, TSCA's safety standard requires EPA to prove 
that harm from a chemical has occurred before it can restrict 
use of the chemical. This is almost an impossible standard for 
EPA to meet. In our resolution, we ask that TSCA be reformed so 
that EPA can take expedited action when a chemical presents a 
very serious or immediate risk to public health or the 
environment, including the ability to impose interim conditions 
to be in effect until EPA has had the opportunity to make a 
safety determination. This will help alleviate State concerns 
about the effectiveness of TSCA.
    Finally, I will just say on confidential business 
information, States need access to confidential data to help us 
fulfill our requirements to protect citizens and the 
environment. We understand that States should have to follow 
Federal guidelines that restrict distribution of these 
materials, but we believe that that is an important step in 
making TSCA more open and available to people so they can 
understand the decisions that are being made. There are other 
issues, but during our resolution and with the permission of 
the committee, I would provide a copy of that final resolution 
as an addendum to my written testimony.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Johnson follows:]

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    Mr. Shimkus. Thank you, sir.
    Now chair turns to--and I hope I don't butcher it--Lemuel 
Srolovic. Close? All right. That is the last time I am going to 
try. Chief of the Environmental Protection Bureau of New York 
State Office of the Attorney General. Sir, you are welcomed. 
Your full statement is in the record and you are recognized for 
5 minutes. Just hold on for one second. Let's see if we can 
get--there should be a light that goes on if you press it. If 
not, just grab one of your other panelists'----

                STATEMENT OF LEMUEL M. SROLOVIC

    Mr. Srolovic. A little help from the sister State here. 
Thank you.
    Chairman Shimkus, Ranking Member Tonko, and distinguished 
committee members, thank you for the opportunity to testify 
this afternoon on behalf of Eric T. Schneiderman, Attorney 
General of New York.
    For many decades, New York has been a leader in protecting 
public health and the environment from toxic chemicals. That 
exercise of traditional State power has allowed New York to 
protect its citizens and natural resources, and to serve as a 
laboratory for nationwide solutions to threats posed by toxic 
chemicals.
    For example, in 1970, the State of New York banned the use 
of the insecticide DDT, which was devastating many bird 
populations, including the American bald eagle. EPA followed 
New York's lead in banning DDT. Now when you travel from New 
York City to Albany along the Hudson River, you can routinely 
see bald eagles along the way and it is a highlight of that 
trip.
    New York has taken other actions to protect public health 
and the environment by restricting the sale and use of products 
containing harmful chemicals. Some of those actions include to 
protect babies and young children, New York has banned 
bisphenol A, or BPA, in pacifiers and baby bottles for use in 
children under 3 years of age. BPA has been shown to mimic the 
behavior of estrogens, potentially causing changes in the onset 
of puberty and reproductive functioning. New York also 
restricts the concentration of lead, cadmium, mercury, and 
chromium in product packaging. Lead and mercury are probable 
human carcinogens, while cadmium and chromium are known human 
carcinogens. To protect New Yorkers that rely on groundwater 
for their drinking water supply, New York prohibits the sale or 
distribution of gasoline within the State containing methyl 
tertiary butyl ether, or MTBE. MTBE has been shown to have 
adverse health effects, and when in drinking water, may impart 
bad taste and odor.
    The goal of TSCA is to establish necessary and appropriate 
Federal restrictions on the manufacture and use of chemicals 
that present an unreasonable risk of injury to the health of 
Americans or the environment. Attorney General Schneiderman 
strongly supports this goal, and recognizes the critical 
contribution that TSCA, in partnership with State efforts, 
could make in ensuring the adequate protection of public health 
and the environment.
    Unfortunately in practice, TSCA has largely failed to live 
up to its goal because only a small number of chemicals have 
been tested, and just a handful have been restricted.
    It is essential that TSCA be reformed to require EPA to 
increase its knowledge of the toxicity of the potentially 
dangerous chemicals on its inventory as quickly as possible, 
and to impose appropriate restrictions on their manufacture and 
use as necessary to adequately protect public health and the 
environment.
    Over on the Senate side, a pending bill, S.1009 proposes to 
reform TSCA in important respects. Attorney General 
Schneiderman believes that a number of these amendments 
represent critical improvements to TSCA; however, the Attorney 
General also believes that that legislation could be further 
improved.
    Protecting the Nation's public health and the environment 
is best achieved through a dynamic Federal-State relationship 
in which the authority of States to enact enforced protections, 
which are at least as stringent as Federal protections, but may 
also be more stringent, is preserved. That relationship 
animates our national laws regarding air and water pollution, 
hazardous waste, pesticides, as well as TSCA. TSCA's preemption 
provision preserves the States' traditional authority to 
restrict chemicals that States have found dangerous, as well as 
allowing States to continue to serve as laboratories for 
nationwide solutions.
    In considering necessary reform of TSCA's regulatory 
provisions, the traditional authority of States to take action 
to protect their citizens and the environment from threats 
posed by toxic chemicals should be preserved.
    In conclusion, achieving TSCA's goal of ensuring the 
adequate protection of public health and the environment from 
toxic chemicals is critically important, as is preserving the 
authority of States to protect public health and the 
environment. Because TSCA has not met its goal, Attorney 
General Schneiderman strongly supports your efforts and offers 
the full assistance of our office to you and your colleagues as 
you review this important Federal law.
    Thank you, and I look forward to any questions.
    [The prepared statement of Mr. Srolovic follows:]

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    Mr. Shimkus. Thank you, sir, and now the chair recognizes 
Ms. Linda Reinstein, correct, President, CEO and Cc-Founder of 
Asbestos Disease Awareness Organization from California. You 
are welcomed and you are recognized for 5 minutes.

                  STATEMENT OF LINDA REINSTEIN

    Ms. Reinstein. Thank you for giving me the honor and the 
opportunity to testify today at your critically important 
hearing.
    I know far too well that toxic chemicals are not just 
threats. They are a real part of life and death for many 
Americans. During the past 10 years since I have been coming to 
Washington, more than 100,000 Americans have lost their lives 
because of asbestos. I want to make it clear, I am neither a 
lobbyist nor an attorney. I am a mesothelioma widow.
    I co-founded the Asbestos Disease Awareness Organization 
back in 2004. We have become the largest independent non-profit 
organization in the United States dedicated to eliminating 
asbestos-caused diseases.
    It is important for me today. I want to dedicate my 
testimony to Janelle and to Michael. Tragically, Janelle lost 
her life to mesothelioma just a few months ago. She was only 37 
years old. She has left behind her husband and an 11-year-old 
son. Michael, age 29, a mesothelioma patient, is fighting for 
his life and he faces limited treatment options.
    My husband, Alan, was diagnosed with pleural mesothelioma 
in 2003. We had never heard of this asbestos-caused cancer, and 
we shortly learned it was incurable. Alan chose to undergo 
radical surgery. They removed a left rib, his left lung, 
resected his pericardium, and surgically replaced his 
diaphragm. When mesothelioma attacked his remaining lung, he 
was then tethered to oxygen and he felt like he was breathing 
through a pinched straw each breath, every second, every 
minute, every day. In 2006, my then 13-year-old daughter and I 
were by his side as he took his last breaths and died.
    Sadly, our stories are far too common. Asbestos is a known 
human carcinogen, and it remains legal and lethal in the United 
States. The Toxic Substances Control Act, TSCA, has failed to 
protect public health and our environment. In 1989, EPA issued 
a final rule under Section 6 of TSCA banning asbestos-
containing products. In 1991, however, this rule was overturned 
by the 5th Circuit Court of Appeals. As a result, there was no 
ban on the manufacture, importation, processing, or 
distribution in commerce of asbestos-containing products.
    Asbestos has been banned in 54 countries without an 
economic consequence. It is time for TSCA reform, and more 
importantly, the burden of proof should shift to the chemical 
manufacturers to prove their chemicals are safe.
    I want you to know that consumer, environmental, and 
occupational exposures continue. From 1900 to 2010, we have 
used more than 31 million tons of asbestos, and since 1965, 
nearly 1.4 million tons of asbestos have been used in friction 
products: brakes, clutches, and others. But I ask you today, 
each of you, do you know where asbestos is in your home, in 
your district, or inside the Capitol?
    Your constituents can't manage the toxic risks on their 
own. It was reported that 2,600 tons of asbestos debris were 
removed after the Joplin, Missouri tornado, and I want you to 
know that there are tons of toxic debris that littered the 
coastline after Hurricane Sandy. It was California's Prop 65, 
not the EPA, that removed a child's toy from the consumer 
shelves that was contaminated with asbestos. Horrifically, last 
year we imported 1,060 tons of asbestos to meet so-called 
manufacturing needs.
    Now I want to be clear about this also. I have tried for 2 
years through FOIA requests to identify who is importing 
asbestos, what is being manufactured, and where is the end 
product being used? My questions have all gone unanswered. Due 
to trade laws such as U.S. Code Title 13, Chapter 9, Section 
301(g), the information is all confidential. Yet asbestos has 
caused the largest manmade disaster. The CDC NIOSH statistics 
from 2000 to 2010 revealed 43,464 Americans have died from 
mesothelioma and asbestosis, and those are just two of the 
asbestos-caused diseases.
    So when we think about cost benefit analysis and some of 
the other hoops that we have to jump, I want you to think about 
the lives that are claimed as you draft and pass meaningful 
TSCA reform. For Alan, Janelle, Michael, and the hundreds of 
thousands of other asbestos victims and their families, we 
deserve responsibility, accountability, and transparency, and 
without these three, no one is safe. No one.
    The asbestos facts are irrefutable. Every day, 30 Americans 
die from preventable diseases. We cannot alter history or bring 
back the dead; we can only learn and work to learn to save the 
future lives. It is time for Congress to protect public health 
and pass meaningful TSCA reform legislation which truly 
empowers the EPA to finally ban asbestos.
    As I have been saying for 10 years, one life lost to a 
preventable asbestos-caused disease is tragic. Hundreds of 
thousands of lives lost is unconscionable. Prevention remains 
the only cure. I have attached to my testimony a petition 
signed by 2,700 people who support a ban of asbestos, and I 
welcome your questions. Thank you.
    [The prepared statement of Ms. Reinstein follows:]

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    Mr. Shimkus. Thank you. We appreciate your testimony.
    Now I would like to recognize myself for 5 minutes for the 
first round of questions. My first question goes to Mr. 
Greenwood.
    You mentioned this in your opening statement, but for 
clarification, TSCA Section 6 provides EPA broad authority to 
regulate chemicals if EPA reasonably believes a chemical 
``presents or will present an unreasonable risk of injury to 
health or the environment.'' EPA imposed controls range from 
chemical bans to restricted uses to warning label requirements. 
What does unreasonable risk mean in the TSCA context?
    Mr. Greenwood. Mr. Chairman, as I indicated a little bit in 
my initial statement, it involves a balancing of multiple 
factors. I mean, you have to look at the risks. You have to 
look at product benefits. You look at alternatives, and then, 
of course, you look at costs. So I think the key thing there is 
it is a combination of those factors and an analysis. It does 
not necessarily require, for example, cost benefit analysis, 
but that is often done.
    It is useful to perhaps recognize since asbestos is such a 
topic here that a cost benefit analysis was done on asbestos 
under the executive order, not under TSCA, and the 
administration determined that despite the significant risks, 
that rule was worth sending out. So the point is I think what 
you look at here is both of the factors that were considered, 
but they still led to decision to try to ban asbestos. So that 
doesn't necessarily, as unreasonable risk, mean you are doing 
less for more regulation.
    Mr. Shimkus. And you reiterated what you said in your 
opening statement. You have health and environmental risks, I 
think benefits, availability of alternatives, and economic 
consequences of the rule. That was the kind of four criteria 
that we use to evaluate that. And you believe this is a 
workable standard for TSCA?
    Mr. Greenwood. I think it is and can be. I mean, I think--
again, as I mentioned and I think Mr. Rawson mentioned, too, 
you got to remember that the unreasonable risk standards is out 
there and in many ways the prevailing standard that exists for 
regulation of products. And so you see experiences in other 
parts of the government, including pesticides at EPA, where 
there has been a very active program with an unreasonable risk 
standard. So I think the issues that you see in TSCA, at least 
with Section 6, as I mentioned in my testimony have less to do 
with the unreasonable risk standard than they do with that 
interpretation of what least burdensome alternative is.
    Mr. Shimkus. And Mr. Rawson, Mr. Greenwood referred to you. 
Do you agree with that, those statements?
    Mr. Rawson. I do. I think because you see the same standard 
in other statutes, including statutes administered by other 
agencies such as the Consumer Products Safety Act administered 
by the CPSC, and we see the basic criteria that make up the 
unreasonable risk standard in the executive order issued by 
this administration and similar executive orders issued by 
prior administrations. So I do think it is the right target to 
aim for.
    Mr. Shimkus. Having said that, do you think that the 
preemption provision similarly needs to be strengthened?
    Mr. Rawson. Well, the preemption provision in TSCA acts 
similar to the preemption provisions in the Consumer Products 
Safety Act and some other statutes. It basically says if EPA 
hasn't acted, States are free to act. Where EPA has acted under 
particular sections, then States typically can't act, although 
there are some exceptions. States can adopt identical laws to 
make them enforceable under State law. The States can actually 
prevent the use of the chemical within their boundaries, other 
than for the use to make other chemicals or mixtures. So there 
is still some latitude for the States.
    In terms of strengthening it, the one thing that the 
current preemption clause doesn't do, it preempts State action 
when EPA acts to regulate. If EPA takes a hard look at a 
chemical and says this one is OK, this activity is safe, there 
is no risk, it doesn't preempt us in the absence of regulation. 
It doesn't prevent States from saying well, we are going to 
regulate it. So one thing that could be considered is when EPA 
takes a hard look, all the interested stakeholders have an 
opportunity to comment and have their say and no risk is found, 
you could argue that preemption could make sense there to have 
national uniformity. That is not the current approach.
    Mr. Shimkus. Thank you. Ms. Thomas, some people think TSCA 
Section 6 should not include any exposure of magnitude effect 
considerations. What else--what other considerations should be 
evaluated?
    Ms. Thomas. Thank you for the question. While I am not a 
TSCA expert by any means, we would support that a process where 
active chemicals in commerce are evaluated, are prioritized, 
and assessed in a science-based, risk-based manner that takes 
into full account things like chemical use, hazard information, 
potential exposure, and the availability of alternatives. And 
we would be more than happy to work with you to try to find 
that right balance so that all of those things are 
accomplished.
    Mr. Shimkus. So if I can restate what you--you think that 
there is--a robust science assessment would be helpful in this 
process?
    Ms. Thomas. Absolutely, yes.
    Mr. Shimkus. Great. I thank you for your answers.
    I would now like to yield to Mr. Tonko, the Ranking Member, 
for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair. I thank the witnesses 
again for their testimony, and particularly welcome Mr. Johnson 
and Mr. Srolovic from my home State who can provide an 
important State perspective.
    In recent years, it appears as though States have led the 
way on chemical regulation, as EPA's program has faltered. It 
is vitally important that we hear from them today. Any effort 
to reform TSCA should protect the hard work States have devoted 
to protecting their citizens from the risks of dangerous 
chemicals, and learn from those success stories.
    Mr. Srolovic, can you describe briefly some of the chemical 
risks New York has been working to address?
    Mr. Srolovic. Yes, Ranking Member Tonko. Thank you.
    In New York, the most recent example I alluded to in my 
testimony was the risk to groundwater and public health posed 
by MTBE. That assessment led to the ban that was successfully 
defended from a challenge. I think overall, what we found, our 
kind of lesson learned is that environmental laws work best 
when there is a strong State and Federal partnership, and the 
problem with chemical regulation is that we don't have an 
effective Federal partner. And while New York continues to use 
its traditional authority to protect public health and the 
environment, we can't do it alone. We need EPA to have a clear 
mandate and the authority and the resources to timely assess 
the myriad of chemicals in our society for risks to health and 
the environment, and to enact appropriate restrictions.
    Mr. Tonko. Thank you. EPA's attempts to regulate asbestos 
have utterly failed in light of industry-backed litigation. 
Have the New York State regulations faced legal challenges, or 
Vermont, if you can share your story, either of you?
    Mr. Johnson. So Vermont has not had a successful challenge. 
We also banned MTBE in gasoline. The challenge for Vermont with 
its 620,000 residents and one toxicologist is that we just--we 
have looked at some chemicals, we have a lot of concerns, but 
we don't have an ability. We just haven't had an ability to do 
the work that we think ultimately ought to be done at the 
Federal level. We are absolutely in agreement in Vermont that a 
nationwide process would be the most appropriate one. It would 
work best for everybody if it was comprehensive and robust, but 
we will certainly be looking--you know, if this latest approach 
attempt to sort of reform TSCA doesn't come to fruition, I 
think the pressure will be on in my legislature to do more in 
Vermont. I think it will take a lot of work, but we could be 
successful.
    Mr. Srolovic. The New York ban on MTBE, as I mentioned, was 
challenged by industry. My office successfully defended that 
through trial. The district court found that the exercise of 
New York's traditional power to protect its groundwater and its 
public health were not in conflict with the approval or 
authorization of MTBE as a gasoline additive by EPA under the 
Federal Clean Air Act. So in that case, the court found, in 
fact, that there was no conflict between the State and Federal 
regimes, and that basic decision was just recently revisited by 
the U.S. Court of Appeals for the Second Circuit in a case 
involving New York City groundwater contamination, and again 
found that there was no conflict between these two programs.
    Mr. Tonko. Thank you. It is interesting to note that after 
New York acted to address the risks of the pesticide DDT, EPA 
followed suit. Mr. Srolovic, one of things this subcommittee 
should understand is what tools States need in a situation 
where Federal and State requirements are the same. If EPA 
adopts chemical regulations that mirror rules currently in 
place in New York, does New York still need authority to 
enforce the existing New York State requirements, or is it 
sufficient for the State to rely on Federal enforcement or the 
availability of citizen suits under TSCA?
    Mr. Srolovic. It is important for States to retain the 
ability to adopt under their own State laws the same 
requirements as the Federal requirements. And the reason for 
that primarily is that it then allows the State environmental 
agencies--in New York, it is the Department of Environmental 
Conservation--but the environmental regulatory agencies around 
the State do the bulk of day-to-day enforcement of our 
environmental laws, whether it is a State standard or a Federal 
standard. And having the ability which is presently preserved 
under TSCA for States to adopt that same requirement under 
their own law is very important for enforcement around the 
country.
    Mr. Tonko. I see that I have exhausted my time, so I yield 
back. Thank you, Mr. Chair.
    Mr. Shimkus. Gentleman yields back his time. The chair now 
recognizes the gentleman from Pennsylvania, Mr. Murphy, for 5 
minutes.
    Mr. Murphy. Thank you, Mr. Chairman, and I thank the 
distinguished panel for being with us today.
    Mr. Greenwood, I am just trying to get a sense from your 
testimony, a couple clarifications. Which is more important to 
help us get to the truth on chemical safety questions, peer 
review of data and scientific analysis, or cross examination 
requirements under TSCA's Section 6C?
    Mr. Greenwood. Well, I guess I would opt for peer review. 
Let me amplify that a bit. I do think, particularly in the 
context of TSCA Section 6, by the time you get to this cross 
examination stage, there has been a fairly extensive airing of 
the issues, and at the point--at least with my experience with 
asbestos, by the point you were talking about cross 
examination, there was essentially everybody hunkered down in 
their own positions taking shots at each other. To me, a better 
approach is what we see often with peer review, which is more 
typical of what we see today in regulation, where experts come 
together, see if they can develop consensus, see if they can 
provide some useful advice to an agency. And my general sense 
is that is probably more valuable.
    Let's say that peer review is not necessary every time, 
because depending on the issue and the rulemaking, you may not 
need that, but my general experience is that has been more 
successful.
    Mr. Murphy. Let me ask also then about cost benefit 
analysis. Does that also proceed in any kind of a scientific 
version, and what kind of data is included in a cost benefit 
analysis?
    Mr. Greenwood. Well, the range of data could be quite 
extensive. Obviously you are looking at the most best available 
information you can find. For the cost side, it is often a 
little easier. The real challenge is usually how you articulate 
benefits, because the key aspect of cost benefit analysis is 
you try to monetize if you can and compare, as apples to 
apples, costs and benefits. And some of that is much easier to 
do for some benefits than others, and that becomes one of the 
difficult challenges, but it can work well.
    Mr. Murphy. Thank you. Is the requirement that EPA consider 
the availability of viable substitutes for chemicals for 
specific uses appropriate?
    Mr. Greenwood. I think it absolutely is. It is critical, I 
would say, for at least two good reasons. One is it is critical 
in making a clear signal about whether there is going to be a 
technological issue. In other words, if you find that there are 
no alternatives, then you know you are entering a world in 
which you could have significant disruption, and that is an 
important thing to understand.
    The other thing about alternatives is it helps set up this 
question of shouldn't there be some assessment of those 
alternatives to see if they are better or worse, because the 
worst thing you want to do is push one chemical out of the 
economy and substitute another one that has got a bigger 
hazard.
    Mr. Murphy. Let me ask another question about this 
scientific quality of these decisions with regard to when they 
try to make a good risk decision, how does a focus on 
conditions of use of a chemical affect that scientific quality?
    Mr. Greenwood. That is a very important question, and I 
think it comes up more and more, because the question is as you 
have a general concern about a chemical, you need to translate 
that into something that you can actually do. And part of that 
is to look, then, at uses of chemicals. Once you know what the 
uses are, you can then do better exposure assessments, because 
you have very tangible situations to look at. It is also, 
again, critical for this issue of alternatives. Once you know 
exactly what your use is and your technology, then you can 
begin to ask the question what really are the realistic 
alternatives for that particular function, that use, and that 
exposure?
    Mr. Murphy. Thank you.
    Mr. Rawson, a quick question here. In your experience, we 
know that in the 37-year history of TSCA, EPA has only 
successfully imposed restrictions on, I think, five chemicals 
using Section 6. Does this mean that TSCA provides EPA 
inadequate authority to regulate, or there are some other 
issues there?
    Mr. Rawson. Thank you. Well, it certainly reflects the 
track record, but my own personal view is it reflects more 
EPA's reaction to the corrosion-proof fittings decision than 
problems with the statute itself. We have walked through the 
core elements of Section 6 and shown how they are actually in 
line with the standard practice for most agencies trying to 
address unreasonable risk and where possible, use the least 
burdensome approach to address the problem. But of course, the 
approach has to address the problem. So that is fairly standard 
and what is in the statute is consistent with smart regulation.
    The problem with corrosion-proof fittings is that there are 
some really serious issues with the rulemaking. I don't want to 
drag through those, but the Agency alters exposure assessment 
in very significant ways after the hearings were closed, and so 
nobody had a chance to comment. It was presented with really 
credible evidence that substitutes would actually cause more 
deaths than would be prevented by the rule. So these were big 
issues. We were all familiar with the adage that bad law 
makes--excuse me, bad facts make bad law. In this case, I think 
we had a situation where bad facts made for a very strong 
decision, and the Agency took that as saying that somehow now 
Section 6, because of this judicial gloss, is harder than what 
most agencies have to do. My feeling is that there are all too 
many statements in that decision that say if you had done it 
better, if you hadn't made these egregious errors, the court 
would have been much more deferential. So I sort of feel like 
too much of a hard lesson was learned from that decision.
    Mr. Shimkus. Gentleman's time is expired. Chair now 
recognizes gentleman from California, Mr. McNerney, for 5 
minutes.
    Mr. McNerney. Thank you, Mr. Chairman. I thank the 
witnesses for coming today.
    I would like to start with Mr. Greenwood. What would you--
or how would you formulate an alternative to a least burdensome 
alternative? How would you formulate something better than 
that?
    Mr. Greenwood. Well, one of the things I think is worth 
looking at is the way the current executive order frames the 
issue. It basically says that you are supposed to be looking at 
alternatives that are potentially effective and reasonably 
feasible. There is kind of an implied rule of reason there. The 
agent has to look at large, broad options. He doesn't have to 
look at every possible version, every possible variation, and I 
think----
    Mr. McNerney. So that has to be done in language, right, 
that can be followed?
    Mr. Greenwood. Yes.
    Mr. McNerney. That is a bit of a challenge. Do you have a 
specific wording or specific language that you would want to 
use?
    Mr. Greenwood. Well again, I think if you use that language 
and then kind of focus on the way it has been implemented in 
executive orders, I think you find a system that works, 
because--just to give you a ballpark, it is very common for 
agencies to, let's say, look at three or four large options, 
which is within the scope of their capability. They can analyze 
them, they can present the information. It goes to public 
comment. It is work. It takes a little bit of effort. It takes 
a bit of time, but it is not an impractical approach.
    Mr. McNerney. Mr. Rawson, I believe you said that Section 6 
places the burden on the EPA to demonstrate the need for 
regulation. What would you think would be a better approach 
than having the burden on the EPA?
    Mr. Rawson. So I actually think that is fine. I think it is 
fairly typical that the burden is on the Agency to justify its 
action. But I think the burden should often be on industry to 
supply much of the information, the test data, to provide 
information on exposure and other information that would 
support that decision. So my view of the world is that industry 
should supply much of the information, the Agency should make 
the decision about risk, and then if it finds a significant 
risk, propose the least burdensome approach that would address 
that risk.
    Mr. McNerney. Well the opposite would be to require 
industry to prove that their chemicals are safe.
    Mr. Rawson. Right. That is effectively what is happening 
right now with new chemical regulation, because with new 
chemicals companies have to--and this was covered by the 
previous hearing, of course, they have to provide a pre-
manufacture notice. Typically, EPA either gets the information 
it wants or the restrictions it wants, or the PMN is withdrawn. 
But with the universe of existing chemicals and all the myriad 
uses and so on, it is just not practical at this point in time 
to have industry prove a negative for every chemical for every 
use. What we really need, in my judgment, is EPA to have a 
mandate and the resources to prioritize and address in a 
reasonable timeframe the high priority chemicals, hopefully 
identify that most uses of most chemicals don't pose 
unreasonable risks, and then focus on the ones that might.
    Mr. McNerney. Well, the European countries, at least some 
of them, appear to have the mandate that you are talking about.
    Mr. Rawson. What they have is a mandate under their current 
program, known as REACH, a requirement that industry assemble 
chemical safety reports, dossiers, on their chemicals. But in 
only very limited circumstances will there be a requirement to 
seek authorization to continue uses. It is a very narrow subset 
of chemicals for which that approach would be taken.
    Mr. McNerney. Well, I believe that you implied in your 
opening remarks that the EPA asbestos rule--overturning of the 
EPA asbestos rule had a chilling effect on that Agency's 
ability to conduct further rulemaking. Is that--did I hear you 
right about that?
    Mr. Rawson. Yes, and Mr. Greenwood was there at the time. 
He was head of OPPT, and he has described that in his 
testimony. So certainly the Agency read that opinion and 
thought wow, this is hard. Maybe we shouldn't try to do this. 
Maybe we should act in other ways. I wasn't there. When I read 
the opinion, I am more struck by the errors, procedural and 
substantive errors that really forced the court's hand. And I 
would urge, there are some statements. I will just read one 
statement. This is in the conclusion where the court sort of 
tries to say to the Agency look, you can do this again, just 
follow some of the things I have said. And the court said EPA 
does not have the duty under TSCA of affirmatively seeking out 
and testing all possible substitutes. But when an interested 
party comes forward with credible evidence that the planned 
substitutes present a significant and even greater toxic risk 
than the substance in question, the Agency must make a formal 
finding on the record, otherwise the court can't evaluate. So 
to me, again, what I feel is that bad facts made a strong 
decision. I think it was premature to conclude that Section 6 
just couldn't work anymore.
    Mr. McNerney. All right. Thank you, Mr. Chair.
    Mr. Shimkus. Gentleman's time is expired. Chair will now 
recognize the gentleman from Mississippi, Mr. Harper, for 5 
minutes.
    Mr. Harper. Thank you, Mr. Chairman, and thank you for 
holding this very important hearing.
    If I could, I will start with Mr. Greenwood, and my 
question would be should overall statutory standards for 
science and data quality in regulatory decision-making be made 
more stringent?
    Mr. Greenwood. I think these questions about data quality, 
there are already some restrictions under the Information 
Quality Act that actually have been incorporated into many 
agencies' procedures, so I think you are seeing some of that. I 
do think it is difficult to, in a sense, regulate or legislate 
good science, so I think to some extent, this is one of these 
things where if you have a robust process where good science 
can be heard--we mentioned peer review earlier--I think these 
are the sorts of mechanisms that will help improve better 
science and how decisions are made.
    Mr. Harper. What was the take home lesson for EPA in the 
1991 corrosion fittings court decision?
    Mr. Greenwood. Well, I think we just heard my view and Mr. 
Rawson's view of how we reacted. The Agency reacted, I think, 
very strongly with a notion that as we read the opinion, we 
were seeing this as a case that says you need to evaluate each 
individual option that is less burdensome, and that one of the 
things we were afraid of was a tactical approach that we would 
see with industry would continue to put in front of us more and 
more alternatives and options and suboptions. And with TSCA 
being as broad as it was, you could do almost anything. The 
ability to do that was very real, so this is one of those 
issues that it was interesting at the time, it was the 
consensus of the lawyers, the managers, and the staff that this 
was a new world. This was a new set of burdens on the Agency 
that we weren't really quite ready for. Remember that at the 
time, the executive order that we were operating under required 
that we develop alternatives and look at options. We did that. 
However, that was not enough for this court.
    Mr. Harper. Mr. Rawson, if I could ask you, some States 
have been more active than others, obviously, in regulating 
chemicals. Have any State requirements for chemicals been 
preempted by TSCA in its 37-year history?
    Mr. Rawson. By and large the answer is no, because 
preemption is triggered under three sections, Section 4, 
testing, and Section 5, new chemicals, and States typically 
haven't been active in those areas. And then Section 6, where 
we have heard that EPA has promulgated very few regulations, 
apart from the PCP regulations. There is at least one case out 
of Louisiana where a parish's attempt to prevent the siting of 
a PCP disposal facility was preempted, but there are other 
cases where narrow regulations at the State level governing the 
disposal of PCPs were not preempted. But by and large, thus far 
preemption has not been a significant factor.
    Mr. Harper. Well, let me ask you--in your opinion, of 
course--if TSCA is amended to require EPA to more 
systematically assess the safety of chemicals in commerce, do 
you think TSCA's preemption provision similarly needs to be 
strengthened?
    Mr. Rawson. As I suggested earlier, an argument could be 
made that right--well, right now preemption only is triggered 
when EPA acts by regulation. That is similar to what happens, 
for example, with the CPSC. When CPSC promulgates a regulation 
governing a product, States can only do the same thing. They 
can't do something different. There is an obvious reason for 
that.
    But what we don't have here is a situation where EPA takes 
a very hard look, everybody with an interest comments, and 
concludes this product is safe, no regulations are required. 
That doesn't have a preemptive effect. One could argue that if 
it is done right once, it doesn't have to be done 50 other 
times. One could also argue the opposite, that States should be 
free to be more stringent.
    Under the current approach, by the way, they have the 
ability to petition the EPA for an exemption to be more 
stringent, and they have the ability to just simply say you 
can't use the chemical in our State. So there are--there is 
latitude now, even when EPA has acted, for some State role.
    Mr. Harper. Ms. Thomas, if I could ask you, how are your 
members affected under current TSCA by California's green 
chemistry law?
    Ms. Thomas. That is a great question. Thank you very much.
    So we are seeing a trend at the State level towards going 
beyond regulating just chemicals and starting to regulate 
consumer products, and they are using broad definitions of 
consumer products that would capture autos. A perfect example 
is the California Safe Consumer Products regulations, which 
would give the Department of Toxic Substances authority to 
regulate up to 10 components in a 3-year period to undergo 
alternative assessments, and the way component is designed--
defined, it would capture things, complex things like vehicle 
assemblies, transmissions, which in itself is a very complex 
component made up of multiple subcomponents and materials, and 
more importantly, the likelihood of exposure is minimal to 
nonexistent. So the idea of having to do an alternatives 
assessment for a transmission would be extremely costly and 
take many years, so imagine that times 10 in a 3-year period. 
So it is simply not feasible and very, very complicated.
    Mr. Harper. And who would you expect would ultimately bear 
that cost, additional expense?
    Ms. Thomas. We would, the auto makers.
    Mr. Harper. OK. All right, I yield back.
    Mr. Shimkus. Gentleman's time is expired. Chair now 
recognizes the gentlelady from Colorado, Ms. DeGette, for 5 
minutes.
    Ms. DeGette. Thank you very much, Mr. Chairman. I want to 
thank all the witnesses for being here. Sometimes I feel like I 
am in that movie ``Groundhog Day'' because I have been on this 
committee for 16 years now. I can't tell you how many hearings 
we have had where the witnesses come in and say, you know, 
there is consensus. Everybody agrees we need to figure out what 
to do about TSCA. Maybe we will have the magic moment this 
year, and I would be certainly happy to work with you, Mr. 
Chairman. I think everybody agrees, we need to do something, 
particularly about Section 6.
    And you know, when I was sitting here thinking when you 
talk about Section 6 of TSCA, I mean, the reason we have seven 
options for controls of chemicals in TSCA is they are all 
supposed to be actual regulatory options, not barriers towards 
trying to regulate and to enforce against potentially dangerous 
chemicals. You know, Section 6, ever since the asbestos 
debacle, has just really not been an actual regulatory option 
for the EPA, and that is a problem. It is a problem because for 
whatever reason, whether you think the court decision was 
proper or not, the EPA doesn't feel like they can go back and 
go through that same regulatory process again. So I think we 
really need to think about why that section doesn't work on its 
own and what we can do, especially after you hear testimony 
like Ms. Reinstein gave us today about the very real health 
effects that asbestos is having. And I want to thank you for 
sharing that human moment with us.
    Mr. Greenwood, in your testimony you said accurately that 
many Federal laws share a common pattern of weighing health and 
environmental risks against the cost and benefit of action, as 
well as the availability of alternatives. Under the Clean Air 
Act, the EPA sets national ambient air quality primary 
standards that protect public health regardless of cost, but 
implements those standards who state implementation plans that 
incorporate cost benefit analysis. And so I am wondering, could 
a framework where chemical determinations are made based only 
on health risks but are implemented considering the cost or 
benefit of different options be more effective? What do you 
think about that?
    Mr. Greenwood. I mean, I think that is an option that is 
worth considering. You mentioned the Clean Air Act. Essentially 
that is what you have in the Safe Drinking Water Act as well.
    Ms. DeGette. Right.
    Mr. Greenwood. So that is a model. I think one of the 
questions will be kind of what factors distinguish those things 
that are the health-based criteria from those things that would 
be this unreasonable risk notion.
    Ms. DeGette. Right.
    Mr. Greenwood. And so I think that is a key factor, but 
certainly, that is a model that could be considered.
    Ms. DeGette. Well you know, one thing that the EPA says 
when thinking about how they are going to have reform is they 
say chemicals should be reviewed against safety standards that 
are based on sound science--that is a radical concept, by the 
way, sometimes in this committee--and reflect risk-based 
criteria protective of human health and the environment. What 
do you think about that standard? Mr. Greenwood, what do you 
think about that?
    Mr. Greenwood. Well, I think----
    Ms. DeGette. That is what the EPA says that their 
guidelines should be.
    Mr. Greenwood. Well, I think that is what they think they 
do, and that is exactly what their guideline is. But I think 
that is certainly part of at least a component of the 
unreasonable risk standard that we think of as this notion of 
looking at the risks through looking at exposure and hazard, 
and then perhaps getting into the risks of the alternatives. So 
I think it is consistent with unreasonable risk in that sense.
    Ms. DeGette. OK. So Mr. Srolovic, New York has been really 
successful in placing restrictions on dangerous chemicals. What 
was the process that New York used in making those 
determinations?
    Mr. Srolovic. The restrictions at the State level in New 
York have been legislative decisions, so those bans or 
restrictions that I mentioned work through our State 
legislation process.
    Ms. DeGette. OK, but I assume the legislature used some 
kind of a basis for making those determinations?
    Mr. Srolovic. Indeed. They----
    Ms. DeGette. Let me ask you this. Is it a cost benefit 
analysis or an analysis of alternatives? Do you know?
    Mr. Srolovic. It includes those considerations, certainly. 
When the--for example, the BPA ban was passed, all the voices 
were heard: industry, producers, users, the medical community. 
So there in essence was a legislative hearing process that led 
to the legislature making that balance that considered all of 
those factors.
    Ms. DeGette. And they used--did they use science?
    Mr. Srolovic. Indeed.
    Ms. DeGette. OK, just checking.
    Mr. Johnson, you know, you talked about the need for States 
to know about some disclosure. That got me to thinking about 
the EPCRA statutes that relate to storage of chemicals. We 
could do something similar with TSCA for chemicals--for 
disclosure of chemicals, right, where you are letting people 
know what those chemicals are but maybe not disclosing 
proprietary information?
    Mr. Johnson. Right. I think there is a balance in there 
that was--there was attempt to achieve, originally. The problem 
was, from what I understand, is that you--for a long time, 
companies take the box that said confidential--the material is 
automatically confidential without any much review and today, 
as a State official, I can go on the Internet and read material 
about chemicals that EPA, by statute, cannot talk to me about 
because it is confidential.
    Ms. DeGette. Right, right. OK. Thank you. Thanks, Mr. 
Chairman.
    Mr. Shimkus. Gentlelady's time is expired. Chair now 
recognizes the gentleman from Ohio on the top panel, Mr. Latta, 
for 5 minutes.
    Mr. Latta. Well, it is good to know we have two Ohioans 
here on the committee, Mr. Chairman. Thanks very much, and 
thanks very much for our panel for being with us today.
    If I could ask a couple questions to you, Ms. Thomas, if I 
may. Are some of the public policies in conflict with others 
when it comes to designing and producing a new car or truck, 
and kind of following up on that, how often does that happen, 
and is it the Federal that are really conflicting with the 
State, or vice versa?
    Ms. Thomas. Thank you, Congressman. Yes, multiple State 
laws and regulations have the potential to comply with Federal 
environmental and safety standards. You know, a good example is 
in order to meet the aggressive fuel economy standards for 
model years 2017 through 2025, my members are going to be 
relying heavily on lightweight materials like plastics that 
contain chemicals like flame retardants in them. And NTSA, 
under DOT, also has authority to regulate the flammability 
standards, so we comply with those standards by using flame 
retardants. But then at the State level, you are seeing bills 
banning different flame retardants that are used in different 
products, but in the same way, so the problem becomes when 
they--when requirements for a couch are misapplied in error to 
an automobile, which obviously is very different from a couch.
    Mr. Latta. Let me follow up. On page four of your 
testimony, you--it calls for continually--pardon me, 
continuation of regulatory exemption for articles. Would you 
want these exemptions to preempt States, or should States be 
allowed to regulate beyond those exemptions on the articles?
    Ms. Thomas. Yes, so I am happy to be here today to talk 
about the proactive steps that my companies have been taking to 
reduce substances of concern from their vehicles. We work with 
our suppliers on maintaining a tracking database for--to ensure 
that restricted substances of concern do not end up in our 
vehicles.
    But the reality is a car is a very complex product with 
thousands of components, each made up of multiple chemicals and 
mixtures, so any requirements at the State level become very 
challenging, because they each have their own hurdles. So we 
would like to see a strong Federal approach that focuses on 
specific applications with potential for actual consumer 
exposure. We believe that would be a more effective approach 
than an overly broad one.
    Mr. Latta. Thank you.
    Ms. Thomas. And yes, Federal action should preempt State 
action on that regard.
    Mr. Latta. Thank you.
    Mr. Johnson, on the last page of your testimony you have a 
couple things you say. The second one of the unaddressed issues 
is timelines for chemical reviews. And you also state--you say 
that perhaps similar deadlines to the EPA would be appropriate 
and would ensure timely actions, because States are doing 
certain things when it is coming to set deadlines for air and 
water permit issuance. But you say in the last line then that 
you are currently unable to suggest what those deadlines ought 
to be. Any idea, though, because are we running the situation 
where it is dragging on too long on the Federal side and we 
need to get these things resolved, and what would you 
personally like to suggest?
    Mr. Johnson. I appreciate the question. You know, it is a 
bit of a challenge. Our members passed the resolution without 
any ``no'' votes, and they are a pretty broad group, the 
States. I think that the biggest concern for us is that when 
you look at your--and it has already been stated here, 37 
years, five chemicals, it seems to us that it needs to be 
quicker than that. You know, when EPA is in a process of 
reviewing a chemical, I think certainly for my State of 
Vermont, if EPA could get through that process--I don't know 
whether it is somewhere 6 months, 2 years to get through all 
the processes that would need to happen, and make a regulatory 
decision on that that was transparent and open, then that 
would, I think, make it much easier for us to address issues of 
concern from the people in my State. Because what happens is 
they come in year after year just asking the State to do 
something, and we are ever hopeful that something might happen 
at the Federal level, but 3, 4, 5, 6 years later, it starts to 
get difficult to sort of just defer to the Federal EPA on these 
things.
    Mr. Latta. Thank you very much, and Mr. Chairman, I see my 
time is expired and I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes gentleman from Texas, Mr. Green, for 5 minutes.
    Mr. Green. Thank you, Mr. Chairman, for holding the third 
hearing on TSCA reform. Just for the panel, I have a district 
in Houston in East Harris County. It is home to one of the 
largest collection of chemical plants in the country, and 
seeing TSCA that works for the affected is important by this 
important statute, including industry and employees and workers 
and consumer advocates is vital to our constituents and the 
regional economy.
    Mr. Rawson, are you aware of any voluntary safety 
initiatives or product stewardship programs run by the chemical 
manufacturers?
    Mr. Shimkus. Can you check your microphone?
    Mr. Rawson. Thank you. Yes, there are quite a few. Some in 
collaboration with EPA and other stakeholders that are 
described in EPA's Web site, initiatives to phase out certain 
chemistries without having to determine that they present an 
unreasonable risk, but because sufficient concerns have been 
raised, and there are many private--I shouldn't say private. 
There are many product stewardship initiatives that are not 
done with the Agency but are just part of the good practices of 
a company. So to my view, this is certainly an important part 
of making sure that chemicals or manufacture processed and used 
safely.
    Mr. Green. So EPA has collaborated with chemical 
manufacturers in promoting some of the programs and----
    Mr. Rawson. Yes, it has, and in many cases, with other 
stakeholders at the table.
    Mr. Green. OK. Do you know how many rulemaking actions have 
been taken by the EPA under Section 6 since the corrosion-proof 
fittings ruling?
    Mr. Rawson. I cannot think of one. They tried for many 
years with respect to grout materials, but ultimately it was a 
very long process and controversial, but ultimately became 
unnecessary because personal protective equipment was developed 
that made it unnecessary.
    Mr. Green. OK. So are the requirements for rulemaking under 
Section 6 too burdensome for EPA to regulate?
    Mr. Rawson. Well, so we can have a range of opinions at the 
table. My view is that the statute creates the right target. 
Corrosion-proof fittings read EPA the riot act a little bit, 
and so--and the Agency concluded let's not try that again. My 
feeling is they gave up a little bit too quickly. But if there 
are ways we can make easier without--easier to make good 
decisions. To me, the goal here is to make good decisions that 
meet all the objectives of the statute, not just to make it 
easier to ban chemicals. So that is what we want to do. If we 
make changes, we want to make sure that anything that is done 
helps EPA make good decisions to consider all the factors, 
unreasonable risk, safety of alternatives, et cetera.
    Mr. Green. So you testimony is we really need a structure 
for EPA to do it? They have enough--do you think they have 
enough resources to be able to do it if we gave them a 
statutory structure?
    Mr. Rawson. I think they could use some more resources, and 
particularly as described in my testimony, I think it would be 
helpful if they really sped up the review of existing 
chemicals. And you know, we hear over and over again with five 
in 37 years, and that is the number regulated, but they have 
actually assessed hundreds, thousands. We need a much more 
transparent way to keep track of that so people can have more 
confidence in what is being done, and a greater through put.
    Mr. Green. OK. Mr. Greenwood, are the requirements for 
rulemaking in Section 6 too burdensome for EPA to regulate 
chemicals?
    Mr. Greenwood. Pardon me? I didn't----
    Mr. Green. Is the rulemaking requirements in Section 6 too 
burdensome for EPA to regulate chemicals?
    Mr. Greenwood. Well I think--as I have indicated a couple 
times now--I think there is a problem with the least burdensome 
alternative finding, the way it has been interpreted. I think 
unreasonable risk can work as a framework for it. I do think 
some of the procedural parts of it also may not be necessary.
    Mr. Green. If there was one change in Section 6, what would 
it be that you could suggest?
    Mr. Greenwood. Well, I would try to fix the corrosion-proof 
fitting determination on least burdensome alternative.
    Mr. Green. Ms. Reinstein, back in 2008 I was acting chair 
of the subcommittee, and I actually introduced a bill to ban 
asbestos in TSCA, and I ended up getting a lot of contacts 
from, you know, asbestos is a substance that comes out of the 
ground in California and different places. But one, I would 
like to thank you for your leadership and I am sorry about 
learning of the passing of your husband. I also represent not 
only an industrial area, but a lot of seafarers, and over the 
years, asbestosis is something that is part of their life and 
their families. Can I ask how did consumers first learn about 
the dangers of asbestosis or asbestos?
    Ms. Reinstein. How can consumers learn about the dangers? 
That is a very mystifying question and it is very important 
because although there are 10,000 Americans that die every 
year, because the nature of the disease latency period makes it 
very difficult for the workers and families. So I think we 
obviously have to work with the medical community, but also go 
back to labor unions and increase awareness. And that is what 
ADO has been trying to do is work with the congressional 
leadership and unions to indeed just do that. But you are 
right, it is an ongoing problem.
    Mr. Green. Which professions are more exposed--American 
workers exposed to asbestos? I know, like I said, people work 
on ships. Our ships used to be covered with asbestos because of 
the threat of fire. Any other professions?
    Ms. Reinstein. That is another great question. If you use 
the NIOSH database, you can actually sort by industry and you 
can clearly see that there is a large group between ship 
building, obviously anyone who served on ships like the 
veterans, as well as construction and also the auto industry. 
Those three groups of workers have been most plagued by 
asbestos exposure.
    Mr. Green. OK. Mr. Chairman, I know I am out of time and I 
appreciate your patience.
    Mr. Shimkus. Gentleman's time is expired. Chair now 
recognizes gentleman from Ohio, Mr. Johnson, for 5 minutes.
    Mr. Johnson of Ohio. The other gentleman from Ohio.
    Mr. Shimkus. Last, but not least.
    Mr. Johnson of Ohio. There you go. Mr. Johnson--that is odd 
for me to say. I don't say that very often. I can tell by your 
accent you are from the other side of the family, I think. Do 
the States participate in EPA's implementation of TSCA today, 
and if so, how?
    Mr. Johnson. Well, they have in a fairly small way. I mean, 
I think the biggest challenge for the States is because EPA has 
been so challenged to get to chemicals, one of the things that 
States have really felt is necessary is a better way for States 
to sort of be the petition or somehow to get the chemicals that 
are coming up and being raised as of concern among citizens in 
States to get EPA to look at those. It is a challenge because I 
think as has already been mentioned, new chemicals there is 
somewhat of a process for, but we have this huge group of 
chemicals that got grandfathered in 37 years ago, and I think 
certainly amongst the people in our States, the idea that they 
may be dangerous but we don't know, but they are in commerce 
and we will get back to them maybe never is just not an answer.
    Mr. Johnson of Ohio. Well maybe I am a little unclear. Are 
they delegated any authority under TSCA today or do they have 
to go ``Mother, may I'' to----
    Mr. Johnson. Well, what happens today is because EPA hasn't 
really assessed a lot of chemicals, they don't have to go to 
EPA to do it. They go to the State legislature and if they can 
pass a regulation like California or New York or Oregon or 
Washington or Maine have done----
    Mr. Johnson of Ohio. So they have to assume the authority?
    Mr. Johnson. Then they would assume it, yes.
    Mr. Johnson of Ohio. Do the States engage in chemicals 
management?
    Mr. Johnson. Some States do and some States don't. It is--
except for California, which is at the moment or is just about 
to roll out a pretty comprehensive regulation that is--they 
spent the last 3 years working on that would be sort of more of 
a system approach, most States have done it on a chemical-by-
chemical basis because of a particular concern raised. And as 
was mentioned earlier, it usually goes through the legislature. 
People come in and say we need you to do something about this 
chemical, and so I would say that that has been--in those 
States that have done it, there is certainly a way to do it, 
but it is not particularly efficient and it means you have a 
spotty landscape.
    Mr. Johnson of Ohio. Why do you think some States have 
engaged more actively in chemical management than others?
    Mr. Johnson. Part of it is resources. Some bigger States 
have just been in a better position to do it, because they have 
been able to bring some resources to bat, either through their 
health department or their environmental regulatory agency. 
Some States have just had individual legislators who have a 
particular interest who have been able to bring something 
forward and get it passed. States like mine have been somewhat 
reticent to get into the business of regulating chemicals, 
because we haven't worked out how we would actually pay for it. 
And we quite honestly think that it makes sense to do it at the 
Federal level. Our market in Vermont is pretty small, and we 
don't want to somehow isolate ourselves by having a block to 
commerce that would just have us cut out of the market. 
Although we don't have a lot of industry, we do have an IBM 
chip manufacturing plant and the semiconductor industry is one 
of the ones a bit like the car industry, a lot of components 
involved in there. But it is really a resource issue.
    Mr. Johnson of Ohio. One final one for you, Mr. Johnson. Do 
some of the concerns that States have addressed fall under laws 
other than TSCA or agencies other than the EPA, for example, 
FDA or OSHA?
    Mr. Johnson. They do, although in pesticides, for instance, 
and Food and Drug Administration there has been a lot more 
activities by those agencies. It is sort of the reverse, 
generally pretty good. I think people feel confident. The 
American people seem pretty confident in those agencies, with 
the occasional sort of thing that stands out as an issue, 
whereas TSCA is almost the other way. It is like generally not 
confident with the occasional thing that stands out as being 
OK.
    Mr. Johnson of Ohio. Sorry I didn't have any questions for 
the rest of you. It was just more comfortable family to family 
here, so thank you.
    Mr. Johnson. I appreciate it.
    Mr. Johnson of Ohio. Mr. Chairman, I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes ranking member of the full committee, Mr. Waxman, 
for 5 minutes.
    Mr. Waxman. I thank you, Mr. Chairman.
    Today the subcommittee continues its oversight work on the 
Toxic Substances Control Act, tackling two important and 
related issues: EPA's authority to regulate harmful chemicals, 
and the ability of States to take action when necessary.
    EPA's regulation of chemicals can be an important part of 
protecting families from harmful environmental exposures and 
pollution. Unfortunately, TSCA has so far fallen short of its 
objectives. Its failures have meant avoidable suffering, 
disease, and death. Asbestos is one of the clearest examples. 
Over the course of 10 years, EPA undertook a rulemaking and 
built an exhaustive record in an attempt to regulate this 
dangerous toxin, but the court threw it out and essentially, 
EPA gave up hope of using TSCA to address chemical risks.
    Mr. Rawson, you suggested in your testimony that you agree 
with the court's decision to throw out EPA's asbestos rule. 
Specifically, Mr. Rawson seems to argue that the automobile 
brake pads should remain on the market unless EPA can prove 
that brake pads not containing asbestos are safe to use.
    Ms. Reinstein, you know firsthand the terrible suffering 
associated with exposure to asbestos, and what can you tell us 
about the health risks posed by exposure to asbestos from brake 
pads?
    Ms. Reinstein. Thank you, Ranking Member Waxman, and you 
are also my Congressman so it is lovely to finally meet you in 
person.
    We know that asbestos is a carcinogen causing disability 
and deaths. I can only tell you that those who are diagnosed 
with these diseases and their entire families suffer. We have 
many asbestos victims who have changed brakes and have inhaled 
and obviously been exposed to asbestos. And again, the latency 
period complicates it. There is no cure for any of these 
diseases; however, prevention is a cure. Substitutes do exist.
    Mr. Waxman. In your view, if Congress were to consider TSCA 
reform legislation, should we ensure that EPA be able to put an 
end to the ongoing asbestos exposures in this Nation?
    Ms. Reinstein. I think that if there is a bill passed that 
can't do that, it needs to go back to the wood shed. Clearly, 
any TSCA reform must ban asbestos.
    Mr. Waxman. Thank you. Ms. Thomas, you represent 12 major 
automobile manufacturers. Do your manufacturers still use 
asbestos brake pads and linings on new cars?
    Ms. Thomas. To the best of my knowledge, no.
    Mr. Waxman. Do you or your members have concerns about the 
safety of non-asbestos brake pads?
    Ms. Thomas. I am sorry, repeat that question one more time.
    Mr. Waxman. Do you or your members have concerns about the 
safety of non-asbestos brake pads?
    Ms. Thomas. No.
    Mr. Waxman. But my understanding is that brake pads 
containing asbestos remain on the market today. Asbestos can 
still be found in imported brake pads sold in the aftermarket. 
Isn't that correct?
    Ms. Thomas. Yes, that is my understanding.
    Mr. Waxman. Now, Mr. Rawson, I would like to go back to 
you. Let's put aside whether the court decided the asbestos 
case correctly or EPA built the best record it could over the 
course of its 10-year effort. Do you think that this was a good 
policy outcome? Do you believe it was good for the public for 
asbestos to remain on the market? Public health advocates and 
State regulators remain concerned about asbestos in brake pads. 
For example, some States, including California, have passed 
bans on asbestos brake pads.
    Mr. Rawson. Thank you for the question. First of all, I 
obviously don't take lightly the hazards of asbestos and share 
the sympathies of everybody in this room for all families who 
suffered losses as a result. So I take that as seriously as 
everybody else. At the time of the rulemaking, new cars were 
already not using asbestos in brake pads.
    Mr. Waxman. Well what do you think the policy ought to be? 
Do you think it was a good policy outcome?
    Mr. Rawson. I am trying to answer that.
    Mr. Waxman. Do it very quickly, because my time is running 
out.
    Mr. Rawson. The issue was with replacement brakes, using 
non-asbestos brake pad on a car engineered for a brake pad 
could cause many more deaths than it would prevent. An EPA 
study said that and EPA experts said that the loss of life from 
putting the wrong brake pad on the car would far outweigh any 
benefit of the rule. The problem was EPA didn't answer that. 
Had they answered that----
    Mr. Waxman. Let me ask Mr. Srolovic, how important is it to 
maintain the ability of States to take actions like that to 
address health risks from chemicals when EPA can't? It is an 
important issue. I can't support legislation that would 
undermine the few protections that are in current law or that 
would preempt successful State efforts to protect the public. 
What do you think?
    Mr. Srolovic. Congressman, I think it is very important to 
preserve the traditional power of States to take legislative 
regulatory action under their traditional powers to protect 
their citizens and their environment from the hazards posed by 
toxic chemicals.
    Mr. Waxman. Thank you. Well, I appreciate that. I am sorry 
to have cut you off, but my time is already over and I have to 
yield back to the chairman to call on another member.
    Mr. Shimkus. And he knows how tough I am on time, so thank 
you. I thank the ranking member. Chair now recognizes my 
colleague from Illinois, Ms. Schakowsky, for 5 minutes.
    Ms. Schakowsky. Thank you, Mr. Chairman. I had some 
questions for Mr. Greenwood which really go back to the history 
of TSCA.
    You made the argument that the EPA struggled over resource 
allocation in the early years of TSCA, and here we are almost 
40 years later and I can't imagine that efforts by this body to 
get funding--by this body to gut EPA funding--we are talking 
about cutting, including the interior and environmental 
appropriations bill, by 34 percent, a 34 percent cut to the EPA 
have made it much better.
    But here is my question. What TSCA-related risks to human 
health and the environment can be anticipated if the EPA were 
severely underfunded?
    Mr. Greenwood. That is a major question. It is hard to 
translate that, a budget cut into specific actions. I think the 
budget situation at EPA, as I understand it, is that they are 
very limited on what they can do on new chemicals. The staffing 
is as lean as it can be----
    Ms. Schakowsky. I am sorry, on new chemicals?
    Mr. Greenwood. On new chemicals. And as to existing 
chemicals, they have started to lay out a fairly, I think, 
constructive plan with a list of 83 work plan chemicals that 
they are trying to address, and they have a budget for it and I 
think it is something that I think we all would like to see 
progress. They are going to be using good science to assess and 
then decide what they can do from a risk management point of 
view. My guess is that that is the area that is most likely to 
be hurt if there are severe budget cuts, and I think it is not 
in the interest of most of us.
    Ms. Schakowsky. Thank you. It seems to me that the EPA's 
effort to address asbestos is illustrative of some of the 
underlying problems of TSCA and the existing chemicals. As you 
said in your testimony, asbestos was seen as a test case to 
prove the efficacy of TSCA. Still, it took 10 years from the 
advance notice of proposed rulemaking to the official ban, and 
that ban was overturned in 2 years and despite the findings 
that there are no safe levels for asbestos, many products from 
kids' toys to car brakes, which we were just talking about, 
have been found to contain asbestos since 1991. And as Ms. 
Reinstein said, 30 Americans die each day from preventable 
asbestos-caused disease. So what does the asbestos case tell us 
about TSCA and how should the law be changed, amended, fixed to 
ensure that dangerous products, you know, many years and 
decades later aren't still on the market?
    Mr. Greenwood. Well, I think that the case has told us that 
there are parts of the structure of the statute that prevent 
problems from getting decisions made. I have mentioned this now 
multiple times. The least burdensome alternative----
    Ms. Schakowsky. I apologize for coming so late.
    Mr. Greenwood. No, that is OK. Least burdensome alternative 
provision and how it was interpreted by the court, I think most 
of us felt that EPA at the time after the decision came down 
was a surprise and was something that would have long term 
effects. I think it is important to recognize though that we 
didn't necessarily think that the other parts of the statute 
couldn't work. I don't recall any discussion where people 
thought that unreasonable risk was an inappropriate standard. 
It was very focused on this one issue, so I think for most of 
us at EPA at the time, that was the major takeaway message of 
concern.
    Ms. Schakowsky. Thank you. Again, I apologize for having 
you repeat it, but I appreciate your indulgence.
    Thank you. I yield back, Mr. Chairman.
    Mr. Shimkus. Gentlelady yields back her time. The chair 
wants to thank the panelists here today. Again, this is the 
third of a set of hearings on TSCA. As my colleague from 
Colorado said, this is one everybody would like us to do 
something on, hopefully something positive, and it is kind of 
exciting to open up the can of worms and start pulling them out 
and see what works and what doesn't. So I appreciate your 
attendance and look forward to working with you. I appreciate 
the involvement of the Minority and the very active questioning 
and the like.
    I would like to ask unanimous consent for a letter to Mr. 
Waxman from Californians for a Healthy and Green Economy, as 
well as a press statement from CHANGE to be submitted into the 
record, also a letter from the American Alliance for Justice 
that was sent to myself and Mr. Tonko concerning State tort law 
to be submitted for the record, and a resolution from ECOS, 
which they have been very helpful over my time as a chairman in 
dealing with issues, referenced by Mr. Johnson in his 
testimony. That will all be submitted into the record. Without 
objection, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mr. Shimkus. And with that, I would like to declare the 
hearing adjourned.
    [Whereupon, at 3:52 p.m., the subcommittee was adjourned.]

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