[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
S. 1009, THE CHEMICAL SAFETY IMPROVEMENT ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 13, 2013
__________
Serial No. 113-92
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
U.S. GOVERNMENT PRINTING OFFICE
87-628 WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
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
_____
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. John D. Dingell, a Representative in Congress from the State
of Michigan, opening statement................................. 5
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, prepared statement................................... 134
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, prepared statement.............................. 135
Witnesses
Hon. David Vitter, a United States Senator from the State of
Louisiana \1\.................................................. 8
Hon. Tom Udall, a United States Senator from the State of New
Mexico \1\..................................................... 9
James Jones, Assistant Administrator, Office of Chemical Safety
and Pollution Prevention, Environmental Protection Agency...... 11
Prepared statement........................................... 14
Answers to submitted questions............................... 190
Cal Dooley, President and Chief Executive Officer, American
Chemistry Council.............................................. 46
Prepared statement........................................... 49
Answers to submitted questions............................... 194
Ernest Rosenberg, President and Chief Executive Officer, American
Cleaning Institute............................................. 54
Prepared statement........................................... 56
Richard A. Denison, Senior Scientist, Environmental Defense Fund. 67
Prepared statement........................................... 69
Answers to submitted questions............................... 198
Dean C. Garfield, President and Chief Executive Officer,
Information Technology Industry Council........................ 84
Prepared statement........................................... 86
Andy Igrejas, Director, Safer Chemicals, Healthy Families........ 93
Prepared statement........................................... 96
Answers to submitted questions \2\........................... 204
Wendy E. Wagner, Joe A. Worsham Centennial Professor, University
of Texas Law School............................................ 103
Prepared statement........................................... 105
Answers to submitted questions............................... 205
Submitted Material
Letter of October 23, 2007, from Frances G. Beinecke, President,
Natural Resources Defense Council, et al., to Mr. Dingell,
submitted by Mr. Dingell....................................... 6
Letter of June 25, 2013, from Matthew Rodriguez, Secretary for
Environmental Protection, California Environmental Protection
Agency, to Senator Dianne Feinstein, et al., submitted by Mr.
Shimkus........................................................ 137
Letter of November 13, 2013, from Jeanne Rizzo, President and
Chief Executive Officer, Breast Cancer Fund, to Mr. Shimkus and
Mr. Tonko, submitted by Mr. Shimkus............................ 150
----------
\1\ Mr. Vitter and Mr. Udall did not submit written statements for the
record.
\2\ Mr. Igrejas did not answer submitted questions for the record by
the time of printing.
Letter of July 24, 2013, from National Conference of State
Legislatures co-chairs to Senator Barbara Boxer and Senator
David Vitter, submitted by Mr. Shimkus......................... 155
Letter of November 12, 2013, from Rainer Lohmann, Graduate School
of Oceanography, University of Rhode Island, et al., to Mr.
Upton and Mr. Waxman, submitted by Mr. Shimkus................. 161
Letter of June 12, 2013, from John S. Applegate, Walter W.
Foskett Professor of Law, Indiana University Maurer School of
Law, et al., to Mr. Shimkus and Mr. Tonko, submitted by Mr.
Shimkus........................................................ 169
Letter of November 12, 2013, from Debra Baseman, Princeton
Medical Group, et al., to Mr. Upton and Mr. Waxman, submitted
by Mr. Shimkus................................................. 186
S. 1009, THE CHEMICAL SAFETY IMPROVEMENT ACT
----------
WEDNESDAY, NOVEMBER 13, 2013
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:18 a.m., in
room 2123 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Gingrey, Pitts,
Murphy, Latta, Cassidy, McKinley, Bilirakis, Johnson, Tonko,
Pallone, Green, DeGette, Capps, McNerney, Dingell, Barrow, and
Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Charlotte
Baker, Press Secretary; Jerry Couri, Senior Environmental
Policy Advisor; Brad Grantz, Policy Coordinator, Oversight and
Investigations; David McCarthy, Chief Counsel, Environment and
the Economy; Brandon Mooney, Professional Staff Member; 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 Caitlin Haberman,
Democratic Policy Analyst.
Mr. Shimkus. I would like to call the hearing to order.
We want to welcome our two Senators. First, I will do--we
will do our opening statements, and then we will give you yours
and then--and we will begin. I recognize myself for 5 minutes.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Today we hold our fourth hearing of 2013 on the Toxic
Substance Control Act. We welcome our witnesses, including a
couple of former House guys; Senator Vitter and Senator Udall,
as well as Jim Jones, Assistant Administrator of the EPA, and
some of the important stakeholders in this discussion.
Until more recently, TSCA was one of the least understood
Federal environmental laws, but it is one of the most important
environmental protections laws that we have. It governs
chemical substances, mixtures and articles from the time they
are invented, all the way through the stream of commerce.
Our hearings have been very instructive. They have given us
a chance to dig into the nuts and bolts of this complex body of
law. Among other aspects of the law, we studied approval of new
chemicals, regulation of existing chemicals, protection of
confidential business information, and the value of a seamless
integrated U.S. market for chemicals and products that contain
them. We have gotten the perspective of learned experts in the
practice of TSCA law, former EP officials experienced in what
works and what doesn't work in the law's administration, State
environmental control officials, downstream product
manufacturers, and citizen activists.
As we will hear firsthand in just a few minutes, a lot of
thought and hard work has also gone into TSCA on the other side
of the Capitol. Earlier this year, Senator Vitter and the late
Senator Frank Lautenberg, with strong bipartisan support,
introduced Senate Bill 1009, the Chemical Safety Improvement
Act. Its reform, if enacted, will represent the most sweeping
set of changes to TSCA since the Ford administration.
We are eager to learn what aspects of this proposal brought
such a diverse set of supporters together. We hope this
administration and our panel will tell us what they see as the
best attributes of the legislation. We also hope to entertain
suggestions on how to make it better.
Writing legislation as complex and as important as
modernizing TSCA is not easy, but implementing it may be even
tougher. Congress can give EPA both the authority and direction
to carry out everything in a new TSCA, but we just can't assume
that the Agency has the resources to accomplish all of it, nor
that they will get it done in a short period of time of
enactment. That is why we need some guidance from Jim Jones,
who manages the chemical regulation for the EPA. Mr. Jones, we
hope your help won't end with today's hearing. The same goes
for stakeholders, and not only the ones we will hear from
today. We need your help in understanding the real world
implications of any legislation we might consider. No one,
whether on this side of the dais or on the witness table, has
all the answers, but that doesn't mean we don't need you to
give us all of your input.
And, finally, thanks to all the members of the subcommittee
for your thoughtful work this year on TSCA. Have you noticed
that our hearings have not been debates across the aisle, but
rather nonpartisan efforts to understand the current law? At
times, I have learned as much from questions from Mr. Tonko or
Ms. DeGette, and the answers witnesses give them, as I have
from my own brilliant questions that I have offered.
Let us continue to embrace that same spirit as we begin to
explore whether we can make Federal chemical management policy
better, and allow the United States to lead the global--the
globe in manufacturing smarter public health protection and
innovation.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
Today we hold our fourth hearing of 2013 on the Toxic
Substances Control Act. We welcome our witnesses, including a
couple of former House guys, Senators Vitter and Udall, as well
as Jim Jones, Assistant Administrator of EPA, and some of the
important stakeholders in this discussion.
Until more recently, TSCA was one of the least understood
Federal environmental laws, but it is one of our most important
environmental protection laws. It governs chemical substances,
mixtures, and articles from the time they are invented all the
way through the stream of commerce. Our hearings have been very
instructive. They've given us a chance to dig into the nuts and
bolts of this complex body of law.
Among the aspects of the law, we've studied:
L Approval of new chemicals,
L Regulation of existing chemicals,
L Protection of confidential business information,
and
L The value of seamless, integrated U.S. market
for chemicals and products that contain them.
We've gotten the perspective of:
L Experts in the practice of TSCA law;
L Former EPA officials experienced in what works
and what doesn't work in the law's administration;
L State environmental control officials;
L Downstream product manufacturers; and
L Citizen activists.
As we'll hear first-hand in just a few minutes, a lot of
thought and hard work has also gone into TSCA on the other side
of the Capitol. Earlier this year Senator Vitter and late-
Senator Frank Lautenberg with strong bipartisan support
introduced S. 1009, the Chemical Safety Improvement Act. Its
reforms, if enacted, would represent the most sweeping set of
changes to TSCA since the Ford administration.
We're eager to learn what about this proposal brought such
a diverse set of supporters together. We hope the
administration and our stakeholder panel will tell us what they
see as the best attributes of the legislation. We're also open
to suggestions on how to make it better.
Writing legislation as complex and as important as
modernizing TSCA is not easy. But implementing it may be even
tougher. Congress can give EPA both the authority and direction
to carry out everything in a new TSCA, but we can't just assume
that the agency has the resources to accomplish all of it, nor
that they'll get it all done in a short period of time after
enactment.
That's why we need some guidance from Jim Jones who manages
chemical regulation for EPA. And, Mr. Jones, we hope your help
won't end with today's hearing.
The same goes for stakeholders, and not only the ones we'll
hear from today. We need your help in understanding the real-
world implications of any legislation we might consider. No
one, whether on this side of the dais or at the witness table,
has all the answers, but that does not mean we don't need you
to give us all of your input.
And, finally, thanks to all the members of this
subcommittee for your thoughtful work this year on TSCA. Have
you noticed that our hearings have not been debates across the
aisle, but rather non-partisan efforts to understand current
law? At times I've learned as much from questions by Mr. Tonko
or Mrs. DeGette, and the answers witnesses have given him, as I
have from my own.
Let's continue to embrace that same spirit as we begin to
explore whether we can make Federal chemical management policy
better and allow the United States to lead the globe in
manufacturing, smarter public health protection, and
innovation.
Mr. Shimkus. With that, I yield back the balance of my
time, and I yield 5 minutes to Mr. Tonko, the ranking member of
the subcommittee.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair, and good morning. I am
pleased to be here today for this important hearing on the
Chemical Safety Improvement Act. It is a pleasure to welcome
Senator Vitter and Senator Udall here to discuss their
perspectives on TSCA, TSCA reform, and report on their ongoing
efforts to reconcile the interests of the many constituencies
who have a deep stake in chemical issues. It is not an easy
task.
This is our subcommittee's fourth hearing on TSCA. There
seems to be general agreement by all parties that the current
law simply is not working. Current law does not give the
Environmental Protection Agency the tools or the resources the
agency needs to implement an effective toxic chemical program,
but general agreement on these observations is no guarantee of
agreement on the best way to address these problems. And it
appears we still have some disagreement about which aspects of
TSCA are in need of revision.
The public does not have confidence in this law or EPA's
implementation of it. Industry's assertion that its products
are safe is simply not good enough. Because the Federal law is
ineffective, States have stepped in to address specific
chemical risks. State action provides an essential backstop to
Federal law, but individual State actions do not provide a
uniform safety guarantee to all of our citizens, and they do
not provide national standards and regulatory certainty to
industry.
So where do we go from here?
The bipartisan initiative represented by S. 1009 offers us
an opportunity for broad participation in the effort to reform
TSCA, and that is what we need; broad participation in this
effort. Because chemicals are such a part of our daily lives,
we all have a stake in this effort. This bill does not yet
address many of the current law's shortcomings. In some
respects, it takes us backward by preempting States' ability to
act, for example.
There is no need for a State preemption. If this proposal
provides EPA with the tools to protect all of our citizens,
including those who are the most vulnerable; children and our
elderly, there will be far less call for individual State
action, but States should retain their rights to act in the
best interests of their citizens, and to address specific State
concerns when, indeed, it is necessary.
I am concerned about retaining the unreasonable risk
standard from current law when it has not proven to be a
sufficient basis for Agency action over the past 37 years.
EPA cannot evaluate the potential risk or relative safety
of chemicals without sufficient information. The fact is we
still have many chemicals circulating in commerce for which we
have little health and safety information, and even less about
their behavior in the environment. This problem stems from
several weaknesses in the current law, which this legislation
only partially addresses. We need a Federal chemical law that
provides adequate protection of public health and the
environment, and that promotes continued innovation in our
chemical industry.
The Chemical Safety Improvement Act does not yet achieve
the right balance between these important goals, but with
additional work it could. We have a very knowledgeable and
experienced group of individuals here today who will offer
constructive suggestions to this subcommittee about how to
proceed.
Thank you for being with us this morning. I look forward to
hearing your views on the Chemical Safety Improvement Act, and
your recommendations for creating what needs to be an effective
chemical safety law.
Thank you, and I yield back.
Mr. Shimkus. Gentleman yields back his time. The Chair now
seeks anyone need time on the majority side. Seeing none, the
Chair now recognizes the chairman emeritus, Mr. Dingell, for 5
minutes.
OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Dingell. I thank you for holding this hearing. This is
a valuable act, and I am much appreciative to you.
We need to know what is going on with regard to TSCA, the
Toxic Substances Control Act. It is long past time to reform
this law. EPA has not been able to tackle even the most
dangerous of chemicals and substances, and we may need to find
a way to fix this problem.
There has been only a few successes of TSCA since it was
signed into law by my good friend from Michigan, former member
of this body, our good friend, President Gerald Ford. During
the House floor debate on TSCA, I was successful in proposing
an amendment to phase out the use of PCBs. That, I think, and
six other substances are about all that TSCA has been able to
remove from the trade.
We are finding out today what kind of negative effects PCBs
have on the food chain, human health, wildlife and water
quality. Frankly, it is very bad, and they remain a part of the
chain even though they have been long removed. My amendment was
supported by industry and by the environmentalists, and was
adopted by a voice vote. Those kinds of things are possible to
do, and I would note that we think that industry and the others
who are concerned with these matters can work together, and I
hope that this committee will give them the chance so to do.
The most recent change to TSCA happened only a few years
ago when I was chairman of the committee, and when we passed
the Mercury Export Ban Act. I have here a letter from 2007
penned by the National Mining Association and Natural Resources
Defense Council, the American Chemistry Council, the
Environmental Council of State, and McLaren Institute in
support of that legislation, and I ask unanimous consent that
it be inserted in the record.
Mr. Shimkus. Without objection, so ordered.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T7628.001
Mr. Dingell. And I thank you for that.
The reason I suggest this is it shows that we can work
together where there is the will, and your leadership, I hope,
will provide us that necessary requirement.
My point here is that any overhaul of TSCA must include
broad support from industry, environmental and conserver
groups. From the time that we passed the Clean Air Act
amendments of 1977, this committee has held frequent hearings
over the next 13 years until we ultimately passed the Clean Air
Act amendments of 1990. An interesting story about that was,
somebody said, Dingell, what a great thing you did in getting
this bill through the House in 13 hours. I said, yes, it only
took me 13 years to do it. But the harsh fact of the matter is
these things take a lot of hard work, and a lot of time and a
lot of cooperation.
I think industry and others who have concerns on this,
consumers and environmentalists, are willing to work together,
and your leadership, I think, will be of enormous value in
achieving that great goal.
There has been much debate on the--in the Senate about the
legislation before us, and I am pleased to see that we have two
of our former colleagues from the Senate over here to discuss
these matters with us. Before supporting any legislation,
however, I would hope that the broad support that we saw from
the Mercury Export Ban in 2007, and for TSCA in 1976, will be
available.
I do look forward to today's hearings, and I commend you,
and I hope that we can find compromises that will gain not just
the 218 votes on the House floor, but will come closer to the
unanimity that we have seen on other legislation that has come
out of this committee, including the Clean Air Act, which we
passed by an overwhelming majority with, I think, less than 10
votes against it. So I hope that we can work together. The task
will be difficult. The problem is very complex, and I think the
challenge is great, but I am hopeful that the members of the
committee can pull together on this, your leadership will be
successful, and that we will accomplish the great goal of
cleaning up the mess that we have on TSCA, and seeing to it
that it works with the other problems that we have in
connection with Clean Air, Superfund and all the other
difficulties that we confront.
I thank you for your courtesy to me, Mr. Chairman.
Mr. Shimkus. Gentleman yields back his time. Now the Chair
would like--again, wants to welcome our former colleagues from
the House, now U.S. Senators, back to the House side and to the
Energy and Commerce Committee room. This has been an issue that
has been going on for many years, and Senator Vitter and I sat
down 3 years ago, and--when he started working with Senator
Lautenberg on this. So we are glad to have you present, and I
would recognize each of you 5 minutes. That is not a hard time.
And then we will dismiss you and we won't put you up to
questions from your former colleagues. Who knows what they
would ask.
So with that, we would like to recognize Senator David
Vitter from Louisiana for 5 minutes.
STATEMENTS OF HON. DAVID VITTER, A UNITED STATES SENATOR FROM
THE STATE OF LOUISIANA; AND HON. TOM UDALL, A UNITED STATES
SENATOR FROM THE STATE OF COLORADO
STATEMENT OF HON. DAVID VITTER
Mr. Vitter. Thank you very much, Chairman Shimkus and
Ranking Member Tonko and all the members for this invitation.
Senator Udall and I are really excited to be here to talk about
our work, particularly over the last few months, to ensure that
S. 1009, the Chemical Safety Improvement Act, which I had the
real honor and pleasure of introducing with Frank Lautenberg,
continues to improve, and ultimately gets us to where we need
to be so that finally, after 37 long years, we modernize and
repair the badly-outdated Toxic Substances Control Act.
Today's hearing is a huge step in the right direction, and
I know it is continuing your work, the fourth hearing that you
have had on this important topic, and I am really excited to
see your work and see it dovetail with our work.
The Lautenberg-Vitter Bill, which is currently co-sponsored
by a very bipartisan and politically-diverse quarter of the
U.S. Senate, was the product of extensive negotiations, and I
believe it exemplifies solid positive bipartisan compromise and
good policy. But while we were putting together the bill
initially, certainly, Frank Lautenberg and I never thought we
had perfect legislation. And so that is why I have been honored
to partner with Senator Udall since Frank's passing, to
strengthen S. 1009, and we have committed ourselves to meeting
with anyone interested in achieving significant bipartisan TSCA
reform.
After a long hearing, for instance, in July in our Senate
committee, and countless hours of meetings, we fully recognize
the issues that have been raised, some legitimate, some not,
with the Lautenberg-Vitter Bill. And I think it has made--been
made abundantly clear, but I will certainly say it again, and I
know Senator Udall agrees, anyone interested in achieving
meaningful bipartisan compromise to ensure TSCA reform protects
all Americans in all 50 States, not just a small segment of the
population, or the financial interests of some particular
constituency, anyone who has those interests has a welcome seat
at the table. And I am confident that by working with Senator
Udall and interested stakeholders, the EPA, all of you, other
members, co-sponsors of S. 1009 and others, will achieve a
final version that not only enhances business certainty and
creates a strong Federal chemicals management system, but also
sets meaningful deadlines and protects the most vulnerable
among us, effectively screens all active chemicals in commerce,
and guarantees Americans access to private rights of action and
legal remedies, and makes certain that EPA has the tools
necessary to ensure the chemicals that we are all exposed to
are indeed safe.
Now, as I said, anyone interested in a meaningful,
substantive result and bipartisan compromise is welcome to a
seat at the table, but I do want to urge that the Lautenberg-
Vitter Bill, which was the product of a lot of hard work and
real compromise itself, is the core and the foundation that we
build from. Frank himself called that compromise an historic
step that would ``fix the flaws with current law.'' Vice
President Biden referred to our efforts as a ``bipartisan
breakthrough.'' In a statement from Senator Lautenberg's widow,
Bonnie, she remembered, ``Frank told me that this bill would be
bigger and could save more lives than his law to ban smoking on
airplanes.'' And in her words, ``passage of this bill would be
a wonderful cap to his career and testament to his legacy.''
So S. 1009 is Senator Lautenberg's legacy bill, and I hope
we work hard to improve it, take up any significant legitimate
issue. We have been doing that through my work with Senator
Udall, but in doing that, I hope we do not go back, quite
frankly, to failed previous efforts that were completely stuck-
in-the-mud on partisan lines. And so, again, I want to urge us
to stick to this core as we improve it and pass it into law.
I would be remiss not to mention the work that went into
achieving this compromise with Frank, because it didn't happen
overnight, didn't happen without a lot of work and a lot of
give-and-take from both of us. He was a very talented
legislator committed to making the world a better place. I
enjoyed arguing and negotiating and working with him. Frank's
wife, Bonnie, was there to take pictures the day Frank and I
shook hands on the core pivotal agreement, and again, I am
really pleased and honored that Senator Udall and I have
partnered carrying on that work and that legacy to get it
across the finish line.
Again, I want to thank each and every one of you for all of
your work on TSCA, I know it has been ongoing, and specifically
for this hearing as part of that continuing conversation.
Thank you for the invitation.
Mr. Shimkus. Thank you. And the Chair now recognizes
Senator Udall. And, sir, you are recognized for 5 minutes.
STATEMENT HON. TOM UDALL
Mr. Udall. OK. Thank you very much for the invitation to be
here today, and I really in particular want to thank Chairman
Shimkus and also Ranking Member Tonko.
We--Senator Vitter and I both appreciate this opportunity.
And let me just, at the beginning, just say what a pleasure it
has been working with Senator Vinner--Vitter and all of the
stakeholders to try to center-in on something that we think can
get through the Senate, and also I hope will be received over
here with some kudos and applause.
S. 1009, the Chemical Safety Improvement Act, has been the
center of a lot of debate and discussion in the Senate since
its introduction. When I first cosponsored the legislation, I
did so for two reasons; one, I believed the bill addressed some
of the key flaws in TSCA, and that has been noted here. There
have been a number of flaws there. And I was very moved by the
spirit of bipartisan compromise led by Senator Frank Lautenberg
and Senator Vitter in an area where the two parties are often
very far apart.
My staff and I and Senator Vitter's staff have spent many
months since the introduction, working on this legislation and
working with the various stakeholders. S. 1009 is not perfect,
and, as introduced, has some key problems that need to be
addressed. As Senator Lautenberg's successor, as chairman of
the Senate Subcommittee on Superfund, Toxics and Environmental
Health, I respect the criticism the bill is receiving, and I
strongly believe several key areas must be addressed for this
legislation to be successful.
Chairwoman Boxer held a hearing on this issue earlier this
year which delved into these issues. I applaud this committee
for taking similar action.
I think many of these problems are unintentional, but many
in the environment and health community believe these issues
mean this legislation should not move forward as-is, and given
the fact that we are talking about one of the most ineffective
laws on the books, that is worth noting. I agree that we should
not pass S. 1009 as introduced, but I am, and will continue to
be, optimistic about the incredible bipartisan spirit around
finding reform and protecting our families from dangerous
chemicals.
As the subcommittee chair, I want to develop and pass
legislation that safeguards our citizens. S. 1009 has a number
of strong elements of needed reform, as well as problems. We
can, building off of that, and that is why I have committed so
much time to working with Senators of both parties to improve
this bill so that it could move forward and be something we can
all be proud of.
Through the--through that process, I have come to
appreciate how big a challenge this is. After all, TSCA's own
fatal flaws have not been fixed in decades. Nevertheless, I
believe we are up to the challenge.
Here are the big three issues with the current Senate bill
that we are working on. Number one, ensuring that the EPA will
have the tools it needs to protect citizens from dangerous
chemicals, and to ensure that EPA will be able to review the
known 84,000 chemicals. This means getting the prioritization
and deadlines right, along with specifically protecting
vulnerable populations. Second, we must make sure to protect
private rights of action, to hold companies responsible, and
ensure they don't cut corners. As a subcommittee chair and
supporter of justice for victims, it is not my intent to
preempt private claims. That has been stated publicly by myself
and by Senator Vitter. Further changes are absolutely necessary
to make this intent clear throughout the bill. And finally, we
must make sure to protect the right of States to safeguard our
citizens.
On that last point, let me take a moment to say to Ranking
Member Waxman and members of the California delegation that the
chair of our committee, Barbara Boxer, has been a tireless
advocate for the State of California and our country. I
appreciate the leadership she has shown to protect citizens
from dangerous chemicals, and I believe that California and
other States play a critical role in lifting up health and
safety standards for our country.
As this committee proceeds on its own deliberations of how
to reform TSCA, I would word--urge you to work together as we
are working together, and I am sure you will. I think it would
benefit us all to work together on a bipartisan and bicameral
basis. TSCA has been a failed environmental law for decades. We
have a historic opportunity before us. Success is far from
certain, but it would be a shame to waste it.
And thank you again, Chairman Shimkus. Pleasure to be over
here with my former colleagues, and we look forward, Senator
Vitter and I do, on working with you on this piece of
legislation.
Mr. Shimkus. I want to thank you both for coming over. We
appreciate the efforts you have made so far, and really the
bipartisan approach is going to be critical in moving anything,
and we look forward to working with you as we move through this
process. So thank you again. You are dismissed, and we will
then seat our second panel.
So, as stated in my opening statement, we would like now to
welcome and thank you for coming, the Honorable Jim Jones. You
are--he was the Assistant Administrator, Office of Chemical
Safety and Pollution Prevention, with the United States
Environmental Protection Agency.
Sir, you have 5 minutes. We are not hardcore on the time.
This is a very important issue, and we look forward to your
opening statement.
STATEMENT OF JAMES JONES, ASSISTANT ADMINISTRATOR, OFFICE OF
CHEMICAL SAFETY AND POLLUTION PREVENTION, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Jones. Good morning, Chairman Shimkus, Ranking Member
Tonko, and other members of the subcommittee.
Thank you for inviting me to--for the opportunity to
discuss reform of the chemicals management laws of the United
States.
I think we all agree on the importance of ensuring that the
chemicals manufactured and used in this country are safe. With
each passing year, the need for TSCA reform grows, and this
administration believes it is crucial to modernize and
strengthen the Toxic Substances Control Act to provide EPA with
the necessary tools to achieve these goals.
EPA is encouraged by the interest in TSCA reform, indicated
by the introduction of several bills in recent years, the
bipartisan discussions underway, and today's hearing which
marks the fourth in a series of hearings on TSCA reform before
this subcommittee.
Many stakeholders share common principles on how best to
improve our chemicals management programs. EPA is committed to
working with each of you and other members of Congress, the
environmental community, the chemical industry, other
stakeholders and the public to improve and update TSCA.
As you know, chemicals are found in almost everything we
use and consume. While they are essential for our health,
wellbeing and prosperity, it should be equally essential that
they are safe. Compared to 37 years ago when TSCA was passed,
we have a much better understanding of the environmental
impacts, pathways of exposure and health effects that some
chemicals can have, especially on children and other sensitive
populations.
TSCA gives EPA jurisdiction over chemicals manufactured,
processed or distributed in the United States; however, unlike
laws applicable to drugs and pesticides, TSCA does not have a
mandatory program that gives EPA the authority to conduct a
review to determine the safety of existing chemicals. In
addition, TSCA places challenging legal and procedural
requirements on EPA before we can require the generation and
submission of data on the health and environmental effects of
existing chemicals.
While TSCA was an important step forward when it passed in
1976, it has not only fallen behind the industry it was
intended to regulate, it has also proven an inadequate tool for
providing the American public with the protection they
rightfully expect from exposure to harmful chemicals. When TSCA
was enacted, it grandfathered-in, without any evaluation, about
60,000 chemical in commerce at the time.
It has also proven challenging to take action to limit or
ban chemicals that have been determined to pose significant
health concern. For example, in 1989, after years of study, EPA
issued a rule phasing out most uses of asbestos in products.
Yet, in spite of near-unanimous scientific opinion, a Federal
court overturned most of this action because it found the rules
had failed to comply with the requirements of TSCA. In the past
37 years, the EPA has regulated only 5 chemicals under Section
6 of TSCA, which gives the EPA the authority to ban harmful
chemicals.
While EPA is committed to using the tools available under
TSCA, we believe it should be updated and strengthened to
ensure that EPA has the appropriate tools to protect the
American public from exposure to harmful chemicals. It is
crucial that any updates to TSCA include certain components.
In September of 2009, the administration announced a set of
principles to help guide the discussion to update and
strengthen TSCA. These include providing the agency with the
tools to quickly and efficiently obtain information from
manufacturers that is relevant to determining the safety of
chemicals. The EPA also should have clear authority to assess
chemicals against a risk-based safety standard, and to take
risk management actions when chemicals do not meet the
standard.
On April 15, Senators Lautenberg, Vitter and others
introduced S. 1009, the Chemical Safety Improvement Act. While
EPA has not yet developed a formal position on the bill, we
offer the following observations in light of the Agency and the
administration principles. As stated in the principles,
legislation should provide EPA with authority to establish
risk-based safety standards that are protective of human health
and the environment. The EPA should have clear authority to
take risk management actions when chemicals do not meet the
safety standard, with flexibility to take into account a range
of consideration, including children's health, economic costs,
social benefits and equity concerns. The principles further
indicate that clear, enforceable and practicable deadlines
should be set for the Agency to review and make decisions on
chemicals, in particular, those that might impact sensitive
populations, and provide a sustained source of funding for
implementation. Administrative requirements should add
demonstrable value to the process beyond existing law and
requirements. Legislation should provide the EPA with tools to
ensure the protections put in place are carried out, and
provide a level playing field for companies that comply.
We understand the concerns raised by many stakeholders
regarding the appropriate role for States in addressing the
risks of chemicals to which their citizens are exposed, and EPA
stands ready to provide technical assistance on this important
issue.
Mr. Chairman, thank you again for your leadership on TSCA
reform, and I will be happy to answer questions that you or
members of the committee have. Thank you.
[The prepared statement of Mr. Jones follows:]
[GRAPHIC] [TIFF OMITTED] T7628.002
[GRAPHIC] [TIFF OMITTED] T7628.003
[GRAPHIC] [TIFF OMITTED] T7628.004
[GRAPHIC] [TIFF OMITTED] T7628.005
[GRAPHIC] [TIFF OMITTED] T7628.006
[GRAPHIC] [TIFF OMITTED] T7628.007
[GRAPHIC] [TIFF OMITTED] T7628.008
Mr. Shimkus. Thank you. Now I will recognize myself for the
first 5 minutes for the starting of questions.
So, again, welcome.
Does Senate Bill 1009, in your opinion, strengthen EPA's
ability to prevent dangerous new chemicals or those with
inadequate information from entering the market?
Mr. Jones. Yes, Congressman. To clarify, the existing
statute does not require EPA to make an affirmative finding of
safety for a new chemical, as 1009 requires an affirmative
finding on the part of the EPA before a new chemical can enter
the market. As it relates to data generation, interestingly, my
attorneys have read the bill to provide EPA with the ability to
require the generation of data if necessary to make a finding.
There are other stakeholders who are not reading that
provision the same way, which to me is an indication that there
may be a need for clarification around that.
Mr. Shimkus. Thank you. Do you consider Senate 1009 an
improvement over current law for EPA to address hazards and
risk of chemical substances in American commerce?
Mr. Jones. So, you know, as we heard from Senator Udall,
TSCA is perhaps one of the most poorly implemented
environmental statutes, and so the way in which we look at the
bill isn't is it better, is it--does it allow us to achieve our
stated objectives of safe chemicals in the United States. And
in that respect, under that standard, which is the way I am
attempting to look at it, I think that there are some
shortcomings, as we heard from Senator Vitter, that I would be
happy to talk about as well.
Mr. Shimkus. Many witnesses have testified before our
committee on the strengths and successes of existing TSCA,
Section 5, provisions for new chemicals, and new uses of
existing chemicals. Notwithstanding Senate 1009 makes changes
to Section 5, do you consider these changes appropriate?
Mr. Jones. I think it is surprising to most people that we
do not need to affirmatively determine safety before a chemical
enters the market, so I think that that change is an important
one, that the Agency affirmatively say, yes, this chemical is
safe before it enters the market.
Mr. Shimkus. Could these changes negatively impact
innovation in the United States?
Mr. Jones. When people talk about innovation, which we are
very sensitive to at EPA and try to facilitate it, I don't
think they think of it as innovation of unsafe things. So I
don't view a requirement that the Agency affirmatively
determine something meets a safety standard as impacting
innovation in a negative way. I actually think it will
facilitate innovation, because innovation should be around safe
things.
Mr. Shimkus. Right. I appreciate that. Further, some
witnesses have talked about EPA needing more information on
chemicals. Section 4 of Senate 1009 provides the EPA authority
to order development of data and information on chemicals. Is
this a tool the Agency currently has under Section 4 of TSCA
today?
Mr. Jones. Thanks, Mr. Chairman. That is actually one of
the real highlights of the introduced bill. Right now, the
Agency, if we wanted a company to generate health and safety
data for a chemical, we need to go through a rather complex
rule-making process, which also requires us to make certain
findings that creates somewhat of a catch 22. We have to have a
sense that there is a problem before we require the generation
of this data, and the rule-making themselves can take up to 5
years, if not longer.
So order authority, the ability to, without going through
that elaborate process, is a huge improvement, and it is an
authority that we have in our pesticides program right now.
Mr. Shimkus. And you answered it in the last question--the
prepared questions I have is, order authority would be helpful
in this venue, as you just testified.
Mr. Jones. Very much so.
Mr. Shimkus. Let me ask two other questions based upon your
opening statement.
When you say equity concerns, what do you mean?
Mr. Jones. So sometime, well, actually, whenever you are
protecting in a regulatory decision, or otherwise, it is
important to understand where the protections occur. It is also
important to understand where do the costs fall. Are the costs
being borne by a broad segment of society, a narrow segment of
society, are the benefits being enjoyed by a very narrow
segment of society, or a broad segment of society? And so it is
understanding where the costs and the benefits of a decision
may fall. Understanding what they are.
Mr. Shimkus. We kind of need a little more work on that
because I think, for me, the basic premise is are we producing
chemicals that are safe. So that I would think a safe chemical
would be good for everybody in the production process and for
the consumers, but I will get more briefings on that.
When you define sensitive populations, what do you mean by
that?
Mr. Jones. Well, so that can be an equity concern. So that
by looking at what we expect that we are going to be looking at
highly-exposed individuals, wherever they may be----
Mr. Shimkus. In the workplace or----
Mr. Jones. In the workplace----
Mr. Shimkus [continuing]. Outside the fence of the
facility, is that what we are talking about?
Mr. Jones. Whoever is highly exposed to the chemical that
we are looking at, or the use that we are looking at. And we
also mean it to include are there certain parts of the
population that may be biologically more sensitive. So a child
or an infant may have different sensitivities than an adult, an
elderly individual may have different sensitivities than a
teenager. And so we look at both the highly exposed, who is
getting more exposure than the average, and are there
individuals or groups that may have greater sensitivity than
the average.
Mr. Shimkus. Great. Thank you very much. My time has
expired. The Chair now recognizes Mr. Tonko for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair, and thank you,
Administrator Jones, for your guidance.
Now, the American people have relied on EPA and the Toxic
Substances Control Act to protect them against the dangers of
toxic chemicals, but EPA has faced significant challenges in
banning or restricting toxic chemicals under TSCA, even in
cases where the risks are widely recognized and understood,
such as is the case of asbestos. So EPA's first principle of
TSCA reform from 2009 reads, and I quote, ``chemicals should be
reviewed against safety standards that are based on sound
science, and reflect risk-based criteria protective of human
health and the environment.''
Some have suggested that EPA should consider the cost to
the chemical industry and others when setting a safety
standard. That would mean that somehow EPA would have to factor
in the cost of reducing the public's exposure to harmful
chemicals when determining whether exposure to a chemical is
safe.
Would an approach that requires consideration of cost and
determination of the safety standard comport with EPA's
principle?
Mr. Jones. Thank you, Representative Tonko. The
administration principles speak both to science-based safety
standards, and then in risk management, the Agency having the
flexibility to consider other factors such as costs, so that
when we are looking at how to mitigate a risk, those cost
considerations can play into the ultimate decision making. And
those concepts are both captured in the administration
principles.
Mr. Tonko. So based on science and cost?
Mr. Jones. That is right.
Mr. Tonko. We are looking at both. Historically, TSCA has
applied an unreasonable risk standard. This standard has been
interpreted to require cost consideration in setting standards,
and it was one of the key problems that led to the tragic
failure to phase-out use of asbestos. Is that correct?
Mr. Jones. I think that not just in the unreasonable-risk
standard itself, but many of the other requirements within
Section 6, including the least burdensome requirement. Those
two phrases, and a lot of other language around it, required
what I would consider to be paralysis by analysis. So much
analysis, you could never actually finish the work. And those
conspired to get in the way of EPA in the asbestos context, and
I would argue since then of being effective with Section 6.
Mr. Tonko. So the bill we are considering today continues
to use the legal standard of unreasonable risk. I am concerned
that continuing to use this standard invites the use of the
traditional interpretation which leaves EPA, as you made
mention, paralyzed. Is this a fair concern?
Mr. Jones. It is interesting, Congressman. There are a
number of people in the stakeholder community, and they--in my
conversations, they don't fall out in terms of, you know, one
group versus another, but there are some parties who believe
unreasonable risk can only be read to mean a cost benefit
balancing. There are others who believe that it is all of the
language around it that will matter ultimately. And so I think
it is important to have that dialog to come to consensus so
everyone agrees, whatever words are being used, there is a
common understanding.
That being said, I do believe that 1009 also has other
language in it, beyond unreasonable risk, that has a similar
effect as the least burdensome requirement which requires a
seemingly endless amount of analysis on the part of the Agency
before we can ever move forward. So I think that that is
important to address as well.
Mr. Tonko. And so in your view, we could end up with an
adequate standard if we make it clear that EPA should abandon
the historical interpretation of unreasonable risk?
Mr. Jones. You know, I--interesting--I fall within the
camp, thinking that the statute can clearly define unreasonable
risk, but you need to use enough words that you counter the
case law that exists out there right now, and the way in which
the term is used within existing TSCA, but it is very important
that whatever is done, that people agree about what the
interpretation is, and not be in a position where people look
at the same two words and think it means two different things.
Mr. Tonko. So would it be easier to simply use a new
standard that doesn't have the baggage associated with the
phrase unreasonable risk?
Mr. Jones. Well, that would be one way to do that.
Mr. Tonko. OK. Given the history of litigation under TSCA,
statutory language on cost consideration and the safety
standard must be completely clear. I commend the administration
for its clear principle on this matter, and look forward to
ensuring that any bill we produce is consistent with the
administration's position, otherwise we will have a lot of
explaining to do to the victims of asbestos and other toxic
chemical exposure.
There is also a lot of talk about resources, as you talked
about putting more and more into the standards that need to be
met and reviewed. In your opinion, where are we at with the
resource issue in order for the Agency to comply with the
implementation?
Mr. Jones. So one of the administration's principles is
that there be a sustained source of funding for the EPA. Under
existing funding, we would be limited in how much progress we
could make in any period of time. We would think that a
sustained source of funding would involve something above and
beyond what currently exists for EPA. I think there are some
models out there we could look to.
Mr. Tonko. Thank you very much, Administrator Jones.
Mr. Jones. Thank you.
Mr. Shimkus. Gentleman's time has expired. Chair will now
recognize the gentleman from Georgia, Mr. Gingrey, for 5
minutes.
Mr. Gingrey. Mr. Chairman, thank you.
Administrator Jones, I have got--actually I have got four
questions for you, and I will start.
Were Senate Bill 1009 enacted tomorrow, what would be the
status of the regulations or guidance under current law? Would
EPA need to reissue new regulations for regulatory matters that
are already settled under current law?
Mr. Jones. Thank you, Congressman.
So I believe that existing regulations would carry on as
they are. I think guidance, we would need to look case-by-case
to each guidance to see whether or not a new law, such as 1009,
would require us to make any modifications to conform with a
new statute. But regulations would carry on as they are
currently drafted.
Mr. Gingrey. Great. Thank you. And the second question, how
could activities currently underway at EPA, as an example,
identification of work plan chemicals and progress in
conducting risk assessments of them, be integrated into S. 1009
in a manner that does not disrupt or delay current TSCA work?
Mr. Jones. I believe that the existing--introduced Bill
1009 allows the agency to designate the compounds that we are
already working on, workplan chemicals and other chemicals for
which we have prioritized, which are about 80-plus, as high
priority right from the get go. So right from the beginning,
they would become high priority chemicals under the current
draft.
Mr. Gingrey. In your view, does the knowhow, experience and
capability of the United States in regulating chemicals compare
to other nations?
Mr. Jones. Yes, well, just so you understand, my experience
includes about 20 years working in the pesticides program and
then in this capacity as well. Pesticides are chemicals and, in
the pesticide context, we have a very strong statute that
requires us to evaluate every chemical and have been able to
effectively do that, so I think we have some of the best
knowhow, experience and knowledge in the world as it relates to
chemicals. I think what we are struggling with in this context
is a statute that makes it difficult to apply that experience
to the chemicals under TSCA.
Mr. Gingrey. And my last question, and I have got, gosh, 2-
1/2 minutes, I may be able to yield back some time.
The United States is currently exploring a free trade
agreement, as you know, with the European Union. Do you see any
potential impact of those trade talks on domestic chemicals
regulation?
Mr. Jones. That is a very good question. What I would say
about that is that my organization and myself will participate
with USTR, largely through USTR, on those kinds of discussions.
What we try to do at EPA is to identify areas where there may
be unnecessary barriers to trade, while ensuring that existing
health and safety standards in the United States are
maintained.
And so sometimes you may identify a barrier, but it is not
going to get changed because we have domestic laws that would
prevent it, but there are times when you can identify a problem
that can be harmonized without changing the domestic safety
standards in the United States.
And so that is the sweet spot that we are looking for.
Whether we will find any in that context is, I think, too early
to determine, but that is how we will approach the issue.
Mr. Gingrey. Could this free trade negotiation influence
chemical risk assessment policy in the United States and should
it? I mean that is really the meat of the question. They do
things differently, obviously.
Mr. Jones. Yes, that is a very good question. The Obama
administration has been very clear that we are taking a risk-
based approach to chemicals management in the United States.
That is what we do under existing law, it is what we are
advocating in a reformed TSCA. I don't see any scenario where
we would move away from that. It is a pretty core principle of
the administration. It has also been the principle of the U.S.
Government for many administrations.
Mr. Gingrey. Well, that is----
Mr. Jones. I think it would be kind of unusual for us to
move away from that.
Mr. Gingrey. That is very reassuring, Administrator Jones.
Thank you very much, and I yield back 30 seconds.
Mr. Shimkus. Gentleman yields back the time. The Chair now
recognizes the ranking member, full committee, Mr. Waxman, for
5 minutes.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Jones, thank you for testifying today. I would like to
explore two issues with you about this bill. One is the issue
of deadlines associated with effective Agency action, and the
other is preemption of State requirements.
Let us start with the deadlines issue.
You testified that in the last 37 years, EPA has only been
able to require testing on a little more than 200 of the more
than 84,000 chemicals listed on the TSCA Inventory. That means
that not even one percent of chemicals have been tested for
safety in nearly four decades.
I think the American people would see this as
disappointing. They are counting on the Agency to ensure
chemicals are adequately tested, but this history demonstrates
that the law is not working the way it needs to.
That is why, in my view, it is critical that legislation to
reform TSCA include meaningful deadlines to ensure that
chemical reviews are completed on a timely basis.
Does the bill, Mr. Jones, that we are examining today
adequately address this issue? Will it ensure that there are
meaningful deadlines to address this huge backlog?
Mr. Jones. Thank you, Congressman Waxman.
I don't believe that it does. The bill does require EPA to
set deadlines, but it gives us unlimited ability to change
those deadlines. So, in effect, I don't believe as a matter of
law there are meaningful deadlines in the statute. I will say,
as you well know from the Food Quality Protection Act which you
had a big hand in, there were very clear deadlines about what
EPA had to do. We had to look at all pesticides used on food
within 10 years, and during a 10-year period we evaluated them
all, actually, 99 percent, and met the deadline----
Mr. Waxman. Yes. I am interested in that because this
committee passed that bill. In fact, I worked with Chairman
Bliley and Chairman Dingell. It was a strong bipartisan-
supported bill. It required pesticide residues on food to be
safe for infants and children. It included deadlines for
hundreds of chemicals to be reviewed. And you are in charge of
both----
Mr. Jones. That is right.
Mr. Waxman [continuing]. The TSCA issue and the 1996 law.
So you have had the experience with deadlines that were very
concrete. Did it affect the Agency's implementation of the law?
Mr. Jones. I think it is why we met the deadline. From 1996
to 2006, we met that deadline for 99 percent of the 10,000 food
use tolerances in the United States, from 1996 to 2006 under
TSCA, which has currently no deadlines. We----
Mr. Waxman. Yes.
Mr. Jones [continuing]. Didn't evaluate a single existing
chemical during that----
Mr. Waxman. Yes.
Mr. Jones [continuing]. Period of time.
Mr. Waxman. Well, 400 pesticide chemicals under the Food
Quality Protection Act over 10 years have been reviewed, which
complies with all the law's deadlines, and I congratulate you
for that. At the same time, EPA completed no reviews under TSCA
because there were no deadlines. I think that speaks very
favorably for putting deadlines in the legislation.
Now, let me turn to the question of preemption. Over the
years, many States have acted to protect the public from the
dangers of toxic chemicals. They have removed toxic chemicals
from consumer products, they have banned developmental toxins
from toys, and they have even worked to regulate chemicals that
act as powerful greenhouse gases.
Under this bill, Mr. Jones, EPA is required to determine
whether a chemical is a ``high priority'' or a ``low priority''
for review. And once this determination is made, State rules
are preempted. Isn't that correct?
Mr. Jones. New State requirements would be preempted after
EPA makes a determination a chemical is a high priority or a
low priority.
Mr. Waxman. OK. Now, in fact, the California EPA has
identified dozens of State laws and regulations that may be
preempted under this approach. But determining something is a
``high priority'' for review is only the beginning of the
process. It could take many years for EPA to adequately address
a ``high priority'' chemical. And without meaningful deadlines,
we could have important State public health protections
preempted while Federal action languishes indefinitely. Isn't
that the case?
Mr. Jones. That is correct.
Mr. Waxman. The preemption as you see it is only
prospectively, so existing laws would not be preempted?
Mr. Jones. There is--I am sorry. There are actually two
provisions; one is for existing requirements. Existing State
requirements are preempted when EPA makes a safety
determination. A safety determination is just our view of the
risks of the compound; it is not the regulation of the
compound. So you could have an existing State requirement be
preempted once EPA has made a safety determination, but before
EPA ultimately regulated it.
Mr. Waxman. And that could be years.
Mr. Jones. Well, there are no deadlines, so----
Mr. Waxman. Yes.
Mr. Jones. Yes, years.
Mr. Waxman. Well, thank you very much for your testimony
and your answering these questions. I think it drives us to
look at this need for a bill with strong deadlines, and get
this job done.
Thank you, Mr. Chairman.
Mr. Shimkus. Gentleman yields back his time. Chair now
recognizes the gentleman from Pennsylvania, Mr. Murphy, for 5
minutes.
Mr. Murphy. Thank you, Mr. Chairman. Sir, thank you for
being here.
First of all, I want to say I am pleased we are having this
hearing and moving forward with much-needed debate. There are
some important provisions in the Senate bill to protect public
health, while allowing companies to continue to innovate, and I
am supportive of the Federal standard rather than the
complexity in the 50-State statute. And one issue I want to
raise is language in here related to articles. The bill says
imported or exported articles will need to say whether they
contain high-priority chemicals. This could require an
extensive review--applied outside of the U.S. for articles we
import, and this could be an extensive burden so it is
something we need to look at in the future.
Mr. Jones, a couple of things in your testimony. On page 5,
you refer to social benefits. What does that mean?
Mr. Jones. So how the benefits of the action are captured,
and as a general matter, they relate to the health benefits
that are generated.
Mr. Murphy. And you mention health too. I just wondered
how--is social different from health?
Mr. Jones. As a general matter, I don't think that it would
be.
Mr. Murphy. OK, I wanted to be clear because that means
different things to us. So, all right. Also, you referred on
page 6 to sound science. Certainly, that is something this
committee advocates a great deal. How do you define sound
science, however? Is that something that is based upon refereed
journals from scientists--respected scientists, is that
something that the EPA puts out, is it something that its
committees are appointed with political appointees----
Mr. Jones. Right.
Mr. Murphy [continuing]. How do you determine sound
science?
Mr. Jones. The Agency has actually got a fair amount of
guidance that it has that describes the characteristics of what
we want our science to include, which I would be happy to
provide to the committee. As a general matter though, it
includes that--we are looking at all the available information,
and that we are relying on peer review to help make sure that
our assessment of that science holds up.
Mr. Murphy. I see. Appreciate it, and I hope we can make
sure there is wording in the bill that defines that too. Let me
ask this then, how long would the EPA take to accomplishing the
following tasks in the Senate bill, assuming adequate staffing
and funding. This is in S. 1009. First of all, sorting
chemicals at the high and low priorities.
Mr. Jones. So the initial cut around that, actually the
Agency did before this bill was introduced, and that took
several months to identify perhaps the 250 highest priority
chemicals. So the sorting activity of finding what we think are
the highest priorities does not take that long.
Now, that being said, we were looking at about--a subset of
about 1,200 chemicals for which there was a meaningful data
set. At the end of the day, we would be required to sort a much
larger universe than that, but that being said, the sorting
activity itself is one that does not particularly take a long
time.
Mr. Murphy. OK. How long would it take you to complete the
first safety assessment?
Mr. Jones. So we think as a general matter, it is about a
2- or 3-year process to be doing a chemical safety assessment,
depending on the complexity of the chemical.
Mr. Murphy. And how about completion of most safety
assessments?
Mr. Jones. Well, the numbers we are dealing with here in--
under TSCA are so extraordinarily large, which is why I think
that efforts to reform TSCA really focus in on and set some
priorities so that you are focusing on those things that have
the potential to have the greatest risk.
And so, depending on how you want to define most of the
chemicals, it would certainly inform how one would try to
answer that.
Mr. Murphy. So then this begs this question, because it is
so important that the manufacturers have some important data on
this too, but how long would it take you to publish the first
regulations imposing restrictions on a chemical?
Mr. Jones. So after having a safety assessment and safety
determination, which we think can happen contemporaneously, it
would be about 3 years for a final regulation for a chemical
that had been assessed.
Mr. Murphy. And how about deciding restrictions for the
most risky chemicals?
Mr. Jones. Well, it is about--the--3 years.
Mr. Murphy. Three years for--then either way?
Mr. Jones. Yes.
Mr. Murphy. Can you elaborate a little bit what would go
into that, making these determinations about your regulations
of the most risky chemicals?
Mr. Jones. With respect to what is the assessment like, or
how do we ultimately determine whether risk management is
necessary?
Mr. Murphy. Maybe what the assessment is like.
Mr. Jones. So the assessment is basically we are going to
look at all of the data that is available around hazard,
whether the chemical elicits some kind of an adverse effect in
animals. Humans being who we are trying to protect, but it is
usually the laboratory animals that...
Mr. Murphy. Would you have ongoing communication with the
manufacturers with this? And I think it is very--it is
extremely helpful if you have an open communication, not
surprising them, but open discussions, honest discussions as to
what the scientific base----
Mr. Jones. In the last year and a half or so, we have begun
to do some safety assessments, and we try to make it open and
available to everyone. I will say manufacturers tend to
participate more than others, but it is open to everyone. And
so if they have data that is useful to the safety assessment,
they are encouraged to bring it to us----
Mr. Murphy. OK.
Mr. Jones [continuing]. Make sure that we have it.
Mr. Murphy. Thank you.
Mr. Jones. So we will----
Mr. Murphy. I yield back.
Mr. Shimkus. Gentleman's time expired. Chair now recognizes
the gentleman from Texas, Mr. Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman, for holding this
hearing. It is our fourth on TSCA reform before our
subcommittee this year, and I am optimistic our committee can
find a bipartisan path to reauthorization, and we address the
concerns of most, if not all, of the stakeholders, and I look
forward to the process.
I would like to also thank Senators Udall and Vitter for
joining us this morning earlier, as well as Assistant
Administrator Jones, for the work they have done to move this
issue forward.
Mr. Jones, in your professional opinion, does the safety
standard in Lautenberg-Vitter strengthen the EPA's ability to
regulate chemicals over the present safety standard?
Ms. Jones. Thanks, Congressman Green. I think that there
are some issues with the way in which the safety standard in
1009 is drafted, but the principle one that I see is that it
requires a degree of analysis of the alternatives to the
chemical that you are focusing on that could find EPA in a
potentially an endless analytical loop. So that meeting those
procedural requirements of evaluating all of the alternatives,
the risks and the benefits of all of the alternatives, may find
us in a situation where we can't finish on the chemical that we
are focusing on, and that is actually built into the safety
standards, so I think that that is the principle problem that
we see.
Mr. Green. Well, and I know there are a number of other
questions. I would hope that we could sit down and work that
out because, obviously, the EPA is the enforcement agency, but
we want to make sure the law is both easily dealt with, both
for everyone involved in it. So I look forward to using our
resources together to deal with it.
Are some of the challenging and legal procedure
requirements encountered under TSCA, in quoting your testimony,
fixed in the Lautenberg-Vitter Bill? If so, were these
challenges addressed in 1009?
Mr. Jones. I think that the issue that was most effectively
addressed in the Lautenberg-Vitter bill is the inability the
agency has had to easily require the generation of health and
safety data. I think that has been the aspect of the bill that
has most moved the ball forward. As I had mentioned earlier, I
think that the removal of the least burdensome requirement that
many focus on under TSCA has instead been replaced by a
different kind of burdensome requirement, and I think that the
deadlines--the lack of deadlines will meaningfully impair the
Agency's ability to succeed in the way that I think that the
drafters intended.
Mr. Green. OK. Do you believe the infants, children and
pregnant women, and other vulnerable populations, would be
protected more under Lautenberg-Vitter than current law?
Mr. Jones. The Lautenberg-Vitter Bill does require that EPA
consider sensitive populations in our safety assessments, which
is not required under existing TSCA. It doesn't require us to
consider them in our safety determinations or risk management,
so there is a movement towards that direction in Lautenberg-
Vitter.
Mr. Green. Under current law, can you explain what happens
when a new chemical comes on the market? Does the manufacturer
need EPA OK first?
Mr. Jones. They need us to not say no. So they don't need
us to affirmatively say yes, they need us to not say no. And
the Lautenberg-Vitter Bill rectifies that by requiring EPA to
affirmatively say yes.
Mr. Green. OK. And you find--if--do you have to find that a
chemical is safe before allowing it on the market?
Mr. Jones. We are not required to make that finding.
Mr. Green. OK. Would the Lautenberg-Vitter Bill address
that issue?
Mr. Jones. Yes, that is----
Mr. Green. OK. How would S. 1009 change current law that
protects confidential business information, and I know we have
dealt with this on our committee a lot of times. Is it--would
it require companies to refresh their requests for information
protection?
Mr. Jones. The principle change is that it would allow EPA
to share confidential business information with State, local,
emergency response officials, which is currently prohibited.
Mr. Green. OK. How does it meet--make sure that the
government officials, including States, get access to the
needed information while still protecting those business
secrets from competitors?
Mr. Jones. So----
Mr. Green. Is that protected in 1009?
Mr. Jones. That is right. It would require the recipient,
the State or local responder, to agree to maintain the
confidentiality before receiving the information.
Mr. Green. Some of the witnesses that will follow you
suggest EPA cannot get information to prioritize chemicals, yet
I noticed new Section 4(e)(3)(B) allows EPA to ask the public
for information that is reasonably ascertainable. Does that
section allow EPA to collect information that is reasonably
ascertainable to make prioritized--prioritization decisions?
Mr. Jones. It does, but there is also a provision that
allows us to require the manufacturers to generate the data
without going through a rule-making activity.
Mr. Green. OK. And again, Mr. Chairman, I am out of time
but I look forward to us working with EPA and the drafting, and
to make sure we know we are all on the same page, literally.
Thank you for your time.
Mr. Shimkus. Gentleman's time expired. Chair now recognizes
the gentleman from Ohio, Mr. Latta, for 5 minutes.
Mr. Latta. Well, thank you very much, Mr. Chairman. Thanks
for holding this hearing this morning, and thank you very much
for being here. We really appreciate your testimony, and the
discussion that we are having today.
Just again to kind of--where I am coming from. I represent
a district that has 60,000 manufacturing jobs, and it is also
unique in that I also represent the largest number of farmers
in the State of Ohio. So I have parallel things going on out
there. And so when I am out at home and this issue comes up,
people really want to know what is happening in Washington, and
especially where EPA would be going.
And if I could ask you just a couple of questions real
quickly. One is, do you believe that the categories that this
bill creates for new chemicals will or could negatively impact
specialty chemical manufacturers?
Mr. Jones. The new chemical provisions, Congressman, is
that what you are---
Mr. Latta. Right.
Mr. Jones. I don't believe so. I believe that we will be
able to make decisions in a timely manner under the Lautenberg-
Vitter bill on new chemicals.
Mr. Latta. And again, could you define that timely manner?
Mr. Jones. So the current requirement is that we evaluate
compounds within 90 days. If we see a problem, we need to
inform the submitter. Under the Lautenberg-Vitter bill, that 90
days remains. We have the ability to extend it by 90 days or
two periods of time, but it shouldn't exceed another 90 days.
So we are still talking about very short periods of time for
our review of new chemicals.
Mr. Latta. OK. And can you also discuss EPA's confidential
business information improvements, and how are those working?
Mr. Jones. So we are working very hard to do what I think
of as the government's role as it relates to confidential
business information, which is to ensure that we are asking the
question, is this claim eligible for confidential business
information treatment. Historically, we have been somewhat
passive which, if someone had asserted it, we basically would
just accept that. We are now doing our part, which is to make
sure that an assertive claim actually meets the statutory
criteria around that. And over the last several years, we have
successfully removed over 1,000 claims that have been made just
because they were not warranted by the statute, or the
manufacturer, when they went back and looked at their files,
they didn't think the claim was necessary anymore. So some of
it has been us doing more work, some of it has been us working
with the manufacturers to ensure that they were keeping their
files accurate related to their CBI claims.
Mr. Latta. And also when you reviewed the bill, would those
improvements be consistent with the bill?
Mr. Jones. Generally, they would be. There is a
grandfathering-in of CBI claims that--one that was made before
the bill would pass would be considered to be CBI that would
potentially impact some of this cleanup effort that I am
referring to.
Mr. Latta. OK. And also, how do you believe the
coordination has been between the EPA and the TSCA Interagency
Testing Committee?
Mr. Jones. So historically, it has not been particularly
active, in that other agencies are not big users of that
committee, whereby they are able to ask us to generate health
and safety data for their purposes. The bill allows that
activity to continue in the future. It would be interesting--I
really can't predict how much other agencies would be feeling
more empowered to ask EPA to use its authorities to require
companies to generate health and safety data for their
purposes, but it is definitely an authority in the Lautenberg-
Vitter Bill.
Mr. Latta. OK. And finally, if I could, I know there have
been some questions that other members have asked about how you
have defined certain words that have--that were in your
testimony. On page 4, you talk about that, as stated in the
principles, legislation provides the EPA with authority to
establish risk-based safety standards. How would you define
that risk-based safety standards? Would you see the
stakeholders being involved, how would you see--come to that
definition?
Mr. Jones. So we would definitely involve stakeholders in
that--I will give a few examples based on implementation of
other statutes. The EPA would consider, for a chemical that was
a quantified carcinogen, that the calculated risk of that
compound not creating more than a 1 in a million chance of
increasing cancer risk to be a health-based safety standard,
where we have identified in a quantifiable way in that case the
level at which we believe is protective, based exclusively on a
health and safety consideration. So that would be an example of
one. It doesn't mean under this bill we would say that the
number, but we would include dialog with stakeholders to say,
here is an example, do you think this is the appropriate
health-based safety standard? Should it be 1 in a million, 1 in
100,000, 1 in 10 million, before we ultimately came down on
what we thought was the appropriate health-based safety
standard.
Mr. Latta. Well, thank you very much. And, Mr. Chairman, I
see my time has expired, and I yield back.
Mr. Shimkus. Gentleman yields back his time. Chair now
recognizes my colleague from Colorado, Ms. DeGette, for 5
minutes.
Ms. DeGette. Thank you very much, Mr. Chairman. Mr. Jones,
we appreciate you coming today. And, Mr. Chairman, I really
appreciate you holding this hearing. We have been hammering
away at this for some number of years, and I actually think,
with the Senate bill and with this committee's efforts, we may
be productive. So, yes, let's keep our fingers crossed.
Mr. Jones, one thing we have been talking about is one of
the problems with the current act is that roughly 60,000
existing chemicals were grandfathered-in in 1976, and as you
testified, there is no criteria to trigger an independent EPA
review of an existing chemical. So under the Senate bill, all
the existing chemicals in commerce would be identified and
prioritized for further evaluation. I want to talk to you
about--a little bit about that this morning.
I think given the number of chemicals that are out there,
and the subset of chemicals that are actually used in commerce,
we all support prioritizing EPA action that might pose a
serious risk, but in order for prioritization to work, EPA
needs to have the information to make the informed decisions on
how to prioritize it.
So as I understood your answers to Mr. Green's questions,
for existing chemicals, if the EPA wants to trigger some kind
of a review, they have got to promulgate a rule before they do
that, is that right?
Mr. Jones. Under current law, that is correct.
Ms. DeGette. Yes, and then under--as what--1009 what would
happen would be, as a threshold, the EPA would be directed to
review the safety of all existing chemicals in commerce, is
that correct?
Mr. Jones. That is correct.
Ms. DeGette. And so that sounds good, but if the EPA is
going to review all of those chemicals, they are going to need
to get a lot of data that they don't currently have. Is that
right?
Mr. Jones. That is correct.
Ms. DeGette. And so I guess what I want to ask you is,
under the current drafting of S. 1009, is there a minimum set
of information the EPA will have for each chemical so they can
decide how to review and prioritize it for action?
Mr. Jones. We think that we will very likely tailor the
data that we are interested in having for a safety assessment
based on some of the characteristics of the chemical. So, for
example, chemicals that are persistent bioaccumulative and have
some toxicity, we would require a lot more data for, health and
safety data, than for a chemical which our--the evidence that
we have based on models that we used, predicted it as likely to
be of lower toxicity. So we would probably tailor the data we
would like to see for our assessments based on characteristics
that we know.
Ms. DeGette. Now, in the bill itself, is there actually any
standard set for the data that you would use or obtain, or is--
would--are you just left to decide that for yourselves?
Mr. Jones. The bill as drafted gives the Agency quite a bit
of discretion as to what data it would want to compel
generation of.
Ms. DeGette. And does it lay out what criteria the Agency
would use to decide which--or--you see what I am saying? It is
like there are so many chemicals out there----
Mr. Jones. Yes. It gives the criteria for the order in
which we prioritize things as high.
Ms. DeGette. OK. Now, S. 1009 also changes the requirements
for entry into commerce of new chemicals. It is my
understanding that maybe as 80 or 90 percent of new chemical
applications currently contain no data on potential impacts to
human health. Is that correct?
Mr. Jones. That is correct.
Ms. DeGette. So under current law, the EPA wouldn't be
making an affirmative decision about a new chemical's safety
before it enters the market, is that correct?
Mr. Jones. That is correct.
Ms. DeGette. Under S. 1009, the EPA must make a decision
about the likely safety of a new chemical, is that right?
Mr. Jones. That is correct.
Ms. DeGette. But will the EPA have data about the new
chemicals to accurately make the safety determination?
Mr. Jones. So we expect that there will be, for many
situations, the models that we use to predict hazard will allow
us to make such determination--likely to meet the safety
standard determination for many chemicals. There will be some
chemicals which, when we use predictive models, they are going
to raise enough concerns that we are going to want to see
health and safety data generated.
Ms. DeGette. OK. Well, I appreciate you--I appreciate that
answer, but I am a little concerned because it seems a little
bit vague, and I think that is one of the areas of this bill we
can really work on, is setting clearly what data the EPA needs
to be given for certain classes of chemicals. So I look forward
to working with you and also with the committee on those
issues.
Thanks.
Mr. Shimkus. Gentlelady's time has expired. The chair now
recognizes the gentleman from West Virginia, Mr. McKinley, for
5 minutes.
Mr. McKinley. Thank you, Mr. Chairman, and again, thank you
for the--once again continuing this discussion.
Mr. Jones, two questions for you. The first is, will, in
your analysis of the Vitter bill, did--will it require an
expansion, will it need more FTEs, anything along that line to
be able to carry out the new mission?
Mr. Jones. In the absence of additional resources, the
number of chemicals we would be able to move through the
process will definitely be meaningfully constrained.
Mr. McKinley. Will be what?
Mr. Jones. Meaningfully constrained. The number will be
smaller than I think most people would hope.
Mr. McKinley. So the answer to the question, are we going
to have--are you going to need more FTEs?
Mr. Jones. It is likely that additional FTE would be
necessary to achieve the kind of numbers, I think, that
generally people would expect from the Agency.
Mr. McKinley. OK. Secondly, is the--some of the criticism
of the existing bill and the Vitter language is about the
burden placed on EPA to express the need before they make the
request to the companies to fulfill that assessment. Can you
share with us the value of why the EPA should make the first
step in determining the need?
Mr. Jones. The need for health and safety data?
Mr. McKinley. Yes. Right.
Mr. Jones. So the Agency is pretty well equipped, and we
are also coming at it with the simple desire to understand
health and safety. So we have got both the--well, largely, we
have the scientific expertise to be able to judge whether or
not health and safety data is necessary, and what kind to make
a safety determination.
Mr. McKinley. So if--again, I--that--be more specific with
that. So I am just trying to understand that. So--because some
are saying they don't think you should make the first step, the
company should provide that chemical and their product data. Do
you think it best for you to first make the--make your own
analysis to determine that there is still a need----
Mr. Jones. The----
Mr. McKinley [continuing]. Before you ask them to produce
it?
Mr. Jones. Yes, I think that we have got a pretty
sophisticated way of understanding where we need information
and where we don't. And as I was answering the question to
Congresswoman DeGette, we are able to do it in a way that is
tailored to the chemical and the issues that the particular
chemical expresses. And so I think in many ways, it can be the
most efficient way for the Agency to identify we need this data
but not that data.
Mr. McKinley. OK. And maybe to add one last in the little
time I have left. I think I heard it--the question but I wasn't
sure I heard the answer again, and that is, with the passage of
this, this--you really think that this is an improvement for
health safety and for children, pregnant women, we--on and on
and on. This is going to be an improvement over what we have
now?
Mr. Jones. Well, as I said in answer to the first time that
question was asked, that the way in which we are trying to
think about it is does this give us the tools to ensure safe
chemicals in the United States, and as I pointed out, I think
that there are a number of areas which are meaningful
deficiencies that would need to be addressed before we could
say that this bill will give us the tools we need to ensure
safe chemicals in the United States.
Mr. McKinley. So--and the bottom line here, you think this
really is an improvement?
Mr. Jones. I think it needs some improvement.
Mr. McKinley. OK, it still needs to be worked. OK, and I am
OK with that, but I just wanted--are we--if it is moving in the
right direction to make sure that it is an improvement over
what we have now.
Mr. Jones. There are aspects that are moving in the right
direction, and there are aspects that are not.
Mr. McKinley. OK. Thank you very much.
Mr. Shimkus. Will the gentleman yield? Will the gentleman
yield?
Mr. McKinley. Yes.
Mr. Shimkus. Let me follow up on just two quick questions.
Part of the 85,000 list of chemicals, there are some that
are no longer in commerce or in manufacturing processes, and
those--you could be--probably easily drop them off, isn't that
true?
Mr. Jones. Well, interestingly, we would have to go through
a process to drop them off, and as a general matter,
manufacturers, even if they are not making the chemicals, like
them on the list because at some point in the future, they want
to bring that into their production, for whatever marketing
reasons they have, they can do that if it is not on the list.
Mr. Shimkus. But under the new law, if passed as-is, they
are still going to be looked at then. The whole idea is to get
through this list in some time.
Mr. Jones. Under 1009, it actually creates two lists. One
is an active list, things that are actively in commerce, and
one is an inactive list, things that are no longer in commerce.
Mr. Shimkus. Right.
Mr. Jones. Manufacturers can go from inactive to active by
noticing EPA.
Mr. Shimkus. Let me ask another question. Is there a
difference between chemicals that go actually into consumer
consumption or handling, versus chemicals that are involved
just in the manufacturing process that stays within the walls
of a facility?
Mr. Jones. The way in which we evaluate them is very
different, but we have jurisdiction over both. We evaluate them
very differently. One is, we are looking at the exposures that
a consumer would get, and the other, we are going to look at
what happens in the workplace to the worker if the worker is
exposed.
Mr. Shimkus. Great, thank you. And the Chair now recognizes
the gentlelady from California, Mrs. Capps, for 5 minutes.
Mrs. Capps. Thank you, Mr. Chairman, and thank you, Mr.
Jones, for your testimony here and your statement here, and
your position at EPA.
Many stakeholders have raised concerns about the need to
protect vulnerable populations. That is my concern in talking
with you during my 5 minutes. Any system needs modernization.
TSCA, I am sure, can use it too, but an essential component is
to really address how vulnerable populations will be affected.
Any reform, for example, of this statute that fails to
adequately protect children or pregnant women would be a
terrible failure. Vulnerable populations do include infants and
children, the elderly, the disabled and anyone living in a
close proximity to a chemical facility. The National Academies
of Science, in their 2009 report called Science and Decision--
Decisions, recommended that vulnerable populations should
receive special attention at every stage of the risk-assessment
process. S. 1009 makes only two references to subpopulations.
Vulnerable populations are not addressed in the safety
standard, and are not required to be considered in the safety
determination. This strikes me as a glaring oversight. Even
using the problematic terminology of this bill, a chemical
should not be deemed to meet the safety standard if it poses an
unreasonable risk to a vulnerable subpopulation.
So I have a couple of yes/no questions to ask you, because
I hope you agree with this. Do you think a chemical that poses
an unreasonable risk to a subpopulation should be able to pass
the safety standard under a reformed TSCA?
Mr. Jones. No.
Mrs. Capps. And to follow up, as a general matter, should a
chemical that poses a serious or substantial risk to a
vulnerable subpopulation be considered acceptable under a
reformed TSCA safety standard?
Mr. Jones. No.
Mrs. Capps. Well, I thank you for that. That puts you on
the record there. Turning now to the risk-management decisions
that will be taken when a chemical does not meet the safety
standard under a reformed TSCA.
Mr. Jones, should risk-management actions under a reformed
TSCA ensure that unreasonable risks, including those to
vulnerable populations, are addressed?
Mr. Jones. Yes.
Mrs. Capps. And should risk-management actions under a
reformed TSCA ensure that a serious or substantial risk to a
vulnerable population should be addressed?
Mr. Jones. Yes.
Mrs. Capps. Partly in answer to a previous question--well,
let us put it this way: The Senate made some progress in their
legislation. Are there some areas that we could improve upon
that you would like to highlight in less than 2 minutes?
Mr. Jones. Sure. Thank you for that. And I am only in this
position because of the fine education I got at the University
of California, Santa Barbara. And thank you for----
Mrs. Capps. Thank you very much. That doesn't hurt your
standing in my eyes.
Mr. Jones. So we think that the kinds of improvements that
are necessary to get this bill to the place where we think it
gives us the tools we need to ensure safe chemicals in the
United States are along the following. That there need to be
meaningful deadlines on the Agency, that the safety standard
should be clear and understood by all parties as to being a
risk-based safety standard. The kind of analysis that we have
gotten bogged down because of the least burdensome requirements
under existing TSCA shouldn't be replaced with additional
analysis that does not add a lot of value to the ultimate
decision making. And I also think that there needs to be a
balanced approach to preemption, which I currently don't think
the bill achieves.
Mrs. Capps. Thank you. Thank you very much for that
summary.
Mr. Chairman, I am a strong supporter of reforming TSCA, in
addition to wanting us to pay special attention to this
particular witness, just because where he received his
education.
I do have some serious concerns about the bill before us
today. The Senate language does not require the protection of
vulnerable populations in the safety standard or in the risk-
management decisions, and I think that is a fundamental flaw
that would affect each of us in our congressional districts.
Any TSCA reform bill this committee considers should ensure
that the most vulnerable among us are protected, and this
protection is real and effective. So I look forward to having
this committee continue to work on this particular issue.
Thank you.
Mr. Shimkus. I thank my colleague. I--just to note that
right now, there is no--in current law, there is no vulnerable
population comment, but in the Senate bill I think it is listed
at least twice. So there is some movement in the--in that
direction.
The Chair now recognizes the gentleman from--I am trying to
find here, gentleman from Florida, Mr. Bilirakis, for 5
minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it
very much. Thank you for holding this hearing as well.
I would like to ask a question. Should Congress require a
minimum number of chemicals to be acted on each year?
Mr. Jones. That is a great question, Congressman. The
benefits of having a minimum number of chemicals is that you
can feel that there is forward progress being made all of the
time. The downside to it is that, in the absence of meaningful
resources, you can find the Agency in a situation where it
can't meet the statutory requirements, or the way in which it
does so is to by working on easier chemicals, which is not
really, I think, what the objective is of setting priorities,
that we would be working on the more complicated, difficult
compounds first. So there are definitely some pros and cons to
including a minimum number of chemicals.
Mr. Bilirakis. OK, thank you. Some question that Senate
Bill 1009 does not require adequate data to prioritize
chemicals. Does Senate Bill 1009 give the EPA authority to seek
additional data and info? How do you read Senate Bill 1009?
Mr. Jones. So that is a good question as well. I think that
there is a disagreement amongst some of the people reading the
bill as to whether or not we have the ability to require the
generation of health and safety data if it is not already a
high priority chemical. We read the bill to allow us to be able
to do that. I think the fact that there are people reading the
same words and coming to a different answer to that question is
another example where it might be useful to seek clarity on
that point.
Mr. Bilirakis. All right, thank you very much. Next
question, would Senate Bill 1009 allow the EPA to assess the
safety of chemicals that are persistent bioaccumulative and
toxic, and require risk management for those that fail to meet
the safety standard?
Mr. Jones. The bill allows the Agency to do that, but--not
create the explicit requirements to give any priority to
persistence or bioaccumulation, but it certainly allows the
Agency to evaluate them and take risk management if warranted.
Mr. Bilirakis. Thank you. Thank you for your response.
And I yield back.
Mr. Shimkus. Gentleman yield to me----
Mr. Bilirakis. Yes.
Mr. Shimkus [continuing]. For a quick--so risk is defined
as hazard plus exposure. Is that how you define it?
Mr. Jones. Hazard times exposure. Yes, hazard times
exposure.
Mr. Shimkus. So define for me the difference between
substantial and unreasonable. So if you have substantial risk,
OK, we know what risk is, we know what unreasonable risk, so
what are--I guess that is two adjectives, but I mean what is
the difference between those two?
Mr. Jones. I actually think it really depends on all of the
other words that are used in the statute to describe what the
Agency is required to find. I don't believe unreasonable risk,
those two words by themselves, mean that the Agency has to
conduct a cost benefit analysis. I do believe the courts have
said those words used in conjunction with a lot of other words
create the requirement of a risk benefit balancing, but the
words themselves I don't think mean, to the layperson or
anybody who can read the dictionary, means cost benefit. But it
is a lot of the words that are used in conjunction with the
actual standard that, I think, gives it its full meaning.
Mr. Shimkus. Great, thank you. The Chair now recognizes the
gentleman from California, Mr. McNerney, for 5 minutes, who has
been waiting very patiently.
Mr. McNerney. Waiting and listening, Mr. Chairman. Thank
you.
Mr. Jones, in your testimony, I believe you stated that S.
1009 requires affirmative standards. Would you please elaborate
on that, especially regarding enforcement, how those
affirmative standards would be enforced in the new law?
Mr. Jones. Thank you. That comment reflects specifically to
the new chemicals provision in 1009. Under existing law, the
Agency, when a new chemical is submitted, we have 90 days to
evaluate it, and only if we identify a problem are we able to
work with the manufacturer to prevent it from being introduced
into commerce. Under S. 1009, it requires the Agency to make an
affirmative finding of meeting the safety standard before the
manufacturer can move that chemical into commerce.
Mr. McNerney. OK. That is a good thing, I think.
Mr. Jones. I would think so, yes.
Mr. McNerney. You also stated that in S. 1009, the language
would make it as difficult as the unreasonable risk or least
burdensome language in TSCA to enforce rules as it has been for
TSCA with asbestos. Can those--can that language be modified in
your opinion to remove some of those barriers, and make it
reasonable to enforce?
Mr. Jones. For any of the issues that we have identified,
the devil is always in the details, but I think that changes
could be made in a way that would not send us into an endless
amount of analysis before we could ultimately make protective
decisions.
Mr. McNerney. Well, who would you recommend that the
committee consult with on that language?
Mr. Jones. I think it is important to have all
stakeholders. I mean obviously you can't have literally all
stakeholders, to be bringing all people to the table, as I
think you get the best outcome and you can get a common
understanding of what--the words you are using are the words
everybody believes that they mean.
Mr. McNerney. OK. Well, to change the subject a little bit.
The European Union has made significant progress on some of the
60,000 chemicals that have been grandfathered. Is that correct?
Mr. Jones. The European Union, which has a very different
model, has definitely made some progress in the universe of
chemicals sold in Europe.
Mr. McNerney. Would S. 1009 allow you to--the EPA to
collaborate with the European Union on identifying some of
those, and classifying some of those chemicals?
Mr. Jones. We definitely would be able to collaborate. I
think the fundamental problem we and the Europeans are dealing
with as it relates to that collaboration is they have required
manufacturers to generate a lot of health and safety data, and
the European Union under their rules cannot share that
information with us. They have to have the company's
permission. The companies find themselves in a situation where
they negotiated agreements across multiple companies, and
unless everybody agrees, they can't give us the information.
And so I am hard-pressed to know what U.S. domestic law could
do to actually break that log jam. I think we have to----
Mr. McNerney. OK.
Mr. Jones [continuing]. Work something out, not under law,
but with manufacturers to figure out how to get access to that
treasure-trove of health and safety data.
Mr. McNerney. OK. That is a good answer. Regarding
resources, if S. 1009 becomes law, would the Agency need
greater resources to carry out the various rule makings laid
out in the bill?
Mr. Jones. I think where we would run into issues with
expectations, expectations of, I assume, the Congress and
certainly I think of the American public, is that the number of
assessments we would be able to do under existing resources
would probably, for most people, be considered to be
inadequate. So to change that, we would need resources. I do
think there are models out there that involve the industry
financing that are used in the FDA and our pesticides program
that are worth looking at.
Mr. McNerney. So in S. 1009, there aren't any dedicated
funding sources?
Mr. Jones. No, there are not.
Mr. McNerney. So that could be interpreted as one of the
weaknesses in that law--in that proposed law?
Mr. Jones. One of the administration principles is there be
a sustained source of funding, and that is not addressed in the
bill.
Mr. McNerney. OK, thank you.
Mr. Chairman, I yield back.
Mr. Shimkus. Gentleman yields back his time. The Chair now
recognizes the gentleman from Pennsylvania, Mr. Pitts, for 5
minutes.
Mr. Pitts. Thank you, Mr. Chairman.
Mr. Jones, in our first hearing, witnesses stated that EPA
needed specific statutory authority for chemical
prioritization. Is that important?
Mr. Jones. Thank you, Congressman. I think it is important
because there are so many chemicals in commerce that it is
important to direct the Agency to focus on those that may
present risks earlier in the process rather than later. And in
the absence of that, you could see wily bureaucrats, of which I
am one, working on easy things because we can do a lot of easy
things. So I think being directed to work on those things that
are the highest priority is a very important thing when you
have a universe that big.
Mr. Pitts. Does S. 1009 require that chemicals be
prioritized?
Mr. Jones. Yes, it does.
Mr. Pitts. Does S. 1009 allow EPA to consider potentially
vulnerable subpopulations in making decisions to prioritize
chemicals for review, and in subsequent safety assessments and
determination?
Mr. Jones. In safety assessments, we are required to
consider vulnerable populations. That is not required of safety
determinations or--in the priority setting. We are not
prohibited, but it is not required for the other two.
Mr. Pitts. S. 1009 lays out framework requirements for
prioritizing existing chemicals, gathering, testing data and
information, conducting safety assessments and making safety
determinations. Does a reformed TSCA need to set these
requirements out as four separate steps?
Mr. Jones. The bill has a lot of what we were referring to
as framework requirements, we think we counted a total of about
17. I think it is possible to collapse a number of the
frameworks down, and not lose some of what the drafters
intended. Most were drafted--making it more streamlined and
straightforward.
Mr. Pitts. S. 1009 has provisions requiring that EPA sort
chemicals for review as either a high or low priority. Should
there be more categories than just high or low priority?
Mr. Jones. I don't see a huge amount of value in adding
another category other than high or low.
Mr. Pitts. Are you concerned that you cannot seek judicial
review of the prioritization screening decisions?
Mr. Jones. That is a very good question. I think it runs
counter to generally how we run the government, that an Agency
action that ends all other downstream consequences is unable to
be challenged. So a high-priority decision--when we do that,
downstream things have to happen. And so it doesn't bother me
that that is not subject to judicial review, because the
downstream thing ultimately will. A low priority under 1009
actually stops all action. EPA at that point is done. No more
work. Stop. That to me is a final Agency action, and although I
would like to think all of our final Agency actions shouldn't
be--no one should be bothering us about them, I--as a matter of
good government, I think that it is important to allow people
who disagree with a final Agency action to seek review of that
in an appropriate judicial proceeding. And so I think that
having a law not be subject to judicial review is not a good
place for the government to be in.
Mr. Pitts. And managing the many chemicals that you need to
review, how long do you expect this process to take, both to
prioritize and schedule for assessment?
Mr. Jones. The prioritization process I think will happen,
the initial one, very quickly. The initial assessments will
happen within a couple of years. I think it will be many years
before we have evaluated all the high priority chemicals.
Mr. Pitts. OK, thank you, Mr. Chairman.
Mr. Shimkus. Gentleman yields back his time.
Chair now recognizes the gentleman from Louisiana, Mr.
Cassidy, for 5 minutes.
Mr. Cassidy. Mr. Jones, I apologize if someone else has
asked. I had to step out.
To prove safety by the first--to prove that something is
not at risk, you have to prove a negative. It is very difficult
to prove a negative. How do you prove a negative?
Mr. Jones. So we rely on analytical tools that often
include data, often include models. So if something does not
express hazard, it is impossible for it to have risk, if
something doesn't----
Mr. Cassidy. Now, that is--now, let me ask, because we had
a hearing about the risk of something for breast cancer. It is
a big concern of mine. My wife is a breast cancer surgeon, and
I am a physician, so we were on a vacation so we pulled down
the literature, and there is a body of literature for this
particular chemical, that it could cause breast cancer, but--
and somebody did a regression analysis and goes, you have got
to be kidding me. There is obesity, alcohol, cigarette use,
family history, and here is a very marginal effect that may or
may not. But the witness was passionately and quite emotionally
declaring that this particular chemical had an impact upon
breast cancer.
So I guess I would come back to no risk at all may be in
the eye of the beholder, right, or of the interest group or
whatever. In that situation, what does this law allow you to
do?
Mr. Jones. Well, it would require us to assess the risk of
that chemical, and make a determination as to whether or not
that risk met a safety standard.
Mr. Cassidy. I guess what I am after, the safety standard
seems a nebulous thing to me.
Mr. Jones. So--yes.
Mr. Cassidy. And so, again, this advocacy was just so
passionate in their emotion, even though the retrogression
analysis showed that the effect was nonexistent or minimal, if
it existed. It just couldn't be teased out. So would that--
would this nebulous standard say, listen, best science shows
that it is obesity, family history, alcohol and cigarettes.
This marginal effect we can't prove so we move on, or we just
say, no, we have to say this is not safe?
Mr. Jones. We have a pretty long record of how we calculate
risk, and what we view to be risks that are beyond negligible.
They involve using standards such as the increased lifetime
cancer risk of a substance, they include calculations that we
use for other kinds of effects where we look for a certain
margin of exposure between the exposure level and when
adversity occurs, and there is a general understanding about
how we----
Mr. Cassidy. So I think, I gather, that industry would be
able to look at a basically kind of common-law standard, if you
will, something that this--it isn't nebulous, you are telling
me, but there is something they could look at and say, below
this threshold, we know we are OK?
Mr. Jones. That is correct.
Mr. Cassidy. Then let me also ask, I was struck once in
some hearings we had that the EPA's current method of analysis
does not take into account a threshold effect, that they
extrapolate all the way down, if we know this level really
causes damage, but we know at this level it is in the
environment, and common exposure doesn't cause damage. I am a
doc, aflatoxin is a great example of something we are all
exposed to, but it is only above the threshold has a problem,
EPA, as I gather, does not take that into account.
Mr. Jones. The vast majority of the chemical assessments we
do are based on the threshold model that you are describing. A
relatively small number, in particular, those that are
carcinogens, where there has not been demonstrated the
threshold that you are describing, we use the model that you
are describing. That is a relatively small number of chemicals.
That being said, we have gotten some advice from the NAS to
begin to think about how to use models other than the threshold
model that I just described. But right now, the vast majority
of chemical assessments that we do rely on the threshold model
that you are describing.
Mr. Cassidy. OK, I had a little bit of a different
impression, so I am reassured regarding that.
The subpopulation groups also seem to be something which
is, you know, going to be difficult to define. I know that
there are always two or three standard deviations out, somebody
with a genetic predisposition to, fill in the blank. And it may
be an environmental exposure will fill in the blank. You with
me? Take type 1 diabetes.
Mr. Jones. Um-hum.
Mr. Cassidy. There seems to be a genetic component, but
some interaction with the environment. How would you ever--it
almost seems like if you really chase that out, you are always
going to find some subpopulation with a genetic exposure which,
combined with the environmental, is problematic.
I know you have thought about this. What are your thoughts?
Mr. Jones. So there are either a couple of things that we
have--I like to give the example of what we have done in our
pesticide program, which is a similar requirement around
significant, highly exposed and vulnerable populations. We have
literally identified the populations that we look at in terms
of age, and we look at children at six-month intervals when
they are very young, and then we go to 1-year intervals, and
then we go to, you know, women of childbearing age and those
over 50. And we also do it by race and ethnicity. And so we
have defined them, we have taken comment on that, and it is
then widely understood here are the populations below the
general population that we are going to look at for every
assessment that we do.
I would expect that we would do something similar here.
They may not be the exact same subgroups that we would look at,
but we would go through a process of identifying them and
asking the public to give us feedback on it. The other thing is
that we, as a general matter, use an uncertainty factor to
capture the general variability within the population as it
relates to intraspecies sensitivity.
So that tenfold factor we use to try to broadly capture
that phenomenon. When there is information that leads us to
believe that for a specific effect, something beyond that 10 is
necessary, then we use that to inform our assessment.
Mr. Cassidy. I will finish by saying your testimony is very
reassuring, but I remember reading the National Academy of
Science's report on your formaldehyde report, and they really
felt like the conclusions of the report were not based--were
not supported by the data which had been amalgamated, thinking
specifically of tumors in the nasal laryngeal area in rats, and
yet EPA kind of swore by it.
So thank you for your testimony, and I yield back.
Mr. Shimkus. Don't you hate these real smart members of
Congress who ask these--make us all look bad?
So last but not least, my colleague from the great State of
Georgia, Mr. Barrow, for 5 minutes.
Mr. Barrow. Thank you, Mr. Chairman. Thank you, Mr. Jones,
for being here today.
I know that the EPA hasn't yet taken a position on S. 1009
all together--in its all together, but I want to see if we
can't draw some comparisons between current law and the
proposal, and just get some idea where we can find some--for
example, are there any areas of the bill that, in the opinion
of the EPA, are better than current law?
Mr. Jones. Yes. Mandating the Agency evaluating existing
chemicals is a non-trivial improvement over the existing law.
That is not something we are required to do right now. Giving
the EPA the ability to require manufacturers to generate health
and safety findings, using order authority, is dramatically
more efficient than the process that we have under the existing
law. And then the requirement that EPA make an affirmative
finding for a new chemical before it enters commerce, I think
is also a pretty significant improvement.
Mr. Barrow. Flipside, any areas of the proposed legislation
that in your opinion are worse than current law?
Mr. Jones. Yes, I will say that the preemption provision is
dramatically less--I think at the end of the day would be less
protective than the current preemption under TSCA.
Mr. Barrow. I am kind of reminded of Lincoln's comment
about liberty, you know, the sheep praises the shepherd for
driving the wolf away from his neck, and the wolf condemns him
for the same act. Clearly, we need a new word of liberty, you
know, new agreement on what it means. So I want to talk about
protection in this context, the interplay between Federal and
State regulations that is a real major policy issue we have to
deal with.
One concern that I have is if funding for the big
regulator, the national regulator, the EPA, is either
chronically inadequate so that the regulator is malnourished,
or is highly sporadic as a result of politics, ranksmanship and
shutdown or what have you. The concern I have is whether or not
we will have effective regulation if we preempt State, and the
only regulator who is left on the scene is unable to do his
job. I have a concern about that, but I also have a concern
about, you know, the regulator wanting to do its job. You know,
a regulator that doesn't want to do its job is like going bird
hunting and having to tote the dog. But a regulator that can't
do its job is like going bird hunting without the dog. I am not
sure which is better. Each is equally ineffective as far as the
customer and the taxpayer is concerned.
So help me understand, in your experience, what has been
the benefit of the current regime of dual State and Federal
regulations on the one hand, and what has been the cost of the
current regime, and how would you suggest we go forward?
Mr. Jones. I think the benefit is a good part of why we are
here; that because the Federal law is ineffective, States have
stepped into the breach and have been doing the work necessary
to protect the people in their States, which has created an
incentive on the part of the industry, in my view, to raise the
bar of the Federal law so that States don't feel compelled to
step into the breach, because the Federal Government is
ensuring the safety of their citizens. I think that is the----
Mr. Barrow. You described the ideal or optimal role of the
State regulator as being a pride toward better action, better
regulation nationwide is how you describe it.
Mr. Jones. Um-hum.
Mr. Barrow. As being basically a driving force for
getting----
Mr. Jones. I think that they have been the driving force in
the chemical space that has been basically the only regulation.
Mr. Barrow. Aren't you--don't you share the concerns though
of others though that if you do have a nationwide standard, if
the regulator is malnourished or underfunded, that that could
be a problem as well, they can't keep up with the demand? So
you don't want to replace something bad with something that----
Mr. Jones. No, exactly.
Mr. Barrow [continuing]. Does not exist.
Mr. Jones. It is a challenging dynamic that you are trying
to ultimately achieve, where the absence of action on the
Federal Government doesn't mean nobody gets protected, that it
keeps--the potential threat of that happening keeps people like
me on top of our job, moving the ball forward, which also
creates the dynamic where the States feel like they don't feel
like they need to regulate because it is going to be taken care
of at a national level. And I think that is very----
Mr. Barrow. We should understand--you can understand that
even if you are doing a good job at the national level, there
could be some States you just want to regulate a whole lot
more?
Mr. Jones. That absolutely I think would be the case.
Mr. Barrow. And the problem we have is not the fact that we
have two regulators in any given one place.
Mr. Jones. Right.
Mr. Barrow. We only have 51 regulators as far as the
country as a whole is concerned. You recognize the challenge
and burden that is to industry.
Mr. Jones. That is right, and I think that that is the
flipside of the--that is why I think it has been so hard for
people to come together to figure out what is exact--what is
that sweet spot there. It is untenable to try to sell a product
in the United States, and you need to meet 51 or 57 different
requirements. At the same time, you don't want to leave
everybody unprotected because people here are not able to get
their job done, or don't have the tools to get their job done.
And trying to find that sweet spot, I think is very
challenging.
Mr. Barrow. Thank you. With my--with that, my time is up.
Mr. Shimkus. Gentleman yields back his time.
And I--just a point. I think there are only like four
States who really have the capability or are involved in this
space, versus the other ones that aren't. And when we had ECOS
testifying, many States had no capability to do this intensive
evaluation. So I just throw that in.
Mr. Jones, a delightful testimony. I usually don't say that
very often. Great job. I think you could see from the interest
by members present that there is a desire to try to get this
right, and find the sweet spot, and I hope we can continue
moving forward. You are a great credit to the Agency, and we
thank you for joining us. And we dismiss you and ask the final
panel to come forward.
We would like to welcome the third panel here, and many of
you have been sitting in the room for a couple of hours now, so
we appreciate your diligence and we look forward to your
testimony. I think the first two panels went real well, and we
look forward to yours.
So I will just do the introductions as your opening
statements are called for. It is great to welcome back Cal
Dooley, former colleague, now President and CEO of the American
Chemistry Council. Obviously, your full statement has been
submitted for the record. You have 5 minutes.
STATEMENTS OF CAL DOOLEY, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, AMERICAN CHEMISTRY COUNCIL; ERNEST ROSENBERG,
PRESIDENT AND CHIEF EXECUTIVE OFFICER, AMERICAN CLEANING
INSTITUTE; RICHARD A. DENISON, SENIOR SCIENTIST, ENVIRONMENTAL
DEFENSE FUND; DEAN C. GARFIELD, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, INFORMATION TECHNOLOGY INDUSTRY COUNCIL; ANDY IGREJAS,
DIRECTOR, SAFER CHEMICALS, HEALTHY FAMILIES; AND WENDY E.
WAGNER, JOE A. WORSHAM CENTENNIAL PROFESSOR, UNIVERSITY OF
TEXAS SCHOOL OF LAW
STATEMENT OF CAL DOOLEY
Mr. Dooley. Thank you, Chairman Shimkus, and Ranking Member
Tonko, and all the members of the committee. I appreciate this
opportunity to be testifying on behalf of the American
Chemistry Council, our member companies, as well as 800,000 men
and women who work every day in the business of chemistry.
ACC and our member companies are absolutely committed to
the modernization and the reform of TSCA that will enhance the
public confidence in the safety of our chemicals, and allow our
industry and our customer base throughout the value chain to
continue to be on the forefront of developing innovations that
improve our everyday lives.
You know, some of you were in attendance at a hearing that
this committee had in 2010 on a bill that was introduced to
reform TSCA by Congressman Waxman. If you were here at that
hearing, it was actually one that was fairly contentious, and
Richard Denison and I were passionate defenders of our
constituencies, but unfortunate, you know, that contentious
dialog we had there was a reflection of what--the failure to
find a common ground or a balanced approach to a comprehensive
TSCA reform. It is unfortunate over the last few years, even on
the Senate hearings where Mr. Denison, representing EDF, and I
have testified, we were also very polarized and very
contentious in some of our dialog. And that was a reflection of
the failure for Republicans and Democrats to come together to
find a balanced comprehensive reform to TSCA that could secure
bipartisan support.
You know, that all changed just this last year when, thanks
to the leadership of Senator Lautenberg and Senator Vitter,
they brought together diverse constituencies to work out some
of our differences, and develop not a perfect bill by either of
our perspectives, or any of our perspectives, but develop a
balanced approach that could provide for meaningful
improvements to TSCA regulations. And it was really that
balanced approach that was also groundbreaking in that we were
able to develop the support of 25 members of the U.S. Senate,
equally split, well, 12 to 13, between Republicans and
Democrats. Again, unprecedented. And I really appreciate the
work that this committee has done to try to find ways which we
can build upon the progress that was achieved in the Senate,
because our industry, and the value chain at large, has also
increased their support in TSCA reform, because it is not only
the chemical industry, it is the information technology
industry, there is actually now an alliance of about 100
different associations representing everyone from the retail
federation to toy manufacturers to automobile manufacturers,
technology, semiconductors, that have all come together to
support the CSIA, because they see it as a balanced and a
meaningful reform of the existing TSCA legislation.
Also unprecedented is not only industry, but you also have
organized labor that has joined in support of TSCA reform. You
have the electrical workers and IBW, the North American
Building Trades, the machinists, aerospace, transportation, and
the ironworkers have also joined in support.
So the message here is is that, you know, something that is
positive is happening here. We have also heard in some of the
comments of Jim Jones as well as Administrator Gina Jackson
that the CSIA really does set the foundation for meaningful
progress to see reform of TSCA today. It is also, I think,
important that when you look at the comments by former
Administrator Christine Todd Whitman, and Charlie Auer who was
manager of the TSCA Program under President Bush, as well as
Steve Owens who was President Obama's appointment that had
jurisdiction over TSCA reform, that have also came and support
and endorse CSIA. And they did so because they recognize that
they address many of the problems that they had concerned with
implementation of TSCA. It requires a systematic evaluation of
all grandfathered chemicals for the first time. It prioritizes
chemicals for EPA reviews so chemicals with the greatest need
get the first and greatest attention. It gives EPA more
efficient authority and ability to get the data that they need
to make the determinations, and it requires EPA to make more
information available to the public, a leading goal of
environmental advocates and industry alike.
You know, we recognize at ACC that there are some members
in the NGO community that would like to see some reforms and
some modifications of the existing law, but when we look at the
5 issues that they surfaced early on, we think that those can
be addressed in a meaningful and appropriate way that can build
and improve upon CSIA, but does not, I guess, disrupt or create
an imbalance in this coalition that could put us back into the
gridlock that has been characterized in our ability, or our
lack of ability, to achieve TSCA reform over the past better
part of 37 years.
You know, I will be pleased to respond in detail to a lot
of the questions you have, but my message here is, is that, you
know, this bill isn't viewed by being perfect by industry, and
I know Dr. Denison will say it is not viewed as perfect by the
Environmental Defense Fund, but all of you that are serving in
Congress today, just like I served for 14 years, know that
there are very few perfect pieces of legislation from one
constituent's interest. The only way we are going to see
progress in enacting TSCA reform is it is going to take a
balanced, comprehensive approach, and I hope that we use the
CSIA as that foundation. I know that there are opportunities to
make those modest and marginal reforms that will address some
of those legitimate issues, but we have to be concerned of the
delicate balance that we have in place here, and assure that we
don't disrupt that.
[The prepared statement of Mr. Dooley follows:]
[GRAPHIC] [TIFF OMITTED] T7628.009
[GRAPHIC] [TIFF OMITTED] T7628.010
[GRAPHIC] [TIFF OMITTED] T7628.011
[GRAPHIC] [TIFF OMITTED] T7628.012
[GRAPHIC] [TIFF OMITTED] T7628.013
Mr. Shimkus. Gentleman's time expired.
Chair now recognizes Mr. Ernie Rosenberg, President and CEO
of the American Cleaning Institute.
STATEMENT OF ERNEST ROSENBERG
Mr. Rosenberg. Thank you, Chairman Shimkus, Ranking Member
Tonko, members of the subcommittee. My name is Ernie Rosenberg,
thank you, and I am the President and CEO of the American
Cleaning Institute.
Our member companies have facilities in the Congressional
districts of two thirds of the subcommittee membership, and
the--our members' products are in every home in the country.
Strengthening the Toxic Substances Control Act is a top
priority for our member companies. That is why I am here today.
A strengthened TSCA has the potential to promote consumer and
environmental protection, while enabling innovation for new and
improved products. That is why we support the Chemical Safety
Improvement Act.
This legislation provides a strong roadmap for action in
the 113th Congress. We commend the bipartisan efforts that led
to the development of this measure, and especially the work of
the late Senator Frank Lautenberg and Senator David Vitter.
Twenty-five Senate Republicans and Democrats are cosponsors of
what is truly bipartisan legislation.
A lack of confidence in TSCA has prompted States, local
jurisdictions and businesses to restrict certain chemicals.
These actions, unfortunately, create a regulatory and business
climate that is driven by perceived safety concerns, not by
sound science.
Allow me to highlight three important reasons for
strengthening TSCA. First, a credible Federal program is
crucial to having both a national market and improve public
confidence in EPA's regulatory program. Second, TSCA must
account for ongoing improvements in scientific methods and
processes being developed by universities, the government and
industry. This information must be considered by EPA when
making safety assessments and determinations. Third, TSCA has
fostered innovative chemical developments in the United States.
We must ensure that this continues in the years ahead. Cleaning
product manufacturers are leaders in the development of green
chemistries that have led to significant energy savings, water
savings and reductions in waste generation in the United
States. The development of concentrated laundry and household
cleaning products allows products that pack greater cleaning
power in much smaller packaging to provide the benefits I have
mentioned, and this represents just a few of the innovative,
convenient and greener products that are available to consumers
today. TSCA's new chemicals program encourages speed to market
for such innovative products because of the rigorous and
flexible way the law addresses this task. EPA relies on the
strong interaction between government industry to make this
happen, and has since the--since I was the manager of the
program at the very beginning. The Chemical Safety Improvement
Act preserves the efficiencies in the new chemicals review
process, which are widely acknowledged to work well and are
critical to innovation. To remain innovative, we need strong
protection for confidential business information.
A strengthened TSCA can and must be risk-based, and must
be--must use the best science. EPA must be able to get the
information it needs to make an informed chemical assessment
and risk-management decisions. The Chemical Safety Improvement
Act strengthens TSCA. It removes barriers to EPA data gathering
and regulatory actions. I would call upon EPA to evaluate the
safety of chemicals already in use, and enable the EPA to
identify and act on chemicals that may pose significant safety
concerns.
EPA's enhanced ability to obtain data would encourage
industry to provide health and safety information to the Agency
without regulatory delays, and with fewer demands on Agency
resources.
CSIA also allows more data to make--be made available to
the public. For the law to be credible, this is critical. It
would also open up lines of communication between the States
and EPA, and allow EPA to share information with them,
including confidential business information, something TSCA
does not currently allow. CSIA would allow EPA to meet its
regulatory obligations, and restore confidence in the Agency's
ability to do so.
For the law to become more credible, changes to TSCA must
be practical, achievable and workable.
ACIA again thanks you for the opportunity to testify today,
and I look forward to your questions.
[The prepared statement of Mr. Rosenberg follows:]
[GRAPHIC] [TIFF OMITTED] T7628.014
[GRAPHIC] [TIFF OMITTED] T7628.015
[GRAPHIC] [TIFF OMITTED] T7628.016
[GRAPHIC] [TIFF OMITTED] T7628.017
[GRAPHIC] [TIFF OMITTED] T7628.018
[GRAPHIC] [TIFF OMITTED] T7628.019
[GRAPHIC] [TIFF OMITTED] T7628.020
[GRAPHIC] [TIFF OMITTED] T7628.021
[GRAPHIC] [TIFF OMITTED] T7628.022
[GRAPHIC] [TIFF OMITTED] T7628.023
[GRAPHIC] [TIFF OMITTED] T7628.024
Mr. Shimkus. Thank you, Mr. Rosenberg.
Now I would like to recognize Dr. Richard Denison, Senior
Scientist from the Environmental Defense Fund.
STATEMENT OF RICHARD A. DENISON
Mr. Denison. Thank you, Chairman Shimkus, Ranking Member
Tonko, and other members of the committee for your interest in
this issue, and for the opportunity to share EDF's perspective
on this bipartisan legislation, the Chemical Safety Improvement
Act.
I have four key points I would like to make today.
First, we have a major political opening to address an
urgent health concern, and to fix a law that everyone believes
needs reform. Second, the bill before us has many of the
elements needed for effective reform, and a concern for moving
reform forward. Third, the bill also has serious problems that
must be remedied. And fourth, those problems, while serious,
are fixable.
The need for reform is more urgent than ever, with science
increasingly linking exposures to certain chemicals to serious
health effects.
My organization has been working to reform TSCA for more
than 20 years, and I personally for well over a decade. The law
simply does not work. It is not protecting the health of
Americans, it doesn't provide the information companies need to
make sound decisions, and it doesn't give consumers and the
market the confidence that companies need to run their
businesses.
In May of this year, we saw a breakthrough with the
introduction of CSIA. The bill is both a promising start and
far from perfect. It contains many elements of TSCA reform that
need significant changes to actually deliver those reforms. I
am convinced the problems can be addressed while retaining the
bipartisan support needed to pass legislation.
Let me note several ways in which CSIA addresses major
flaws in current law. For the first time safety reviews would
be required for all chemical--in order to be made and sold.
Also for the first time--gain access to confidential business
information.
CSIA would address the two main reasons the TSCA safety
standard has failed. It would generally replace the current
cost benefit standard with a requirement for a health-only
standard, and it strikes the least burdensome requirement for
TSCA regulations that has, as Mr. Jones said, become a recipe
for paralysis by analysis.
CSIA would also fix TSCA provisions that thwart EPA's
ability to get new data on a chemical. It could issue test
orders and avoid a regulatory process that takes many years.
And it strikes the catch 22 under TSCA that requires the EPA
first show evidence of risk in order to require testing. But
the bill would also erect some major barriers to EPA
effectively and efficiently using these new tools. The safety
standard does not ensure protection of vulnerable populations,
including pregnant women, infants, workers who may be more
exposed or more susceptible to the effects. The bill would not
ensure that all information claimed confidential actually
warrants trade secret protections. It would weaken current TSCA
by barring the testing of new chemicals, or ones lacking enough
data to screen their safety. This means EPA would either have
to give a pass to data poor chemicals that may post a risk, or
waste time scrutinizing chemicals that more data would show
pose little risk. And the bill lacks deadlines and has so many
procedural requirements that just getting the system up and
running would take years.
My testimony includes an analysis I have done that is quite
optimistic in terms of time frames that shows that more than 7
years would be required to get to the first safety
determination for a chemical.
Finally, the bill's sweeping preemption of State authority
needs to be significantly narrowed so that, for example, States
can continue to act until and unless EPA takes final action on
a chemical, and can, with good cause, obtain waivers that allow
them to go further than a State than EPA--control of chemical
risks.
Mr. Chairman, let me end on a positive note. The bipartisan
bill offers major political opportunity and conserves the basis
for talks to move reform forward, and while its deficiencies
are serious, as I mentioned before, I believe they are all
fixable. I am encouraged that the informal negotiations on the
bill that have been occurring in the Senate already appear to
be moving in the right direction, but there is more work to be
done. I urge the subcommittee to build on the foundation laid
by S. 1009 to pass meaningful TSCA reform legislation in this
Congress. The health of--and I thank you for your time today.
[The prepared statement of Mr. Denison follows:]
[GRAPHIC] [TIFF OMITTED] T7628.025
[GRAPHIC] [TIFF OMITTED] T7628.026
[GRAPHIC] [TIFF OMITTED] T7628.027
[GRAPHIC] [TIFF OMITTED] T7628.028
[GRAPHIC] [TIFF OMITTED] T7628.029
[GRAPHIC] [TIFF OMITTED] T7628.030
[GRAPHIC] [TIFF OMITTED] T7628.031
[GRAPHIC] [TIFF OMITTED] T7628.032
[GRAPHIC] [TIFF OMITTED] T7628.033
[GRAPHIC] [TIFF OMITTED] T7628.034
[GRAPHIC] [TIFF OMITTED] T7628.035
[GRAPHIC] [TIFF OMITTED] T7628.036
[GRAPHIC] [TIFF OMITTED] T7628.037
[GRAPHIC] [TIFF OMITTED] T7628.038
[GRAPHIC] [TIFF OMITTED] T7628.039
Mr. Shimkus. Thank you, Dr. Denison.
Now I would like to recognize Mr. Dean Garfield, President
and CEO of the Information Technology Industry Council.
Sir, welcome.
STATEMENT OF DEAN C. GARFIELD
Mr. Garfield. Thank you, Mr.--Chairman Shimkus, Ranking
Member Tonko, members of the committee.
On behalf of the 54 of the most dynamic and innovative
companies in the world, as well as the nearly 6 million people
who work in the tech sector, we thank you for hosting this
hearing and asking us to testify.
We have submitted our testimony for the record, so rather
than repeat it, I will highlight three elements of that
testimony.
First, we strongly support this bipartisan and bicameral
effort to reform TSCA. We think it is a unique opportunity to
advance our human health and environmental shared interests.
The tech sector takes very seriously its role as corporate and
environmental stewards, whether it is in product design where
we are driving down the energy usage of our products, or in
sourcing where we are developing and promulgating responsible
sourcing, paradigms and programs, or in our recycling and reuse
programs that we have all across the world. We view these
issues as first priorities and intend to stay engaged. And so
thank you for your efforts.
Second, we think this regulatory reform creates an
opportunity to develop regulatory processes that are timely,
transport and based on sound science. In that regard, we will
be placing particular emphasis and paying a lot of attention to
how you deal with the issue of chemicals and articles. In
particular, we think it is very important for Congress to give
guidance to the EPA in that area, but at the same time, we
don't think it should be done in an import/export control
fashion, and, in fact, we think the current process whereby the
EPA has a case-by-case analysis is one that is appropriate and
should be continued.
Finally, we strongly agree with Chairman Shimkus' opening
statement that TSCA reform can and should be an opportunity to
enhance rather than inhibit innovation. With that in mind, we
think it is important for three things to occur. One, as the
previous witness, Mr. Jones, pointed out, we think that the
approach and direction to EPA has to include some important
time limits, particularly as it relates to dealing with
innovative or new uses of chemicals. Second, dealing with
covered--I am sorry, dealing with confidential business
information is critically important. Intellectual property is
key, the lifeblood of the tech sector, and so ensuring that
confidential business information is maintained as confidential
is critically important to us. And third and final, the issue
of preemption is also critically important. We recognize that
the States have an important role to play in these processes
and in setting standards, at the same time, we develop locally
and disseminate globally. And so dealing with 50 or 51
different standards around human health and environmental
safety is simply untenable and unworkable for us.
Thank you again for the opportunity to testify, and I look
forward to your questions.
[The prepared statement of Mr. Garfield follows:]
[GRAPHIC] [TIFF OMITTED] T7628.040
[GRAPHIC] [TIFF OMITTED] T7628.041
[GRAPHIC] [TIFF OMITTED] T7628.042
[GRAPHIC] [TIFF OMITTED] T7628.043
[GRAPHIC] [TIFF OMITTED] T7628.044
[GRAPHIC] [TIFF OMITTED] T7628.045
[GRAPHIC] [TIFF OMITTED] T7628.046
Mr. Shimkus. Thank you, sir.
Now I would like to turn to Mr. Andy Igrejas, National
Campaign Director of the Safer Chemicals, Healthy Families.
Welcome.
Mr. Igrejas. Thank you very much, Mr. Chairman and Mr.
Tonko.
Mr. Shimkus. Check your microphone.
Mr. Igrejas. Thank you. Sorry about that.
Mr. Shimkus. That's all right.
STATEMENT OF ANDY IGREJAS
Mr. Igrejas. Safer Chemicals, Healthy Families is a
coalition of 450 health and environmental organizations,
industrial unions and steel and automobiles, as well as
businesses, some large, some small, from around the country.
There is a broad political spectrum, actually, of membership in
the organization in the coalition.
We came together in 2009 to achieve reform of the Toxic
Substances Control Act, and we agree with the sentiment and we
are hopeful that that day could soon be at hand with the
legislation that has been introduced, but I would have to say
that we believe that legislation is not yet balanced. It needs
a lot of work in order to become balanced, and it needs clearer
benefits for public health and the environment sooner, and it
needs a clearer break with the dysfunctional past of TSCA, that
I think has been surfaced in your own analysis and your own
oversight of TSCA.
I want to put the focus back on public health because it is
that concern, the mainstream health professional and public
health community conclusion that, from pediatricians,
obstetricians, others, endocrinologists, that chemicals are
contributing to the burden of disease in this country; the
diseases that affect millions of American families, and TSCA
reform is fundamentally a solemn exercise in trying to make
progress in preventing that effect.
The groups like the Autism Society, Learning Disabilities
Association, breast cancer groups and others who are in the
coalition are here because of that, and it is what is driving
the public concern that is changing the marketplace and driving
the States right now. And so we need to make progress on that,
that is very clear. And I think you had the right idea when you
started with the examination of what was wrong with TSCA, what
didn't work and why. And you saw, I think, in the testimony
that the law never really got off the ground, that the
procedures and the standards proved to be unworkable, they got
tied in knots, EPA, trying to regulate asbestos. When they were
finally done, they were thrown out of court, and the law didn't
make much other progress. And it is a shame that Mr. Dingell is
gone because his amendment is one of the clearer parts of TSCA
that did do something; the PCB ban. And because of all that,
the fact that TSCA didn't restrict the States turned out to be
one of its major blessings, one of its only benefits, because
States have been able to make process in the interim.
Nevertheless, we are hopeful that the bill can be improved
based on the testimony of the Senators and our own engagement
with the Senators' offices and with yourself, being invited
here. And I want to highlight a few areas, there are more in
the testimony, for the purposes of helping focus improvement
and getting to a more balanced bill.
First is the standard. The core idea of the Chemical Safety
Improvement Act that the--is that the standard is fixed in the
unreasonable risk standard. We believe that it is not. The
attempt to fix it is to apply qualifying language for how it
should be used in Section 6, but the standard is also used in
other sections of the bill. And the related issue of the least
burdensome requirement, while that phrase is excised from the
bill, a sort of fraternal twin appears that you have heard Jim
Jones reference that has basically the same effect. And the
bottom line for us is that the--under the bill, our analysis is
EPA could still not ban asbestos under this new bill, and that
is a problem.
So I think that baggage of TSCA is something to really
think clearly about, and we need to break with it in this new
bill. It is otherwise going to weigh down this new bill. The
clearest--cleanest way to do that would be a new standard, but
if not, if that can't be done, fixing this standard so that it
is clearly defined as a health-only standard would go a long
way to dealing with this problem.
Another problem that has been mentioned is vulnerable
populations and aggregate exposure. Maybe aggregate exposure
hasn't been mentioned yet. These are core concepts to the
American Academy of Pediatrics' recommendations on reform, and
I think they should be embraced more tightly in the bill. The
bill mentions them but does not really require them to be dealt
with as a fundamental part of reform. And I think if you don't
do that, you will be left with safety determinations that
simply don't reflect the fact that children, it is just a plain
medical fact, are more susceptible to these chemicals than
people in heavily-impacted communities are, and that people are
exposed to the same chemical from more than one source at a
time. And so you need to add up those exposures when you are
figuring out what is happening to them, and the protective
measures, the risk-management measures, need to reflect that.
So if we don't do that, we will simply be getting the
determinations wrong, and they won't really be protecting the
public, and I think you want to be able to claim otherwise when
we are done with this exercise.
I want to highlight a couple of issues where the bill
actually goes backwards and we think does new harm. The first
is the issue of frameworks which has been mentioned. The bill
requires a lot of new frameworks. It delays the start of the
program for several years. We believe that that sounds too much
like the old TSCA. We want less red tape put in front of EPA
taking action, not more. Also States' rights. That has been
mentioned earlier. The bill infringes on them to a great degree
in a way that we think goes against the record. I think you
noticed in your comments earlier that not a lot of States have
taken the fundamental action, but at least they have made
progress on chemicals while the Federal Government was tied up
in red tape. And our fundamental interest in preserving States'
ability, both the progress they have made and their ability to
make new progress, really is Mr. Barrow's hunting dog analogy
that no one expected TSCA to not work out the way that it did,
and any problems in this new law, whether the funding or
anything else at implementation, we want that safety valve that
the States can still take action and can still make progress.
So I will mention the other provisions that are in my--just
briefly. It is CBI, I think they need a new balance on CBI,
deadlines, the funding mechanism, broader authority to require
testing, but the bottom line position is all of these issues,
we think, can be solved. Some of them can be solved quite
simply, but our main message is that they really have to be
solved for this bill to be balanced.
So thank you very much.
[The prepared statement of Mr. Igrejas follows:]
[GRAPHIC] [TIFF OMITTED] T7628.047
[GRAPHIC] [TIFF OMITTED] T7628.048
[GRAPHIC] [TIFF OMITTED] T7628.049
[GRAPHIC] [TIFF OMITTED] T7628.050
[GRAPHIC] [TIFF OMITTED] T7628.051
[GRAPHIC] [TIFF OMITTED] T7628.052
[GRAPHIC] [TIFF OMITTED] T7628.053
Mr. Shimkus. Thank you.
And now I would like to turn to Wendy Wagner, Joe A.
Worsham Centennial Professor at the University of Texas School
of Law. Welcome and your statement, you have 5 minutes.
Ms. Wagner. Thank you. Thank you, Mr. Chairman, Ranking
Member Tonko and----
Mr. Shimkus. And you may want to pull that microphone a
little bit closer.
STATEMENT OF WENDY E. WAGNER
Ms. Wagner. That is nice. I have an Ethel Merman voice, so
it is good to need a microphone.
Thank you, Mr. Chairman and Ranking Member Tonko and the
members of the subcommittee. I am pleased to testify here
today.
My focus is going to be a little bit different than some of
the other panelists. I am going to focus on the good science
provisions of Senate Bill 1009.
I have studied the use of science by regulatory agencies,
particularly EPA, for over 20 years, written a couple of books,
dozens of articles, I have also done some empirical analyses.
And based on this extensive study, when I look at the good
science provisions in Senate Bill 1009, I see that they are
just as likely to undermine the scientific rigor of EPA's
decision making as to enhance it. And, in fact, I think if you
show the good science provisions to the National Academies,
they would identify some fundamental problems with the way the
bill proceeds, particularly with the idea that the scientific
information available to EPA should be restricted by terms set
by Congress with regard to what constitutes acceptable science.
Now, I raise a number of issues in my written testimony. I
am just going to highlight three here today.
The first--there are over 40 pages by my count of good
science provisions in the bill, but I am not sure what the
underlying problem is that those 40 pages are trying to
address. There are really serious problems with TSCA and EPA's
implementation of TSCA, to be sure. I am not aware in the
literature though of problems with EPA's failure to use the
best available science in its regulation.
Second, as I read it, the bill reduces rather than enlarges
the information available to EPA to regulate using this best
available science gateway with the three-prong requirements.
There are a number of features of the best available science.
Just to take one as an example, according to the best available
science, all the information used by EPA in its safety
assessments and safety determinations needs to have peer-
reviewed data. Now, even with a liberal interpretation of what
peer-reviewed data is, and there could be a lot of
disagreements about what that is, even with a liberal
interpretation, I read that as having the potential to exclude
a lot of industry submissions over the last 40 years. The
substantial risk reports under AE, for example, I am not sure
those would clear just that one barrier in best available
science. Even the test data provided by the manufacturers over
the last 30 years, I am not sure that would clear some of the
best available science requirements. If EPA wants to bring
these industry submissions up to the standards of best
available science, it is my reading of the bill that the burden
would be on EPA. They would need to make sure the industry
submissions meet all the various requirements.
More to the point, the problem with TSCA has been the EPA
doesn't have enough information to assess chemicals. It can't
regulate chemicals if it doesn't have this information. So
legislation that actually further restricts the information
available to EPA to do assessments seems to me to be moving in
exactly the wrong direction.
I am also not sure what the scientific pedigree is for this
best available science provision written in the Senate Bill
1009. It doesn't align with the National Academy's reports I
have seen, at least.
Third, the good science provisions, and this has come up
before, are loaded with ambiguities. Lawyers, including the
students I teach, have a term for this. When you have a
mandatory provision that is very ambiguous, it creates what is
called an attachment point, because high stakes, litigious
groups can latch onto those attachment points and hold the
Agency's feet to the fire in litigation. By my count, the good
science provisions in Senate Bill 1009 contain dozens of
attachment points. The administrative literature also reveals
that when an agency has a statute ladened with all these
attachment points that invite litigation, not only will be--it
be embroiled in litigation, but it is likely to seek to
compromise with the high-stakes, most-litigious groups. It is
actually not necessarily either because the agency is captured,
it simply wants to get some rules through the process, so it
needs to engage in these compromises. One of my worries when I
look at this is who will these high-stakes litigious groups be.
I am concerned it won't be the best manufacturers in the United
States who make the safest and most effective chemicals. The
manufacturers taking advantage of these attachment points, I am
concerned, will be the manufacturers that make the least
effective and most toxic chemicals.
Now, despite the fact that these good science provisions
are loaded with attachment points that are likely to lead to
litigation and delay, as you have heard, except with one
exception, I think, there are no deadlines at all in the
statute--I am sorry, in Senate Bill 1009, not the statute. That
was not a fraudulent slip. The bill also provides absolutely no
mechanisms for ensuring the transparency of whatever side deals
in compromises take place.
In my view, the basic goal of chemical policy should be to
get safer, more effective chemicals out of our manufacturers.
The bill does not provide these kinds of incentives.
If the bill became law as-is, I don't see any possibility
of a race to the top among the manufacturers in the United
States who make chemicals. Instead, the bill is ladened with a
maze of procedural requirements for EPA, with landmines for
litigation at every turn. I think we can do better.
Thank you. I look forward to your questions.
[The prepared statement of Ms. Wagner follows:]
[GRAPHIC] [TIFF OMITTED] T7628.054
[GRAPHIC] [TIFF OMITTED] T7628.055
[GRAPHIC] [TIFF OMITTED] T7628.056
[GRAPHIC] [TIFF OMITTED] T7628.057
[GRAPHIC] [TIFF OMITTED] T7628.058
[GRAPHIC] [TIFF OMITTED] T7628.059
[GRAPHIC] [TIFF OMITTED] T7628.060
[GRAPHIC] [TIFF OMITTED] T7628.061
[GRAPHIC] [TIFF OMITTED] T7628.062
[GRAPHIC] [TIFF OMITTED] T7628.063
[GRAPHIC] [TIFF OMITTED] T7628.064
[GRAPHIC] [TIFF OMITTED] T7628.065
[GRAPHIC] [TIFF OMITTED] T7628.066
[GRAPHIC] [TIFF OMITTED] T7628.067
[GRAPHIC] [TIFF OMITTED] T7628.068
[GRAPHIC] [TIFF OMITTED] T7628.069
[GRAPHIC] [TIFF OMITTED] T7628.070
[GRAPHIC] [TIFF OMITTED] T7628.071
[GRAPHIC] [TIFF OMITTED] T7628.072
[GRAPHIC] [TIFF OMITTED] T7628.073
Mr. Shimkus. Thank you very much.
Now I will recognize myself for 5 minutes for the first
round of--or the round of questionings.
And my first question I want to direct to Mr. Dooley, Mr.
Rosenberg and I think Mr. Garfield. And it is based upon the
question, let me start this, is based upon the question that I
asked Mr. Jones. And many witnesses have testified before our
committee on the strengths and successes of existing TSCA
Section 5 provisions for new chemicals and new uses of existing
chemicals.
Are the changes to TSCA Section 5 in the Senate bill needed
and why? Cal, if you would start.
Mr. Dooley. ACC, you know, supports the provisions of the
modifications of Section 5 in CSIA. We recognize that it is
important, even with the new chemicals, that you do have
provisions that do allow for EPA to make an affirmative
determination that the new chemical will likely meet the safety
standard, and that we accept that it is an obligation upon the
industry and the manufacturer to provide that information and
to allow them to make that determination.
Mr. Shimkus. Mr. Rosenberg?
Mr. Rosenberg. EPA--thank you. EPA has asked hundreds of
manufacturers for data in the new chemical program since its
inception. Without exception, those data have either been
provided or the premanufacturer notice was withdrawn. So the
deficiencies, if you will, in Section 5, in my view, go to
where you end up if you really want to regulate a new chemical,
and you end up in Section 6. Section 6 has the least burdensome
alternative hurdle, which I completely agree with Jim Jones, is
an unmanageable hurdle for the Agency.
So the changes that are made in Section 5 in the bill do
one important thing. They do what we are really looking for,
which is create a more credible program. And the fact that
there is an affirmative determination gives, at least most
people, a level of comfort that things haven't just gone
through because the deadline expired.
Mr. Shimkus. Mr. Garfield?
Mr. Garfield. We are still doing some analysis on this, but
we are also comfortable with the more--with the creation of a
more credible program. The two concerns are ones that have been
highlighted before; one, making sure that the timeline and
deadlines that have been set are ones that are actually
effectuated, and then two, making sure that confidential
business information is--continues to be protected.
Mr. Shimkus. Do you three feel that this would--has a
chance to harm innovation?
Mr. Dooley. Well, there is always, you know, that potential
if EPA, you know, didn't take any judicious approach, but I
would say that with our experience, and is very consistent with
what Mr. Rosenberg said, is that EPA's current administration
of the new chemicals act has been pretty effective, in that it
has resulted in, you know, the U.S. being at the forefront of
bringing new chemicals on the market that are being used
safely, that are ensuring that we are at the forefront in
developing innovations, and that is validated by the number of
patents that we receive, the disparity in terms of the number
of new chemicals and new innovations brought into the
marketplace in the U.S. versus our competitors in the EU.
And so we also know that, you know, that, you know, that
there are going to be some provisions, perhaps even under the
Administrative Act, that can give us a recourse if EPA
oversteps their bounds, even in the request of some
information.
Mr. Shimkus. Mr. Rosenberg?
Mr. Rosenberg. Thank you. The innovation is a delicate
thing, and it depends on what kind of market the chemical is
going to have, how much volume it will have, as--and how
innovative it is, as to what cost you can bear in going through
a regulatory program. Any screening program for chemicals that
EPA has will put some drag on innovation because some companies
or some chemicals won't be able to bear the cost, but this is a
good compromise. This is analogous to what happens in other
parts of the world. In no part of the world that I am aware of,
including Europe, does the Agency have to make an affirmative
finding of safety before a new chemical gets to the
marketplace. EPA has the strongest power because it is a
premanufacturing requirement, not a premarketing requirement.
So nothing--there is no economic value of the chemical yet if
it hasn't hit the market, whereas in Europe, you can go to the
market without--by just filing a piece of paper.
Mr. Shimkus. And speaking to innovation, I would not want
to leave Mr. Garfield without a chance to respond.
Mr. Garfield. I also agree it is a reasonable compromise
that will be impacted perhaps more by EPA's practice. So in
reality, the way this works, including the deadline, is that
when you come up against the deadlines, EPA and a company will
negotiate a suspension of that deadline to ensure that the
progress continues to be made in resolving the open issues. And
so in part, a lot of this will depend on whether EPA stays true
to the deadlines that you have offered or whether they do not.
Mr. Shimkus. My time has expired. Chair now recognizes Mr.
Tonko for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair.
We heard from EPA earlier that cost-benefit analysis should
not play a role in the determination of whether a chemical
meets the safety standard under a reformed TSCA. The bill
before us continues to use the unreasonable risk standard that
has historically implied a cost-benefit analysis. A number of
stakeholders are on record supporting a safety standard that
focuses exclusively on risk, not cost-benefit analysis. For
example, ACC's 2009 principle state, and I quote
``consideration of the benefits of chemicals being evaluated,
the cost of methods to control their risks, and the benefits
and costs of alternatives, should be part of EPA's risk
management decision making, but should not be part of its safe
use determinations.'' In other words, the determination of
whether a chemical meets the safety standard for a particular
use should not involve a cost-benefit analysis.
Mr. Dooley, does ACC still support that principle for TSCA
reform?
Mr. Dooley. Yes, we do. If you had--you know, if you really
look at, you know, our policy is, and if you look at the CSIA,
is that there is not a requirement to do a cost-benefit
analysis on the prioritization, nor is there a consideration of
the cost-benefit analysis in the safety assessment. But when
you get to the safety determination, when EPA is making a
decision that for some intended use, that there needs to be a
restriction, a regulation or perhaps a ban, then we think it is
appropriate that you do a cost-benefit analysis of that
specific action by EPA, because you might have an instance
there where, let us just say it is mercury in a compact
fluorescent bulb, you know, something that, you know, an
innovation that is, you know, contributing to significant
energy savings. That mercury is a critical component of that
technology. If you had EPA that would choose to ban mercury
because it is potentially a hazardous exposure, and they didn't
go through and do a cost-benefit analysis, or are there other
alternatives that could contribute to the same environmental
benefits and energy efficiency benefits, it would result in bad
regulation from our perspective, and bad public policy.
Mr. Tonko. Thank you.
Dr. Denison, do you think that cost-benefit analysis should
be kept out of the safety standard in a reformed TSCA?
Mr. Denison. Yes, I do, Mr. Tonko. I think the--I have a
different reading than Mr. Dooley of what the bill requires
because I think he stated that the--that cost-benefit analysis
should come in at the point of the safety determination. I
think the safety determination needs to be a health-based,
risk-based determination on the science.
Now, the factors that Mr. Dooley mentions are appropriate
to consider in determining how to address a risk for a chemical
that fails a safety standard, and the bill needs to make that
demarcation quite clear. That is actually how I read ACC's
principles back in 2009.
Mr. Tonko. Thank you. And, Mr. Igrejas, does the Safer
Chemicals, Healthy Families Coalition have concerns that the
unreasonable risk standard in the bill before us will not be a
pure health standard?
Mr. Igrejas. Absolutely. We read the bill as not having
effectively separated out the cost benefit from the risk
decisions, and also retaining the least burdensome requirement,
which is related but separate for bans and phase-outs.
Mr. Tonko. And should any TSCA reform bill this committee
considers be absolutely clear that cost-benefit analysis is not
a part of the determination that a chemical meets safety
standard?
Mt. Igrejas. We believe it should be.
Mr. Tonko. S. 1009 also leaves in place the substantial
evidence standard for judicial review that played a significant
role in the asbestos decision.
Ms. Wagner, how common is that heightened standard of
review in the environmental law context?
Ms. Wagner. Typically, the Agency is held to an arbitrary
and capricious standard, so it is very unusual.
Mr. Tonko. Will that standard of review make it harder for
EPA to prevail in court when it takes action under TSCA than
under other environmental statutes?
Ms. Wagner. It is definitely a higher burden. I think the
case law is a little murky. Some courts actually don't seem to
use substantial evidence differently than others, but some do.
On balance, it is likely to be a higher burden.
Mr. Tonko. Thank you. There is a strong public interest in
improving EPA's ability to take action under TSCA to address
the serious risks we face from chemical exposures. We have
better working models for dealing with risks and other
environmental laws, the pesticides laws, for example. Any TSCA
reform bill, in my opinion, considered by this committee should
remove the known obstacles to TSCA implementation, such as the
cost-benefit analysis component of the safety standard, and
this heightened standard of judicial review.
And with that, I believe my time is up and I yield back.
Mr. Shimkus. Gentleman yields back his time.
The Chair now recognizes, I believe, Mr. Green from Texas
for 5 minutes.
Mr. Green. Thank you, Mr. Chairman.
My first series of questions I want to ask, and they are
just yes or no, for all witnesses. Briefly, do you believe that
Lautenberg-Vitter is an improvement over current law or is
status quo preferable?
Mr. Dooley?
Mr. Dooley. Yes.
Mr. Rosenberg. Yes, it is an improvement.
Mr. Denison. Mr. Green, in some respects yes, in other
respects no.
Mr. Green. OK. Mr. Garfield?
Mr. Garfield. My answer is the same. In some respects yes,
in other respects no, but in the respects where it is no, it
can be improved.
Mr. Green. Mr. Igrejas?
Mr. Igrejas. I say no.
Ms. Wagner. With respect to the good science provisions,
no.
Mr. Green. OK. Well, for all the witnesses, in your
opinion, are the issues raised in today's hearings on
Lautenberg-Vitter issues that can be improved through
clarification, or are they issues that fundamentally cannot be
corrected? Why don't I ask the last four since you all are the
ones that said it wasn't an improvement?
Mr. Denison. Congressman, I do believe the problems can be
corrected, and that is based on a number of years of dialogue
with other stakeholders, including the two gentlemen to my
right here. So I think there are solutions at hand if we can
get down to the hard work of negotiating this through and
finding the right balance.
Mr. Green. OK. I guess the reason I asked that to start
with is that, you know, we know the law from 1976 is old and we
need to update it, but believe me, in a Republican Congress, we
are not going to get to where a lot of folks would want to be,
but I just want to make sure we move that ball down the field,
and that includes passing it through the Senate, because I
represent a very urban district in East Harris County that has
chemical plants refineries, and people who live along those
fence lines. And so that is why I would like to improve the law
to the best we can get politically through the House and the
Senate.
Mr. Dooley, you--can you explain the--and expand on ACC's
views on the EPA's authority to require testing of chemicals?
Is it--in particular, does ACC support changes to the EPA's
current authority to test existing chemicals, and what changes
and why?
Mr. Dooley. Yes, we do support, and that is what I think
was one of the, you know, the fundamental, you know, positives
about this legislation is, for the first time, those, you know,
60,000 or however many grandfathered chemicals will be subject
to prioritization and to a safety assessment. And we support
those provisions, and--as well as provisions that would give
the ability for EPA under new chemicals to have--facilitate
their ability to access the data that they need to make a
determination whether or not those chemicals do meet the new
safety standard.
Mr. Green. OK. And I know the ACC's position on the safety
standard in both current TSCA and in a modernized TSCA. Is the
safety standard in Lautenberg-Vitter identical to the current
standard in TSCA?
Mr. Dooley. No, it is significantly different in that in
the new CSIA--rather, the CSIA----
Mr. Green. Um-hum.
Mr. Dooley [continuing]. Is that the safety standard of an
unreasonable risk to human health and the environment from the
exposure to its intended use is the standard there. It does not
in any way require a cost-benefit analysis as you do under
existing law. So it will make a, you know, significant--it is a
significant difference from the existing standard.
Mr. Green. And EPA and other areas in environment, do they
also conduct cost-benefit analyses?
Mr. Dooley. I am not----
Mr. Green. OK.
Mr. Dooley [continuing]. Sure if I--I need to do a little
more research on that one.
Mr. Green. And one of the issues is that the Lautenberg-
Vitter would--has an addition of deadlines compared to TSCA. Is
that a benefit as compared to--a benefit from the additional
deadlines?
Mr. Dooley. Well, you--the issue of deadlines has been a
subject of a lot of conversation with Administrator Jones that
was here today. You know, from an ACC perspective, you know, we
have no objection to deadlines, but we think the deadlines need
to be reasonable. And I thought it was interesting when
Administrator Jones was making his statement today, he said he
needed deadlines. But the people that we need the information
on, what is the appropriate deadlines, is the EPA. You know, we
need the information from them in terms of how many chemicals
do you think is appropriate of the 60,000 that you want to have
go through a prioritization and safety assessment, and perhaps
a safety determination. How many of those can you do, and how
many FTE's do you need to do, and what is a reasonable time
frame to do those.
I think what is difficult for members of Congress in
constructing this legislation is to develop arbitrary deadlines
that you would think EPA can meet. What the legislation
attempts to do is put the onus and the burden on EPA to set
deadlines that they are compelled to meet, which would then be
informed upon the capacity and the expertise that they have to
carry out the provisions of CSIA.
Mr. Green. OK. Mr. Denison, your testimony discussed the
process for evaluating new chemicals. How would EPA determine
if a chemical is likely safe under this legislation?
Mr. Denison. Congressman, the details of that are left to
EPA, I think, not specified in the legislation in any detail,
but I think the key here is that there is first the affirmative
requirement that evidence of safety be available on a chemical
in order for that chemical to be sold. And second, that the bar
is actually intentionally, I think, lower than it is for a
chemical that is already on the market. So the difference
between likely meets the safety standard and meets the safety
standard reflects the fact that that chemical is in an early
stage of development, it has not yet been on the market, and,
therefore, the amount of information and the amount of ability
to demonstrate definitively its safety is appropriately less.
But the key difference from current law is, as Mr. Jones
stated, changing from a passive system where unless EPA finds a
problem, that chemical simply can come onto the market, to one
that requires EPA to affirmatively find some evidence of safety
as a condition for market entry, and that is a key change.
Mr. Green. How does giving EPA the authority to issue
orders for testing requirements as found in Lautenberg-Vitter
an improvement over the present law?
Mr. Denison. Congressman, the length of time that EPA has
to take to get a rule through to require testing averages about
5 years. An order could be issued within a few months. We think
that is a significant improvement. The only problem I would
flag here is that, while the bill makes it easier for EPA to
get information, it limits the points in time in the process
when it could do so. So, for example, if EPA has a new chemical
or a chemical that it is trying to prioritize, and it finds it
doesn't have enough data, the bill actually strips the current
authority EPA would have to require testing at that stage in
the process. We think that is a problem.
So there are some positive aspects of the bill in this
regard; order authority and the removal of the requirement to
first show risk, but there is also some restrictions on EPA's
current authority to actually require testing.
Mr. Green. Mr. Chairman, I know you have been very kind
and--but obviously we need to deal with that as a committee
when we--to address that. Thank you.
Mr. Shimkus. That is because I have great affection for my
colleague from Texas.
So now I would like to recognize my colleague from New
Jersey, Mr. Pallone, for as much time as he wants to consume.
How about that?
Mr. Pallone. Well, I won't use too much, I promise, but
thank you, Mr. Chairman. I am pleased the committee has
convened this hearing, and I certainly appreciate the efforts
of my late Senator from New Jersey, Senator Lautenberg, to
bring both sides together on this critical issue.
I have met with stakeholders in the environmental community
and in the chemical industry, and we can all agree that the
status quo is not working. The GAO has included the current
TSCA statute in its high-risk series over the last several
years, citing EPA's lack of authority to limit exposure to
chemicals that may pose substantial health risks. And I believe
there are many other issues that all stakeholders can agree
upon, including striking the language that compels the EPA to
pursue the least burdensome requirement that is so strict, it
prevented EPA from regulating asbestos.
So, Mr. Chairman, I hope to work with you and our
colleagues to craft a bipartisan bill. And I just wanted to ask
two questions, if I could.
First is posed to Mr. Denison, and that is, you state in
your testimony that, and I quote, ``by EPA merely designating a
chemical as high or low priority, all States would be precluded
from imposing a new requirement on the chemical.''
So my question is, do you feel this preemption mechanism is
triggered too early in the process, and if so, what type of
timeline, if any, do you consider practical?
Mr. Denison. I do, Congressman. I think the extent to which
the law will restrict States' ability to act needs to be placed
at the end of the process of EPA's evaluation and determination
of the safety of a chemical, and where necessary, the
promulgation of a rule that applies the appropriate
restrictions. If that preemption kicks in earlier in the
process, as it does for new requirements under the bill, the
concern I have is that States would not be able to act, and
then the incentives for dragging out the length of time it
would take to get from simply EPA prioritizing a chemical to
that final action, the incentives would be to drag that out as
long as possible.
So we need a system that provides incentives for efficient
and effective action, and I worry that provision in particular
would run counter to that.
Mr. Pallone. Do you want to talk about a time--a different
timeline any more than you have, or----
Mr. Denison. Yes. I think the--those triggers for
preemption need to occur at the final action of the Agency. If
it finds a chemical meets a safety standard, that would be the
final action. If it finds a chemical doesn't meet the safety
standard, the final action would be the promulgation of that
rule that imposes the appropriate risk management, and that
should be the trigger for preemption.
Mr. Pallone. All right, thank you.
And then my second question, Mr. Chairman, is to Mr.
Igrejas. I hope I am pronouncing it.
As we work to reform TSCA, I believe one of the most
important issues is protecting vulnerable populations, such as
infants and those living near chemical facilities. In New
Jersey, as you know, we have a combination of both a large
number of chemical facilities and a high population density. So
the consequences of insufficient protection are dire. And so I
wanted to ask you, you mentioned in your testimony that you
think, and I quote, ``intent and language do not match up
regarding protecting these populations.'' So what do you
suggest to ensure the bill works to protect vulnerable
populations such as children and those living near the chemical
facilities?
Mr. Igrejas. Sure. Thank you very much. I think vulnerable
populations could be clearly defined first, a definition of
what it includes; children, pregnant women, heavily-exposed
individuals in communities, and then they should be explicitly
required to be included in the safety determination and
protected by any risk-management measures. That would play the
issue out, so to speak, so that we know the decisions that are
made, the measures that are taken are protecting the vulnerable
populations.
Mr. Pallone. OK, but nothing more in terms of specifics at
this point, other than the definition or how----
Mr. Igrejas. The definition and clear language that they
are included in not just the assessment phase, which is in the
bill now, but in the determinations and risk-management
measures.
Mr. Pallone. OK. All right, that is it, Mr. Chairman. I
didn't use my 5 minutes. Thank you.
Mr. Shimkus. Well, I thank my colleague. And I was going to
ask, because it was very interesting, I appreciate you all
being here. Maybe we have gone around, but I think we have
fleshed out as much as we can right now, and I am sure we will
see some of you through our offices as we continue this
process.
Just some final comments. It is really hard for me to
believe that the product in the Senate bill is not better than
the current law. I mean on the face of it, it--a bill that is--
a law that is 37 years old and has not been changed, and has
proven to be not effective, something has to be better than
nothing. I think that is where there is some commonality in
moving forward.
The second thing is, this risk-based issue, there is--I
guess my--there is--Cal brought up a good issue about the
compact fluorescent bulbs, and what is the environmental
benefit or societal benefit of maybe a hazardous chemical that
is used in a product that benefits mankind. I am not a climate
guy here, everybody knows that, but if you are, you like
compact fluorescent bulbs, and there is a--some people would
believe there is a great return on--in fact, we had debated
that in our Cap and Trade Bill on that very same issue.
So there are issues there. Preemption is going to be a
contentious issue, and the--and--but I would like people to
start talking to us about deadlines because it seems like,
through the three panels, well, at least the second two,
deadlines was a consistent theme. And I am--Ms. Wagner, I think
your testimony was very intriguing, and I think we are going to
look further into your comments and try to flesh out some of
that stuff.
I have a unanimous consent request that all members of the
subcommittee have 5 days to submit an opening statement for the
record. So ordered. I would like to ask unanimous consent to
insert letters into the record from the California EPA, Breast
Cancer Fund, National Conference of State Legislatures, two
from the Environmental Working Group, a letter from 35 Senators
and lawyers, from 25 medical professionals, and remind--without
objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. And I would like to remind subcommittee
members they have 10 days to submit questions for the record.
Without objection, so ordered.
Thank you. With that, we want to thank you for your
testimony. Please keep working with us. I think there is some
great interest to try to move forward, and hopefully throughout
this process we can get through the finish line.
And with that, I will call this hearing adjourned.
[Whereupon, at 1:07 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHIC] [TIFF OMITTED]