[Senate Hearing 113-724]
[From the U.S. Government Publishing Office]
S. Hrg. 113-724
STRENGTHENING PUBLIC HEALTH PROTECTIONS
BY ADDRESSING TOXIC CHEMICAL THREATS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 31, 2013
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island MIKE CRAPO, Idaho
TOM UDALL, New Mexico ROGER WICKER, Mississippi
JEFF MERKLEY, Oregon JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York DEB FISCHER, Nebraska
MAZIE K. HIRONO, Hawaii
Bettina Poirier, Majority Staff Director
Zak Baig, Republican Staff Director
C O N T E N T S
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Page
JULY 31, 2013
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Vitter, Hon. David, U.S. Senator from the State of Louisiana..... 24
Merkley, Hon. Jeff, U.S. Senator from the State of Oregon........ 26
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 26
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 27
Fischer, Hon. Deb, U.S. Senator from the State of Nebraska....... 34
Udall, Hon. Tom, U.S. Senator from the State of New Mexico....... 35
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 39
Gillibrand, Hon. Kirsten, U.S. Senator from the State of New York 41
Manchin, Hon. Joe, U.S. Senator from the State of West Virginia.. 386
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama,
prepared statement............................................. 520
WITNESSES
Troncoso, Michael A., Senior Counsel, Office of the Attorney
General, California............................................ 50
Prepared statement........................................... 53
Responses to additional questions from:
Senator Boxer............................................ 82
Senator Vitter........................................... 85
Dorsey, H. Michael, Chief, Homeland Security and Emergency
Response, West Virginia Department of Environmental Protection. 100
Prepared statement........................................... 102
Responses to additional questions from Senator Vitter........ 105
Zarker, Ken, Manager, Pollution Prevention and Regulatory
Assistance Section, Washington State Department of Ecology..... 108
Prepared statement........................................... 110
Responses to additional questions from:
Senator Boxer............................................ 128
Senator Vitter........................................... 132
Rosenberg, Daniel, Senior Attorney, Natural Resources Defense
Council........................................................ 145
Prepared statement........................................... 147
McGarity, Thomas O., Joe R. and Teresa Lozano Long Endowed Chair
in Administrative Law, University of Texas School of Law....... 157
Prepared statement........................................... 159
Responses to additional questions from:
Senator Boxer............................................ 175
Senator Vitter........................................... 177
Fisher, Linda J., Vice President and Chief Sustainability
Officer, DuPont................................................ 182
Prepared statement........................................... 184
Owens, Stephen A., Squire Sanders (US) LLP....................... 188
Prepared statement........................................... 190
Responses to additional questions from:
Senator Boxer............................................ 198
Senator Vitter........................................... 199
Reinstein, Linda, President, Co-Founder, Asbestos Disease
Awareness Organization......................................... 208
Prepared statement........................................... 210
Response to an additional question from:
Senator Boxer............................................ 301
Senator Vitter........................................... 303
Greenwald, Robin L., Of Counsel, Weitz & Luxenberg............... 304
Prepared statement........................................... 306
Responses to additional questions from Senator Boxer......... 323
Duvall, Mark N., Principal, Beveridge & Diamond, P.C............. 328
Prepared statement........................................... 330
Response to an additional question from Senator Boxer........ 336
Responses to additional questions from Senator Vitter........ 337
Cook, Kenneth A., President, Environmental Working Group......... 345
Prepared statement........................................... 347
Responses to additional questions from:
Senator Boxer............................................ 361
Senator Vitter........................................... 366
Buermeyer, Nancy, Senior Policy Strategist, Breast Cancer Fund... 398
Prepared statement........................................... 400
Responses to additional questions from Senator Boxer......... 411
Vickers, Susan, RSM, Vice President of Community Health, Dignity
Health......................................................... 415
Prepared statement........................................... 417
Responses to additional questions from Senator Boxer......... 422
Gorsen, Maureen F., Esquire, Partner, Alston & Bird LLP.......... 426
Prepared statement........................................... 428
Response to an additional question from Senator Boxer........ 435
Responses to additional questions from Senator Vitter........ 440
Borak, Jonathan, M.D., FACOEM, FACP, DABT, Clinical Professor of
Epidemiology and Public Health, Clinical Professor of Medicine,
Yale University................................................ 443
Prepared statement........................................... 445
Responses to additional questions from Senator Vitter........ 450
Corbin-Mark, Cecil D., Deputy Director/Director of Policy
Initiatives, We Act for Environmental Justice.................. 454
Prepared statement........................................... 456
Felix, Dorothy, President, Mossville Environmental Action Now.... 463
Prepared statement........................................... 465
Hackman, Andrew R., Vice President of Government Affairs, Toy
Industry Association........................................... 473
Prepared statement........................................... 475
Responses to additional questions from Senator Vitter........ 481
Miller, Ansje, Eastern States Director, Center for Environmental
Health......................................................... 487
Prepared statement........................................... 489
ADDITIONAL MATERIAL
EPA submission: Essential Principles for Reform of Chemicals
Management Legislation......................................... 523
Testimony of Dr. Paul A. Locke, Associate Professor at Johns
Hopkins Bloomberg School of Public Health...................... 525
State Officials, Legal Experts, and Health, Environmental, and
Consumer Groups That Have So Far Issued Statements Opposing
Impacts of S. 1009............................................. 527
Letter from the American Chemical Society........................ 534
Letter from the American Chemistry Council....................... 535
Letter from the American College of Occupational and
Environmental Medicine......................................... 537
Letter from Building and Construction Trades..................... 539
Letters from the International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers........................ 540
Letter from the International Association of Machinists and
Aerospace Workers.............................................. 546
Letter from Sheet Metal, Air, Rail and Transportation............ 547
Letter from Past-Presidents of the Society of Toxicology......... 548
Letter from Third Way............................................ 550
Chicago Tribune article, May 8, 2012: Big Tobacco wins fire
marshals as allies in flame retardant push..................... 553
STRENGTHENING PUBLIC HEALTH PROTECTIONS BY ADDRESSING TOXIC CHEMICAL
THREATS
----------
WEDNESDAY, JULY 31, 2013
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
406, Dirksen Senate Office Building, Hon. Barbara Boxer
(chairman of the Committee) presiding.
Present: Senators Boxer, Vitter, Carper, Cardin, Udall,
Gillibrand, Merkley, Inhofe, Barrasso, and Fischer.
Also present: Senator Manchin.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Good morning, everybody.
We have a very interesting day ahead of us today. We also
have a lot of running back and forth to do. So I am going to
lay down the rules.
We have two votes at 10:45, which means we can go here
until 11. Then we are going to recess until 1, because the
President is coming to meet with the Democratic Caucus. So all
of you wonderful panelists and colleagues know there is going
to be a lot of back and forthing. But we will get through this
today, because this is an exceedingly important time.
I am also going to be moving this gavel. At the end of 5
minutes, I am going to go like that, even on myself, which is
very difficult. But I am going to do that because of the
terrible schedule that we have.
We also have colleagues who are very prominent in other
committees, the chairman, ranking member, so they will be
running in and out. So forgive us if we look hectic, but we are
focused on this issue.
So I will start by saying good morning, everybody, and we
will focus today on how to protect the American people from
harmful chemicals while allowing companies who act responsibly
to sell their products.
Our dear friend, the late Senator Lautenberg, and I have
worked on these issues for a decade, introducing many bills
together on TSCA reform. In 2005, we introduced S. 1391, in
2008, S. 3040, in 2011, S. 847, in 2013, S. 696, the Safe
Chemicals Act of 2013. In May, the month after Senator
Lautenberg and I introduced our final TSCA reform bill
together, S. 696, he introduced S. 1009 with Senator Vitter.
We will look at multiple bills today to reform TSCA to
determine what we support and what we oppose, so we can move
forward to make the American people safer. And that is the key.
All the bills agree on one principle: protecting people from
harmful chemicals is important. The devil is in the details,
and that is why I fully support S. 696, where the details
support that principle.
It is clear that TSCA is broken. In a key decision by the
courts, EPA's plan to phaseout asbestos uses was overturned.
Despite the court's recognition that EPA concluded that
asbestos is a potential carcinogen at all levels of exposure,
regardless of the type of asbestos or the size of the fiber. So
now EPA, after that decision, faces terrible problems in
addressing dangerous chemicals.
I very much want to reform this law so it works as
intended, and it is better than current law. I want to be very
clear. When respected voices from all over the Country tell us
to protect the rights of the people we represent, I say yes.
That means ensuring that a chemical safety bill truly protects
our families in California and all across this great Nation. We
have heard from a wide range of voices in opposition to S.
1009. California EPA has written to express serious concerns
about the effects of S. 1009 on California's ability to protect
its residents.
The Asbestos Disease Awareness Organization wrote:
``Asbestos victims are outraged to see their suggested
amendments from prior bills regarding asbestos stripped from S.
1009.'' Environmental health and justice groups, 24 of them,
said S. 1009 would offer too many secrecy protections for
chemical companies and could limit the ability of doctors,
nurses and first responders to obtain vital information.
Thirty-four legal experts said S. 1009 as drafted takes a step
backward. And the American Association for Justice says S. 1009
is lacking in several areas vital to the protection of public
health.
I ask to put these statements into the record, as well as
letters from attorneys general from across the Nation and the
National Conference of State Legislatures, expressing similar
concerns with S. 1009.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. When people in our States vote for their
specific protections from harmful toxins, their rights must not
be preempted. I hope we all agree that victims who suffer harm
from dangerous chemicals have a clear right to hold the
industry accountable in order to prevent further injuries and
death.
Let me summarize a Sunday L.A. Times story headline,
``Landmark California Regulations Under Federal Fire.''
California officials, this is from the story, objected that S.
1009 not only would prohibit the State from imposing its own
rules, but it could invalidate several other laws, including
California's Global Warming Act of 2006. Attorney General
Harris described the measure as a no-win that puts Californians
at risk for toxic chemicals. Her office says, S. 1009 would
impair the voter-approved Prop 65, which protects Californians
from cancer.
I have listened to breast cancer victims, asbestos victims,
advocates for infants and children, communities surrounded by
industrial facilities, and our States, who want to safeguard
their citizens, as well as those who fight for the rights of
injured victims. I have also listened to industry and I
appreciate those who look to provide consumers with greater
confidence in their products.
I believe if we embrace the principle of protecting the
most vulnerable through science, fairness for industry, fair
respect for our States and victims, we can have a strong,
bipartisan TSCA bill come right out of this Committee. Just
like the EPA seal of approval can carry weight, the Energy Star
certification carries weight. Everyone on this Committee knows
how much I treasure bipartisanship. This Committee has been the
leader in bipartisanship, whether it has been transportation
with Senator Inhofe, water with Senator Vitter, formaldehyde
standards, lead-free plumbing, I know we can get a good
bipartisan bill out of here if we work together.
And I turn to Senator Vitter.
OPENING STATEMENT OF HON. DAVID VITTER,
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Vitter. Thank you very much, Chairman Boxer, for
convening this important hearing today on Toxic Substances
Control Act.
In the last few years, this Committee has extensively
discussed the need for a substantive reform of TSCA, which is
37 years old, and by now antiquated at best. It is unfortunate,
of course, that today is our first TSCA discussion in a very,
very long time without the voice that has been the strongest
advocate for meaningful reform of this law, Senator Frank
Lautenberg. I again want to express my sympathies to the
Lautenberg family, as well as all the citizens of New Jersey
who lost a true champion for this and other important causes.
I want to thank all of our witnesses in advance. It is my
hope that this hearing will be very constructive and continue
in the bipartisan spirit that Frank and I began on this
critically important issue. While I understand the purpose of
this hearing is to discuss a number of previous reform efforts,
I am very thankful to be able to say that I worked hand in hand
with Frank on this, his legacy issue, and that we found the
first every bipartisan compromise to help overhaul and
significantly strengthen Federal chemical regulations that
would benefit every citizen in every State.
The bill we co-authored, the Chemical Safety Improvement
Act, is a carefully crafted compromise that provides real
opportunity to significantly overhaul a major environmental law
for the first time in decades. The good news is that the
bipartisan support for the Lautenberg-Vitter bill continues to
grow. That legislation is supported by the editorial boards of
the New York Times and the Washington Post. Both previous heads
of the EPA's Chemical Regulatory Office under Presidents Bush
and Obama support the bill, one of whom we are fortunate to
have here today testifying before us.
So far four unions, which include the nearly 3 million
workers who encompass North America's building trades union
within the AFL-CIO, have endorsed the bill. People in the
public health and environmental community also endorse it,
including the Environmental Defense Fund and the American
College of Occupational and Environmental Medicine, the
Nation's largest medical society dedicated to promoting the
health of workers through preventive medicine, clinical care,
research and education.
Now, I fully recognize that issues have been raised, some
legitimate and some not, with the Lautenberg-Vitter bill Such
should be expected from efforts as complex as reforming a major
environmental law. I believe these issues fall into two broad
categories: misimpressions or actual distortions regarding our
bill, and second, very legitimate suggestions for revisions. So
let me briefly address each of these in turn.
Regarding the first category, I want to be very, very
clear, as I have been. In no way, shape or form did Frank and I
intend this legislation to eliminate private rights of action
under State tort law, and in no way did we intend to remove the
authority of any State to protect their water, air or citizens.
As a matter of fact, there is clear language in the bill
explicitly protecting those rights. But we are certainly open
and we are working to make that even more crystal clear.
Regarding the second category, very legitimate suggestions
for revision, I am excited to announce today that Senator Tom
Udall and I have been meeting with all interested parties,
including many folks testifying at this hearing today, and we
have been meeting with Senate offices on both sides of the
aisle who are fully engaged in this effort. That will be a path
forward that clarifies and addresses these issues we are
talking about.
Both Tom and I and our staffs have been speaking to
everyone who has chosen to be engaged and serious on the issue.
We are making real progress.
I am excited for today's hearing, and we both plan to use
what we hear to strengthen the first real shot at updating this
broken law, so we can get this done for everyone, for every
citizen, certainly in Frank Lautenberg's memory and certainly
for his family and kids and grandkids.
The bill Frank and I were able to introduce is the product
of discussions that began over a year ago, and was the product
of a lot of hard work and a lot of good faith work. I certainly
urge all of us to come together and unite around this
opportunity to pass major TSCA reform.
Thank you, Madam Chair.
Senator Boxer. Thank you so much.
And now we will turn to Senator Merkley.
OPENING STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM THE STATE OF OREGON
Senator Merkley. Thank you very much, Madam Chair. I
applaud the work that has been done. This is certainly
extremely close, was extremely close to Frank's heart. He spoke
so many times passionately here, we can almost feel him in the
room. I applaud you, Senator Vitter, for working on this, and
look forward to exploring the work that you and Senator Udall
are continuing to do to try to address some of the concerns
that have been expressed.
I am going to be very brief, because I want to get to the
panel. I look forward to this process, it is very important to
the health of our Nation to be able to have a systematic way of
examining the impact of chemicals that are widely dispersed.
Senator Boxer. Thank you so much, Senator Merkley.
Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairman.
It is funny that you would say that, Senator Merkley, when
you said that you can kind of feel his presence in this room. I
was thinking that, I was thinking the same thing.
I must take this opportunity to talk about my friend, Frank
Lautenberg, and his decades-long commitment to exploring the
appropriate Federal role in chemical safety and security. I can
remember when Frank and I started working on TSCA reform a
decade ago, when I was chairman of this Committee. And then
when I was ranking member of this Committee, we agreed that the
thousands of chemicals in commerce are the backbone of the
American economy, left unchecked these rules can ultimately
yield in an unworkable patchwork of State regulations, neither
creating needed business certainty nor providing adequate
protection to the public.
In our many discussions on these issues, Frank would
readily admit that TSCA was in desperate need of modernization.
We agreed on that, and that any reform package needed to
improve public protection while providing essential regulatory
certainty for the growing chemical and manufacturing
industries, a cornerstone of his State's economy.
Although we disagreed on many issues, and I am sure that
Senator Vitter went through the same thing in his negotiations
with him, TSCA reform was something we always agreed needed to
happen. As ranking member, he and I went back and forth a
number of times over the years. But we weren't ever able to
broker an effective compromise.
Earlier this year, when we were on the floor, Frank told me
that he and Senator Vitter were close to an agreement. While I
was concerned that he might have been embellishing, as he was
known to do occasionally, today proves that we are in a
different place, a historic place. I am proud to be one of the
bill's strongest supporters.
I congratulate the Ranking Member for his perseverance, for
working closely with Frank to come up with this bill. I don't
think we can understand the magnitude of this opportunity in a
time of such partisan fighting over environmental laws. Here we
have a bill, if enacted, would represent the first major
overhaul of any environmental law since 1990. Everyone agrees
that TSCA needs to be amended. Now we have a bipartisan bill
that has the support of 26 Senators, industry and others that
were mentioned by Senator Vitter.
I am sad that Frank Lautenberg is no longer here with us so
that he can see this bill cross the finish line. But if he were
here, I think he would be pleased with this hearing. In the
second panel, we are going to hear from Steve Owens and Linda
Fisher, who served as the head of the Office of Chemical Safety
and Pollution Prevention at the EPA under both President Obama
and President Bush respectively. In those capacities, they were
responsible for implementing TSCA.
Today, despite being on opposite sides of the aisle, they
both agree that it is time to bring TSCA into the 21st century
and believe that Frank's bill will be a significant improvement
compared to current law.
I know that the Chairman of the Committee and some others
may have some issue with certain aspects of the bill. But this
bill is a compromise, a compromise requires flexibility. This
bill is the product of everyone's flexibility. If we start
trying to stretch one side or another, it is going to lose what
it has right now, and that is bipartisan support that should
make the bill passable.
We need to fix the dysfunctional law and use the bipartisan
compromise that recognizes the decades of work Frank put into
this for his legacy and the good of the Country.
Last, TSCA must be reformed because the recent boom in
natural gas production, the result of hydraulic fracturing and
horizontal drilling, has helped feed aggressive expansion of
the U.S. manufacturing and chemical sectors. Chemical
manufacturers alone have recently announced the $72 billion in
new investments that will create up to 310,000 new jobs.
If we do not update TSCA, or if we take reform down a
different path than the one charted by Senator Lautenberg, then
this renaissance of activity in the future of our Nation's
dominance of the international chemical and manufacturing
sector will be at risk. So regulatory uncertainty chills
innovation and this reform bill charts a steady course for the
future. I am anxious and eager to see this legislation pass the
Senate.
Senator Boxer. Thank you, Senator.
We turn to Senator Cardin.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Thank you, Madam Chair.
And let me just state the obvious. I think now it is agreed
by every member of this Committee that the TSCA law today
doesn't work. It is broken. It is not protecting the public.
And we have a responsibility to act.
I could cite the fact that there have been studies showing
212 industrial chemicals commonly found in the human body of
most Americans. These are dangerous toxins that are currently
in our bodies, being transmitted to babies when they are born.
So we have a responsibility to pass a framework to protect
the public from these toxins.
So I come to this hearing wanting to make sure that we get
this job done. And I also want to acknowledge our former
colleague, Frank Lautenberg. I sat next to him on this
Committee. He was passionate about our children and our
grandchildren. He was passionate about public health issues.
This is one area that he devoted a large part of his career to
correct, a bill that was not working, in order to help public
health.
Senator Vitter, I want to thank you for reaching out to
Senator Lautenberg and bringing forward a bipartisan bill that
sets up a framework which is certainly much preferred over the
current law. And that gives us a way, I think, to move forward.
So I agree with you. I am optimistic that we should be able to
use that framework to move forward with legislation that cannot
only pass this Committee but can pass the U.S. Senate and
House, to be signed by President Obama.
The compromise that you brought forward needs further
change. I am very pleased to see that you have reached out to
Senator Udall and other members of this Committee to look at
the legitimate concerns that have been raised in the bill that
is brought forward.
Madam Chair, I am going to ask consent that a letter from
the attorneys general of California, Connecticut, Delaware,
Hawaii, Maryland, Massachusetts, Oregon, Vermont and Washington
be made part of our record.
Senator Boxer. Without objection.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Doug Gansler, the Attorney General from
Maryland, joined this letter, saying that they have deep
concerns about the unduly broad preemption language in S. 1009.
I could cite many examples of concerns that we have, and we
could talk about BPA in plastics and baby bottles that has been
brought to national attention, and many of our States have
acted to protect the public health of their citizens. That is
federalism, that is how we get to know what we can do
nationally by how our States act, whether it works or not and
then use that as a way to strengthen our national laws.
The Attorney General of Maryland points out that the
compromise bill could affect the health quality of Marylanders
by preempting in areas where Maryland has acted on flame
retardant products, on the sale of lead-containing children's
products. Maryland has been one of the leaders, because we have
had a serious problem of lead poisoning in our State. So we are
acting in that area. Or children's jewelry, Maryland has acted.
I would not want to see us pass legislation that would prevent
our State from protecting our citizens, but also recognizing
that there would be other challenges that come out in the
future, and we want our States to be aggressive and moving
forward on that.
Let me mention one other area that I hope we will look at
very carefully. That deals with the standard that is used, and
the burden of proof. The standard, as I understand it, that is
used in the bill refers to unreasonable risk, which is standard
I think has been somewhat outdated. In our Food Quality Act, we
use reasonable certainty of no harm, which I think is safer
standard for us to use when it comes to public health concerns.
So I would hope that we would have some discussion as to
what the appropriate standard should be and who has the burden
of proof.
These are some issues that I hope our Committee will have
an opportunity to review. I hope the witnesses today will help
us in sorting through how we should act. Senator Vitter, as you
pointed out, it has been 37 years since we have last passed a
bill that regulates these chemicals. Let's make sure we get it
right this time, because it may be 37 years before we get back
to it again.
[Laughter.]
Senator Cardin. With that, I look forward to hearing the
witnesses and our hearing.
Senator Boxer. Thank you, so much, Senator.
Senator Fischer, followed by Senator Udall.
OPENING STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM THE STATE OF NEBRASKA
Senator Fischer. Thank you, Madam Chair, and thank you,
Ranking Member, for holding the hearing today. I would like to
thank all the witnesses that are going to be coming forward and
answering questions and having a discussion on this very
important topic.
Like many of my colleagues, I am very encouraged by the
bipartisan process on the Chemical Safety Improvement Act. I
sincerely appreciate the efforts of the late Senator
Lautenberg, Senator Vitter and their staffs in finding the
common ground needed to advance our chemical safety laws. This
common ground has eluded Congress for far too long. The
bipartisan solution is both remarkable and it is refreshing.
With that, Madam Chair, I would ask that my complete
opening statement be included in the record and we move on in
the interest of time. Thank you.
[The prepared statement of Senator Fischer follows:]
Statement of Hon. Deb Fischer,
U.S. Senator from the State of Nebraska
Chairman Boxer and Ranking Member Vitter, thank you for
holding this hearing today to discuss the importance of
updating our Nation's chemical safety laws. I would also like
to thank our witnesses for being here. I appreciate their
willingness to share their time and expertise with our
Committee.
In Nebraska, where we utilize more than 90 percent of our
land for farming and ranching, we are keenly focused on finding
solutions to feed and sustain a growing and hungry world. As a
result, we have a strong appreciation for the role chemicals
play in enhancing our productivity and efficiency. Innovation
in chemical products will continue to facilitate a healthier
and more sustainable future, improving lives across the globe.
Nebraskans also understand the risks that chemicals can
pose to our health and environment. Effectively managing these
risks to ensure safe use of chemicals and protection of health
and safety is essential. That is why we need a strong,
effective, and balanced approach to chemical regulation.
Like many of my colleagues, I am very encouraged by the
bipartisan progress on the Chemical Safety Improvement Act. I
sincerely appreciate the efforts of the late Senator
Lautenberg, Senator Vitter, and their staffs in finding the
common ground needed to advance our chemical safety laws. This
common ground has eluded Congress for far too long, and their
bipartisan solution is both remarkable and refreshing.
They have sought to strike the right balance between
enhancing chemical safety and promoting chemical innovation and
economic growth, and this is what we need. Our regulatory
system must be predictable and manageable for industry, while
increasing consumers' confidence that the chemicals used to
make products are safe.
I am also encouraged by the support of so many groups, from
environmental and public health advocacy organizations to
industry trade associations. I look forward to hearing more
from these stakeholders today and working with my colleagues to
pass the Chemical Safety Improvement Act.
Senator Boxer. Senator, thank you very much.
Senator Udall, followed by Senator Barrasso.
OPENING STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Udall. Thank you, Madam Chair, and thank you very
much for holding this important hearing. Let me say to both the
Chairman and the Ranking Member, it has been a pleasure working
with both of you on constructive suggestions to improve this
bill and to move forward. I look forward to doing that in the
future.
Our current law on chemical safety, the Toxic Substances
Control Act of 1976, is broken. And it is a weak statute that
desperately needs fixing to protect our families. It gives us
no confidence that our everyday products are safe and clearly,
we must improve it.
I am particularly interested to hear from our witnesses
today and I want to make sure they hear from me as well. A lot
of focus, attention and concern has been given to the
compromise Lautenberg-Vitter legislation in the last month or
so. I think the surprise of a compromise, bipartisan bill on
such a controversial topic added a lot to the urgency many felt
to make comments.
I know that at times, Senator Lautenberg had nearly given
up hope for a bipartisan agreement. But he was a fighter, and
he never stopped trying. We will all be lucky if we have a
fraction of the perseverance he had.
I know his widow, Bonnie Engelbart-Lautenberg, has a
statement. I just want to read a small portion of that, because
it shows the passion that Frank put into this compromise
legislation. Bonnie said, ``In the last few months of his life,
Frank did something that has become all too rare in Washington.
He negotiated bipartisan legislation to solve a major problem
facing our Country. Frank worked with Senator Vitter to develop
the Chemical Safety Improvement Act, a bill that would for the
first time require testing of tens of thousands of chemicals
that are used in everyday products. Frank was proud of his work
on this new bill. In fact, after a meeting with Senator Vitter,
Frank told me that this bill would be bigger and save more
lives than his law to ban smoking on airplanes.''
Madam Chair, I would ask that her full statement be
inserted into the record.
Senator Boxer. Without objection.
[The referenced information follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Senator Udall. Let me make sure that everyone hears from me
as a co-sponsor of this bill. I am fully committed to working
with you and everyone else to improve this bill where there are
legitimate concerns. This is a very important part of the
process to pass substantial legislation.
But I urge you to be constructive in your criticism, and
help us improve the bill. And I would underline improve there.
When I was deciding whether or not to co-sponsor the
Lautenberg-Vitter bill, I based my decision on two very
important questions: is this bill better than current law, and
No. 2, do we have a political opportunity to enact this as law?
On the first question, is it better than current law, I
believe it is. It takes important strides toward fixing the
main elements of TSCA that have kept the EPA from effectively
evaluating and regulating hazardous chemicals. The Chemical
Safety Improvement Act strikes the least burdensome requirement
that has crippled TSCA from banning dangerous chemicals such as
asbestos.
It would for the first time mandate safety reviews for all
chemicals currently in commerce. It would for the first time
require an affirmative finding of likely safety as a condition
for market entry of new chemicals. And it would for the first
time allow EPA to require testing by issuing orders, instead of
having to use the time and resource-intensive rulemaking
process. And it would eliminate the requirement that EPA first
show likely risk to high exposure to required testing.
It would substantially increase access to chemical
information by the public, State governments and medical and
health professionals that currently cannot be disclosed based
on confidential business information claims. Since its
introduction, many experts have had the opportunity to examine
and review it. As I said, this is an important part of the
process, to solicit and receive feedback on legislation.
As a result, I believe there are many things we need to
improve in the bill, such as more firm deadlines and
timetables, and better confidence that vulnerable populations
will have adequate protections.
And wanting to hear the witnesses, Madam Chair, at this
point I would just ask that my whole statement be put in the
record and I would yield back.
[The prepared statement of Senator Udall follows:]
Statement of Hon. Tom Udall,
U.S. Senator from the State of New Mexico
Thank you, Madam Chair, for scheduling this important
hearing.
Our current law on chemical safety, the Toxic Substances
Control Act of 1976, is a broken and weak statute that
desperately needs fixing to protect our families and loved
ones. It gives us no confidence that our everyday products are
safe, and we desperately need to improve it.
I'm particularly interested to hear from our witnesses
today and want to make sure they hear me as well.
A lot of focus, attention, and concern have been given to
the compromise Lautenberg-Vitter legislation in the last month
or so. I think the surprise of a compromise, bipartisan bill on
such a controversial topic added a lot to the urgency many felt
to make comments.
I know that at times, Senator Lautenberg had nearly given
up hope for a bipartisan agreement on this topic. But he was a
fighter and he never stopped trying. We will all be lucky if we
have a fraction of the perseverance that he had.
Let me make sure that everyone hears me as a cosponsor of
this bill--I am fully committed to working with you and
everyone else to improve this bill where there are legitimate
concerns. This is a very important part of the process to pass
substantial legislation. But I urge you to be constructive in
your criticism and help us improve this bill.
When I was deciding whether or not to cosponsor the
Lautenberg-Vitter bill as it was being introduced, I based my
decision on two very important questions that I asked myself:
(1) is this bill better than current law, and
(2) do we have a political opportunity to enact this as
law?
Is this bill better than current law? I believe so.
It takes important strides toward fixing the main elements
of TSCA that have kept the EPA from effectively evaluating and
regulating hazardous chemicals.
CSIA strikes the ``least burdensome'' requirement that has
crippled TSCA from banning dangerous chemicals, such as
asbestos.
It would for the first time mandate safety reviews for
all chemicals currently in commerce.
It would for the first time require an affirmative
finding of likely safety as a condition for market entry of new
chemicals.
It would for the first time allow EPA to require testing
by issuing orders instead of having to use the time- and
resource-intensive rulemaking process and would eliminate the
requirement that EPA first show likely risk to high exposure to
require testing.
It would substantially increase access to chemical
information by the public, State governments and medical and
health professionals that currently cannot be disclosed based
on confidential business information claims.
Since its introduction, many experts have had the
opportunity to examine and review it. As I said, this is an
important part of the process--to solicit and receive feedback
on legislation. As a result, I believe there are many things we
need to improve in the bill, such as more firm deadlines and
timetables and better confidence that ``vulnerable
populations'' will have adequate protections.
With these types of improvements, I think we can make it
that much better than current law, but also improve the answer
to my second threshold question: Do we have the political
opportunity to enact this as law?
On that answer . . . Yes.
I appreciate what Senator Lautenberg did to make the
necessary compromises to negotiate with Senator Vitter, and I
appreciate the willingness that Senator Vitter has made to
engage in this process.
I was a cosponsor of the original Lautenberg chemical
bill--the Safe Chemicals Act. I believe that bill was also an
improvement to current law, but that bill and discussion over
it stalled for too long. That bill didn't have what this one
does--bipartisan acceptance. At 25 Democrat and Republican
cosponsors, this bill has the most bipartisan cosponsors of any
environmental bill before this Committee.
And so we need to work from the Chemical Safety Improvement
Act, S. 1009. I am committed, as a cosponsor and Chairman of
the Subcommittee on Toxic Substances, to an improved version of
this bill.
My staff and Senator Vitter's staff have been meeting with
other Senate offices and a variety of stakeholders to hear
their thoughts and concerns with the legislation. We have begun
the process of thinking through creative solutions to address
some of these issues and are optimistic that there is a path
forward.
I'm hopeful that over the coming weeks we will be able to
work with, you, Madam Chair, and anyone else who is interested,
to improve the bipartisan bill before us, and that when we
return from our August recess we will have a version that we
can move forward with.
Senator Boxer. Thank you very much.
Senator Barrasso, to be followed by Senator Gillibrand.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Thank you, Madam Chairman.
I first would like to say that I am very grateful for the
work that Ranking Member Vitter and the late Senator Lautenberg
did on their Chemicals overhaul bill. I believe they have
created a bill that is the foundation for major reform of our
chemicals policy.
It should not be underestimated the tireless work that was
put into this negotiation, and Senator Lautenberg in particular
dedicated his career to modernizing TSCA. Although I am not a
co-sponsor of the bill and more work needs to be done, I am
pleased that this work led to a historic bipartisan agreement.
Madam Chairman, I want to read to you what others have said
about this important piece of bipartisan legislation. The New
Star Ledger stated on June 2nd that ``This is a breakthrough
bill that deserves our support. Its flaws can be fixed, and it
has opened up a path to reform that never existed before. As
written, this compromise would be a substantial improvement
over the status quo.''
And then the New York Times, they stated on May 29th that
the bill ``deserves to be passed, because it would be a
significant advance over the current law.'' The Washington Post
stated ``Its authors were right to balance a legitimate
interest in maintaining an innovative and profitable chemical
industry against public health demands.'' And that ``Senators
will have the option of tinkering with it on the floor, but
they shouldn't let this unexpected opportunity go by.''
I agree. I believe we should not let this opportunity go
by. Madam Chairman, we need to protect our children, families,
seniors, no matter what. I doubt that there are any in this
room who would not support that goal. Children need safe
drinking water, life-saving medicines and safe food to eat.
What role has the chemical industry played in providing
these things? Well, chemistry using chlorine plays an important
role in producing 93 percent of the top selling medications in
the United States. Children benefit from some of these drugs,
including those that treat epilepsy, asthma and depression. The
antibiotic Vancomycin, made with chlorine chemistry, has saved
the lives of patients suffering from serious, stubborn
bacterial infections. Chemicals provide prosthetic devices,
such as polyvinyl chloride, PVC, which is a common chlorine-
containing plastic used to construct prosthetic legs and arms
for children who lose limbs or have birth defects. Thanks to
these devices, many of these children can lead normal lives and
participate in most activities.
PVC is used to make blood bags, IV fluid bags and tubing to
deliver needed care for young patients. Incubators for
prematurely born infants are constructed of chlorine-based
polycarbonate plastic. The chemicals industry also makes the
plastics used to manufacture child car seats and safer
playground equipment.
It is not to say that it is a completely rosy scenario for
today's children; there are still areas of concern, such as
increased rates of childhood obesity, low birthweight babies.
We must be ever vigilant. We need a strong and viable
regulatory framework or framework that will spur advancements
to help our children, not get in the way of them. We need a
framework that can provide the next series of advancements that
can make the future better for all Americans.
We must not enact policies that hamstring new chemical
development that would prevent those new advancements.
Otherwise, the next childhood vaccine or the next bicycle
helmet, the next prosthetic leg, will not be there when our
families need them the most.
So Madam Chairman, I look forward to working with my
colleagues on advancing the Lautenberg-Vitter bill to
accomplish these things in the not too distant future markup
through regular order. Let's not let this bipartisan
opportunity go by the wayside. Let's not snatch defeat from the
jaws of victory by starting from scratch with an entirely new
product.
It is time to move forward with this important bipartisan
legislation. I thank you, Madam Chairman, and look forward to
the testimony.
Senator Boxer. Thank you, Senator.
Senator Gillibrand.
OPENING STATEMENT OF HON. KIRSTEN GILLIBRAND,
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. Madam Chairwoman, thank you so much for
holding this hearing today on the proposal to reform our
Nation's toxic chemical laws.
While the members of this Committee may support different
approaches to addressing this issue, we can all agree that the
Toxic Substances Control Act, TSCA, is broken, and in serious
need of reform and modernization. I am pleased today that our
colleagues on both sides of the aisle share this goal and that
we have a historic opportunity to come together and tackle this
in a very serious way.
This should not be a partisan issue, because the effects of
inaction are felt by households in each and every one of our
States. We are all familiar with the staggering statistics, the
84,000 chemicals in commerce, the EPA has only been able to
require the testing of 200 of them, and only banned five
chemicals under the current TSCA framework. This has left
families across the United States vulnerable to exposure to
potentially dangerous chemicals that may lead to devastating
health effects, including hormone disruption, learning
disabilities and various forms of cancer.
I co-sponsored both the Safe Chemicals Act and the Chemical
Safety Improvement Act because I believe there are positive
elements to both. The Chemical Safety Improvement Act,
negotiated by Senators Lautenberg and Vitter, was a strong and
encouraging start. But we need to continue to work in a
bipartisan way with common purpose.
We all know that no legislation is perfect or solves any
problem entirely. But that should not stop us from doing what
we can when we can, and continue to find ways to improve this
bill as we move legislation through Committee and on the Senate
floor.
The Chemical Safety Improvement Act is no different, and
while there are several issues that concern me that must be
addressed in this bill as it moves forward, there are also many
positive elements to the bill, including new authority for the
EPA to require testing and requiring an affirmative safety
determination before a chemical can be used in commerce, among
others. My staff and I have met with many of the stakeholders
who were involved in TSCA reform, some of whom are testifying
today. They have all shared very similar concerns, such as
where in the process State preemption occurs, deadlines for EPA
action and ensuring that EPA actions are made solely on the
basis of protecting human health and the environment.
Madam Chair, I would like to ask unanimous consent at this
time to enter into the record a letter that my office received
this morning from the New York State Attorney General, which
outlines their analysis of both positive elements of the
Chemical Safety Improvements Act as well as those elements like
State preemption that must be fixed to ensure that New York
State can continue to be a leader in protecting our families
from potential toxic chemicals not regulated by the Federal
Government.
Senator Boxer. That will be included.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Gillibrand. Thank you, Madam Chairwoman.
I am committed to working with you, Madam Chairwoman, as
well as our Ranking Member Vitter and other members on the
Committee to address the issues we hear about from our
witnesses today. If we can set our politics aside and commit
ourselves to fixing TSCA's fundamental flaws, our Country will
be better for it, and families across the United States will
have the confidence of knowing that they are protected from
harmful exposure to toxic chemicals, and their children will be
safe.
I know that is what Frank Lautenberg would have wanted us
to do, and the best way for this Committee to honor his legacy
is to build on the progress he has made by working together,
both Democrats and Republicans, to find that common ground.
Madam Chairwoman, I would also like to submit Bonnie
Lautenberg's statement for the record, which I think has
already been submitted.
Senator Boxer. We have already put that in. Thank you.
Senator Gillibrand. And again, thank you for your
leadership and your determination on such a vital issue for our
States and for the whole Country.
Senator Boxer. Thank you, Senator.
I am going to ask unanimous consent to place into the
record a letter that just came to my attention from the
National Caucus of Environmental Legislators, who wrote to
convey their deep concerns with S. 1009 as it is currently
written. It is a letter sent to myself and Senator Vitter. And
among others, we have legislators from Alaska, California,
Connecticut, Delaware, Idaho, Illinois, Iowa, Kentucky, Maine,
Maryland, Massachusetts, Minnesota, Montana, New Hampshire, New
Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, South
Dakota, Tennessee, Virginia, Washington State. We will place
that into the record.
[The referenced information was not received at time of
print.]
Senator Boxer. And anybody, any other colleagues that have
anything to add to the record, on either side of this, or on
all sides of it, that would be fine. So you let me know about
that.
So now we are going to turn to our esteemed panel. We have
here Mr. Michael Troncoso, Senior Counsel, Office of the
Attorney General of California. I am very proud that you are
here, and I am proud of Kamala Harris. She was the first one to
point out the preemption in this bill so we can take a look at
it. And colleagues on both sides seem ready to fix that
problem. I credit Kamala for really being the first one to get
out there with it, and the L.A. Times for making sure we all
understood it.
Mr. Michael Dorsey, Chief of Homeland Security and
Emergency Response, West Virginia Department of EPA, sir,
welcome. And Mr. Ken Zarker, Manager, Pollution Prevention and
Regulatory Assistance Section, Washington State Department of
Ecology.
Welcome to you all. Why don't we start with you, Mr.
Troncoso?
STATEMENT OF MICHAEL A. TRONCOSO, SENIOR COUNSEL, OFFICE OF THE
ATTORNEY GENERAL, CALIFORNIA
Mr. Troncoso. Madam Chair and Ranking Member Vitter,
distinguished members of the Committee, thank you so much for
the opportunity to be here today.
My name is Michael Troncoso. I serve as Senior Counsel to
the Attorney General in the State of California, Kamala Harris.
The Attorney General asked me to testify today to speak with
the Committee about the potentially crippling effects, I would
say, that the preemption provisions in particular of the
current draft of the bill face to California law, and we
believe, to laws across the States that are with respect to
creating protections against the harmful effects of toxic
chemicals.
We believe as it is currently written, the bill will not
create additional protections, but may, to the contrary, really
roll back the authority and the role of the States in
protecting our environment and the health and welfare of our
citizens and vulnerable populations in particular. My comments
today, as I noted, will focus on the preemption provisions.
We believe that these provisions threaten to strip away the
States' ability in significant ways to regulate toxic
chemicals. For example, the States have long enjoyed the
authority to adopt protections to where the Federal Government
has adopted none. We have enforced within our own borders State
toxic requirements that are identical to Federal provisions.
And we have banned the in-State use of dangerous chemicals.
Preempting the States from these traditional activities and
exercises of our police powers in the absence of any
enforceable Federal rule, as this draft would do, we believe,
creates a regulatory vacuum that endangers public health and
public safety. Some have argued that the bill's waiver of
preemption provisions cures this problem. But the bill's waiver
provision, in our view, is sufficiently onerous as to be
illusory.
It does not allow the States to adopt and enforce the
stricter standard than the Federal Government in important
instances. The waiver provision also requires a high showing of
``compelling State or local interest'' that would justify a
waiver to allow the State to regulate.
All of this will likely lead to needless litigation, as we
have experienced in many contexts at the State level, and in
our view, imperil the application of well-established State
law.
I would like to illustrate very briefly for the Committee,
if I may, how this preemption provision might impact
California, in particular, and our ongoing efforts to regulate
dangerous chemicals. In 2003, California passed a statewide ban
on certain flame retardants known as polybrominated diphenyl
ethers, or PBDEs. PBDEs are found in foams, in furniture,
upholstery and carpeting and electronic circuit boards.
PBDEs accumulate in the body over time. The cutting edge
science and recent studies which are in my written testimony
describe potential disruptions to thyroid hormones, potential
harm to developing fetuses, and even potential of causing
cancer.
This is an example of a State ban of a certain chemical
known to be a toxic. Under Senate Bill 1009, if PDBEs are
identified as a high priority chemical, our State would lose
its ability to ``establish'' any restrictions concerning their
use, including their in-State use within California. This could
occur significantly before any enforceable Federal action is
taken, thus creating the regulatory vacuum that I described.
I have another example which involve California's strong
laws against volatile organic compounds, or VOCs. VOCs are a
critical ingredient for the creation of ozone, which is related
to the development of asthma and other respiratory illnesses,
which we have experienced this very significant problem with in
California, as Madam Chair knows.
Consumer products such as cleaning products contribute a
significant amount of these VOCs to the ambient environment. So
California enacted regulations limiting the use of VOCs in
consumer products. Our Department of Public Health in
California estimates that this will result in a 48 percent
decrease in VOC emissions from such products.
The bill, however, we believe, would preempt application of
these regulations at a very preliminary stage of the assessment
that would be conducted by the EPA, putting people across our
State potentially at risk for additional respiratory illness.
Finally, I want to talk briefly about California's
Proposition 65. It was enacted by California voters directly in
1986 and requires that businesses warn a consumer before
selling a product that exposes them to a carcinogen. Prop 65 in
practice has led to the reformulation of many products that
were later, and at the time, proven to be dangerous. In
exercising our authority, as borne out by my written testimony,
we have eliminated products from the market that included lead-
covered bounce houses for children. As the father of a 17-
month-old and a 4-year-old, I will tell you, this is an
important role for the States. We urge the Committee not to
roll back those protections.
And we appreciate your time.
[The prepared statement of Mr. Troncoso follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much.
So now we turn to Mr. Michael Dorsey, Chief of Homeland
Security and Emergency Response, West Virginia Department of
Environmental Protection.
STATEMENT OF H. MICHAEL DORSEY, CHIEF, HOMELAND SECURITY AND
EMERGENCY RESPONSE, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Mr. Dorsey. Thank you, Madam Chairman, members of the
Committee.
I was delighted to hear every single one of you acknowledge
the fact that TSCA needs to be repaired or replaced. That
eliminated my first paragraph.
I am here today as a representative of the State of West
Virginia to urge your support for the Chemical Safety
Improvement Act, or CSI. I think the CSI is the best and
perhaps the last chance to make needed repairs to TSCA. I am
aware of objections to the bill brought forth by other States'
organizations. However, I do not think that any of these
objections are insurmountable, especially given that even the
severest critics praise the bill for its bipartisan effort to
address the problems.
The bill states in its findings section that, ``Scientific
understanding of chemicals has evolved greatly since 1976,
requiring that Congress update the law to ensure that chemical
regulation in the United States reflects modern science,
technology and knowledge.'' Sometimes it is easy to forget just
how far science has progressed since 1976, with chemical
analysis, epidemiology, environmental modeling and other
disciplines that are so far advanced that they are barely
recognizable today as what they once were.
The ``best available science'' of today is far better than
it was 37 years ago. While this is not to imply that TSCA
scientists haven't kept up with scientific trends and
equipment, much of what was accomplished with existing
chemicals under this law was done long ago. The public, the
regulated community and those in State and local government
need and deserve the most accurate and scientifically
defensible information on chemicals we can possibly have. I
think that is possible with this bill.
Notwithstanding the programs in California, Washington and
a few other locations, most of the Country, West Virginia
included, lacks the resources and/or personnel to develop and
implement chemical testing programs of their own. Because of
this, we look to the Federal Government to perform this
important work for us. I understand the reason that the more
fortunate areas have forged ahead on their own. And I
understand their concern that their efforts not be undermined.
But I strongly believe that protective language is in place or
that stronger language can be forged that will protect existing
programs and allow the program to move forward for the rest of
us.
In fact, West Virginians have good reason to be concerned
that we are able to maintain a level of independence in the
evaluation process. As development of Devonian Shale, most
recognizably known as the Marcellus Shale Gas Reserves
progresses, we may need to evaluate and regulate chemicals used
in the development and production of those reserves.
Consistency is important in any program, and it is
especially important in programs that cross State lines and EPA
regional lines. TSCA, for all its shortcomings, has been fairly
consistently applied across State and regional borders. I
understand it is important to protect the independence of
programs that already exist, and I believe that can be done
with this bill. But I just as strongly believe that a clear and
consistent Federal program that actually does what TSCA was
supposed to do can only benefit the citizens of this Country.
I also envision the CSI as having a positive influence on
both innovation and competition in the chemical industry. Green
chemicals are desirable to the industry on two levels. First,
the consumer has become far more concerned about environmental
and health effects on what he or she is buying. They are more
likely to buy products that have been shown to be safe by an
agency they trust.
Second, the short and long term environmental effects of a
chemical are of great concern to the industry due to accidental
releases. The easier to remediate a release is, the less
expensive it is. Chemical companies know and appreciate the
cost of long remediation costs.
Finally, I appear before you today as a greybeard. I have
been around long enough to see some State and Federal laws,
rule and regulations come to life and become implemented and
others slowly die and become forgotten. I have also seen laws
with good intentions fail. TSCA is one of those failed laws. It
was passed for good reasons, and it still has an important role
to play in our Country. Perhaps its role is more important
today than it ever has been. Some of what has been accomplished
has been very good, such as the regulation of PCBs, the
elimination of lead-based paint, the regulation of asbestos.
But in the area the citizens most need protection it has
failed. It has failed to adequately test and evaluate chemicals
that have entered into our lives. The CSIA is the most viable
chance to fix TSCA that has come along in my career.
There are problems, of course. There are always problems
with any legislation. This legislation deserves the chance to
have the problems ironed out and become law. If passed, it will
still require a great deal of effort to care for it, to avoid
falling into the same fate as TSCA. It must be managed and
evaluated and adapted as needed to correct flaws that are not
apparent to us today. But it is worth doing.
Thank you for the opportunity to appear here today.
[The prepared statement of Mr. Dorsey follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much, Mr. Dorsey.
And now we will turn to Mr. Ken Zarker, Manager, Pollution
Prevention and Regulatory Assistance Section, Washington State
Department of Ecology.
STATEMENT OF KEN ZARKER, MANAGER, POLLUTION PREVENTION AND
REGULATORY ASSISTANCE SECTION, WASHINGTON STATE DEPARTMENT OF
ECOLOGY
Mr. Zarker. Thank you, Chairman Boxer and Ranking Member
Vitter, for the opportunity to testify on this important issue
of protecting human health and reducing toxic chemical threats.
I also want to thank the members of the Committee for
stepping forward to engage the States in meaningful dialog, and
particularly the late Senator Frank Lautenberg.
Today I will focus my comments on why State programs are
important, what States are doing and why Washington and other
States are compelled to act and will continue to act in the
absence of a Federal solution. I will just briefly summarize my
points, I provided written testimony. We also provided
additional written testimony and comments on the Chemical
Safety Improvement Act in the spirit to help improve this
bipartisan approach.
One trend is very clear: the States have stepped up to fill
the Federal gaps that exist under the Federal current system.
In recent years, 77 chemical restriction bills have been passed
by the States, including 31 bills alone specifically addressing
mercury. Bills at the State level have typically passed with
strong bipartisan support.
My job and that of colleagues around the Country is to
protect people and the environment from toxic threats. This job
is becoming more challenging with an outdated Federal system.
I would like to share a few of the States' principles on
TSCA reform. I think it is helpful to revisit that. Again, we
need a strong prevention-based approach that protects the most
vulnerable and ensures the safety of chemicals in commerce;
preserves the States' authority to act and act as co-
regulators; ensure EPA has adequate data to make safety
determinations; require manufacturers to generate adequate data
to show that chemicals meet the safety standards; include
principles of alternative assessment and life cycle thinking;
require EPA to make safety determinations in an efficient and
timely manner; share information and coordinate with the States
and Federal programs.
Ultimately, we need a stronger Federal TSCA that improves
the safety of chemicals and restores trust in our institutions
to protect our communities and economies from toxic threats.
The States need a modernized TSCA to help us avoid the types of
legacy problems in our States. In my written testimony, I
provided two brief examples, just in Washington State alone,
one related to recontamination of the Puget Sound after
spending millions of dollars to clean that up, and new sources
of PCB contamination in the Spokane River. These PCBs are
coming actually from current products on the market.
States have demonstrated smart solutions that we can bring
to the table. Over 10 years ago, Washington State became
increasingly concerned with persistent, bioacumulative and
toxic chemicals. In 2000, we were the first State to target
these chemicals and adopt regulations to phase them out. Our
State became the first in the Nation to ban decaBDE, a commonly
used flame retardant. As a result, EPA also took action on
similar chemicals.
There are many similar examples around the States. I'd like
to shift my final thoughts to the States' role in developing a
Federal solution. Several States have been working together to
provide a voice throughout this dialog. As a rest, here are a
few ideas that we would offer to enhance and make a more
workable solution.
Again, increasing all efforts to address all chemicals in
commerce. Focus on chemicals of concern. Prioritization is the
first step, including making sure that we have an adequate set
of data to help us with that prioritization.
Conducting safety assessments and safety standards
determinations. Authorizing EPA to share confidential business
information with the States. Provide specific milestones for
EPA with adequate funding. And integrate new tools, such as
alternative assessment and life cycle assessments.
We also believe that State grants for technical assistance
could enhance our role with working with small to medium size
businesses. And addressing some overlapping regulations
relating to polychlorinated biphenyls, or PCBs, waste and
residuals.
In terms of State preemption, I think it is still early to
be discussing this conversation, until we can get some
structural fixes to the bill. Preemption is really about
accountability. I think if we have a good Federal system, then
it is likely that the States will have greater confidence in
the system and we can deploy our resources more efficiently.
States must have the authority to establish programs.
Thank you for your time.
[The prepared statement of Mr. Zarker follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much.
I have to be tough with this because of our situation
today.
I want to thank the three of you. If I could just say, all
of you really added a lot. And I want to say to the two
Majority witnesses on either side of Mr. Dorsey, what I really
appreciate is your specifics, in your written testimony, your
specific examples of why it is essential that we allow States
to have States' rights. And Mr. Dorsey, I appreciate your
willingness to say, we can work with this. Because that is
critical.
Because if we don't fix these problems, we are not going to
have a bill. Too many States are objecting. Not only the
attorneys general, who wrote to us, and they are very respected
and they represent huge populations in America, but also the
State legislatures who are fighting the battles have written to
us. So we need to fix it. And I believe we can fix it.
So my first question is to the two who said that this
preemption, to quote Mr. Troncoso, is crippling. Will you work
with me, with Senator Vitter, with others, to make sure that we
do allow States' rights? Will you work with us? Mr. Troncoso.
Mr. Troncoso. Absolutely. I would be happy to work with the
Committee in any respect that is helpful.
Senator Boxer. And Mr. Zarker, will you as well?
Mr. Zarker. Will do.
Senator Boxer. And Mr. Dorsey, we will run it by you as
well. Because I think that your attitude today is terrific,
which is, look, if other people have problems, we should try to
solve them.
So let's just say S. 1009 became a law, which I do not see
happening until it is fixed, and I think most people have said
it has to be, even the Ranking Member. If S. 1009 becomes law,
and EPA listed a chemical as a low priority chemical due to a
lack of data and took no other action, how long would States be
preempted from enforcing or creating protections against that
particular chemical, under the way it is written now?
Mr. Troncoso. Madam Chair, I believe it would be in
perpetuity. I don't know that there is a bounded duration.
Senator Boxer. That is my read.
Mr. Troncoso. If it is a low priority chemical and it is
not going to be subject to a later safety determination, my
belief is it would be barred going forward.
Senator Boxer. Well, if we add up all the population from
the attorneys general who wrote to us, and there were two other
States who were planning to sign but didn't sign, but sent
separate letters, like New York, it is the majority of the
population of the Country that has concerns about this. So it
is often said that States are the laboratories of democracy and
that Federal law should set a floor, not a ceiling, on the
level of protection. I certainly believe that is true. I think
it is our job to set a minimum standard.
But if the States in their wisdom and the people vote for
Prop 65, what right does anyone sitting up here to overturn the
will of the people in our States? And yet this bill, as
written, according to Kamala Harris, could possibly impact Prop
65. Do you agree with that, that Prop 65 could be imperiled
here, a bill that passed with huge support of the people of the
State in a vote?
Mr. Troncoso. Madam Chair, absolutely. I believe that, the
way that we read the bill, and I think it is quite clear from
the express preemption provisions in Section 15 in particular,
that if a chemical is listed in a certain way by EPA,
preemption would kick in at the State level. And any State
application of Prop 65 to any of those chemicals, whether it is
a low priority chemical or high priority chemical, depending on
the point of the process that we are at, I think we run a
serious risk of preemption in our ability.
Senator Boxer. So it could drive an arrow through the heart
of Prop 65.
Let me ask you further, because you alluded to this issue.
We in California took, with your leadership, your meaning our
State's lawyers, took action against this inflatable bounce
house toy that young children often played in. Could you
describe these bounce houses, and if there was no right for you
to act, they would still be going. Explain the dangers that
kids faced in that situation.
Mr. Troncoso. I will explain it, Madam Chair, about the
case and then relate to some personal experience in this
respect.
Back in 2010, we first brought this case. It is not bounce
houses generally, it was the vinyl that was being used in the
manufacturing.
Senator Boxer. The vinyl in the bounce house.
Mr. Troncoso. That is correct. And the vinyl had a very
high concentration of lead in it. Anyone that is a grandparent
or parent knows that when you get a small child, like my 17-
month-old goes in and he sits there, he can't really bounce
much, but he will lick the vinyl. Who knew that it was laden
with lead? Completely unnecessary exposure.
So under Prop 65, our Right to Warn law, we took some
action against those manufacturers that were putting these into
commerce without an appropriate warning. We were able to get an
agreement that they would reduce the level of lead.
Senator Boxer. We know what happens when kids are exposed
to lead, what happens to their IQ, what happens to their
bodies. So I just want to thank you very much, and again, if
you could say to the Attorney General of California, because I
know she helped organize the letter from all these attorneys
general, because she feels so strongly about it, how much I
appreciate her work.
I think with this testimony that we have heard from all
three of you, we can fix the problems in this bill and make it
work for our States. And most importantly, for the people of
our States and the families and the children.
Senator Vitter.
Senator Vitter. Thank you, Madam Chair, and I thank you and
the witnesses for bringing up Prop 65. I think it is a perfect
example of one of the misimpressions I was talking about in my
opening statement.
Frank and I talked specifically about Prop 65, and we never
intended to neuter Prop 65 in any way. We thought that was
clear in our language, but Senator Udall and I are going to
make it crystal clear in our manager's amendment. I think that
is a very good example of a misimpression or a concern that was
never our intent to foster.
Senator Boxer. I just wanted to ask you, what do you mean,
manager's amendment?
Senator Vitter. We are working on proposed revisions to the
bill to address all of these concerns.
Senator Boxer. I just want to make it clear that I will be
working the manager's amendment with you. That is where we are,
unless you don't like it and I get somebody else who does, like
Senator Barrasso.
Senator Vitter. Fine. Well, we are here. Senator Udall and
I are here to listen to all legitimate concerns.
Senator Boxer. As we all are, of course.
Senator Vitter. And we have been meeting actively with
folks with those concerns. And we are compiling clarifications
to the bill. I think this is a great example of one of those
clarifications. It is going to be crystal clear what our
original intent was. Certainly Frank nor I wanted to neuter
Prop 65 in any way, so we will make that crystal clear.
Mr. Dorsey, you mentioned a few times that you thought the
Lautenberg-Vitter bill was ``the most viable chance to fix
TSCA'' that has come along during your career. Why don't you
elaborate on that, and what would be the impact on your and
other States if we miss the opportunity and this present law
continues for the foreseeable future?
Mr. Dorsey. Senator Vitter, when we began the hearing,
Senator Boxer recited a litany of efforts that had taken place
over the years to fix TSCA. They have all failed. I sit here
today looking at this group, and I'll be retired in 17 months
and 1 day----
Senator Vitter. Not that you are counting, obviously.
Mr. Dorsey. Not that I am counting.
[Laughter.]
Mr. Dorsey. But it is so encouraging for me to sit here and
see bipartisan support for something to fix TSCA. I think it is
probably the best effort that I have ever seen and has the most
bipartisan support for and effort to fix this.
Now, I sit here and quite frankly, the States of California
and Washington have Prop 65 and other laws that will allow them
to take these huge strides. In West Virginia, we have what we
refer to as no more stringent than language, which allows us to
be no more stringent than the Federal Government. We are not
the only State, there are a number of other States out there
that do the same thing.
So we rely on the Federal Government to take some of the
bigger steps when it comes to epidemiology, chemical safety,
things along those lines, to help us protect our citizens.
Senator Vitter. Great. Let me follow up on that. Why don't
you elaborate on how and to what extent West Virginia, your
State, has tried to regulate any chemicals, and what was the
outcome of the State's work?
Mr. Dorsey. Many, many years ago, the one that comes
immediately to mind to me is PCBs, polychlorinated biphenyls.
Back when EPA was still rummaging around, trying to come up
with a solution for those, I personally tried to take a rule
package to our legislature to have them regulated as hazardous
waste in West Virginia. In the meantime, EPA regulates them
under TSCA. I was told, no, if the Federal Government is
regulating those, we are not going to regulate them as a State.
It has worked out in the long term fairly well, but we were
denied the opportunity to regulate those chemicals because of
that no more stringent than language.
Senator Vitter. And for a State like West Virginia, for the
vast majority of States, why don't you describe the
significance and importance of the Federal role in terms of
resources, expertise, et cetera, and your reliance on it?
Mr. Dorsey. I mentioned it briefly in my talk, and it is in
my written testimony. States like West Virginia, and most
States throughout the Country, just simply do not have the
resources. We have a few epidemiologists within our agency and
other agencies, but we just don't have the personnel, the money
and the expertise to do the work that needs to be done on a
large scale across the board to protect the citizens.
Senator Vitter. Thank you very much.
Senator Boxer. Senator Vitter, I am so encouraged by your
commitment to make sure that State law to make sure that State
laws are not preempted. So when you and Senator Udall have
fixed the bill or rewritten those sections, because my reading
of the bill is it is endemic throughout the bill, it is not
just in one place. So the whole bill has to be looked at.
We wrote, I just want you to know, my commitment is to send
it to the 10 attorneys general who have written to us and said
they have huge problems with preemption, to make sure that
their concerns are met. And I am looking forward to seeing that
rewrite. That would be wonderful. And if it is written in the
right way and the AGs believe it, that would be an enormous
step forward. So let me just go on record as saying that.
OK, let's see now. I think we are going to go to Senator
Udall.
Senator Udall. Thank you, Madam Chair. I think what you
have just said is very important. We look forward to working
with you on constructive changes. I don't think that Senator
Lautenberg and Senator Vitter ever thought that this was going
to be a perfect bill, that you would unroll it and there
weren't going to be any changes. As I have said earlier, many
of us realize that as you move along in the legislative
process, there may be language that you did not intend it to be
that way but that you can work to change it. We look forward to
working with the Chairwoman and the Ranking Member to get that
done.
I think some of these, to turn to the witness from West
Virginia, some of these questions have been asked and answered,
but I wanted to emphasize this again. You see the array up here
of what we are dealing with. I have New York on my left and
California on my right. But then we have smaller States that
are out there, like West Virginia and like New Mexico, who
don't necessarily step into this situation of regulating
chemicals. We don't produce a lot of chemicals in New Mexico,
and so we don't have the kind of resources that these larger
States do.
So how many chemicals do you analyze on a yearly basis?
Mr. Dorsey. We have a number of programs, Senator. Our
Resource Conservation and Recovery Act program, which is our
haz waste program, has a list of chemicals we have adopted to
Federal law. And the list of chemicals, there are several
thousand in there. We have our brownfields program and our
Superfund equivalent, which is tied into our brownfields
program. So there are a lot of chemicals out there that we are
regulating.
But I think that the common number that people would talk
about that TSCA grandfathered in was 62,000. So we do what we
can, we run our authorized programs from the Federal Government
and we look at those chemicals. But nothing really above that.
Senator Udall. When I say analyze, are you really in the
business in the State of West Virginia in terms of analyzing
chemicals? What you talked about is adopting what other
agencies have done. I am talking about analyzing chemicals, how
many chemicals has the State of West Virginia prohibited in
commerce.
Mr. Dorsey. I misunderstood your question, Senator, I
apologize. None, to my knowledge.
Senator Udall. And do you feel adequately protected by
other State laws and what other States may be doing?
Mr. Dorsey. The problem there is, we just don't know. And
we find out on a regular basis that there are things out there
that we were not aware of.
Senator Udall. And I think you find yourself in the
situation that many small States do, that we would like to see
something at the national level and see TSCA fixed and see an
aggressive effort to deal with toxic chemicals.
Let me just, Mr. Troncoso, talk a little bit about this
attorneys general letter. I was a former attorney general back
in the old days. So I am very interested in your analysis and
very much appreciate the attorneys general stepping forward on
this. At the bottom of the letter it states that S. 1009 would
preempt States from enforcing existing laws or adopting new
laws regulating chemicals that EPA designates as high priority.
And I would like to clarify here on the reading of our bill.
Existing State prohibitions or restrictions on a chemical
would remain in place until EPA made a final safety
determination on that chemical. Only new State prohibitions or
restrictions on a chemical would be precluded by an EPA
prioritization decision. State requirements, whether new or
existing, that do not directly prohibit or restrict a chemical,
would never be preempted, including requiring reporting on a
chemicals' use or presence in products, warning labels, such as
under California's Proposition 65, which we have had a little
bit of discussion about here, limits on exposure levels or
releases, monitoring, et cetera. And States could also apply
for waivers.
So balancing the Federal and State standards on chemicals
and consumer products is a very challenging task. I think that
is the big task that is before us and that you are helping us
with. Some States have strict laws and other States produce
most of the chemicals in interstate commerce. My State is in
the middle, we do not have the resources of California and we
have very little chemical production.
So I am trying to reconcile a variety of interests here,
and I hope that, and I think you have said this in questions
from the Chairman, that you will work with us through this
issue in terms of the trickiness. Is that correct?
Mr. Troncoso. Yes, Senator. As you know, and I will resist
calling you General, Senator, the attorneys general have a
terrific record of working on a bipartisan basis together
through the National Association of AGs, and forming working
groups. We will be happy to work with the Chairman.
Senator Udall. Thank you.
Senator Boxer. Thank you, Senator.
We go to Senator Barrasso.
Senator Barrasso. Thank you, Madam Chairman.
Mr. Troncoso, you state in your written testimony and you
said it today, you said, as written, S. 1009 will not give us
more protection. As written, S. 1009 will not give us more
protection. I don't think anyone would question Senator
Lautenberg's record in defending people from the risk of
harmful chemicals. So just to give you a chance to clarify that
statement, in terms of Senator Lautenberg negotiating a bill
that was designed to provide more protection for children,
seniors and families from harmful chemicals, does your
statement go too far?
Mr. Troncoso. Thank you, Senator, for that question. I
think our State joins in full complement all of the statements
made about Senator Lautenberg's work and his commitment to
these issues. We share the goal that the Committee has of
reforming TSCA in a way that will increase protection.
Our fear, though, Senator, is that in significant respects,
the preemption provisions roll back important State protections
that have been demonstrated to result in significant harms to
people in our State and harms in particular to children.
Senator Barrasso. Your quote was, ``will not give us more
protection.'' Will not give us more protection, none. And I
just want to know if that went too far.
Mr. Troncoso. Senator, I believe within the context and as
amplifying now, with respect to the preemption provisions, I
think with respect to those, I stand by that statement, sir.
Senator Barrasso. The entire bill doesn't do any good, that
is your testimony today.
Mr. Dorsey, you said you came to us today as a greybeard.
Given your years of service, do you recall opportunities like
this where Congress can move a major bipartisan reform on
chemical policy? When is the last time you saw it? What will
happen if we don't really advance this bill, if we just scrap
it and start from scratch?
Mr. Dorsey. Well, the last time was probably in the 1980s,
the Superfund Reauthorization Amendments, 1984, that may be, as
a greybeard, my mind slips sometimes. I may have missed a call
there. But it has been a while. As I said before, I don't
anticipate seeing it happen again before I am gone.
Senator Barrasso. Do you agree with Mr. Troncoso's
statement that ``As written, S. 1009 will not give us more
protection''?
Mr. Dorsey. I can't speak for California or Washington, but
I think in West Virginia it will give us additional protection.
Senator Barrasso. Can you elaborate further as to the
provisions in this bill that you will find most beneficial to
protecting public health and safety at home?
Mr. Dorsey. The main thing that I see is that it actually
does the analysis on the chemicals that needs to be done,
whereas TSCA didn't do that. That may be a simple statement,
but it has profound meaning.
Senator Barrasso. Mr. Zarker, you said starting this effort
will put us on the road toward a more sustainable economy and
keep the United States as a global chemical producer, all while
keeping good-paying jobs in our States. So unemployment is at
7.5 percent, this is not including the people who have given up
looking for work, folks look for work want a strong economy, a
strong chemical industry to provide new and innovative life-
saving products. New products create jobs, bring down
unemployment.
I am wondering what you think of in terms of, what is the
sustainable economy that you are advocating for? Does it
exclude certain products and the jobs that go with making those
products from the marketplace?
Mr. Zarker. Thank you, Senator. That is a great question. I
think that we have opportunity here within TSCA reform to send
the right market signal for new products and services. We
realize that the chemical infrastructure and this industry
cannot be changed overnight. Typically those plants are put in
place for 40, 50 years. But by reforming TSCA today and
including incentives for innovation and green chemistry, I
think that will send a very strong signal to the market and the
industry will want to position itself globally to lead in that
area. That is the opportunity I see.
Senator Barrasso. It is curious, because I am a doctor,
have practiced medicine for 25 years. We are able to detect
chemicals in small, minute amounts, that we weren't able to
detect in the past. I am wondering if this is driving some of
the efforts. Because we really don't know that some of these
things actually do harm at low, low, low doses.
Mr. Zarker. You are correct. We have the ability to detect
these materials to the picogram level. This is an example going
back to, I mentioned the Spokane River, where we have a paper
company that recycles paper and uses it as raw material. It
comes into their plant. And unfortunately, PCBs get into the
wastewater and can be detected. They have done everything they
can to get it out of the system. But there are current
provisions under TSCA that allow inadvertent PCBs to be
included in products today that come into the U.S., probably
through pigments. So it is a problem.
Senator Barrasso. Thank you. Thank you, Madam Chair.
Senator Boxer. Thank you so much. Senator Gillibrand.
Senator Gillibrand. Thank you, Madam Chairwoman, again, for
holding this hearing.
Obviously the issue of preemption is a non-starter. I think
there is some clarity here on the Committee on a bipartisan
basis that if we don't fix that part, this bill is never going
forward. I think that is essential. Because for those of us who
care deeply about protecting our children, we want to make sure
States that have done good work in regulating harmful chemicals
can keep those standards in place. I agree with Senator Boxer
that the Federal Government's role is to set the floor, not the
ceiling.
So setting the floor in States like yours that say, you
can't exceed, I think is absolutely essential. I would be so
dismayed having a child in any State that can't regulate these
harmful chemicals. I would be so concerned about their well-
being. And I would like you to submit for the record all the
bounce houses that have lead in them and how I can make sure my
children do not participate in those bounce houses.
[Laughter.]
Senator Gillibrand. So assuming we can deal with this
preemption issue, Mr. Troncoso, do you have specific
suggestions for the Committee about how you would change that
provision specifically to ensure that there is no preemption of
right to know laws, like Proposition 65?
Mr. Troncoso. Thank you, Senator, for that question. I
think our office has a lot of experience in working with the
legislature both at the State and Federal level on these
issues. I think there are many examples in other Federal
statutory schemes, where you have much less onerous preemption
provisions. So I am happy to work with you on that.
Senator Gillibrand. I would like you to submit your
recommendations for the record when you have time to consider
it, for all of you actually, how you would write and fix
language specifically about preemption to make sure good work
has been done in other States is not harmed or undermined in
any way. I think that is essential.
So assuming we can address this issue, Mr. Troncoso, what
areas of the CSIA do you feel would aid EPA in regulating
hazardous chemicals? What parts do you think we should build on
that are useful?
Mr. Troncoso. I would join in the comments that we have
heard from the bipartisan consensus here at the Committee. I
think that having a more comprehensive, rigorous testing
program at the Federal level is a good thing. I think we have
been calling for that for some time at the State level. The
State really has filled in the gaps in a lot of respects.
Because of this testing at the State level, which wasn't
done at the State level, many of the examples in my testimony,
the bounce houses in particular, were only uncovered because of
testing at the State level. So we would like to see a more
rigorous Federal program that can exist in a complementary
fashion and cooperative fashion with the States.
Senator Gillibrand. And I would like your recommendations
submitted for the record on that as well.
Mr. Zarker, again, assuming you can address the issue of
preemption, what are the areas of the CSIA do you feel would
aid the EPA in regulating hazardous chemicals, and what would
your No. 1 priority be to fix language within the CSIA?
Mr. Zarker. Well, if we can address the preemption issue, I
think that would be No. 1, to give us more confidence, if the
States can continue to act. Second, I think there are some very
important issues related to privatization, and within
privatization looking at addressing persistent, bioacumulative
and toxic chemicals first.
One of our concerns is that there are so many chemicals
that need to be evaluated, how can we move through that list in
a rapid and efficient manner, and make sure the EPA has the
resources to be able to do that. Because otherwise we could be
here for a long time trying to go through the inventory.
Senator Gillibrand. More broadly, what do you think are the
principles or requirements that an effective chemical safety
act would need to have to be able to be useful?
Mr. Zarker. One of the things I mentioned was the idea of
the States as co-regulators, helping to find a role for the
States in the future. Our State environmental programs are
mature, we have resources at different levels. But we feel that
a State-Federal partnership is really important going forward.
TSCA wasn't set up that way originally. Most States think of it
as a black box. We have an opportunity to real enhance that
role and the States can contribute to that effort.
Senator Gillibrand. An issue that we haven't raised today,
you mentioned that TSCA should be used to promote innovation
and green chemistry as a strategy for future economic growth.
How would you see green chemistry being implemented within the
CSIA?
Mr. Zarker. Again, if we go back to looking at
prioritization, one idea to think about is how we prioritize
chemicals, and maybe a simple analogy is red, yellow and green.
So red chemicals, avoid and move away from toward yellow, safer
choices in the market, and moving toward green. That is an
emerging area of science and really offers opportunities for
our researchers in the universities and to train our next
generation of chemists to be able to think about these things
as they are designing new molecules.
Senator Boxer. That is extremely interesting. I want to
thank our panel.
I wanted to say to Senator Vitter, Senator Udall and
Senator Gillibrand, during this time, we found that, because
Senator Udall makes a point that, what good does Prop 65, what
good does it do his people. I am going to give you a specific
case in point. Under 65, they test a lot of products in
California. They tested baby bibs in 2007. They found out they
contained lead. So they were banned in California and guess
what, taken off all the shelves nationwide.
So I think it is important that the States that do move
more aggressively do have an impact on our people all over this
great Nation. I don't know about the bounce houses, we have
asked about that, Senator Gillibrand, whether or not as a
result of this they have changed the vinyl in the bounce
houses, that they have taken the lead out.
But I am so encouraged that we seem to have this bipartisan
agreement, and we are going to fix preemption. I am so grateful
to all of you for being here today. We all are going to make
sure that the attorneys general who have written to us so
eloquently about preemption will take a look at the new
language that we can agree on here and make sure it does what
we say. The devil is in the details always.
I am not gray, I amazingly turned blonde instead of gray.
[Laughter.]
Senator Boxer. But I have to admit, I have been here 20
years. So the devil is in the details. Thank you all very, very
much, and I will ask the next panel to come forward, please.
Our friends are coming forward, I want to announce for
Senators who are here, our vote begins in just about a few
minutes. So I am going to start this, and if people could sit
really fast, my goal is to get through this entire panel. I may
not be able to do that. Paul will let us know when the vote
starts.
First we are going to hear from Mr. Daniel Rosenberg,
Senior Attorney, National Resources Defense Council. Please get
started while your colleagues are getting seated, because we
must move along. Go ahead.
STATEMENT OF DANIEL ROSENBERG, SENIOR ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL
Mr. Rosenberg. Chairman Boxer, Ranking Member Vitter and
members of the Committee, thank you for the opportunity to
testify on this important issue.
The Toxic Substances Control Act is the one foundational
environmental law from the 1970s that is almost universally
considered to be broken. For years it has been a virtually dead
letter in dealing with chemicals that were already on the
market when the statute was enacted. The law makes it difficult
for the Environmental Protection Agency to obtain the
information it needs to adequately assess newer chemicals.
The result is that public exposure to potentially harmful
substances has grown even as science has learned more about the
manifold ways chemicals can affect human development,
contribute to disease and harm the environment.
Virtually every witness invited to testify before the
Committee on the issue TSCA over the past several years has
agreed that the law needs to be substantially reformed. It
sounds like we are going to hear that again today. The most
recent proposal before the Committee, I think you all know, to
reform TSCA is the Chemical Safety Improvement Act, S. 1009.
Ever since the bill was introduced, NRDC has had two major
points about this bill, and they need to be understood
together. First, the bill as currently drafted has fundamental
weaknesses that would prevent it from enhancing chemical
safety. Second, we are willing to work to improve the bill. The
CSIA has opened the door to developing an effective bill that
could garner broad support. NRDC does not want to walk by that
door or slam it shut.
I discuss a number of the billings failings at length in my
written testimony, but let me mention some of the key ones
here. First, CSIA does not set any deadline or minimum
requirements for prioritizing, assessing or making decisions on
whether to regulate chemicals. Enforceable deadlines, which
should include minimum requirements, are the key to statutory
effectiveness, as experience has long shown. In a world of
competing priorities and political pressures, nothing happens
without a deadline.
Second, the CSIA requires EPA to develop multiple
overlapping frameworks, procedures and criteria. The result
would be to tie EPA in knots for several years before it could
even begin to prioritize which chemicals to assess. It is not
clear how much of this is by design. What is clear is that the
bill as currently drafted will require EPA to spend a lot of
time and resources reinventing the wheel, not once, but
multiple times instead of reviewing or regulating chemicals.
Third, the CSIA would vastly broaden the current State
preemption provisions of TSCA. Among other problems, States
could be prohibited from imposing new restrictions on high
priority chemicals used before EPA takes any action. Think
about that. Under the bill, EPA recognizing a high priority
threat is actually a signal for States to stop taking action,
even though EPA may be years away from even proposing any
protection. How does that help the public?
Fourth, the CSIA does not require that EPA safety standards
or determinations be protective of vulnerable populations,
including women, children and workers. This is in the context
of retaining the problematic safety standard of unreasonable
risk that is currently in TSCA. And the CSIA contains no
mechanism for expediting action on chemicals known to be
unsafe, including asbestos and PBTs.
As I have said, these problems do not mean that work on
this bill should stop. The CSIA takes some steps in the right
direction in terms of requiring EPA approval of new chemicals,
making it easier for EPA to get information from chemical
companies, and removing cost as a factor in risk assessment.
But the bill is written in a way that raises questions about
whether those provisions would work as advertised, and then
negates their overall impact because of the problems I have
just enumerated.
The reaction to this should not be to throw up our hands,
but to roll up our sleeves. This Committee should make TSCA
reform top priority. CSIA signals both that many members
believe it is worth trying to make progress and that there is
still a lot of work to be done. NRDC looks forward to working
with any and all Senators who are interested in pursuing real
reform, reform that will truly advance and enhance protection
of the public, while giving the chemical industry the certainty
it seeks from an efficient and effective process for
prioritizing, assessing and regulating chemicals.
Thank you again for inviting me here to testify.
[The prepared statement of Mr. Rosenberg follows:]
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Senator Boxer. Thank you very much to the NRDC.
Mr. Thomas McGarity, Professor of Law, University of Texas
in Austin.
STATEMENT OF THOMAS O. McGARITY, JOE R. AND TERESA LOZANO LONG
ENDOWED CHAIR IN ADMINISTRATIVE LAW, UNIVERSITY OF TEXAS SCHOOL
OF LAW
Mr. McGarity. Thank you, Madam Chairman, and I thank all
the Committee members who are here for inviting me.
I am pleased to speak about the need to fix TSCA. I think
there is general agreement that TSCA is a broken statute.
Unfortunately, in looking at S. 1009, as written, I think it
may make a bad situation worse. But I agree with most of the
folks who have talked today that it can be fixed.
One of the provisions in TSCA that really hasn't been
broken and we haven't seen much controversy about is the
preemption section. It has a preemption section that has worked
reasonably well. I wrote a book about preemption several years
ago. I didn't have to talk about TSCA in that book, really much
at all, because it had a preemption provision that was working
reasonably well.
We have heard from the States' attorneys general and
various representatives of the States about the problems of S.
1009 by way of preempting State regulatory agencies. Let me
speak then about the provisions in S. 1009 that I think could
deprive victims of their day in court.
S. 1009 will require State courts to admit EPA safety
determinations as evidence in both civil and criminal trials,
and, this is interesting, preclude State judges and juries from
concluding that a chemical declared safe by EPA is unsafe for
purposes of imposing liability on manufacturers, et cetera. I
have been teaching torts and environmental law for 36 years
now, so I do have some gray hairs as well. I have never seen a
proposal for such an intrusive interjection of Federal law into
the day to day administration of justice at the State level.
Now, as I said, I wrote a book about it several years ago.
I haven't seen any evidence that the rules of evidence in the
State courts are giving problems. I think the provisions
basically are a gift of partial immunity to the manufacturers
who are fortunate enough to have their chemicals declared safe
by EPA.
Now, the bill also addresses grandfathered chemicals, and
that is great. The bill needs to address grandfathered
chemicals, those chemicals that have been around that we
haven't gotten testing for. It gives the appearance of a
systematic mechanism for prioritizing and evaluating the tens
of thousands of chemicals that haven't been tested, but I think
appearances can be deceiving in this regard.
We have a number of jobs that EPA has to do before it ever
starts requiring testing, much less taking a chemical off the
market or regulating a chemical. So we have to have a chemical
assessment framework created. We have to have criteria for
evaluating the quality of individual studies promulgated. We
have to have a risk-based screening process set up. We have to
have a science-based methodology for conducting safety
assessments, and a structured evaluative framework for deciding
what action to take based on these safety assessments.
Take it from someone who has been observing this for over
35 years, if the statute does not subject EPA to reasonable and
judicially enforceable deadlines, the agency will be evaluating
methodologies and conceptualizing frameworks for the next
decade or two. I saw it at EPA when TSCA was first enacted in
1976, and we spun our wheels for well over a year as the
program office conceptualized about what TSCA was supposed to
be doing.
I think that the safety test set out in S. 1009 takes away
the least burdensome requirement. But that doesn't really go to
the heart of what I think is the problem with Corrosion-Proof
Fittings, which is the unreasonable risk test. I think the bill
could be much improved by changing that standard to one that we
put in the Food Quality Protection Act back in 1996,
``reasonable certainty of no harm,'' which is also in the Food,
Drug and Cosmetics Act.
One thing that hasn't been mentioned, and I think this has
always been a problem with TSCA, is that we have had judicial
review that has been incredibly activist. We have had
essentially one case that neutered Section 6, and it was
written by the Fifth Circuit. What contributed to that, I
think, is the designation of the standard of review in TSCA of
being the ``substantial evidence'' test, which is usually used
for formal adjudications, and not rulemaking.
I think if you just changed the test to ``arbitrary and
capricious,'' which is usually the test for rulemaking, you
would send a message to the courts that we don't want you
intruding so much with this new statute. I think that is very
important.
Thank you very much.
[The prepared statement of Mr. McGarity follows:]
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Senator Boxer. Thank you so much.
Our next speaker is Ms. Linda Fisher, Vice President of
Safety, Health and Environment, and Chief Sustainability
Officer at the DuPont Company.
Senator Carper. Madam Chairman, could I just say a brief
word before she speaks?
Senator Boxer. Very brief word, Senator.
Senator Carper. I just want to welcome you all. I
especially want to welcome Linda, whom I have known for
forever, and the great work that you did at the EPA when
Christie Whitman was EPA Administrator. Thank you for that and
wearing the white hat at DuPont. Thanks very much.
Senator Boxer. Thank you for being here representing
DuPont.
STATEMENT OF LINDA J. FISHER, VICE PRESIDENT AND CHIEF
SUSTAINABILITY OFFICER, DuPONT
Ms. Fisher. Thank you, Madam Chairwoman, Ranking Member
Vitter and members of this Committee. My name is Linda Fisher
and I am the Vice President and Chief Sustainability Officer at
DuPont.
It is a pleasure to testify before you today on the
importance of reforming TSCA.
DuPont, as you know, is a broadly diverse company. We
operate in over 90 countries around the world. We have about
620 employees whose responsibility it is to keep DuPont in
compliance with the emerging growth of product regulations
globally.
Like my colleague, Steve Owens, next to me, I did have the
privilege of serving at EPA as the Assistant Administrator for
what was named during my tenure the Office of Prevention
Pesticides and Toxic Substances. Steve then changed the name.
So I have had the experience of working both as a regulator and
a regulated entity under this statute. I can tell you, it
doesn't matter where you said, TSCA is a very difficult
statute. So I am very grateful for the work up here in the
Congress to reform TSCA that was begun under the late Senator
Lautenberg and has continued under your leadership, Chairman
Boxer.
TSCA is a critically important statute to protecting public
health and the environment. It is a critically important
statute to American jobs and innovation. So I want to express
my appreciation for the work, Senator Vitter, that you have
done with Senator Lautenberg to introduce the Chemical Safety
Improvement Act with bipartisan support.
With each passing year, TSCA becomes more and more
outdated. Our scientific understanding of chemicals and the
public awareness of exposure has changed significantly since
enactment. Governments around the world with economies as
diverse as China, Korea, Turkey, Canada, not to mention the EU,
have all passed comprehensive regulatory programs. But their
regulations are not as transparent as our programs here at
home. So it is very important that we give EPA the tools they
need to become a leader, a global leader in chemical
regulation.
Without effective EPA regulation, we do see increasing
numbers of State by State, chemical by chemical bans and
restrictions. That makes it very difficult and introduces a lot
of uncertainty into our business.
In addition, consumers are more and more asking for data
around the safety of products. Many of our customers are
responding to concerns by doing their own bans. So we as an
industry are subject to a lot of ``private regulations'' which
are taking over because of the lack of a strong Federal
program.
It is time to reform TSCA. I think the Chemical Safety
Improvement Act gives us the vehicle to do that. It does it a
number of ways. First of all, it is the first time that EPA
would be directed to systematically review and regulate all
existing chemicals that are not under TSCA, and it would bring
the U.S. up to pace with other countries. It streamlines the
data gathering authority to make it much easier for EPA to get
data from companies.
It streamlines EPA's authority to identify and act on
chemicals that pose safety concerns. It separates the safety
assessment and safety determination on high priority chemicals
from the risk management process. I think that is a big step
forward. Although it wisely, I think, leaves in place the
current safety standard.
The challenge to the implementation of Section 6, to me,
was never the safety standard. It was the ``least burdensome''
requirements that made Section 6 unmanageable. I think the bill
addresses this by providing clear authority for the agency to
separate those decisions.
However, I think as the bill goes through Congress, it will
be important to both clarify and ensure that the provisions of
the new Section 6 do not create the ``paralysis by analysis''
that has hindered EPA in the past.
I think the CBI improvements in this bill are significant.
They do balance our need for CBI with the importance of being
able to share data, particularly with State governments. I
think opening up the ability for EPA and State governments to
look at and analyze data at the same time will allow a much
more collaborative approach to setting standards. I don't think
that should be under-appreciated.
We understand that there are stakeholders that you noticed
earlier, who have concerns about the bill. We would be happy to
work with everybody to address some of the changes that need to
be made to get this bill through Congress.
We do have a very unique opportunity before us to pass
comprehensive TSCA reform. I would really hate to see this
opportunity pass. So I look forward to working with you, Madam
Chairman, and other members of the Committee, so that we can
make the improvements to TSCA that are so necessary.
[The prepared statement of Ms. Fisher follows:]
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Senator Boxer. We look forward to that.
Mr. Owens, Of Counsel, Squire Sanders, LLP.
STATEMENT OF STEPHEN A. OWENS, SQUIRE SANDERS (US) LLP
Mr. Owens. Good morning, Chairman Boxer, Ranking Member
Vitter and members of the Committee. I appreciate the
opportunity to be here with you today.
I want to thank you also for your leadership on this very
important issue and for your efforts to reform the Toxic
Substances Control Act.
As Linda mentioned, from July 2009 until late 2011, I
served as the Assistant Administrator in charge of EPA's Office
of Chemical Safety and Pollution Prevention, appointed by
President Obama and confirmed by the U.S. Senate. I am now with
the law firm of Squire Sanders, based in our Phoenix, Arizona
office.
Although I am a former EPA official, my testimony
represents my own personal views and not the views of EPA or
any other organization or entity.
Prior to joining EPA, I served as Director of the Arizona
Department of Environmental Quality in the cabinet of Governor
Janet Napolitano. As DEQ director, I was active in the
environmental counsel of the Environmental Council of the
States, which is the national State environmental directors'
association. I served as ECOS' president during my final year
in office.
As the father of a child with asthma, protecting children
from exposure to toxic chemicals and pollutants was one of my
top priorities at both DEQ and EPA. As Assistant Administrator,
I was responsible for EPA's implementation of TSCA. I helped
develop the Obama administration's principles for TSCA reform.
During my time at EPA, we took a number of important
actions to use the existing authority under TSCA more fully.
While we made some progress using TSCA's authority, it was and
is abundantly clear to me that TSCA is fundamentally flawed and
must be fixed if the American people are going to be assured
that the chemicals to which their families and children are
exposed every day are in fact safe.
Simply put, it is time to bring TSCA into the 21st century.
TSCA is 37 years old, and it is clearly showing its age and its
limitations. When TSCA was enacted in 1976, it grandfathered
roughly 62,000 chemicals without any evaluation whatsoever. Few
of those chemicals have been evaluated since.
In fact, TSCA does not require EPA to conduct safety
assessments or make safety determinations about any chemicals
at all. It puts the burden on EPA to demonstrate essentially
that a chemical is unsafe before the agency can take action on
it.
In addition, TSCA does not give EPA adequate authority to
require testing of chemicals or reevaluate existing chemicals
as new concerns arise or science advances. As a result, as has
been said here today, EPA has been able only to require testing
on just a little more than 200 of nearly 85,000 chemicals that
are now listed on the TSCA inventory.
It has also proven difficult to take action on chemicals
found to cause unreasonable risk. EPA has significantly limited
or banned only five chemicals under TSCA because of the tough
obstacles the law creates to quick and effective actions.
Actually one of those five was asbestos, and we all know what
happened there.
One reason for this is the requirement for EPA to use the
least burdensome alternative to address a chemical risk.
Indeed, the hurdles in TSCA are so high that EPA has not even
attempted an action under TSCA Section 6 in the last 22 years.
Because of its many shortcomings, TSCA really should be
called the Toxic Substances Conversation Act.
[Laughter.]
Mr. Owens. There has been a lot of talk about regulating
chemicals over the years, but not much real action, although
EPA has certainly tried enough.
I believe that TSCA should be revised consistent with the
Administration's TSCA reform principles. Chemicals should be
prioritized and reviewed against a risk-based safety standard
that is protective of human health and the environment,
including vulnerable populations. Industry should be required
to provide data to demonstrate that their chemicals meet the
safety standard. EPA should have greater authority to obtain
chemical data and to take action to address unreasonable risks.
Requirements for confidentiality claims should be tightened,
and EPA should be allowed to share critical data with States
under appropriate safeguards.
The introduction of the Chemical Safety Improvement Act by
a bipartisan group of Senators was a significant breakthrough
in the effort to strengthen chemical regulation and protect the
public from unreasonable chemical risks. As the EPA Assistant
Administrator charged with TSCA's implementation, like Linda, I
know first-hand the statute's many shortcomings. The Chemical
Safety Improvement Act is, in my opinion, a significant
improvement over the current outdated law.
Finally, Madam Chair if I may just take a moment, I would
like to say that one of the great joys I had while I was at EPA
was getting to know the late Senator Frank Lautenberg and
having the opportunity to work with him on chemical safety
issues. We all miss him very, very much, and I know that his
presence is felt very much in this room.
Thank you again for the opportunity to be here, and I look
forward to answering any questions you may have.
[The prepared statement of Mr. Owens follows:]
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Senator Boxer. Thank you. Our next witness, Ms. Linda
Reinstein, Executive Director and Co-Founder, Asbestos Disease
Awareness Organization. She took action after suffering a
grievous loss, and we are very honored that you are here with
us.
STATEMENT OF LINDA REINSTEIN, PRESIDENT, CO-FOUNDER, ASBESTOS
DISEASE AWARENESS ORGANIZATION
Ms. Reinstein. Thank you very much for giving me the honor
and the opportunity to testify.
I know far too well that toxic chemicals are not just
threats. They are a real part of life and death for many
Americans. I want to make it clear: I am neither an attorney
nor a lobbyist. I am a mesothelioma widow and the co-founder of
the Asbestos Disease Awareness Organization, ADAO. Founded in
2004, we are now the largest independent, non-profit
organization dedicated to eliminating asbestos-caused disease.
This is about people.
I would like to dedicate my testimony to Janelle and
Michael. Tragically, Janelle lost her mesothelioma battle just
last month at the age of 37, and leaves behind a husband and a
son, age 10. Michael is 29 years old, fighting for his life
with limited treatment options.
Neither Janelle nor Michael worked with asbestos. Not at
all. No longer is it just workers that are being diagnosed, but
it is their families. It is children who have hugged their
parents or spouses who have washed their clothing.
My husband Alan was diagnosed with pleural mesothelioma in
2003. We had never heard of the disease and thought asbestos
had been banned. We shortly learned Alan's disease was
incurable. He chose to have an extrapleural pneumonectomy. They
removed a rib, his left lung, stripped off his periocardium and
surgically replaced his diaphragm in hopes for more time.
When mesothelioma attacked his remaining lung, it felt to
Alan that he was breathing through a pinched straw every
breath, every day. When his oxygen levels became critically
low, he was then tethered to supplemental oxygen in hopes for
more time.
In 2006, Alan lost his fierce battle. His breath ceased in
front of my daughter, who was then 13, and me by his side. TSCA
has failed to protect public health and our environment.
Asbestos is a known carcinogen, and has caused one of the worst
man-made disasters in history. The facts are irrefutable.
Thirty Americans die every day from these preventable diseases.
The WHO, ILO, EPA, our Surgeon General all agree there is no
safe level of asbestos. The fibers are odorless,
indestructible, nearly invisible and can be 700 times smaller
than human hair.
It is clear all forms of asbestos can cause cancer or
respiratory diseases. Yet it remains legal and lethal in the
U.S. today. Ships dock in our ports and unload asbestos in the
States of Louisiana, Texas, California and New Jersey, just to
name a few. USGS keeps us informed and it is reported that over
1,000 metric tons of asbestos was used in 2012. And the
chloralkali industry is actually using more in the last 2
years. There are viable and affordable substitutes that indeed
exist.
Without regulation, Americans cannot manage the risk of
asbestos or any other toxic chemicals. I ask you, do you know
where the asbestos is in your home, in your cars? In
Washington, and maybe on consumer shelves? We know consumer,
environmental and occupational exposure continues. We
identified five consumer products on the store shelves, one was
a child's toy. Thanks to Prop 65, we were able to remove that
toxic toy from commerce.
It was reported that 2,600 tons of asbestos debris was
removed after the Joplin, Missouri tornado. Toxic debris, tons
of it, litters the coastline after Hurricane Sandy. Right here
under the Capitol, 10 AOC employees were exposed to asbestos.
It was so thick they could write their name on the pipe. Each
year, an estimated 10,000 Americans die from these preventable
diseases. And I am here to tell you that for each life lost, a
shattered family is left behind. Prevention is the only cure.
Americans need and deserve legislation to prevent toxic
exposure. But S. 1009 is worse than the current law. It is
fatally flawed. It would be nearly impossible to ban asbestos.
The lack of deadlines would definitely compromise safety. And
we do not need to lose Prop 65 and have preemption impact laws.
Congress should draft and pass meaningful TSCA reform that
truly strengthens the protection for our families and the
environment by preventing further use of asbestos. One life
lost to a preventable disease is tragic. Hundreds of thousands
of lives lost is unconscionable. I have attached a petition
with over 2,500 signatures in support of a U.S. ban of
asbestos. I would welcome any of your questions.
Thank you very much.
[The prepared statement of Ms. Reinstein follows:]
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Senator Boxer. Thank you. Our vote started at 10:15. We are
going to move forward with this panel. Ms. Robin Greenwald, Of
Counsel, Weitz & Luxenberg.
STATEMENT OF ROBIN L. GREENWALD, OF COUNSEL, WEITZ & LUXENBERG
Ms. Greenwald. Thank you, Madam Chairman, Ranking Member
Vitter and members of the Committee, for the opportunity to
testify today.
I have practiced in the field of environmental law for
almost 30 years of my legal career, and I am also a mother.
Much of my work has been driven by the belief that we all have
an obligation to protect public health for all segments of our
population.
I wholeheartedly support efforts to reform the Toxic
Substances Control Act. While my support for TSCA reform is
unwavering, my view is that the recently proposed bill, S.
1009, as it is currently written, takes chemical safety reform
several steps backward. While CSIA as currently drafted has
numerous flaws, I am going to focus my comments on a few of the
infirmities.
No. 1, the bill attempts to have EPA solely occupy the
field of toxic substance regulation, but provides no assurances
that there will be any better protection for the public health
after enactment than before. Number two, the bill precludes
people from bringing actions against chemical manufacturers for
injuries, wiping out State statutory and common law, and by
making EPA safety determinations dispositive of the chemical
safety.
No. 3, the bill takes the unprecedented step of preempting
States from enforcing existing laws and/or promulgating new
laws designed to supplement Federal laws regulating toxic
chemicals. And No. 4, the bill effectively blocks any other
entity from evaluating any chemical deemed by the EPA as a low
priority substance, even after other health evidence comes to
light.
To summarize, the bill essentially banks on the assumption
that chemical manufacturers will always act in the interest of
public safety by being candid and forthright and disclosing all
information they have amassed about their chemicals and their
potential danger for use. History teaches all of us that
industry cannot necessarily be trusted to place public health
above their bottom line. For example, chemical manufacturers
engaged in a widespread cover-up of the evidence they had of
vinyl chloride's health risk. When people increasingly became
sick from exposure to vinyl chloride in the workplace, lawsuits
were filed that uncovered decades of deceit by the chemical
industry about the dangers of vinyl chloride.
Industry leaders knew and failed to disclose as early as
the 1950s, when a Dow Chemical toxicologist admitted privately
to his counterpart at B.F Goodrich, ``We feel quite confident
that 500 parts per million is going to produce rather
appreciable injury when inhaled 7 hours a day, 5 days a week
for an extended period. As you can appreciate, this opinion is
not ready for dissemination yet, and I would appreciate it if
you would hold it in confidence, but use it as you see fit in
your own operations.''
We now know the evidence to support the finding that vinyl
chloride causes cancer of the lungs, liver and brain had
existed decades earlier, but had been intentionally suppressed
by the very industry that this bill would shield from
liability.
Neither OSHA nor EPA can bring this type of information to
light. They don't have the funds or the authority to dig into
the closets of large corporations to find suppressed health
studies. However it is largely disclosed through litigation,
the judicial process upon which all citizens rely and what
allows victims of wrongdoings to unveil information that would
otherwise never been seen. How else would this evidence ever be
uncovered?
The multilayered preemption language woven throughout this
bill does not simply prevent State agencies from duplicating
the work of the EPA, it would rather eviscerate State laws,
including the ability of citizens to bring a lawsuit against a
chemical company under his or her State. Under this section, if
the EPA takes any action on a chemical, State laws and State
tort liability would be wiped out and Americans would have no
remedy if they are harmed or killed by a toxic chemical.
Further, Section 15 of the bill effectively bars
individuals from bringing suits for injuries caused by exposure
to approved chemicals by providing an EPA safety determination
for a high priority substance shall not only be per se
admissible in any State or Federal court, but also
determinative of whether the substance meets the safety
standard. By dictating the admissibility and weight that the
EPA safety determination must be given, must be given in a
judicial proceeding, the proposed bill effectively shields the
chemical industry from lawsuits for injuries caused by their
products.
Such preemptive treatment in the environmental law arena is
unprecedented, as there is good reason why such sweeping
preemption language exists nowhere else. Federal statutes quite
properly set the floor for regulatory compliance. They should
not impose a ceiling, as such would strip the States of their
police power to protect their citizenry. The bill in several
ways steps back in time to an era where industry safety claims
about their products went unchallenged. The public health and
welfare should not be entrusted to chemical manufacturers
regulated by a Federal agency with limited powers and
resources.
Thank you.
[The prepared statement of Ms. Greenwald follows:]
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Senator Boxer. OK, we are going to finish this panel and
then we will ask you to take a lunch break and we will be back
at 1 o'clock to start our questions.
Let's move to Mr. Mark Duvall, Principal, Beveridge &
Diamond, P.C.
STATEMENT OF MARK N. DUVALL, PRINCIPAL, BEVERIDGE & DIAMOND,
P.C.
Mr. Duvall. Thank you, Madam Chairwoman and members of the
Committee, for inviting me to provide testimony today.
Although I represent a variety of clients on TSCA issues, I
am appearing here today solely in my personal capacity. The
views I express today are my own. For clarity, in my appearance
here today I am not representing my law firm or any client of
my law firm.
I have worked with the Toxic Substances Control Act for 30
years. We have heard today a lot about the preemption provision
of S. 1009. Let me add my perspective.
It is a strong preemption provision. That is appropriate
for a statute such as TSCA, that is largely aimed at managing
the risks of chemicals that may become components of products
distributed across the Nation. State product restrictions
effectively become national standards. Since manufacturers
generally cannot vary the content of their products by State,
it is better for EPA to set national standards.
The CSIA shifts the focus of regulation of chemicals in
products from individual States to the national level. At the
same time, it creates an important role for States in EPA's
evaluation and regulation of chemicals. Under the bill, States
have access to confidential business information, thus
facilitating dialog with EPA.
A State many nominate a chemical about which it has concern
for immediate prioritization. And it may provide critical data
to inform EPA's decisionmaking process.
In evaluating CSIA's preemption provision, it is also
important to recognize the limited scope of that provision.
First and foremost, it does not preempt any State or local
requirements that apply to multiple chemicals. Instead, at
most, it preempts the application of those requirements to
specific chemicals after EPA takes action on those chemicals.
Second, it does not apply to State or local requirements
related to water quality, air quality or waste management.
Thus, State environmental laws will generally remain
unaffected. Third, it does not apply to State or local
requirements related to the end of life of chemicals or
products. Thus, recycling, product take-back and disposal
restrictions will not be preempted.
Fourth, it does not preempt reporting requirements. This
means that most State green chemistry laws will not be
preempted. For example, under the proposed California Safer
Consumer Products regulations, responsible entities must notify
the Department of Toxic Substances Control if they sell a
listed priority product containing a chemical of concern. That
is a reporting requirement. So is the requirement that they
prepare and submit an alternatives analysis.
Only a DTSC restriction on their use of a chemical in a
priority product would be preempted by EPA action on that
chemical. That restriction would come only after DTSC's
evaluation of the alternatives analysis and might not come at
all, since the notification and alternatives analysis
requirements are intended to encourage responsible entities to
redesign their priority products or to remove them from the
market.
Fifth, the scope of a safety determination limits the scope
of preemption. The safety determination addresses some uses but
not others. State restrictions on the uses not addressed would
not be preempted.
Sixth, the provision allows for waivers. If EPA agrees that
certain criteria are met, it may waive preemption at a State's
request. One criterion is that compelling State or local
conditions justify that waiver. OSHA has determined under its
preemption provision that the phrase ``compelling local
conditions'' does not require uniquely localized risks. In its
view, compelling local conditions are conditions which exist
locally. EPA is likely to agree.
The preemption provision would also not have a significant
impact on tort suits. It would not preempt them, nor would it
determine their outcomes. It is clear that there is no
intention to preempt tort suits, since the provision also
relates to the use of safety determinations in tort suits. To
clarify the intended scope, it may be appropriate to amend it
to refer to State or local ``statutes and administrative
actions,'' rather than the broader term ``restrictions.''
The provision would make a safety determination
determinative of whether the chemical meets the TSCA safety
standard. That would not control the outcome of tort suits.
There the question is usually whether the defendant violated a
common law duty, not whether it met the safety standard under
an amended TSCA.
In conclusion, the preemption provision of the Chemical
Safety Improvement Act will help level the playing field for
products sold throughout the Nation without crippling State
green chemistry laws, or limiting tort suits. Thank you for
considering this testimony, and I welcome your questions.
[The prepared statement of Mr. Duvall follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thanks. I wanted to clarify, so you are not
representing your law firm?
Mr. Duvall. I am not. I am appearing on my own behalf.
Senator Boxer. I appreciate it. But the fact that they sued
to overturn Prop 65, you are not involved in that lawsuit? You
weren't involved in that lawsuit that your firm was to overturn
Prop 65?
Mr. Duvall. I am not involved in any lawsuit individually.
Senator Boxer. Fine. Not individually, but the firm is, and
we will put that in the record.
Mr. Ken Cook, you will be our final speaker, President and
Co-Founder, Environmental Working Group.
STATEMENT OF KENNETH A. COOK, PRESIDENT, ENVIRONMENTAL WORKING
GROUP
Mr. Cook. Chairman Boxer, distinguished members of the
Committee, thank you for this opportunity to testify. I want to
submit my prepared testimony for the record and summarize it
very briefly and depart just a little bit from the comments to
summarize some of what I have heard and suggest maybe a way
forward here.
When Senator Lautenberg, and years ago, Senator Jeffords, I
think that would be the absolute embodiment of bipartisanship,
introduced what was the Kid Safe Chemicals Act, it was met, for
the most part, with some polite and some not so polite
criticism by industry. To me, the most important development
with the development of S. 1009 is that we now have a much
clearer idea of specifically what it is many in industry have
been seeking beneath the principles that have been enunciated
over the years.
And that is a very helpful development, because now we can
look at all of the ideas that have been offered in these
different categories: exposure, safety standard, preemption and
so forth, and have a pretty good idea of what the range of
views are and the range of opportunities.
My organization maintains the chemical industry archives,
the records of industry's deliberations over the years, some of
which were cited earlier today. My organization has also done
the most extensive work on asbestos in terms of its public
health impacts. And we have tested the umbilical cord blood of
20 babies, the first time anyone has done that, and we have
found hundreds and hundreds of toxic chemicals.
So we have a broad interest and broad research experience
in this. When we looked at S. 1009, of course, we saw one basic
problem. We felt it was going to be tying the agency in knots
still, in some different ways than it is tied in knots now, but
still tied in knots against a much weaker safety standard than
we think. We agree with Senator Cardin, we think it should be
reasonable certainty of no harm, as previous versions of the
bill provided.
And that combined with preemption really resulted in a
situation where literally this reform bill, in our view and the
view of many people, put us in worse shape than, unbelievably
enough, TSCA, the worst environmental statute on the books.
Let me suggest some topics that we can move forward on and
look at the best thinking and see where we can find common
ground. I disagree with Mark on preemption but I think we have
heard today in the hearing, there is tremendous interest in
dealing with this issue. Maybe it was unintended, what have
you, and there may be other sections of the bill where there
was some unintended framing that we can easily deal with.
We need to deal with asbestos, for goodness sake. We need
to ban asbestos. Two, we need to understand more about chemical
exposure. We may be trying to regulate a lot of chemicals that
people aren't exposed to. Shouldn't we know that before we move
ahead? Shouldn't we be much more intensive in our work trying
to understand what is in people, what products these chemicals
are used in?
I had the good fortune and the bad fortune to marry an
environmentalist, Deb Callahan, who is used to scoring people
in this body for their votes. And when I told her that the
children's play tunnel that our little boy, who is now 5, and
he doesn't smoke in there, but it has flame retardants in it,
we don't allow him to smoke in there, I don't know where he
smokes, but we don't allow him to smoke in the play tunnel. It
has flame retardants in it.
And when I told her that, she has a way of looking at me as
if it is my responsibility and I find a score card forming in
her head about my performance on chemical reform, and it is not
very good. We need to know what people are exposed to and we
need to have a much better idea of what the intended use of
these chemicals really is. And time after time, when EPA does
try and take a step, they find that they can't figure out how
exposures have happened, because they don't know how the
chemicals are used.
Clearly, we need the kind of data call-in authority in TSCA
that the agency has for pesticides, straightforward. That is
really the least we can do. The public can't quite believe that
the agency doesn't have the ability, the power now, to say to a
company, by the way, that stuff that's in my child, in his
umbilical cord blood, can you test to see if it is neurotoxic?
And the agency says, well, sure. I have to publish a
regulation. We will give a comment period before we can even
ask for the study. So I am grateful that we have made some
progress. We have all seen the need to do that.
And then finally, we do need some minimum data submitted
for these chemicals. And we have a reasonable belief that there
are many sources of that data.
[The prepared statement of Mr. Cook follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you all. You have been incredibly
important to this hearing. I ask unanimous consent to put in
the record a letter from Trevor Schaefer on the importance of
addressing disease clusters as we move forward.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. So we will see you at 1 o'clock and we will
all have questions for you. Thank you. We stand adjourned until
1.
[Recess.]
Senator Boxer. The hearing will resume.
Senator Manchin, you are recognized for 5 minutes. Thank
you for being here.
OPENING STATEMENT OF HON. JOE MANCHIN,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Manchin. Thank you so much, Senator, and thank you,
Chairman Boxer and Ranking Member Vitter, for holding the
hearing today and allowing me to speak about an incredibly
important piece of legislation, the Chemical Safety Improvement
Act.
I also want to thank Mike Dorsey from West Virginia, who I
understand was here earlier, from the Department of
Environmental Protection, and testified about support for the
CSIA earlier today. We all agree that the Toxic Substance
Control Act, TSCA, is inadequate, and it is long past due to
reform this law. Senator Lautenberg had worked for many years
to do just that. I don't think anyone here today can question
his dedication to protecting the health and safety of
Americans.
That is why I was disheartened when I read news reports
that said members questioned Senator Lautenberg's faculties
during the CSIA negotiations. He entered into these
negotiations with all his years of experience, skills and
wisdom, because he knew that it was time to craft a bipartisan
TSCA reform bill. To suggest otherwise and to attack the
integrity of such a strong defender of public health is
something that should offend all Americans.
Let me be clear: Frank Lautenberg, a champion of public
health, safety and the environment, aligned with the Senate,
negotiated the agreement before you because he knew it was time
to fix this broken system in a way that could pass Congress and
make Americans safer. To say anything else is not fair and is
certainly not true and it dishonors the legacy of Senator
Lautenberg, a great and proud American.
Some people have also argued the bill is worse than current
law. That is just another cheap attempt to try and distort the
tireless work that Senator Lautenberg gave to the bill. When
Senator Lautenberg met with Senator Vitter, he toughened many
of the most important provisions in this bill. He increased
States' rights under preemption. He ensured that doctors and
private citizens, including parents and workers, would have
greater access to confidential business information to
guarantee that those potentially exposed to harmful chemicals
could receive the best possible treatment.
Most importantly, he crafted a safety standard that unlike
current law, and unlike what Senator Vitter wanted, is based
solely on human health and the environment, and includes no
cost benefit analysis.
CSIA will establish for the first time an effective
framework for the EPA to ensure that the chemicals we use every
day are safe for people and for the environment. CSIA will
require safety evaluations for those new chemicals and the
thousands of currently untested chemicals we encounter daily.
It will allow the EPA to take meaningful action against
chemicals that pose a threat to human health and safety. And it
will allow State and local governments to weigh in on the whole
process.
I would like to talk a little more about the last
statement. CSIA balances State authority within a greatly
strengthened Federal system that will allow industry to produce
safer chemicals nationally. It also forces the Federal
Government to finally step up and protect the health and safety
of all Americans, including those in smaller States like West
Virginia, where there are just not sufficient resources for us
to be able to test and regulate the chemicals that need to be
regulated.
These new protections will not come at the expense of the
good-paying jobs provided by the chemical industry. However, on
the contrary, CSIA will finally provide the regulatory
certainty that we need for continued economic growth,
innovation and job creation. The chemical industry directly
employs over 9,000 hard-working people in my State of West
Virginia and hundreds of thousands more across the United
States. More than 48,000 West Virginians are employed by
sectors that rely on the chemical industry for their business.
And one-quarter of our Nation's GDP comes from these chemical-
reliant industries.
CSIA will protect not only these jobs and their
contributions to the American economy, but also protect the
welfare and well-being of the American public.
I have been in the legislative process since 1982, Madam
Chairman, working with colleagues on both sides of the aisle to
reach commonsense compromises. Never once have I ever had a
perfect bill before me. I don't know what a perfect bill even
looks like, but I know when I decide to vote for a bill I ask
myself three things. Will this improve the quality of life for
my constituents? Is it better than the status quo? And have we
worked as hard as we can to preserve our core beliefs?
For me, CSIA is a yes on all three of those. Senator
Lautenberg was a smart legislator who knew it was time to move
past partisan politics and craft a bill that would finally
protect all Americans. We all know that Senator Lautenberg
viewed TSCA reform, he viewed this bill as his legacy. He
worked tirelessly for years leading up to his final days in the
Senate to craft this bipartisan legislation that will protect
the health and safety of all Americans. I am proud to be a
small part of this legislation, and I will continue to fight
for the legacy of my friend, Senator Lautenberg.
I look forward to continuing to work with my colleagues on
both sides of the aisle and I am very encouraged by the
commitment that Senator Vitter and Senator Udall have made to
move CSIA forward in truly a bipartisan manner. I encourage the
Committee to send this bill to the floor. Thank you, Madam
Chair.
[The prepared statement of Senator Manchin follows:]
Statement of Hon. Joe Manchin,
U.S. Senator from the State of West Virginia
Thank you, Chairwoman Boxer and Ranking Member Vitter, for
holding this hearing today and for allowing me to speak about
an incredibly important piece of legislation--the Chemical
Safety Improvement Act.
I also want to thank Mike Dorsey, from the West Virginia
Department of Environmental Protection, who came to Washington
to testify about his support for CSIA earlier today.
We all agree that the Toxic Substances Control Act--TSCA--
is inadequate and that it is long past due to reform this law.
Senator Lautenberg had worked for many years to do just that--I
don't think anyone here today can question his dedication to
protecting the health and safety of Americans. That's why I was
disheartened when I read news reports that some members of this
Committee questioned Senator Lautenberg's faculties during the
CSIA negotiations. He entered into these negotiations with all
his years of experience, skills, and wisdom, because he knew
that it was time to craft a bipartisan TSCA reform bill. To
suggest otherwise and to attack the integrity of such a strong
defender of public health is something that should offend all
Americans.
Let me be clear, Frank Lautenberg, a champion of public
health, safety and the environment, a lion of the Senate,
negotiated the agreement before you because he knew it was time
to fix this broken system in a way that could pass Congress and
make Americans safer.
To say anything else is not fair, not true, and dishonors
the legacy of Senator Lautenberg, a great and proud American.
Some of the same people have also argued that this bill is
worse than current law. That is just another cheap attempt to
try and distort the tireless work Senator Lautenberg gave to
the bill.
When Senator Lautenberg met with Senator Vitter, he
toughened many of the most important provisions in this bill.
He increased States' rights under preemption. He ensured that
doctors and private citizens, including parents and workers,
would have greater access to confidential business information
to guarantee that those potentially exposed to harmful
chemicals could receive the best possible treatment. Most
importantly, he crafted a safety standard that, unlike current
law and unlike what Senator Vitter wanted, is based solely on
human health and the environment and includes no cost-benefit
analysis.
CSIA will establish, for the first time, an effective
framework for the EPA to ensure that the chemicals we use every
day are safe for people and for the environment. CSIA will
require safety evaluations for both new chemicals and the
thousands of currently untested chemicals we encounter daily.
It will allow the EPA to take meaningful action against
chemicals that pose a threat to human health and safety. And it
will allow State and local governments to weigh in on the whole
process.
I'd like to talk a little more about that last statement.
CSIA balances State authority within a greatly strengthened
Federal system that will allow industry to produce safer
chemicals nationally. It also forces the Federal Government to
finally step up and protect the health and safety of all
Americans, including those in smaller States like West
Virginia, where there are just not sufficient resources to test
and regulate the chemicals that need to be regulated.
These new protections will not come at the expense of the
good paying jobs provided by the chemical industry, however. On
the contrary, CSIA will finally provide the regulatory
certainty we need for continued economic growth, innovation,
and job creation. The chemical industry directly employs over
9,000 hardworking people in my State of West Virginia and
hundreds of thousands more across the United States. More than
48,000 West Virginians are employed by sectors that rely on the
chemical industry for their business, and one-quarter of our
nation's GDP comes from these chemical-reliant industries. CSIA
will protect not only these jobs and their contributions to the
American economy, but also protect the welfare and well being
of the American public.
I have been in the legislative process since 1982, working
with colleagues on both sides of the aisle to reach commonsense
compromises, and never once have I had a perfect bill before
me. I don't know what a perfect bill looks like, but I know
when I decide to vote for a bill I ask myself three things:
will this improve the quality of life of my constituents; is it
better than the status quo; and have we worked as hard as we
can to preserve our core beliefs. For me, CSIA is a yes on all
three of those. Senator Lautenberg was a smart legislator who
knew it was time to move past partisan politics and craft a
bill that would finally protect all Americans.
We all know that Senator Lautenberg viewed TSCA reform--
viewed this bill--as his legacy. He worked tirelessly for years
leading up to his final days in the Senate to craft this
bipartisan legislation that will protect the health and safety
of all Americans. I am proud to be a small part of this
legislation, and I will continue to fight for the legacy of my
friend Senator Lautenberg. I look forward to continuing to work
with my colleagues on both sides of the aisle and I am very
encouraged by the commitment that Senator Vitter and Senator
Udall have made to move CSIA forward in a truly bipartisan
manner. I encourage the Committee to send this bill to the
floor.
Senator Boxer. Thank you, Senator. We all wish so much that
Senator Lautenberg could be here with us. I want to say, I
worked with him for 20 years and wrote four TSCA bills with
him, four, and worked with him on numerous other things. I want
you to know what a tough loss it is for all of us on this
Committee. This morning each of us spoke about his legacy and
each of us is going to work to make sure that that legacy is
addressed. And his spirit will certainly guide us in every way.
I want to thank you for coming, I want to thank you for
your work. We look forward to working with you.
I want to also say, the West Virginia witness was just
terrific. He was clear, he made his point and he also said he
felt that we can really fix the major problems that a lot of us
have with the bill in terms of States' rights and victim
rights. You would have been proud of him, he had your message
on why this is key to the States. I want to thank you for
recommending him if you did, in fact.
Senator Manchin. Yes, we did. I want to thank both of you,
Senator Vitter and Madam Chairman, for allowing me to speak.
And also for committing to continue on Frank Lautenberg's work.
I appreciate it very much.
Senator Boxer. Thank you so very much.
Now we are going to turn back to our esteemed panel. Ms.
Fisher and I were talking, and she said she felt the way the
bill was drafted, S. 1009, that there was no problem getting
the regulations up and running at EPA. Others of you said you
looked forward and thought it would be a terrible tangle and
very difficult. Ms. Fisher, why do you think that the way the
bill is currently drafted it would be easy to get this up and
running and the chemicals rated, et cetera? The parts about the
bill you like. I know you represent a chemical company, but it
is OK. I want to know what parts you like.
Ms. Fisher. That is actually two questions.
Senator Boxer. Just answer whatever you think I asked you.
[Laughter.]
Ms. Fisher. Very good. We were talking about the number of
rulemakings, guidance, frameworks that EPA has to do first. I
understand there is concern about that. My suggestion is two-
fold. Number one, we get EPA to do a workload analysis, so we
all know how long it will take to do those. I think I made the
point, people have said it could take as much as 5 years before
EPA moves on any chemical. That is not what we at DuPont want.
We want EPA to be able to move ahead and regulate chemicals. It
is why we are here.
So if we set up so much process that it will take 5 years
to get the first decision, I think we all need to sit down and
look at that. I think we ought to start with EPA doing their
workload analysis, then we can all take a look at it and ask,
``Does that make sense?'' That was the point I was trying to
make.
Senator Boxer. What I think I will do is I will ask them to
respond to that, both S. 1009 and the last Lautenberg-Boxer
bill under that one and how we would move forward. I think it
was Mr. Rosenberg who talked about some of the problems getting
this thing up and going under S. 1009. Could you comment on it?
Mr. Rosenberg. Yes, thank you, Senator. Yes, the bill
contains a requirement, numerous requirements for EPA to take
up a number of procedural steps before EPA can even move
forward with prioritizing chemicals, let alone assessing them
and potentially regulating them, et cetera. A number of those
steps, they have to set up, I think it is five different
frameworks, they have to develop procedures and processes and
criteria. There is a whole long section of the bill that is
mostly laden with those requirements.
Senator Boxer. Mr. Rosenberg, would you do me a favor?
Would you take a look at S. 1009 and circle the parts that you
feel add a burden? Then I can share that with Senator Vitter
and Senator Udall, who are the proponents of this bill as it
stands.
Mr. Rosenberg. Yes, we would be happy to do that.
Senator Boxer. Mr. McGarity, you said something that was
very interesting to me. You said that you have looked at
legislation over many, many years, and you never saw such a
sweeping, and I don't remember exactly your words, provision
that would prevent victims the ability to hold industry
accountable. Am I right in remembering that about your
testimony?
Mr. McGarity. Yes. I said I had never seen a more intrusive
provision when it comes to the operation of the civil justice
system in the States. There are, of course, laws out there that
preempt, but there are really very few laws that explicitly
preempt State litigation. There are laws that preempt State law
and the Supreme Court in the Cippollone case----
Senator Boxer. So it isn't only the preemption of State
law, which we have already ascertained in my case could
overturn maybe even our global warming law, which certainly I
don't think is the intent. Although, maybe it was.
But the bottom line here is, we have a preemption of State
law but we also have, you are saying, a preemption of the right
of a State to----
Mr. McGarity. Of individuals who are harmed to sue in State
courts. Well, it doesn't stop them from suing, but it says,
once EPA has made a determination, that is determinative, and
Federal court rules and State court rules to the contrary don't
matter.
Senator Boxer. Would you do me a favor, Mr. McGarity,
because we are going to try to get a good bill that we can move
forward on. Would you look at some of the other Federal
statutes, whether it is food safety or the other laws, FDA,
where you see language that could, from your perspective, would
work for victims? Because I have heard of horrific situations
where victims have gone blind, and worse. They always have that
right to move forward and hold the company accountable.
So would you work with us on that and get that answer into
us in the next week or so?
Mr. McGarity. Sure.
Senator Boxer. That would be very, very helpful. My time
has expired, so I will turn to Senator Vitter.
Senator Vitter. Thank you, Madam Chairman, and thanks to
all of you for your testimony. I want to particularly highlight
the testimony of two folks who were in charge of this exact set
of rules and regulations in law at the EPA, Steve Owens and
Linda Fisher, one under a Republican Administration, the other
under a Democratic Administration. I think they have
particularly significant insight.
So I want to ask both of you this. One complaint we have
heard is that our Lautenberg-Vitter bill relies on the same
broken safety standard as current law, and in particular does
not decouple cost benefit from safety assessments. However,
both the bill's safety assessment and determination sections,
the language clearly states that the Administrator shall make
determinations ``based solely on considerations of risk to
human health and the environment.''
So I would like to ask both of you, I know you have
reviewed this bill, do either of you see any ambiguity in that,
or interpret that as not completely decoupling those different
things, safety assessment versus cost?
Mr. Owens. I will go first, Senator, thank you for the
question. I think in the bill, I think it is very clear, and I
think at least in my time at EPA as the Assistant
Administrator, if I were looking at that language, along with
the folks in our office there, as well as the General Counsel's
office at EPA, we would interpret it as meaning that, the
safety determination is based purely on considerations of human
health and the environment and not on the cost benefit
analysis.
Senator Vitter. OK, great. And Linda?
Ms. Fisher. Senator, I would agree with what Steve said. I
think you have made it clear that those are decoupled. I think
that is a big step forward from the current law, and I think
you have made it clear that the cost benefit analysis really
goes to the risk management decision piece, not the safety
standard and the safety determination piece.
Senator Vitter. Great. Steve, you have unique experience,
both at EPA and at the State level, which is very important. So
I want to ask you, from the EPA perspective, do you believe the
framework of the Lautenberg-Vitter bill is implementable for
the agency and fixes many of the issues that have long been
very problematic in terms of existing TSCA?
Mr. Owens. Yes, Senator, as I said, I think the Chemical
Safety Improvement Act is a significant improvement over
current TSCA, with all the problems that we have experienced
over the years. There are a number of things that are very
important in there, the safety determination, the safety
assessments, the prioritization, removal of the least
burdensome requirement, and I could go on and on.
But I will also say that I think that there do need to be
some tweaks made to it. One of the things that was mentioned
here this morning is the absence of any deadlines, for example,
for EPA action. Linda Fisher and I have been talking about
that. As I often said when I was at EPA, I learned very quickly
that speed is not a virtue of the Federal Government. Without
deadlines, sometimes agencies don't act. I don't know if you
need to give EPA a deadline for every single task in there, but
at least giving them some general direction from Congress as to
when to act and when to achieve certain goals would be very
useful to the agency.
Senator Vitter. Great. And certainly, let me underscore
what some others, and I think Linda said, certainly not
anybody's goal who has been involved in this bill to have EPA
spinning its wheels in initial assessments for a decade or
more. That is not anyone's goal, no one wants that.
Steve, let me ask you, from the State perspective, in your
case, Arizona, what do you think this framework would mean to
chemical regulation on the ground in a State like Arizona?
Mr. Owens. In a State like Arizona, Senator, I think it
would be a major benefit to the State. Our State is like New
Mexico and West Virginia and others, where we have a small,
relatively small environmental regulatory agency without a lot
of technical expertise or resources. We didn't have it when I
was there and it is certainly much less so now, given the
recent budget issues that the State of Arizona has experienced.
So from the State of Arizona's perspective, I think this
would be a significant benefit.
Senator Vitter. If I could just ask one more question,
Madam Chair, to Mark Duvall.
Senator Boxer. Yes.
Senator Vitter. Mark, I think you have seen, and we have
distributed to anybody who is interested and wants to
participate in good faith, our language to make crystal clear
what was always our intent, which is that we are not trying to
shut down any private causes of action, we are not trying to
have any significant impact there. Are you confident we will
meet that goal with that clarifying language?
Mr. Duvall. Yes, Senator, I am. It strikes me that whether
or not Congress intended to preempt tort suits is a matter of
congressional intent which is best expressed in the language of
the bill rather than legislative history. And a savings clause
and using terms such as ``statutes and administrative
regulations'' is much clearer than broader terms such as
``restrictions.''
With those kinds of changes and the savings clause for good
measure, I think it will be absolutely clear to everyone that
there is no intention to preempt tort suits.
Senator Vitter. And that is what we in fact have. So thank
you. Thank you, Madam Chair.
Senator Boxer. Thanks. I think it is important to know that
the differences in the witnesses that were selected today, not
to cast aspersions on anyone, because everybody is speaking
your heart and what you think. So I think it is important to
note that each of the Minority witnesses work with, in some
capacity or other, the very companies that will be affected by
this. I think it is important to note the Majority witnesses
represent the public.
I say this because I think the public needs to know this.
For example, where Mr. Owens did have an esteemed career in
public service, he did leave it behind. And we call it the
revolving door, and a lot of people do it. It is fine. But I
think it is important to know that the law firms of your, I am
sorry, the clients of your law firm include Ashland, Inc.,
British Petroleum, DuPont, Bayer Corporation, a billion dollars
of fighting against asbestos claims. I just think it is
important to note.
Because what is important to me is to do the best thing for
the public. And at the end of the day, I believe what is good
for the public is even good for the companies. That is my
experience. We have great success in our great State. We have
tough laws. The companies are proud, they are proud to run a
very good shop.
Now, I very much wanted to put this legislation on the fast
track. As soon as we take care of State preemption, the right
of victims, and the devil is in the details, one person here
said, oh, there is no preemption with the right to sue, but we
have Mr. McGarity who said in the clearest terms this is the
most sweeping preemption of the right to sue. So clearly, do we
believe, OK, the lawyer who represents the companies or a
lawyer who is a professor? It is up to you.
But I frankly want to put it through many more hands so
that I know what I am doing, and I am not going to be pushed
into a bill that hurts the people I represent and the families
I represent. So this is going to be the last round of questions
for this panel. I am sure you will be relieved to know that.
Ms. Reinstein, how did you feel when you saw that S. 1009
failed to include authority for EPA to quickly address health
threats from the worst of the worst chemicals, such as
asbestos, which we know can kill people? What was your
response?
Ms. Reinstein. Madam Chair, it was devastating. We have
worked so hard in the last 10 years to work to pass legislation
that would indeed ban asbestos. But it came at a horrific time,
when Janelle Beadle was nearing the end of her life. I sat
there and wondered, how on earth could our amendments be
stripped from S. 1009?
Expedited action is not just smart, it is essential. What
we are faced with now is a bill that is not going to work for
asbestos, and I think for those of us who have buried loved
ones, we want a bill that works for asbestos but other
chemicals as well. I was devastated.
Senator Boxer. OK. Ms. Fisher, do you believe that families
and other people who live near chemical plants should be
protected from the harmful health effects caused by dangerous
chemicals released by those plants?
Ms. Fisher. Yes, I do.
Senator Boxer. That is excellent. So will you work with us
as we craft the next iteration of the TSCA bill to ensure that
we do protect those families?
Ms. Fisher. I would be happy to work with you.
Senator Boxer. OK. I have a minute and a half left. So I
would like to say to Mr. Cook and Ms. Greenwald and to Mr.
McGarity, if you have anything to add, this would be the
moment, if you have 30 seconds that you wanted to add, this
would be the moment.
Mr. Cook. I want to thank both of you for this hearing and
for getting the facts on the table, getting the information in
front of everyone. We really need to have a robust debate about
this.
Senator Boxer. And we sure are having it.
Mr. Cook. And we are having it now. I very much appreciate
that. I do want to make sure that people understand that from
our perspective and a lot of other people who have looked at
the bill, there are many, many issues beyond preemption that we
are concerned about. We didn't spend as much time on those
issues today, but we look forward to working with you.
Senator Boxer. Well, you were very good in your testimony
on those, and believe me, they matter to me a lot, the
deadlines, the clarity, the fact that we protect the most
vulnerable. That is missing from S. 1009.
Ms. Greenwald, anything to add?
Ms. Greenwald. Thank you, Madam Chairman. I would just like
to add two things. I want to go back to what your opening
remarks were today, that this statute should set the floor but
not the ceiling, for regulations. These companies operate all
over the world now, in different States, where they have
different Clean Water Act rules, different Clean Air Act rules,
different RCRA rules. And they operate just fine. They figure
out, when they go to Michigan versus California, how to operate
and how to make sure they comply with those State laws. There
is nothing unique about making that same provision true for
this chemical bill.
The last thing I would like to mention is the 15(e), which
is the private right of action, this statute strips individuals
of their rights to bring a private lawsuit. Because in the real
world of litigation, a plaintiff cannot prove his or her case
when the determination of the agency is per se admissible and
determinative. Just can't happen.
Senator Boxer. Thank you for that.
I have run out of time. Thanks to the panel. This is the
last round of questioning. Senator Vitter.
Senator Vitter. Thank you, Madam Chairman.
First of all, let me just respond to some of your thoughts
before your questions. I think your remarks which you claim
weren't meant to be disparaging, I think they obviously were. I
think it is a difference in perspective. I don't consider the
affected companies the enemy. I consider them important
partners. No partner should just get anything, everything they
want. But for this system to work, they have to be active
participants and partners. I think that is a goal of our
approach, without giving them any carte blanche in whatever
way.
Second, I point out that Mr. Owens served under the Obama
administration's EPA. I am sure he took his duty very seriously
to uphold the interests of the public, as did Linda under a
different Administration. Third, I would also point out, if you
are talking about motives and backgrounds, that there are
several groups on the left who pure and simple fund-raise off
the broken TSCA system, fund-raise off partisan divisions and
benefit from that stalemate. I don't think that stalemate
benefits the public, but I know it benefits them in many
instances, and they actively fund-raise off that.
Let me go to my questions. If I could get 5 minutes on my
clock, since prefatory comments don't seem to count against the
time.
Senator Boxer. Well, they did against my time.
Senator Vitter. No, they didn't.
Senator Boxer. They did count.
Senator Vitter. Mr. Owens, you worked for the Obama
administration. I would like you to specifically compare the
Lautenberg-Vitter bill to what you attach with your testimony,
which is the Administration's Essential Principles for Reforms
of Chemical Management Legislation. That was put forth by the
Administration some time ago, I think during your tenure.
Mr. Owens. Yes, Senator, as I mentioned in my testimony and
my written statement as well, I had the privilege of working on
the development of those principles, starting almost the day I
got to EPA. I think that the Chemical Safety Improvement Act is
consistent with those principles. There are a couple of things
that the principles call for, including a sustained source of
funding for the agency, that aren't in the Act, and I hope that
Congress will deal with that, as well as a more explicit
promotion of green chemistry.
But I think everything else in the Act is perfectly
consistent with the Obama administration's TSCA reform
principles.
Senator Vitter. OK, thank you. You also testified that the
current TSCA places big legal and procedural requirements on
EPA to request the generation and submission of data on
potential health and environmental effects of existing
chemicals. Would the Lautenberg-Vitter bill improve EPA's
ability to get what it needs in that regard?
Mr. Owens. Oh, absolutely, Senator. That is one of, I
think, there are a lot of good selling points about this bill.
But that is one of the big ones, which is that it would give
EPA authority to issue orders to require testing of chemicals.
Currently the way it works is that EPA has to either do testing
requirements by lengthy and complicated rulemaking, but even
before you get to that point, the agency has to make a
determination that either there is an actual risk presented by
a chemical or that there is significant enough exposure that
testing is required. It is sort of a catch-22, or it puts the
cart before the horse, whatever you want to say. I think this
bill fixes that.
Senator Vitter. OK. And Mr. Duvall, in the letter that some
of the States' attorneys general sent to Senator Boxer, there
was an attachment that included examples from some of the
States of their State regulations. They assert that all of this
would be preempted. I think they are wrong in almost all
instances. Could you characterize the examples provided by the
AGs in this letter?
Mr. Duvall. Certainly, Senator. There is a long list of
examples given, all of which are asserted as being preempted or
potentially preempted by this bill. Yet I would point out that
some of them concern products that are no even subject to
TSCA's jurisdiction. I mention the California Safe Cosmetics
Act and the bans on the use of bisphenol A in food packaging in
Washington and Vermont.
I would also note that a number of these products are
regulated by the Consumer Product Safety Commission, such as
art and craft supplies. Lead in children's products, cadmium in
children's products, phthalates in children's products are all
regulated under the Consumer Product Safety Act as amended by
the Consumer Product Safety Improvement Act. Washington State
has acknowledged that its statute banning those three chemicals
is preempted by that statute.
Some provisions may be preempted were EPA to take action on
the specific chemicals. But by and large, many of these
provisions would not be preempted by the bill.
Senator Vitter. OK, thank you.
Senator Boxer. Thank you. Senator Carper.
Senator Carper. Thanks. Madam Chairman, I thank you and
Senator Vitter both for putting this together. I know the
hearing is not over but this has been just a terrific hearing.
It is an important hearing and it is on a very difficult day,
and I salute you both for making it work. Thank you all for
your patience and for bearing with us.
A couple of you, Ms. Fisher and Mr. Owens, bring, well, you
all bring unique perspectives to this important issue. But Ms.
Fisher and Mr. Owens, you both served, as I understand, as EPA
employees, fairly senior employees who led the Toxics office
under two different Presidents, two different Administrations,
one Democrat and one Republican.
So what I want to ask you to do is answer a question or two
based on that unique experience. A number of concerns have been
raised about the Lautenberg-Vitter bill. Some are very serious.
Some may be less so. But they need to be addressed. When you
think about the concerns being raised here, or maybe not here
today, what are the issues you think are the most readily
addressed, and what are a couple that are really hard? And the
couple that are really hard, what is your advice on how to
address them? Just briefly mention some of the issues that are
fairly readily addressed, not as difficult, and some that are
really, really tough. And for the ones that are really tough,
how do we address them?
Ms. Fisher. I will start. I think Steve raised the issue,
and we talked earlier, Senator Carper, while you were out of
the room, about the need for more clarity around what I call
pace of program or deadlines, how quickly should EPA review and
make a prioritization determination of the potentially 7,000
active chemicals in commerce.
I think it can be helpful to have thoughtful deadlines,
because as Steve was pointing out a few minutes ago, it does
help drive agency action. It has to be thoughtful. Too often,
quite honestly, I think the Congress passes deadlines that,
going into the statute, people know the agency cannot make.
That makes life quite complex.
So I think getting a common understanding of how long it is
going to take and identifying some opportunities to put in
place meaningful, thoughtful deadlines is appropriate. I think
that also helps the Congress think about, will the agency have
the right amount of resources to fulfill the goals that we have
all set forth. So I think those two areas go together.
Earlier, some of the others raised the issues around the
preemption provisions, and I think there are fixes to those. I
know both Senator Boxer and Senator Vitter have expressed a lot
of openness. So those are just two issues that I would bring
out.
Senator Carper. Good, thanks. Mr. Owens, what are a couple
of the most difficult issues for us to resolve, and how might
we resolve them? What might be reasonable common ground?
Mr. Owens. There is one issue, preemption, which is an
answer to both those questions. I think we heard some things
today that, some pieces of the preemption question, like
clarification about Proposition 65, or things like that, that
clearly was not the intent of the bill. Those can be pretty
easily clarified, I think. I think as Linda mentioned, trying
to wrestle with the preemption issue, finding that sweet spot,
where this bill can be allowed to move forward, will be a real
challenge for this Committee. I am very hopeful that you can do
that.
It was referenced at one point, the second issue I will
bring up is, some references to the fact that this really
doesn't do anything to make risk management actions by the
agency easier. The bill definitely does that. It removes the
least burdensome alternative requirement. But to the extent
people seem to think that it is the same old, same old TSCA,
maybe some tweaking of the language in there to make it a
little less clunky could be useful. I think it is a vast
improvement over TSCA the way it is written now. But to the
extent those issues have been raised here, they could be
allayed by doing that.
Senator Carper. Thank you. One last question. This is for
you, Mr. Owens. EPA currently has a work plan in place for
dealing with top priority chemicals. I just ask, how would the
Lautenberg-Vitter bill impact EPA's current work on these top
priority chemical substances?
Mr. Owens. I will take a shot at that. The work plan
chemical effort that EPA is undergoing now actually is an
outgrowth of an effort that we started when I was there to do
prioritization on chemicals. We developed a framework, to use
that word, for prioritization of chemicals, and then after I
left the agency, for family reasons, they began to work and
develop their list of work plan chemicals.
I think actually it will help implementation of this bill,
if it becomes law. Because EPA has experience with those
chemicals. It has developed an analysis of those chemicals
already, and it is sort of a template for going forward, both
in terms of prioritizing and conducting assessments of
chemicals.
Senator Carper. Good. Thanks very much. Thanks, Madam
Chair.
Senator Boxer. Would you like another minute?
Senator Carper. No, we will just let these folks go. Thank
you.
Senator Boxer. Thank you, Senator Carper, for those
questions. They did build on some of the conversations I was
having with Ms. Fisher before.
I want to thank this panel. Each of you, you just added
tremendously to this task we have to find the sweet spot so we
can get a good bill out of here.
I wanted to put in the record the risk management guidance
from the Obama administration, just noting that it mentions
children's health. And I read the risk management section of
the S. 1009, I don't see the word children. So that might be an
area we could really make an improvement, working together
going forward.
I want to ask each of you, are you each willing to work
with us and stand by to help us as we move forward on this? I
want to do it quickly and I want to do it right. Is that a yes
from everybody on the panel?
Thank you all, very, very much. And we will call up the
next panel.
Senator Vitter. Madam Chair, if I can just address the last
issue.
Senator Boxer. Yes.
Senator Vitter. The present version of Lautenberg-Vitter
specifically talks about vulnerability of any sub-populations.
That is clearly going to be about children, women, pregnant
women. If you want to make that explicit, we can put in an
explicit list. But clearly, when you are talking about
potentially vulnerable sub-populations, that is obviously going
to go to children, women, pregnant women, et cetera.
Senator Boxer. Yes. I am talking about your risk section,
not your other section. It is missing from the risk section. So
we have to fix that. And I think we can.
Thank you, everybody, very much.
We will have our final panel, Ms. Nancy Buermeyer, Senior
Policy Strategist at the Breast Cancer Fund; Ms. Susan Vickers,
Vice President of Community Health, Dignity Health; Ms. Maureen
Gorsen, Partner, Alston & Bird, LLP. Again, thank you to this
panel, and thank you for your patience. You have been here
since 9:30 in the morning. Thank you.
And, I am so sorry, Dr. Jonathan Borak, Clinical Professor
of Epidemiology and Public Health, Clinical Professor of
Medicine at Yale; Mr. Cecil Corbin-Mark, Deputy Director, We
Act For Environmental Justice; Ms. Dorothy Felix, President,
Mossville Environmental Action Now; Mr. Andrew Hackman, Vice
President of Government Affairs, Toy Industry Association; Ms.
Ansje Miller, Eastern States Director, Center for Environmental
Health.
So we are going to start with you, Nancy Buermeyer, and I
know you do our State proud. You are a senior policy strategist
at the Breast Cancer Fund. Welcome.
STATEMENT OF NANCY BUERMEYER, SENIOR POLICY STRATEGIST, BREAST
CANCER FUND
Ms. Buermeyer. Thank you very much. Good afternoon. I would
like to thank Chairwoman Boxer, Ranking Member Vitter and
members of this Committee for this opportunity to testify. I am
honored to be here.
I am here to state in no uncertain terms that the 1976
Toxic Substances Control Act is hurting us. In fact, it is
killing us. There are certain groups of people in certain
stages of life that are disproportionately affected by
exposures to toxic chemicals.
For instance, the young woman working at an automobile
factory who is exposed to toxic chemicals from heated plastics
every day on the job, she is at five times higher risk for
being diagnosed with breast cancer, the over 60 men diagnosed
with breast cancer after being exposed to drinking water
contaminated with toxic solvents at the U.S. Marine Corps' Camp
Lejeune, the young daughters and granddaughters who are
starting puberty in elementary school, sometimes as young as 6
and 7 years old, and as a result are now at higher risk for
developing breast cancer later in life.
Today I would like to bring those voices into the room. I
represent the Breast Cancer Fund, the only national
organization focused solely on preventing breast cancer. We do
that by working to eliminate exposures to toxic chemicals and
radiation linked to the disease. Reform of the outdated and
ineffective way industrial chemicals are managed in this
Country has long been a priority of our organization. The
Breast Cancer Fund serves on the steering committee of Safer
Chemicals Healthy Families, a coalition of over 450
organizations and businesses working to reform TSCA.
Despite all of our advances in detection and treatment, we
have not been able to stem the tide of women and men diagnosed
with breast cancer. In fact, we are losing ground. Today, an
astonishing one in eight women will be diagnosed with breast
cancer in her lifetime. This represents a 40 percent increase
over the risk women faced 40 years ago. And women want to know
why.
A strong and rapidly growing body of scientific evidence
points to toxic chemicals found in a wide range of sources.
Industrial chemicals, like formaldehyde and vinyl chloride,
known and suspected carcinogens, can be found in products that
we use every day, from cleaning products to plastics, from
furniture to shower curtains and more.
There is a lot we did not know about chemicals in 1976 when
TSCA passed. We now know that timing of chemical exposure is of
particular importance. Early life exposures, even fetal
exposures, can have disastrous effects on long-term health and
later life disease. In addition to pregnant women and children,
there are other populations that are particularly vulnerable to
chemical exposures. Workers are the canary in the coal mine for
the danger chemicals pose to the broader population.
Fence line communities, those living next to chemical
plants or other sources of chemical exposures, are another
disproportionately exposed population that must be considered
and protected when evaluating the safety of chemicals. And
breast cancer is not the only concern. Diseases and conditions
such as asthma, infertility, learning disabilities and other
cancers have also been linked to chemicals. Yet the EPA does
not have the authority to ban hazardous chemicals that can
increase our risk for disease. This must change.
Congress has a moral imperative to pass legislation that
provides the public real protection from dangerous chemicals.
Current law does not meet that goal. The recently introduced
Chemical Safety Improvement Act unfortunately does not meet
that goal in its current form. While we understand that in the
legislative process there is always give and take, we must not
compromise public health.
Creating workable and health protective legislation is
doable. We look forward to working with the Chairwoman and all
the members of the Committee to create a bill that protects
every American, including the most vulnerable among us,
pregnant women, children, workers and communities
disproportionately endangered by chemical exposures. We owe it
to ourselves and to future generations to get this right.
Thank you for this opportunity, and I look forward to your
questions and working with you further.
[The prepared statement of Ms. Buermeyer follows:]
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Senator Boxer. Thank you so much. Ms. Susan Vickers, Vice
President of Community Health/Dignity Health.
STATEMENT OF SUSAN VICKERS, RSM, DIGNITY HEALTH, VICE PRESIDENT
OF COMMUNITY HEALTH
Ms. Vickers. Madam Chair, Ranking Member Vitter, thank you
for the opportunity to testify today.
I am a Sister of Mercy as well as Vice President of
Community Health for Dignity Health. Our mission is to deliver
compassionate, high quality, affordable care in the communities
we serve, with particular focus on the needs of the poor,
vulnerable and disenfranchised. We are committed to preventing
the diseases that are disabling patients and driving up the
cost of health care for families across the Nation. That is why
I am here today.
We are deeply concerned that our current law, TSCA, is
woefully inadequate to protect the public from hazardous
chemicals. We believe the moral and operational imperatives are
here now for stronger chemical regulation.
As the Committee works to modernize TSCA, be assured that
Dignity Health supports your leadership and welcomes the much-
needed debate and bipartisan dialog that the Chemical Safety
Improvement Act has generated about the need to fix our current
system. But please be clear about our position. S. 1009, as
currently written, falls well short of strengthening public
health protections and addressing toxic chemical threats. We
strongly believe that it must be significantly amended to
strengthen, rather than weaken, TSCA.
Let me briefly address three of the significant
shortcomings in the legislation by way of policy
recommendations that should be part of any final TSCA reform
legislation. First, and we have heard this from other
panelists, vulnerable populations should be adequately defined
and explicitly protected. Such vulnerable populations as
developing embryos, infants, pregnant women and people who live
in communities with significant existing chemical and non-
chemical environmental exposures must be protected.
Evidence clearly shows that these groups are not only
disproportionately exposed to chemicals, but also more
biologically susceptible to the impacts of toxic exposures. And
those impacts can be long-lasting and costly.
Second, all chemicals should be assessed based on adequate
information to determine the extent to which they pose risks to
human health or the environment. A thorough safety review of
all chemicals is necessary, and there must be a minimum set of
screening criteria in order to decide whether a chemical is of
high or low priority.
As written, the bill allows a chemical to be deemed of low
priority based only on available data, which unfortunately are
inadequate for most chemicals. Once a chemical is designated a
low priority, the EPA would not be able to require additional
safety data and States would be prohibited from taking action.
We have heard that this must be amended to preserve State
authority to take action on chemicals determined either high or
low priority.
Third, there must be a clear and direct path to get
dangerous chemicals out of the marketplace. One of the flaws of
TSCA is that the standard for action is so high that few
chemicals have been phased out of commerce despite clear
evidence of harm or potential for harm. S. 1009 requires an
extra level of analysis. These cumbersome provisions could have
the perverse impact of slowing down action on chemicals most in
need of regulation.
We urge the Committee to work together to strengthen what
is currently the most viable vehicle for TSCA reform, the
Chemical Safety Improvement Act, so that it provides the
strongest protections to human health and the environment.
Thank you for the invitation to provide testimony and for
the leadership of this Committee. Be assured that we are
willing to work with you as you advance comprehensive chemical
policy that protects the health of our people and our planet.
Thank you.
[The prepared statement of Ms. Vickers follows:]
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Senator Boxer. Thank you, Sister, for this, and for your
life's work.
Ms. Maureen Gorsen, lawyer, partner in the law firm of
Alston & Bird.
STATEMENT OF MAUREEN F. GORSEN, ESQUIRE, PARTNER, ALSTON & BIRD
LLP
Ms. Gorsen. Madam Chair, members of the Committee, thank
you very much for asking me to testify today. I hope that my
testimony will be useful to the Committee.
I am an environmental lawyer, have been an environmental
lawyer for 20 years. Half of that time I have been in
California public service, the other half of that time in
private sector representing industry. I was the General Counsel
of Cal/EPA, I was also the Director of the Department of Toxic
Substances Control, where I led the Green Chemistry Initiative
that California is so famous for. And in previous
administrations, I was general counsel of the resources agency
as well as I served as a California State Parks and Rec
commissioner, which was the most fun position I had.
I am very excited to be here. We really are making history
today. This bill really strengthens TSCA in a marvelous and
wonderful way. When I led the California Green Chemistry
Initiative in 2006, we really didn't hold out much hope for
Federal leadership on this issue. Things seemed to be at a
stalemate, and we really felt we needed to take this on
ourselves.
What I see in this bill is a sea change. The idea that the
burden of proof to prove something is safe is on the
manufacturer as opposed to the government was a heretical
notion in 2006. We didn't dare hope that the Federal law would
change in that direction. The grandfathering provision that now
EPA will have the ability to examine the 10,000 active
chemicals in commerce, that also was not within the realm of
possibility at that time.
California has a new bill. It was passed in 2008, the
California Safer Products Consumer Act. It has authorized
California State government to look at every chemical
ingredient in the products sold in California and require a lot
of information from manufacturers. None of the activities that
the California government is involved in now are preempted by
this statute. The law is intended to take effect starting
October of this year. California starts to implement it in
2014. And they only think they will be able to handle three to
five chemicals in the first round, in the first 5 years.
So overall, giving EPA authority to now look at the 10,000
chemicals that are currently in commerce can only benefit
California. It is highly unlikely that they would both look at
the same three to five chemicals in the first few years. So the
idea of preemption probably won't occur.
To the extent that California is preempted, it is only once
EPA acts. So once the EPA makes a decision, a safety
determination, which is years down the road, and they will
decide the scope of that preemption. So there are total
preemption statutes and there are partial preemption statutes.
This is a narrowly customized partial preemption in that EPA
will decide the scope of the preemption when they make their
decision.
I don't think we are in a race to the bottom. I don't see
EPA setting standards lower than California. But even if they
don't see eye to eye and California wants to take something
more restrictive than what EPA wants to do, I think the waiver
provision is not illusory. I think that California will be able
to advocate and get the higher standards that it wants.
The words in this bill are compelling local interest. There
is a similar preemption in the Clean Air Act for products. And
California, that statute, the Clean Air Act is a total
preemption for 49 States with a partial preemption for
California. California can receive a waiver if they can prove
compelling and extraordinary circumstances. So that standard is
arguably higher than the standard here which is compelling
local interest.
EPA has granted California a waiver over 50 times under the
Clean Air Act, so California has been able to meet that
standard many, many times.
Last, with respect to vulnerable populations, California
has a biomonitoring program and a Cal-Enviro Screen program
that are going to be producing a lot of data about what is in
people's bodies based on demographic data in California. I
think that information will benefit the EPA safety
determinations and risk prioritizations, and similarly, the
data that EPA is able to garner will inform California as it
implements those programs.
I think we are at an amazing point in history and I am very
happy to be here, and I am happy to answer any questions that
you have.
[The prepared statement of Ms. Gorsen follows:]
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Senator Boxer. Thank you so much.
Our next witness is Dr. Jonathan Borak, Clinical Professor
of Epidemiology, Yale School of Medicine.
STATEMENT OF JONATHAN BORAK, M.D., FACOEM, FACP, DABT, CLINICAL
PROFESSOR OF EPIDEMIOLOGY AND PUBLIC HEALTH, CLINICAL PROFESSOR
OF MEDICINE, YALE UNIVERSITY
Dr. Borak. Thank you, Madam Chairman and the members of the
Committee, for giving me this opportunity to comment on the
Chemical Safety Improvement Act.
My comments are made on behalf of the American College of
Occupational and Environmental Medicine, also known as ACOEM.
They also reflect my personal views. Let me first introduce
ACOEM, the American College of Occupational and Environmental
Medicine, which is a professional organization of more than
4,000 occupational physicians and other health care
professionals. ACOEM provides leadership to promote optimal
health and safety of workers, workplaces and environments.
As for myself, I am Clinical Professor in Epidemiology and
Medicine at Yale University and Adjunct Professor at the Johns
Hopkins University. I have listed a number of other of my
credentials that I am simply going to bypass at the moment in
the pursuit of brevity.
The Chemical Safety Improvement Act represents an important
and overdue upgrade to the Toxic Substances Control Act. Most
importantly, it provides a mechanism that allows the EPA to
more effectively identify and label those chemicals in
commercial use that pose potentially significant risk and harm
to health and the environment. As the Committee knows well, the
original TSCA legislation grandfathered more than 60,000
chemicals without adequate review of their potential risks.
Under CSIA, those chemicals will be subject to agency scrutiny.
Under CSIA, EPA would determine whether a chemical poses an
unreasonable risk solely on the basis of its effects on human
health and the environment. This is an important change from
TSCA, which also required a cost benefit analysis. This
promises to streamline the assessment process and make it more
responsive.
Likewise, major improvement in CSIA is the removal of the
least burdensome requirement for the methods implemented by EPA
to protect and manage against unreasonable risks. The
historical failure to ban asbestos is evidence of the need for
such a change in the law.
The stratification of chemicals into two groups, high and
low priority, will be a hopefully efficient, albeit simple way
to prioritize those chemicals that may pose unreasonable risks,
and which therefore require additional safety measures. By such
prioritization, greater scrutiny and research efforts can be
focused on specific agents for which such efforts are most
needed.
Importantly, the safety assessments under Section 6 would
specifically conifer ``the vulnerability of exposed sub-
populations'' which my ACOEM colleagues and I presume is
reference to at least children, pregnant women and their
fetuses. Such concerns for children and pregnant women are
currently found only with regard to radon and lead in Title 3
and Title 4 of TSCA.
Notably, TSCA Title 1, the Control of Toxic Substances,
does not require EPA to consider vulnerable sub-populations.
CSIA addresses that important deficiency.
I also note that while CSIA is an important step in
modernizing TSCA and the regulation thereby of chemicals more
generally, it is neither perfect nor complete. In particular,
CSIA would be improved by more explicit discussions of
vulnerable sub-populations, which I hope would extend beyond
pregnant women and children. Depending on the specific
chemicals of concern, relevant sub-populations might include
workers and others with risks of unique or significantly
greater than ambient exposure levels.
Likewise, sub-populations characterized, for example, by
age or co-existing medical conditions may be uniquely
vulnerable to certain types or specific exposures. Also,
depending on the characterization and risks of such vulnerable
sub-populations, it would be important to ensure the safety
measures are in fact adequately protective.
In addition, while recognizing the difficulties of imposing
fixed schedules on processes as large and complex as the
proposed TSCA reforms, CSIA would be improved by the setting of
more specific performance deadlines.
Nevertheless, as currently written, CSIA is an important
step in addressing and correcting serious flaws in the current
TSCA. It is also an example of the substantial benefits that we
all derive from bipartisan legislative cooperation.
Accordingly, ACOEM urges support for the bipartisan Chemical
Safety Improvement Act, and we offer our services in the future
to assist in any further modifications and changes that are
deemed useful and warranted.
Thank you.
[The prepared statement of Dr. Borak follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you.
Now we turn to Mr. Cecil Corbin-Mark, Deputy Director, We
Act for Environmental Justice. Welcome, sir.
STATEMENT OF CECIL D. CORBIN-MARK, DEPUTY DIRECTOR/DIRECTOR OF
POLICY INITIATIVES, WE ACT FOR ENVIRONMENTAL JUSTICE
Mr. Corbin-Mark. Good afternoon, Chairwoman Boxer. Thank
you for the opportunity to present.
I am definitely thankful for the opportunity to present
testimony here today and for your leadership in protecting
vulnerable communities across this Country. Likewise, my thanks
go out to Senator Vitter, the Ranking Minority Member on the
Committee for his efforts of having worked to bring a
bipartisan bill to this body.
And to my very own Senator from the great State of New
York, Senator Gillibrand, who serves on this Committee. I want
to thank you all for your attention and time.
We Act for Environmental Justice, the organization that I
lead, is a 25-year-old people of color organization based in
northern Manhattan working to build healthy communities by
assuring that people of color and/or low-income folks
participate meaningfully in the creation of sound and fair
environmental health and protection policies and practices.
I am also a member of the Steering Committee of the Safer
Chemicals Healthy Families campaign, a national effort to
protect families from toxic chemicals. And I co-chair the Just
Green Partnership and Alliance, more than 50 organizations
working to build a healthy economy that provides good jobs,
producing clean products and services in which our workplaces,
schools, homes, communities and bodies are free of toxic
chemicals in New York State.
Last, I serve on the board of directors of three really
incredible organizations that are all working around these
issues: the Center for Environmental Health, Clean and Healthy
New York and Friends of the Earth USA.
So as a guy from Harlem here to talk to you about the Toxic
Substances Control Act, to me the answer is simple: chemicals
impacted not only me and my family, but many of my neighbors
and many of the people that I work with in the environmental
justice movements around this Country. One of the earliest
impacts for me really came from my son. He attended LaSalle
Academy in New York City. One year while I was actually at a
conference in San Francisco, his mother phoned me to say that
he had suffered an asthma attack. He was not a traditional
asthma sufferer and in talking to him we began to unravel some
of what might be at the source of this problem. He remembered
actually the smell, the very strong smell of sort of pesticides
in the boy's locker room, and that had started him sneezing.
Obviously I can't say with certainty that the lingering
pesticide residue and the chemicals that are in there were the
things that caused his attack. But no one can also say beyond a
shadow of a doubt that that wasn't the culprit either.
I live in Harlem, in New York, and my family has lived in
the same neighborhood for nine decades. It is a community that
is about seven and a quarter square miles, about more than
650,000 people, mostly mid- to low-income folks, predominantly
African American and Latino. It is known for its richly diverse
population and cultural history. While downtown may be known
for Broadway, the Empire State Building, Statue of Liberty,
soon the iconic Freedom Tower, uptown our neighborhoods have
auto body shops and dry cleaners co-located with residential
apartments, diesel bus depots across the street from parks and
bedroom windows. Nail salons and dollar stores abound with
products that contain ingredients capable of disrupting
people's reproductive systems and their neurological systems.
So while I am describing my place, my hometown, I could be
talking about many places across this Country. Unfortunately,
far too often in the environmental justice movement, we have
called to attention the fact that there are too many toxic
chemicals in our neighborhoods, and vulnerable populations need
to be the ones that are at the center of how we look forward to
reshaping the Toxic Substances Control Act.
By this standard and many others, the Chemical Safety
Improvement Act, S. 1009, falls far short of what vulnerable
populations need. As currently written, S. 1009 requires the
USEPA to access exposures of sub-populations to chemicals
during the course of a safety assessment, but it doesn't
explicitly require that that safety determination protect those
vulnerable populations from those exposures.
Another unacceptable omission for many of us in the
vulnerable population ranks is the lack of definition for
vulnerable populations. I have learned the hard way that
sometimes if it isn't in the definition in the legislation, it
doesn't exist. Clearly, the drafters of this legislation did
not intend for pregnant women, developing children, African
Americans with respiratory illnesses, Latinos over the age of
65, indigenous peoples with compromised immune systems, Asian
Americans with chemical sensitivity and other vulnerable
populations such as workers to not exist.
The Chemical Safety Improvement Act must define those
vulnerable populations and explicitly require that they be
protected from the multiple and aggregate exposures that they
are subject to.
[The prepared statement of Mr. Corbin-Mark follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you very much.
We have a vote, so we are going to get through the panel
first. We are now going to turn to Ms. Dorothy Felix,
President, Mossville Environmental Action Now. Welcome.
STATEMENT OF DOROTHY FELIX, PRESIDENT, MOSSVILLE ENVIRONMENTAL
ACTION NOW
Ms. Felix. Thank you, Chairperson Boxer, Ranking Member
Vitter, who represents my State of Louisiana and members of the
Environment and Public Works Committee, for holding this
important hearing.
My name is Dorothy Felix, and I am the President of
Mossville Environmental Action Now. My organization works to
achieve environmental justice in the historic African American
community of Mossville, Louisiana.
I appreciate this opportunity to share with you the urgent
need for legislation that protects the health of people who are
living in polluted communities. I speak to you today out of
concern for the future of my community of Mossville and
communities across this Country where indigenous people and
people of color are disproportionately harmed by toxic
pollution.
Mossville has been home to my family and neighbors for
several generations. I treasure my childhood memories of
growing up in this small, rural community. I remember a time
when the air was healthy to breathe, the waterways were clean
and full of fish, and the soil produced vegetable gardens and
fruit trees. I regret that my grandchildren and great-
grandchildren will never see and touch the natural beauty that
was once Mossville.
Today, Mossville is a different place as a result of weak
environmental laws. These laws authorize no less than 14
industrial facilities to release toxic pollution around our
homes, churches and playgrounds. Inside the historic boundaries
of Mossville are three chemical manufacturers, one oil refinery
and one oil production facility. Within one-fourth of a mile
from Mossville are seven chemical manufacturers. There is one
coal-fired power plant and one industrial gas supplier.
These 14 industrial facilities release toxic pollution in
Mossville that is scientifically known to harm human health. By
harm to human health, I mean that Mossville residents suffer
from exposure to dioxins, a group of dangerous chemicals,
causing hormone disruptions.
A toxic exposure investigation by the agency for Toxic
Substances and Disease Registry revealed that Mossville
residents have levels of dioxins in their blood that are three
times higher than the national average. These dioxins are also
different from those comprising the national background
exposure, but identical to the dioxins emitted by several
Mossville area facilities.
In Mossville, we breathe toxic chemicals that the EPA has
detected in the air at concentrations 100 times above the
Louisiana health-based ambient air standard. Toxic fumes and
odors force us to stay indoors. Our local waters have no
fishing and no swimming warnings because of toxic chemical
pollution.
An entire section of Mossville has been moved out by
companies responsible for leaking ethylene dichloride
underground where an aquifer supplied residents with well
water. We need help that eliminates disproportionate toxic
exposures.
Unfortunately, the Chemical Safety Improvement Act, S.
1009, is not helping. It weakens and eliminates the protection
that the Safe Chemicals Act of 2013 can provide to polluted
communities. A key protection is Section 34 of the Safe
Chemicals Act, known as Toxic Hot Spots. This section protects
our right to a healthy environment.
Under this bill section, a community's exposure to one or
more chemicals that is significantly greater than average
exposure in the United States compels the EPA to reduce the
disproportionate pollution. After more than 40 years of Federal
environmental law-making, the Safe Chemical Act is an important
step to remedying the pain and injustice that have resulted
from permitting toxic pollution.
I urge this Committee to pass legislation that closes the
gap between environmental law and environmental justice. No one
in this Country should be denied the right to live in a healthy
environment. Thank you.
[The prepared statement of Ms. Felix follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much, Ms. Felix. And we turn
now to Mr. Andrew Hackman, Vice President of Government
Affairs, Toy Industry Association.
STATEMENT OF ANDREW R. HACKMAN, VICE PRESIDENT OF GOVERNMENT
AFFAIRS, TOY INDUSTRY ASSOCIATION
Mr. Hackman. Good afternoon, Chairman Boxer, Ranking Member
Vitter and members of the Committee. The Toy Industry
Association appreciates this opportunity to provide our
perspective on the critical issue of reforming the Toxic
Substances Control Act.
The Toy Industry Association represents over 600
manufacturers, distributors, retailers and inventors of toys.
Our mission is to bring safe and fun play to kids every day.
Our association represents over 85 percent of the 3 billion
toys that are sold in the United States each year. We support
over 320,000 jobs here in the U.S., and we account for nearly
$12 billion in wages for American workers.
Now, as an industry that is focused on children, and as
parents ourselves, we take our commitment to safety as our top
priority. We have a strong track record of protecting
children's safety, and we created the first ASTM toy safety
standard over 35 years ago.
We share parents' interests and concerns about the
chemicals and their safety that go into everyday products. That
is why we are here today in support of S. 1009. We support the
Committee moving forward with a bipartisan effort to reform the
Toxic Substances Control Act. And we support specifically the
Federal Government taking action quickly to address some of the
uniformity issues that we have seen between a patchwork of
State-based chemical requirements. They are impacting our
ability to sell uniformly safe toys in the United States.
We also believe that if reform is considered, it must be
done in a risk-based way that considers sound science and the
weight of the evidence. Now, let me be clear: our industry is
doing everything we can to protect kids. There is a stringent
Federal network of safety requirements in place. Our companies
also perform rigorous internal safety assessments of the
materials and the chemicals that go into our products. We
require third-party testing that considers the safety of those
chemicals. In addition to internal safety requirements, we also
have to meet a strong network of Federal safety laws and
regulations, including the Consumer Product Safety Improvement
Act that was signed into law in 2008. And it made our ASTM toy
safety standard mandatory Federal law.
Now, it is under this ASTM process that we work with
medical experts, government agencies and consumer groups to
ensure that we have the most protective standard possible or
children. We consider new risks to children, including the
risks from chemicals. It is under this Federal network of
safety regulations that it is illegal for us to sell a toy to a
child that exposes them to a chemical that is known to cause
harm.
Now, our industry supports strong Federal regulation for
safety. We have been uniquely impacted by State requirements
impacting chemicals and products that come into contact with
children. We understand this interest in kids. As parents
ourselves, we want to protect our kids whenever possible.
However, as you look at varying differences between State-
based regulations, differences in definitions and scope result
in extreme and high testing costs for our companies. They are
duplicative and they are not improving safety.
One of our members, for example, who makes products in
Michigan, specifically told us that they have to spend over
$175,000 on testing costs to comply and to document the fact
that they don't have a chemical of concern in their products
that they knew was not in there in the first place. They have
to do this for a paperwork requirement.
As you look at the State of Washington, they have a
chemical safety improvement act for children, and it requires
data reporting. That testing requirement has cost our industry
over $27 million, and we don't want to duplicate that from
State to State. So we appreciate that this Committee is
considering this activity. We believe that as you consider TSCA
reform, limited preemption, not to take States' rights away,
but to ensure that there is coordination and consistency
between activity that is taking place at the State level and at
the Environmental Protection Agency. We believe that a uniform
approach to regulating chemical safety will help provide a more
predictable regulatory environment for our companies. It will
allow us to invest additional resources in protecting safety
and it will help States continue to focus on truly protecting
public health.
This is consistent with how the Consumer Product Safety
Improvement Act had limited preemption for States, where there
is a specific risk addressed at the Federal level.
And the final point I want to make on reform to the Toxic
Substances Control Act is that we support a risk-based
approach, one that uses sound science and the weight of
evidence. Again, this is how the Consumer Product Safety
Commission approaches regulating our industry, and we believe
it is the most effective and efficient way to address this
issue.
As a father myself of a 4-year-old little girl named
Natalie, she asked me to say that today, we are proud of the
fact that our industry is committed to safety. I go to bed at
night confident in the fact that our companies are working
diligently to improve our safety standard and make toys safer.
We support the Committee moving forward in a bipartisan manner
that includes risk and limited preemption. We believe that will
give States greater faith in the fact that the Government is on
the job addressing safety in chemicals. We also believe that it
will help us make better, sound decisions about safety within
the supply chain. The safety determinations and assessments
will help us understand greater the risks to chemicals in
consumer products and help us make stronger, better decisions.
We look forward to working with the Committee on this
effort, and we appreciate the time today.
[The prepared statement of Mr. Hackman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you to the Toy Industry.
And our last witness is Ansje Miller, Eastern States
Director, Center for Environmental Health.
STATEMENT OF ANSJE MILLER, EASTERN STATES DIRECTOR, CENTER FOR
ENVIRONMENTAL HEALTH
Ms. Miller. Thank you, Chairman Boxer and Ranking Member
Vitter, for the opportunity to speak before you today. I also
want to give a shout-out to my Senator, Senator Gillibrand.
I am Ansje Miller, I am the Eastern States Director for the
Center for Environmental Health.
Our organization is committed to empowering parents to act
as guardians for their children. Children aren't just little
adults. Their bodies are still developing, so they are
particularly vulnerable to chemical exposures, especially at
critical windows of development. And anyone here with a toddler
can attest to the fact that anything within reach will end up
in that kid's mouth.
So they have exposures that are very different from adults.
Most Americans believe that if a product is on the store shelf,
it has been tested for safety. But as many previous witnesses
before me testified, this is simply not true. For 37 years,
TSCA has been a stunning public health failure, exposing
American families to toxic chemicals. During that time, States
have stepped into the regulatory void with laws to protect
children and families. One such law has been talked about a lot
today, which is California's Prop 65.
Since 1996, the Center for Environmental Health has
protected children and families from toxic chemicals using Prop
65. Under this law, we secure companies legally binding
commitments to nationwide changes in their production
practices, ending health threats from children's and other
products. Our work has eliminated toxic chemicals and counties
everyday products like this Curious George doll, which has high
levels of lead in its face, and this lunch box, that is the
safe version. That is the after.
Senator Boxer. Oh, good. Oh, this is the bad one. And this
is after 65?
Ms. Miller. Exactly. That is after.
Senator Boxer. No preemption, sir.
[Laughter.]
Ms. Miller. Do I get my time back for this?
[Laughter.]
Senator Boxer. Yes, yes.
Ms. Miller. So this lunch box, this is before, and this is
the after. And combined with other State laws on public health,
the results of our work have paved the way for Federal laws,
like the Consumer Product Safety Improvement Act and numerous
State and Federal regulations. Dozens of State laws like Prop
65 and those listed in the AG's letter effectively protect
people's health and serve as laboratories where critical
reforms take shape for national consideration.
I would like to share a story about why State laws are
important. Marilyn Furer was a 66-year-old retired postal
service worker from Illinois. In 2007, she noticed that her
grandson Jensen's plastic baby bib, made out of the same
material as the lunch box which she read about in a news story,
might have lead in it. It looked very much like this. She
contacted her government officials and unfortunately, they
couldn't help her. So she contacted us. We took the baby bib,
along with a bunch of others, and tested it with an independent
lab, and found that it did indeed have very high levels of
lead. So we did a report, used California's Prop 65, and with
an agreement with Wal-Mart--go, them--within a week they agreed
to take the leady baby bibs out of their shelves nationwide.
And this is something that the Senator referenced earlier
today. So now when parents like Marilyn go to the store to buy
a baby bib, they find something like this, which looks very
much like the leady one, you could never tell the difference,
and it costs the same price. So Marilyn was a hero.
Despite this important success, the States cannot address
all of TSCA's deficiencies. American families are counting on
Congress to address those deficiencies with an all of the above
approach that protects people nationwide from toxic chemicals,
while preserving the States' rights to address Federal gaps
that leave our children vulnerable to toxic chemicals.
TSCA clearly failed Marilyn and her grandson. As founding
members of Safer Chemicals Healthy Families, CEH has been
working to fix TSCA. But the current version of the Chemical
Safety Improvement Act would also fail Marilyn. As previous
witnesses have mentioned, CSIA contains a number of fatal
flaws. To spotlight a few, it lacks deadlines for regulatory
action. It is based on a safety determination standard that
fails to ensure safety. It provides no specific protections for
vulnerable populations like children, workers and people living
in contaminated communities. And it allows companies to conceal
data about the health hazards of chemicals.
In short, CSIA would not provide EPA the legal tools and
the financial resources necessary to protect families like
Marilyn's from toxic chemicals. And instead, CSIA would tie the
hands of the States, concentrating regulatory power in the
exclusive hands of the EPA without the resources to adequately
do the job.
If the CSIA were in place as drafted when Marilyn contacted
us, children across the Country would still be at risk of lead
poisoning from their bibs at every meal. Given the success of
State laws, it is imperative that CSIA preserve States' Tenth
Amendment rights to enforce their own laws, protecting their
citizens from the toxic chemicals that will inevitably slip
through CSIA's cracks.
If the current version of CSIA, with its many deficiencies
and preemption provisions, is adopted, Congress will be putting
millions of American children and families at risk.
I would like to thank the members of the Committee for the
efforts to address this important issue and pledge my
organization's commitment to working to improve this Act.
[The prepared statement of Ms. Miller follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you. We will be back after we vote. It
could be 15 minutes, it could be a half-hour, depending on how
many votes. So we stand adjourned, subject to the call of the
Chair. Don't move, though, especially you, Ms. Gorsen, I have
some great questions for you.
[Laughter.]
[Recess.]
Senator Boxer. We are going to finish this panel.
Ms. Gorsen, I promised you I would ask you some questions.
Do you still live in my State?
Ms. Gorsen. Yes.
Senator Boxer. Your testimony disagrees vehemently on every
point with the Attorney General, Kamala Harris, and eight other
attorneys general, plus a couple of others that privately
contacted us.
And you called S. 1009 marvelous. And if you read what
Kamala Harris and these other AGs said, they found it anything
but marvelous. She said it would cripple California,
California's ability to protect its citizens. So I am going to
send you this letter from Kamala Harris as well as the letter
from the other AGs, as well as a letter from State legislatures
from across the Country.
Would you be willing to, because you are very good at
argumentation, I say that as a compliment, would you, next to
every point they make, refute it, not with rhetoric, but with
fact?
For example, when you said waivers, what is wrong with
waivers, we have one in the Clean Air Act, this has nothing to
do with the Clean Air Act, and you should know that, you are an
attorney. And the waiver in the Clean Air Act is completely
different.
Now, you may be able to find some other waivers in some
other acts that would work. So would you be willing to give us
a little more of your time and go through that, as we seek to
move forward on this legislation?
Ms. Gorsen. Yes, I would be happy to.
Senator Boxer. I greatly appreciate it.
Ms. Miller, you know, speaking of heroes, the work you do
qualifies you do as one of my heroes. You are sitting next to
the Toy Industry. What a perfect combo. The Toy Industry, and
believe me, I can't tell you how I have enriched the toy
industry, having two kids and four grandkids, and how much
pleasure toys have given to my children. But also,
understanding that at one time a rubber ducky, which was the
most lovely little thing, they didn't ban what goes in there,
phthalates, under this law, TSCA, we banned it under other law.
And you know the danger of that situation, because as Ms.
Miller pointed out, and of course, Mr. Hackman, you know, we
all know, anybody who has been around kids, it all goes in the
mouth. The dangers of that.
Toy companies didn't help us. Toy companies fought us. So I
guess what I want to ask Ms. Miller, if she could look at Mr.
Hackman as a friend right now, as a fellow parent, and convince
Mr. Hackman why it is important to preserve Prop 65 in its
entirety. Make the case in 1 minute.
[Laughter.]
Ms. Miller. That is the most on the spot I have been in a
long time.
Senator Boxer. You did it in your testimony.
Ms. Miller. I would make the argument that we need to
protect Prop 65 for all the reasons that are on the table right
here, and if we go back to my office, I could fill this whole
room with stuff that, unfortunately, Federal law hasn't been
protecting us from. We have a lot of examples of toys that are
on the shelves that are toxic. Prop 65 is a fantastic tool that
has enabled us to work with manufacturers to get them to take
toxic chemicals out of the products throughout the Country.
Senator Boxer. And I would argue that the more confidence
people have in what is on the shelf, the better off you are.
The worst thing that happens is a gigantic crisis, and people
say, gee, can I really trust the companies. So I think if we do
this TSCA reform in the right way, if we add children to the
risk section, I think that is a big step forward. So we need to
add children to the risk section, we need to protect States'
rights, we need to protect victims' rights, we need to set some
deadlines.
I think what has happened to me, just listening to
everyone, including the chemical company representatives, the
certainty of doing this the right way, making sure it works,
and making sure that we do protect the most vulnerable, and
that includes, Ms. Felix, those communities that frankly have
been ignored. Because I have that in my State, too. Entire
neighborhoods where the industrial polluters exist. And they
are the ones that are suffering.
So with that, I will turn to Senator Vitter for his
questions.
Senator Vitter. Thank you, Madam Chair.
Ms. Gorsen, thank you again for your testimony. Remind us
again how long were you involved in California environmental
regulations in this particular area?
Ms. Gorsen. For 3 years as director of the Department of
Toxic Substance Control and 2 years as General Counsel of Cal/
EPA.
Senator Vitter. Right. So let me ask you some bottom line
questions. Do you think California's environmental health and
safety protections would be made stronger or weaker by the
Lautenberg-Vitter bill?
Ms. Gorsen. Overall, I think they would be made stronger,
because the Feds will be able to start looking at chemicals
they have never been able to look at, get testing, safety
information, and that will feed into California's efforts.
Because even California, with the staff they have, don't have
enough resources to tackle 10,000 chemicals.
Senator Vitter. OK. Specifically, do you think Lautenberg-
Vitter preempts California's Green Chemistry regulations that
you were involved in, or State laws to collect information or
implement reporting or protect the State's water and air?
Ms. Gorsen. There are explicit exemptions for air and water
quality, waste, disposal, there are explicit exemptions for
reporting and information gathering. With respect to the Safer
Consumer Product regulations, the implementation that Cal/EPA
has planned would not be preempted until such time as EPA makes
a safety determination. And when they make that safety
determination it will depend on the scope of that determination
as to what aspects of the Safer Consumer Product law in
California is preempted.
Senator Vitter. So following up on that specifically with
regard to that California Safer Consumer Products law, do you
think Lautenberg-Vitter would ``cripple'` it, which is the
charge a lot of folks are bringing, in light of what you
outlined?
Ms. Gorsen. No, I don't think it will cripple it at all.
Because States do have special prioritization under the law to
help EPA prioritize. And all the existing laws will be in
effect until such time as EPA makes a decision.
Senator Vitter. OK. Let me also ask you, following up on
Ms. Miller's testimony, I think she said the following, which I
don't understand, that to take that Maryland lead bib example,
that somehow under Lautenberg-Vitter we wouldn't have been
protected from that. Now, as I understand Lautenberg-Vitter,
obviously having helped draft it in part, no action by Maryland
would be preempted until and unless the EPA actually took
action with regard to that chemical for that product. And I
think it is a very safe presumption in that case that they
wouldn't examine that issue, and fail to take action with a
clear and legitimate health and safety concern. Am I missing
something, or how would you analyze that situation under
Lautenberg-Vitter?
Ms. Gorsen. That is correct. All existing State laws would
continue to be in full force and effect, and no entire State
law would be preempted by this bill. If after EPA prioritizes
lead and makes a safety determination and they have a warning
requirement as part of that safety determination, they can
decide in the scope of that determination to preempt a Prop 65
warning. But it wouldn't be preempted until such time as they
made a decision, and that would be very similar to, say, the
FDA warnings on tobacco and nicotine products that supersede
what the State warning requirement is.
But it has to be an explicit decision by EPA to do that.
Senator Vitter. Fine. OK, Dr. Borak, can you comment on a
particular statement in the Society of Toxicology letter? The
statement reads, ``In improving the Toxic Substances Control
Act, it is also critical that the law further enhances
protection of public health by advancing the use of the best
available toxicological knowledge and practice for delineating
the context of toxicity dose response data relative to actual
environmental exposures.'` Can you translate that for us into
everyday language and relate it to Lautenberg-Vitter?
Dr. Borak. I think I can try. I have read it once or twice.
I don't have it in front of me. But I think that the gist of it
is that the Society of Toxicology, which is a society of both
academic and applied and practicing toxicologists, is urging
the use of best science for the purpose of characterizing the
context and level of exposure along with the activity and
potency of compounds for the purposes of trying to best
characterize the risk associated with a particular agent.
Senator Vitter. Great. OK, I think I am out of time. Thank
you, Madam Chair.
Senator Boxer. Thanks. So my plan is to do one more round.
And then we will be done, or do you want more than one more?
OK.
Ms. Gorsen, what is Citizens for Fire Safety? Who are they
and who backs them?
Ms. Gorsen. I believe they are an advocacy group.
Senator Boxer. Who funds them?
Ms. Gorsen. I don't know.
Senator Boxer. Are you familiar with a story in the Chicago
Tribune that said it is a front group for industry? Are you
familiar with that?
Ms. Gorsen. No. I am not familiar with that story.
Senator Boxer. OK, well, I will send it to you. Didn't you
testify, or your company testify in behalf of that front group
that, quoting this Chicago paper, ``against the law to reduce
toxic flame retardants in children's products in California''?
Ms. Gorsen. Four years ago I was asked to testify as an
expert witness on the purposes of the California Safer Consumer
Products Act. And I did testify on what the role of that act
was, vis-a-vis other legislative actions.
Senator Boxer. So your firm, and it is in the record, we
will put it in the record, in behalf of this group, which no
one knew back then, and it came out in a big major story in the
Chicago Tribune, it was an industry group. The point is, and I
know Senator Vitter doesn't think it has much relevance, and to
him it doesn't, and I respect where he is coming from.
But to me, it matters. When people testify at a safety
hearing, safety for kids, it seems to me, if it is an industry-
backed group, you ought to say so. And I think that is very
important to me. And all of you here have been totally honest,
Ms. Gorsen you yourself said, when you opened, I now work for
industry. How much I appreciate that.
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Senator Boxer. Now, Ms. Miller, you talked about the
importance of the Maryland law, and going after the bibs. Is
that correct? Was it Maryland or Prop 65?
Ms. Miller. Prop 65.
Senator Boxer. Prop 65. I want you to know that many
attorneys general agree with your point. So maybe Ms. Gorsen
sort of hedged, she didn't exactly give the answer I think
Senator Vitter was looking for, but she said pretty much, it
doesn't hurt anybody's laws. That was kind of the way I took
her answer. It wasn't that definitive, but pretty much the laws
stand.
But I would rather trust, in this particular case,
attorneys general from across the Country, including States, as
my own, Connecticut, Delaware, Hawaii, Maryland, Massachusetts,
Oregon, Vermont, Washington, we have separate letters from New
Mexico and from New York. And your testimony here, because you
showed us the results of working under the law as it exists.
So let me just say to all of you, and Sister, again, I so
appreciate what you said, because you said it in the calmest
tone I have ever heard, but what advocacy you have brought to
bear, and how much it means to me, and to all of us, that you
are here.
Ms. Buermeyer, I have a question. You represent the Breast
Cancer Fund. Does the Breast Cancer Fund think S. 1009 is
better than current law or not?
Ms. Buermeyer. Thank you, Chairwoman. We think all told
that this bill actually takes us a step back from where we are
in current law.
Senator Boxer. That is important. I am sitting here as the
Chairman of the Environment and Public Works Committee. And the
Breast Cancer Association that represents the victims here
tells us that S. 1009 is a step backward. I can't ignore that.
I want a bill, and Senator Vitter, I hope we will get there. We
have had tough issue before, would we ever get a WRDA bill,
would we ever get a formaldehyde bill. We did. We got a highway
bill. These things are not easy.
But I just want to say in closing my remarks to this panel,
do you all stand ready to work with us? Because the next step
that I hope to take, if Senator Vitter is willing, is to start
meeting directly with Senator Vitter, Senator Udall, with my
team and his team, and mark up the bill. That is what I really
want to do. So we will see what principles, I am hopeful today
we have all agreed we want certainty, we want to protect the
most vulnerable, we want to make sure that children, I want to
make sure children are specifically mentioned. We want to base
this on science, on deadlines, on protecting the States that
want to protect their citizens more, on protecting victims.
These are the principles that I have, and they are very similar
to the principles Ms. Miller laid out when she said these are
the four or five things.
I believe, if we can agree on those principles, then the
devil is in the details for us to sit down in good faith. Will
you all stand ready to help both of us if we ask for your help?
Can I see the nodding of the heads?
[Witnesses respond in the affirmative.]
Senator Boxer. Absolutely. OK. Well, it means a lot. I
think, Senator Vitter, we have just a terrific array of experts
on all sides of this issue moving forward. And I would turn to
you for your closing questions and comments.
Senator Vitter. I will just make some brief closing
comments. I found this hearing very, very useful, and it
continues a lot of conversations with all interested
stakeholders that have been welcome that we have been having
for weeks. And to answer your question, Madam Chairman, I not
only stand ready to do what you are describing, I have been
doing it for well over a month with many other members, with
many other interested stakeholders. And everybody, including
yourself, has been invited to that table.
So we are not only ready to start, we started over a month
ago and are eager to continue. I think this hearing and this
discussion is a very productive step forward in that, and will
continue and resolve all the issues and clarifications that we
can possibly resolve.
I think doing that, using Lautenberg-Vitter as a base,
resolving those issues, clarifying everything we can, it won't
get rid of all of our differences. I think it will, if it is
done in good faith, as we have been doing, resolve 80 plus
percent of them, and we will have a solid bipartisan bill that
cannot only be talked about at a hearing, but that can actually
be passed into law in a divided Congress.
So I would just close with that thought. Again, my
prediction is, we will work through this in good faith as we
have been, we will clarify 80 percent of what we are talking
about. We probably will have legitimate, good faith differences
about some things. And at that point, I hope we don't, none of
us, cling to a bill that may be perfect in any of our
individual minds that will not pass. I hope we coalesce around
a strong, bipartisan, good faith product that will pass into
law.
That is my game plan and my goal. I appreciate this hearing
as a part of that process and step forward.
Senator Boxer. With that very positive close, I share it, I
have been working on this since 2005 with Senator Lautenberg.
So it does take a lot of work. We couldn't get it done because
there were irreconcilable differences. And I think we can
definitely write a bill where there are some differences, but
you cannot get a bill if the basic principles are at odds. I am
very hopeful from what I have heard today from you, Senator,
that the basic principles will not be at odds, if we can come
together on protecting kids, on protecting States' rights, on
protecting victims' rights, on making sure we base everything
on science, we give certainty to the industry.
If we agree on those principles, I am absolutely certain we
will have a great bill. And to all of you who came and stayed
since early this morning, you are doing a duty for your Country
and we do appreciate it.
We stand adjourned. Thank you very much.
[Whereupon, at 3:05 p.m., the Committee was adjourned.]
[An additional statement submitted for the record follows:]
Statement of Hon. Jeff Sessions,
U.S. Senator from the State of Alabama
Thank you, Chairman Boxer, for holding today's hearing
about efforts to modernize our nation's chemical safety laws.
The Toxic Substances Control Act (``TSCA'') was signed into law
by President Ford in 1976. Today, there is general agreement on
several key principles for reform:
1. Chemicals regulation is changing globally and TSCA needs
to be updated and modernized;
2. The United States of America should be a global leader
in chemicals research, production, and safe use;
3. States have an important role to play in protecting the
health and well-being of their citizens, but a patchwork of
State regulations governing chemicals manufacturing and use can
adversely impact the interstate and international market for
chemicals;
4. The U.S. needs a regulatory program that is manageable,
protects public health, and ensures that the U.S. has a
globally competitive chemical industry that creates jobs for
Americans and helps make technological advancements that can
improve the quality of life for all people;
5. More chemical safety data should be made publicly
available to enhance public confidence in the safe use of
chemicals; and
6. Policymakers should legislate carefully in this arena as
chemical manufacturing plays an essential role in the nation's
economy. In Alabama, chemical manufacturing contributes more
than $1.82 billion to the state's GDP (2009 figures) and
chemicals are the state's second largest export (2009).
Currently, Alabama has over 20 chemical companies with 100 or
more employees.
Notwithstanding a general recognition of the need to
modernize TSCA in line with these principles, bipartisan reform
legislation has remained elusive for many years. We all know
how passionately our revered colleague, Senator Lautenberg,
worked on this issue, and how difficult it was to reach
agreement on a bill that could actually become law.
In fact, when Senators Lautenberg and Vitter introduced the
Chemical Safety Improvement Act in May of this year, I was as
surprised as anyone. Many of us wondered: would it be a bill
that could garner substantial, bipartisan support, protect
public health, and actually help make the U.S. chemical
manufacturing sector safer and more competitive?
Today, the Lautenberg-Vitter bill has more than 25 co-
sponsors in the Senate (including 12 Democrats). The bill has
the strong endorsement of the New York Times and the Washington
Post, the Environmental Defense Fund, as well as conservative
and liberal members of the Senate. The bill also has the strong
support of the U.S. chemical sector including the American
Chemistry Council, companies with a strong Alabama presence
including BASF and MeadWestvaco, and a long list of more than
90 other associations or business groups. With prospects for
this bill looking favorable, the bill has even been heralded by
some as the most significant piece of environmental reform
legislation since the 1990 Clean Air Act Amendments.
We have studied the Lautenberg-Vitter bill closely, and I
believe their bill has many good components:
Provides a reasonable framework for assessing chemicals
using the best available science.
Provides a reasonable and protective safety standard for
chemicals.
Provides a reasonable screening process to prioritize
chemicals as ``high priority'' or ``low priority.''
Allows States to seek expedited review for chemicals of
concern.
Provides a systematic and transparent approach for
evaluating major toxic effects of chemicals.
Improves the process for seeking approval for new
chemicals or significant new uses of chemicals.
Requires greater transparency while also seeking to
protect legitimate confidential business information.
I look forward to learning more about this legislation
today and hearing from our witnesses.
As we consider these issues, I would like to highlight a
few potential issues that should be considered.
First, I believe we need to be careful to ensure that any
effort to improve the chemical safety process--including both
Federal and State involvement--does not get bogged down in
litigation, as so often happens in the realm of Federal
environmental law.
Second, I am concerned about provisions in the current TSCA
that impose strict liability and criminalize non-criminal
behavior. There is a pervasive problem in Federal law today
involving the over-criminalization of non-criminal actions.
Ours is a constitutionally limited government that should
respect the rule of law, individual freedom, and common law
principles of justice and equity, and for that reason, we need
to be careful to ensure that Federal laws like TSCA do not
impose an unwarranted degree of criminal or civil liability for
behavior that may not warrant penalization of that magnitude.
Third, while I greatly respect the role of the states in
protecting public health--particularly as a former Attorney
General of my state, I believe that Congress needs to be
careful to ensure that any process for giving states waivers
from preemption in this subject matter is narrow and clearly
defined. The waiver process needs to ensure that it does not
undercut the national regulatory certainty that is needed to
protect the chemical sector from a patchwork of state laws that
could render the chemical sector non-competitive.
Finally, I believe we need to make sure that final
legislation on this topic protects human health while also
promoting the global competitiveness of the U.S. chemical
manufacturing sector. For example, Section 23 of TSCA (40
U.S.C. 2629), which currently requires EPA to prepare an annual
report on its TSCA activities, could be amended to require EPA
to survey industry and other stakeholders and evaluate, on an
annual basis, ways to enhance U.S. global economic
competitiveness through changes to U.S. chemical safety laws or
regulations. This is not yet included in the current bills
before us, but I think it is worth considering.
Madam Chairman, thank you for holding today's hearing.
I especially want to thank our Ranking Member, Senator
Vitter, for his tremendous work on this issue.
I look forward to hearing from the witnesses today.
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