[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

                              ----------                              
                                                                   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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
           
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]     
    
    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:]
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    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]     
    
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]    
       
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]    
        
    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:]
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    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.
    [The referenced article follows:]
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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.

    [Additional material submitted for the record follows:]
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