    [Senate Hearing 114-25]
    [From the U.S. Government Publishing Office]

                                                             S. Hrg. 114-25

                      LEGISLATIVE HEARING ON THE FRANK R.
                         LAUTENBERG CHEMICAL SAFETY FOR
                         THE 21ST CENTURY ACT (S. 697)

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

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                 MARCH 18, 2015

                                   ----------

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                                                             S. Hrg. 114-25

                      LEGISLATIVE HEARING ON THE FRANK R.
                         LAUTENBERG CHEMICAL SAFETY FOR
                         THE 21ST CENTURY ACT (S. 697)
    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 18, 2015

                                   __________

      Printed for the use of the Committee on Environment and Public Works

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          Available via the World Wide Web: http://www.gpo.gov/fdsys/
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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED FOURTEENTH CONGRESS
                                 FIRST SESSION

                      JAMES M. INHOFE, Oklahoma, Chairman
    DAVID VITTER, Louisiana              BARBARA BOXER, California
    JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
    SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
    MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
    JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
    JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
    ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
    DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
    MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
    DAN SULLIVAN, Alaska

                     Ryan Jackson, Majority Staff Director
                   Bettina Poirier, Democratic Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 MARCH 18, 2015
                               OPENING STATEMENTS

    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
    Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     8
    Boxer, Hon. Barbara, U.S. Senator from the State of California...     9
    Markey, Hon. Edward J., U.S. Senator from the State of
      Massachusetts..................................................    11
    Udall, Hon. Tom, U.S. Senator from the State of New Mexico.......    18

                                   WITNESSES

    Lautenberg, Bonnie...............................................    13
    Jones, Hon. Jim, Assistant Adminisrator, Office of Chemical
      Safety and Pollution Prevention, Environmental Protection
      Agency.........................................................    19
        Prepared statement...........................................    21
        Responses to additional questions from:
            Senator Inhofe...........................................    30
            Senator Vitter...........................................    32
            Senator Markey...........................................    34
            Senator Boxer............................................    38
    Cook, Ken, President and Co-Founder, Environmental Working Group.    86
        Prepared statement...........................................    89
        Responses to additional questions from:
            Senator Vitter...........................................    98
            Senator Boxer............................................   104
    Frosh, Hon. Brian E., Attorney General, State of Maryland........   105
        Prepared statement...........................................   107
        Responses to additional questions from:
            Senator Boxer............................................   112
            Senator Vitter...........................................   128
    Goldman, Lynn R., M.D., Michael and Lori Milken Dean of Public
      Health, Milken Institute School of Public Health, The George
      Washington University..........................................   129
        Prepared statement...........................................   131
        Responses to additional questions from Senator Boxer.........   141
    McCabe, Edward, M.D., Senior Vice President and Chief Medical
      Office, March of Dimes Foundation..............................   147
        Prepared statement...........................................   149
        Responses to additional questions from Senator Boxer.........   156
    Denison, Richard A., Ph.D., Lead Senior Scientist, Environmental
      Defense Fund...................................................   158
        Prepared statement...........................................   160
        Response to an additional question from Senator Boxer........   164

                              ADDITIONAL MATERIAL

    Letters:
        American Chemistry Council...................................   231
        American Chemical Society....................................   235
        The Adhesive and Sealant Council.............................   236
        Bipartisan Policy Center.....................................   237
        National Association of Chemical Distributors................   238
        International Frangrance Association North America...........   239
        Society of Toxicology........................................   240
        E. Donald Elliot, Assistant Administrator and Genaral
          Counsel, Environmental Protection Agency, 1989-1991and
          former Justice Department officials........................   245
        Twenty five law professors, legal scholars, and public
          interest lawyers...........................................   251
        State of West Virginia, Office of Attorney General...........   256
        Environmental Working Group (EWG)............................   258
        State of New York, Office of Attorney General................   263
        State of Vermont, Office of the Attorney General.............   269
        American Association for Justice.............................   276
    Statement, Asbestos Disease Awareness Organization (ADAO)........   278
    Articles:
        Environmental Working Group (EWG)............................   279
        EarthJustice: Stop a Dangerous Chemical......................   280
        Safer Chemicals, Safer Families Vitter Udall Chemical bill
          draws broad opposition.....................................   281
        Healthy Child, Healthy World: Chemical Industry Bill
          Protects, Polluters, Profits Not Kids' Health..............   282
        Breast Cancer Fund:Urge Your Senators to Oppose a TSCA Reform
          Bill that Would Endanger Public Health.....................   283
    Letters:
        Organizations dedicated to protecting and improving the
          reproductive health and wellness of women and their
          families...................................................   284
        Safer States.................................................   286
        Asbestos Disease Awareness Organization (ADAO)...............   289
        Environmental Health Strategy Center.........................   292
    Article, Weak Tea in a Chipped Cup...............................   295
    Letter, State of California, Office of the Attorney General......   301

    LEGISLATIVE HEARING ON THE FRANK R. LAUTENBERG CHEMICAL SAFETY FOR THE
                           21ST CENTURY ACT (S. 697)

                                  ----------

                           WEDNESDAY, MARCH 18, 2015

                                           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 Building, Hon. James Inhofe (chairman of
    the committee) presiding.
        Present: Senators Inhofe, Boxer, Vitter, Barrasso, Carper,
    Udall, Whitehouse, Cardin, Sanders, Markey, Boozman, Merkley,
    Fischer, Capito and Rounds.

              OPENING STATEMENT OF HON. JAMES M. INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. We will call this hearing to order.
        Senator Boxer and I will each have a 5-minute opening
    statement. Then we will proceed.
        I want to use half of my 5-minute statement so I can give
    the other half to Senator Vitter, who is the co-author of the
    bill.
        I am very pleased today that we will be discussing the
    Frank R. Lautenberg Chemical Safety for the 21st Century Act.
    It might be the longest title I can ever remember, but it is
    worth it. It has strong bipartisan support of nine Democrats
    and nine Republicans. I am proud to co-sponsor this bill and
    hope to move it through the committee by way of constructive
    and orderly process.
        For years, Senator Lautenberg worked to update the 1976
    law, releasing bill after bill, every Congress. In 2012 he came
    to me with a clear message. That message was that this law will
    not be updated without bipartisan support and input from all
    stakeholders. So Frank and I held a series of stakeholder
    meetings and through that process, we got a lot of good
    information on all sides of the issue.
        Just about 2 years ago, Senator Lautenberg teamed up with
    Senator Vitter to introduce a bipartisan bill that created not
    only the first real momentum for meaningful reform, but a
    foundation for the legislation we have before the committee
    today.
        It is important to note that today we have a number of
    witnesses focused on public health and the environment and none
    from industry. This is certainly not because no one from
    industry supports the bill. So I, without objection, will place
    supporting statements into the record from a number of groups,
    including the American Alliance for Innovation.
        [The referenced information follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. The reason the majority has chosen these
    witnesses is to focus on the health and environmental
    provisions of the bill, and greater regulatory certainty for
    the regulated community as well as better ensuring protections
    for all Americans, not just those in a few States with a
    patchwork of programs. Major environmental laws do not get
    passed without bipartisan support, and Frank recognized that.
    The simple fact is that any partisan, partisan, reform effort
    will fail.
        Senator Vitter, you can have the remainder of my time.
        [The prepared statement of Senator Inhofe follows:]

                Statement of Hon. James M. Inhofe, U.S. Senator
                           from the State of Oklahoma

        TSCA (Toxic Substances Control Act) is a law that everyone
    agrees is outdated and in serious need of modernization. I am
    very pleased that today we have before us a bill with the
    strong bipartisan support of 9 Democrats and 9 Republicans. I
    am proud cosponsor of this bill and hope to move it through
    Committee by way of constructive and orderly process.
        For years Senator Lautenberg worked to update the 1976 law,
    releasing bill after bill every Congress, and in 2012, he came
    to me with a clear message: this law will not be updated
    without bipartisan support and input from all stakeholders.
    Frank and I held a series of stakeholder meetings, and though
    that process we got a lot of good information on all sides of
    the issue and I would in particular welcome Ms. Bonnie
    Lautenberg to the committee this morning.
        Just about two years ago, Senator Lautenberg teamed up with
    Senator Vitter to introduce a bipartisan bill that created not
    only the first real momentum for meaningful reform, but a
    foundation for the legislation we have before the Committee
    today.
        We all know that Senator Vitter and myself and our
    Republican colleagues are not ones to typically offer up bills
    granting EPA more authority. But in this case I believe it is
    not only the right thing to do, but the conservative thing to
    do.
        TSCA is not a traditional environmental law that regulates
    pollutants like the Clean Air or Clean Water Acts instead it
    regulates products manufactured for commerce. Under the U.S.
    Constitution, the job of regulating interstate commerce falls
    to Congress, not the states. We support this legislation not
    only because it better protects our families and communities,
    but because it ensures American industry and innovation can
    continue to thrive and lead without the impediment of 50
    different rulebooks.
        It is important to note that today that we have a number of
    witnesses focused on public health and the environment and none
    from industry. This is certainly not because no one in industry
    supports this bill I would like unanimous consent to place
    supportive statements in the record from a number of groups
    including the American Alliance for Innovation which has sent
    us a letter signed by XX trade associations. The reason the
    majority has chosen these witnesses is to focus on the health
    and environmental provisions of the bill, which have been
    significantly strengthened as the necessary tradeoff for
    greater regulatory certainty for the regulated as well as
    better ensuring protections for all Americans, not just those
    in the few states with a patchwork of programs.Major
    environmental laws do not get passed without bipartisan support
    Frank recognized that and the simple fact is that any partisan
    TSCA reform effort will ensure that nothing gets done and
    Americans are stuck with a broken federal system to all our
    detriment. I hope we get this done to honor Senator
    Lautenberg's legacy.

                OPENING STATEMENT OF HON. DAVID VITTER,
                U.S. SENATOR FROM THE STATE OF LOUISIANA

        Senator Vitter. Thank you so much, Mr. Chairman. Thanks for
    convening today's important hearing. I too want to thank all of
    our witnesses, starting with Mrs. Bonnie Lautenberg, for being
    here today, to discuss this important bipartisan effort to
    reform an outdated law that affects all of our daily lives and
    our national economy.
        As you suggested, more than 2 years ago, I sat down with
    Frank Lautenberg in an attempt to find compromise, work
    together on updating the drastically outdated Toxic Substances
    Control Act. Updating this law was a long-time goal, it was a
    passion of Frank's. I am saddened he is not with us today to
    see and to hear this progress.
        But after Frank's unfortunate passing, Senator Tom Udall
    stepped in to help preserve Frank's legacy and continue working
    with me to move bipartisan TSCA reform forward. In the long
    months since, Senator Udall and I have worked tirelessly to
    ensure the bill substantively addresses the concerns that we
    heard from fellow Republicans and Democrats, as well as from
    the environmental and public health communities.
        Today, we are here to talk about that work, that successful
    work, and to answer one key question: are we here to accomplish
    something that protects the public health and the environment,
        while ensuring American industry has the ability to
    continue to lead and innovate? Or are we willing to just let
    the status quo remain, the failed status quo, push failed
    partisan ideas that will not go anywhere?
        As members of this committee, I think we have a
    responsibility to ensure that our constituents are properly
    served, that we move the ball forward in an important
    substantive way, and that will only be done clearly with a
    strong bipartisan approach. And the Udall-Vitter bill we will
    be discussing today, among other things, is the only bipartisan
    bill on radar, on the playing field. Our co-sponsors,
    Republican and Democrat, continue to grow.
        It is evident that the Frank R. Lautenberg Chemical Safety
    for the 21st Century Act is the only realistic shot we have at
    reforming a very broken and dysfunctional system. So I look
    forward to all of our witnesses' testimony and the discussion.
        Again, Mr. Chairman, thank you very much for this hearing.
        Senator Inhofe. Thank you, Senator Vitter.
        Senator Boxer.

               OPENING STATEMENT OF HON. BARBARA BOXER,
               U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Boxer. Thanks so much, Mr. Chairman, and thanks to
    all of our witnesses who are here.
        I am going to ask unanimous consent to place my full
    statement into the record at this time, and lay out several
    reasons why I oppose the Udall-Vitter bill.
        Senator Inhofe. Without objection.
        [The prepared statement of Senator Boxer follows:]

                 Statement of Hon. Barbara Boxer, U.S. Senator
                          from the State of California

        Thank you all for being here today.  I ask unanimous
    consent to place into the record my statement, which lays out
    several reasons I oppose the Udall-Vitter bill.  The bill I
    introduced with Senator Markey, the Alan Reinstein and Trevor
    Schaefer Toxic Chemical Protection Act, addresses fundamental
    flaws in the Udall-Vitter bill.  Unfortunately, the Republican
    majority would not permit it to be considered today.
        I want to note the presence of Linda Reinstein, Alan's
    wife, and Trevor Shaefer who are here today, as well as
    consumer advocate Erin Brockovich, who endorses the Boxer-
    Markey bill and opposes the Udall-Vitter bill.It is clear that
    in its present form, the Udall-Vitter bill fails to provide the
    public health protections needed and is worse than current law.
    This bill still does not have the tools necessary to put
    safeguards in place--even for the most dangerous toxic
    substances like asbestos.
        I would like to enter into the record an analysis by one of
    the leading legal scholars on environmental law who said:
    "[T]he Vitter-Udall-Inhofe bill will not make it easier for EPA
    to regulate harmful toxic substances . . . When considered in
    light of its aggressive preemption of state law that would
    actually remove existing protections in many states, the bill
    is actually worse than the existing statute from a consumer
    protection perspective.  And the changes to the regulatory
    standard and the failure to change the standard for judicial
    review will provide job security for chemical industry lawyers
    for years to come. [Tom McGarity, University of Texas Law
    Professor, March 17, 2015]
        I have never seen such an unprecedented level of opposition
    to any bill.  I want you to see what that opposition looks
    like, and I ask my staff to stand up now and show you the names
    of more than 450 organizations that oppose the Udall-Vitter
    bill.  Some of the groups listed include:

         8 State Attorneys General (California, Massachusetts, New
    York, Iowa, Maine, Maryland, Oregon, Washington)
         Breast Cancer Fund
         Asbestos Disease Awareness Organization
         Trevor's Trek Foundation
         Environmental Working Group
         EarthJustice
         Safer Chemicals, Health Families
         Association of Women's Health, Obstetric and Neonatal
    Nurses
         American Nurses Association
         Physicians for Social Responsibility
         United Steelworkers

        Let me quote from some of the letters we have received in
    opposition to the bill. The Breast Cancer Fund said this: ``The
    Frank R. Lautenberg Chemical Safety for the 21st Century Act .
    . . undermines what few health protections from toxic chemicals
    now exist . . .
        It advances the interests of the chemical industry and
    disregards years of work by health care professionals,
    scientists, public health advocates and state legislators to
    enact meaningful reform and to prevent diseases linked to
    chemical exposure.''
        According to the Asbestos Disease Awareness Organization,
    ``The fact that the Vitter-Udall bill will not even restrict,
    much less ban, the deadly substance that claims 30 lives a day
    is nothing short of a national travesty. Any Senator who
    supports this industry proposal is in essence supporting the
    continuation of the toll asbestos has already had on millions
    of American families.''
        EarthJustice had this to say about the Udall-Vitter bill:
    ``[T]he chemical industry got exactly what it wanted--again.''
        The Director of Safer Chemicals, Healthy Families, Andy
    Igrejas, said: ``Firefighters, nurses, parents of kids with
    learning disabilities and cancer survivors all still oppose
    this legislation.
        The Attorneys General from New York, Iowa, Maine, Maryland,
    Oregon and Washington had this to say: ``[W]e believe that,
    rather than bringing TSCA closer to attaining its goal, the
    draft legislation's greatly expanded limitations on state
    action would move that goal further out of reach.''
        Massachusetts' Attorney General says: ``On the crucial
    issue of preserving our state's abilities to protect the health
    and safety of the citizens within our borders the bill strays
    far from a bill that can adequately protect our citizens from
    the potential risks that may be posed by certain toxic
    chemicals in commerce.''
        According to California's Attorney General: ``In
    California's view, this constitutes poor public policy that
    undermines the fundamental health and environmental protection
    purposes of TSCA reform.''
        And California EPA says, ``Unfortunately, rather than
    reforming TSCA to ensure that state and federal agencies can
    efficiently and effectively work together to protect the
    public, this legislation takes a step backward from what should
    be the common goal of achieving strong public health and safety
    protections under a reformed version of TSCA.''

        Senator Boxer. I would like to note the presence of two
    people in the audience today. Erin Brockovich, if she would
    stand up, please. And Linda Breinstein, and actually Trevor
    Shaffer. Three people. Senator Markey and I introduced our bill
    and we named it after Trevor and Linda's husband, who died of
    asbestos, and Trevor is a survivor of environmental brain
    cancer and Erin Brockovich, well, she is a legend, and I am so
    proud that they are here to oppose this bill and to support the
    Boxer-Markey bill.
        I have never seen, in all the years I have been here, such
    opposition to legislation. I have asked my staff to now stand,
    showing you the organizations that have come out against this
    bill. I know you can't read them from where you are, but they
    will be available to you. There are 450 organizations.
        And the reason really is summed up by many of them. I will
    read you a statement by Mr. Tom McGarrity of the University of
    Texas, a leading legal scholar on environmental law who said
    that the Vitter-Udall-Inhofe bill will not make it easier for
    EPA to regulate toxic substances when considered in light of
    its aggressive preemption of State law that would actually
    remove existing protections in many States. The bill is
    actually worse than the existing statute.
        I thank my staff, very, very much, for that.
        I want to State, some of these that are on this list, eight
    attorneys general, the Breast Cancer Fund, the Asbestos Disease
    Awareness Organization, Trevor's Trek Foundation, Environmental
    Working Group, Earth Justice, Safer Chemicals Healthy Families,
    Association of Women's Health, Obstetric and Neonatal Nurses.
    The American Nurses Association has taken a stand against this
    bill. Physicians for Social Responsibility, even the United
    Steelworkers.
        I am going to quote from a couple of these letters, then I
    am going to yield the remainder of my time to Senator Markey.
    The Breast Cancer Fund says, ``The Frank Lautenberg Chemical
    Safety for the 21st Century Act undermines what few health
    protections from toxic chemicals now exist. It advances the
    interests of the chemical industry and disregards years of work
    by health care professionals, public health advocates and State
    legislators.''
        I just want to say, I think if the average was asked, who
    do you believe more, politicians or the Breast Cancer Fund, I
    think you know the answer.
        According to the Asbestos Disease Awareness Organization,
    ``The fact that the Vitter-Udall bill will not even restrict,
    much less ban on the deadly substance claiming 30 lives a day
    is a national travesty.''
        I yield the remainder of my time to Senator Markey.

               OPENING STATEMENT OF HON. EDWARD MARKEY,
              U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

        Senator Markey. I thank the Ranking Member.
        For decades, in Woburn, Massachusetts, chemical companies
    and other industries used nearby land as their personal dumping
    grounds for thousands of tons of toxic materials. Those
    chemicals leeched into the groundwater and contaminated the
    water supply with deadly chemicals, like TCE.
        It was in Woburn that I met a young boy named Jimmy
    Anderson. He was a regular kid except for the fact that he and
    other Woburn kids were diagnosed with a rare form of leukemia.
    Jimmy's mother, Ann Anderson, began a movement where she tied
    this rare disease cluster to contaminated drinking water.
        I held a hearing in Woburn to highlight the harm. Ann's
    battle began the subject of a book and movie, a civil action.
    And our fight eventually helped spur the creation of this
    Country's Superfund laws.
        Jimmy died in 1981. Incredibly, it took EPA until 2014 to
    finish studying the risk of TCE. Jimmy would have been in his
    mid-40's. And EPA still has not taken any action under TSCA to
    ban TCE.
        There is no question in my mind that there will be more
    Jimmy Andersons unless EPA is given clear authority, resources
    and deadlines to take action on chemicals that have already
    been proven to kill. Unfortunately, the bill we are discussing
    today does not meet that test. It handcuffs States attorneys
    general, who are our chemical cops on the beat. It gives known
    dangers a pass, and it fails in any way to create a strong
    Federal chemical safety program that will protect public
    health.
        That is why my State's attorney general, Maura Healey, and
    attorneys general from several other States oppose this bill.
    Senator Boxer and I have introduced an alternative bill that in
    my opinion retains the States' ability to clamp down on
    dangerous chemicals, while ensuring that known chemical threats
    to public health are acted on quickly.
        I thank Senator Boxer for her partnership on this bill, and
    I look forward to working with all of my colleagues to advance
    TSCA reform that protects the most vulnerable amongst us from
    the harm they are exposed to.
        I yield back the balance of my time.
        Senator Inhofe. Thank you, Senator Markey.
        We are going to be hearing, before we start with our
    witnesses, from two very significant people. One is Senator
    Udall, the other is Mrs. Lautenberg. I say to my good friend
    from New Jersey, since you occupy Frank Lautenberg's seat, that
    you would like to introduce Bonnie, is that correct?
        Senator Booker. It is, and I really do appreciate, Mr.
    Chairman, your making allowance for this great privilege.
        Everybody in New Jersey knows Senator Frank Lautenberg as
    an incredible champion of not just issues regarding health and
    safety, but also of children, seniors and in fact, any cause
    that was just. You would often hear the leader of that effort
    being Senator Lautenberg.
        He knew the importance of chemical safety, and we know that
    he fought tirelessly for comprehensive reform. He was a giant
    of a man, and fought for cleaning up Superfund sites,
    brownfields and protecting children from unsafe chemicals and
    toxins.
        I know how much his effort on toxic chemicals meant to not
    only Senator Frank Lautenberg, but indeed, to his entire
    family. I am extraordinarily excited today to have Bonnie
    Lautenberg here. I would like to welcome her personally, as the
    Senator from New Jersey who is sitting in Frank Lautenberg's
    seat. But more importantly, I think I can say this with
    confidence, that as much of a giant as Senator Frank Lautenberg
    was, Bonnie towers just as high. Senator Lautenberg's motto
    often was, ``still fighting.'' It is clear that Bonnie
    Lautenberg has not given up the fight herself. She is living
    that legacy and is still pushing us to reach the summit, that
    difficult summit, that Senator Lautenberg worked so hard to
    climb throughout his life.
        I do not have a significant other, but I think all of us
    who serve in the U.S. Senate know that the men and women who
    are spouses are often just as equally responsible for the
    success of the work we do. I know, Senator Udall, your wife is
    here. I know you and I have esteem for you, sir, but I can say
    that you married up with confidence.
        [Laughter.]
        Senator Booker. So I just want to let you know that one of
    the best things Frank Lautenberg did in his career was to marry
    Bonnie and have a true partner in the incredible work he did
    for the State of New Jersey, and indeed, for our Country. With
    that, I would like to welcome Bonnie Lautenberg to testify.
        Senator Inhofe. Thank you, Senator Booker.
        If it is all right, Senator Udall, we will start with Mrs.
    Lautenberg. You are recognized for any comments that you would
    like to make.

                     STATEMENT OF BONNIE LAUTENBERG

        Mrs. Lautenberg. Good morning, everybody. I just would like
    to say that my granddaughter and Frank's granddaughter, Mollie
    Birer, is here with me today. She is working on the Hill and
    very proud to be here. She is an intern.
        Senator Inhofe. Have her stand up. We want to know which
    one she is.
        [Applause.]
        Mrs. Lautenberg. Chairman Inhofe and Ranking Member Boxer,
    and all the members of the committee, first I want to say how
    honored I am to come before you today, not as a scientist, not
    as a policy expert, but as a mother and grandmother, to speak
    about a bill that was such a passion to my late husband,
    Senator Frank Lautenberg, a former distinguished member of this
    committee. We were part of the Senate family, and Frank loved
    every day he served here. Frank accomplished a lot in this
    body, the Domestic Violence Gun Ban, raising the drinking age,
    the new GI Bill and so many others.
        But this bill on chemical safety meant everything to him.
    He told me it was even more important than his signature
    accomplishment, banning smoking on airplanes. He wanted
    chemical safety to be his final, enduring legacy. Frank's
    guiding principle in his 28 years in the Senate was about
    saving lives and making our environment better for everyone's
    children and grandchildren. This is exactly what the effort to
    reform TSCA is about. TSCA is an outdated, ineffective law that
    is not protecting families from harm. Frank wanted to change
    that.
        Frank understood that getting this done required the art of
    compromise. For many years, he could not get Republicans or
    industry to meaningfully engage on the issue. So we pushed
    forward a winner take all bill that reflects his wish list on
    the issue, and pursued an aggressive publicity campaign as
    well.
        Eventually, the pressure worked. Senator Vitter came to the
    table. He and Frank worked out a compromise that was a major
    improvement over the current law. That is what set the stage
    for the bill we have today. Thank you, Senator Vitter.
        I want to especially thank Senator Tom Udall for carrying
    on Frank's legacy forward after he passed away. Tom is every
    bit the dedicated environmentalist that Frank was. He took up
    the issue with the same zeal as Frank. To me, it is like part
    of Frank is still here in the U.S. Senate, to make this bill a
    reality. Thank you.
        Despite all of this progress, there are still some who are
    still waiting for Frank's winner take all bill to pass
    Congress. They are letting the perfect be the enemy of the
    good. And it is tragic, because if they get their way, then
    there will be no reform and we will have to live with this
    completely ineffective TSCA law for many more decades.
        We also can't let the interests of a few States undermine
    the rest of the Country. Frank lamented that it was not fair
    that New Jersey and the vast majority of States lacked any
    meaningful measures on this issue but were being held hostage.
    He worked hard on this compromise to protect the few States
    with their own laws on this topic, but recognized that the new
    Federal law will have to become the nationwide standard.
        This cause is urgent, because we are living in a toxic
    world. Chemicals are rampant in the fabrics we and our children
    sleep in and wear, the rugs and products in our homes and in
    the larger environment we live in. How many family members and
    friends have we lost to cancer? We deserve a system that
    requires screening of all chemicals to see if they cause cancer
    or other health problems. How many more people must we lose
    before we realize that having protections in just a few States
    isn't good enough? We need a Federal program that protects
    every person in this Country.
        The TSCA bill that passed in 1976 has been a shameful
    failure. It is so bad that even the chemical industry had to
    admit it. Far too many chemicals are on the market without any
    sort of testing.
        This situation reminds me of the days when I was a kid and
    we used to run around outside in Long Island, when the fog man
    came around in his little truck, spraying DDT all over our
    lawns and trees. Yes, DDT, and we would run through it. That is
    what we are doing now. If we continue to let the perfect be the
    enemy of the good, we will continue to run through the fog.
        Frank used to say there were 99 huge egos in this body, but
    he loved you all. Well, almost all.
        [Laughter.]
        Mrs. Lautenberg. You know he had a great sense of humor.
    But he found nothing funny about the dangers of our current
    environment and sadly, he did not live long enough to fight to
    get this done. So now, it is up to all of you to make it
    happen.
        This bill is not only about the legacy of Frank Lautenberg.
    It is about the legacies of each member of this committee. It
    is time to take positive action. Please, don't let more time
    pass without a new law. The American people deserve better.
        Please, work out your differences and get it done, for your
    families and for every family in our Country. Thank you, Mr.
    Chairman.
        Senator Inhofe. Thank you, Mrs. Lautenberg. That was an
    excellent statement and we appreciate it very much.
        Senator Udall.

                 OPENING STATEMENT OF HON. TOM UDALL,
               U.S. SENATOR FROM THE STATE OF NEW MEXICO

        Senator Udall. Chairman Inhofe, Ranking Member Boxer, and
    thank you, Bonnie, for those very kind and nice words.
        It is nice to be back with all of you today. I was proud to
    serve for many years with you as a member of this committee. We
    all served for a long time with our former colleague, the late
    Senator Frank Lautenberg. We all remember Senator Lautenberg's
    passion for chemical safety reform. He spoke so often about his
    children and his grandchildren and the need to do something
    about this broken law.
        For the longest time in his career, there was a tremendous
    standoff. Most of my Democratic colleagues recall voting in
    favor of his bill, the Safe Chemicals Act, which unfortunately
    failed to advance past the vote in 2011. I supported that bill
    enthusiastically, but it received no Republican support in the
    committee and had no Republican co-sponsors. There was a
    failure to find agreement between public health and the
    industry groups, and between Democrats and Republicans.
        But in his final days in the Senate, he worked very hard to
    find compromise with the opposing side. He put his idea of
    perfection aside. Because his aim was clear, he actually wanted
    to protect children, to protect the most vulnerable, and to
    reform a broken law. The original Lautenberg-Vitter bill was
    introduced quickly. Many of its provisions needed clarification
    and improvement. Senator Vitter and I have been working to
    improve this bill. And frankly, these changes have almost all
    been on the public health side of the equation. We have been
    open, we have been transparent and we have been inclusive.
    Everyone was invited to the table to comment on the legislation
    and provide feedback and suggestions.
        Senator Vitter and I are not accustomed to working together
    on environmental issues. We come to the table with different
    ideas and we came to this issue with different priorities.
    There were times when negotiations broke down. But we always
    came back to the table, because we shared a fundamental,
    bipartisan goal, to cut through the noise and finally reform
    this broken law.
        I think we all agree: TSCA is fatally flawed. It has failed
    to ban even asbestos. EPA has lacked the tools to protect our
    most vulnerable, infants, pregnant women, children and the
    elderly. Compromise is a great challenge and a tall order. But
    I am here because in my heart I believe this bill will do the
    job. I believe we have the opportunity to actually reform a law
    and improve lives and save lives.
        And that is the challenge now for this committee, to ignore
    the rhetoric and focus on the substance. Work through the
    legislative process. There are still voices out there with
    concern. I hear them, I want to engage with them
    constructively.
        But hear my concern as well. New Mexico and many other
    States have very little protection for our citizens. EPA
    estimates that the cost of evaluating and regulating a chemical
    from the start to the finish is at least $2.5 million. It is a
    figure that many States cannot afford, especially with 80,000
    chemicals in commerce and hundreds of new ones every year. We
    cannot leave the people of my State and so many others
    unprotected.
        It has been 40 years since we first passed TSCA. There has
    never been a bipartisan effort with this much potential.
        Now today, the New York Times, and I am sure all of you
    have read the Times today, talked about the examples of how to
    improve the bill. This is in their editorial, they applauded
    the bipartisan, the editorial board applauded the bipartisan
    effort that has gone on here. And they have made several
    suggestions on how to improve the bill. They are good
    suggestions. They could help build more bipartisan support. So
    I hope that we can work on them together.
        It has been 40 years since we first passed TSCA, and this
    bipartisan effort can move forward.
        Before I close, I do want to address something up front and
    in the open. Criticism of the substance of this legislation is
    legitimate from both sides. It is a compromise product. But I
    urge, I urge everyone participating in this hearing today to
    reject attacks on anyone's integrity, character and
    motivations.
        Unfortunately, I fielded a few of those in recent weeks.
    They did not concern me, because they are absurd and unfounded.
    But they do a serious disservice to the legislative process.
        Instead, I urge this hearing to have a great and spirited
    discussion on the substance, but at the end of the day, as
    Bonnie said, let's not wait another 40 years to finally move
    forward. Thank you, and it is, as I said, wonderful to be back
    in front of the committee and to be with my colleagues. And it
    is great to be with Bonnie.
        Senator Inhofe. Thank you, Senator Udall. That is an
    excellent statement. We do miss you on this committee, and
    without objection, we will make the editorial part of the
    record.
        [The referenced information follows:]

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        Senator Inhofe. The two of you may be excused, or you may
    stay. Your call.
        Our first panel is going to be the Assistant Administrator
    of the Office of Chemical Safety and Pollution Prevention of
    the Environmental Protection Agency, Mr. Jim Jones. He has been
    here before. He is always welcome. Your professionalism is
    always welcome as a witness.

    STATEMENT OF HON. JIM JONES, ASSISTANT ADMINISTRATOR, OFFICE OF
        CHEMICAL SAFETY AND POLLUTION PREVENTION, ENVIRONMENTAL
                           PROTECTION AGENCY

        Mr. Jones. Good morning, Chairman Inhofe, Ranking Member
    Boxer and members of the committee. I appreciate the
    opportunity to join you today to discuss much-needed reform of
    chemicals management in the United States, and the recently
    introduced bill, the Frank R. Lautenberg Chemical Safety for
    the 21st Century Act.
        There continues to be wide agreement on the importance of
    ensuring chemical safety and restoring the public's confidence
    that the chemicals used in the products they and their families
    use are safe. The Administration also believes it is crucial to
    modernizing strength in the Toxic Substances Control Act to
    provide EPA with the tools necessary to achieve these goals and
    ensure global leadership in chemicals management.
        We continue to be encouraged by the interest in TSCA
    reform, indicated by the introduction of several bills in
    recent years and months, the hearings on TSCA-related issues
    that are being held, and the discussions that are taking place.
    Key stakeholder share common principles on how best to improve
    our chemicals management programs.
        We at the EPA remain committed to working with this
    committee and others in both the House and the Senate, members
    of the public, the environmental community, the chemical
    industry, the States and other stakeholders to improve and
    update TSCA.
        As you know, chemicals are found in almost everything we
    buy and use. They contribute to our health, our well-being and
    our prosperity. However, we believe it is essential that
    chemicals are safe. While we have a better understanding of the
    environmental impacts, exposure pathways and health effects
    that some chemicals can have than we did when TSCA was passed
    in 1976, under the existing law, it is challenging to act on
    that knowledge.
        TSCA gives EPA jurisdiction over chemicals produced, used
    and imported into the United States. However, unlike laws
    applicable to pesticides and drugs, TSCA does not have a
    mandatory program that requires the EPA to conduct a review to
    determine the safety of existing chemicals. In addition, TSCA
    places burdensome legal and procedural requirements on the EPA
    before the agency can request the generation and submission of
    health and environmental effects data on existing chemicals.
        While TSCA was an important step forward when it was passed
    almost 40 years ago, it has proven to be a challenging tool for
    providing the protection against chemical risks that the public
    rightfully expects. For example, as we have all heard, in 1989,
    after years of study and with strong scientific support, the
    agency issued a rule phasing out most uses of asbestos in
    products. Yet in 1991, a Federal court overturned most of this
    action because it found that the rule had failed to comply with
    the requirements of TSCA. As a result, in the more than three
    and a half decades since the passage of TSCA, the EPA has only
    been able to require testing on a little more than 200 of the
    original 60,000 chemicals listed on the TSCA inventory and has
    regulated or banned only five of these chemicals under TSCA
    Section 6 authority, the last of which was in 1990. In the 25
    years since, EPA has relied on voluntary action to collect data
    and address risks.
        In the absence of additional Federal action, an increasing
    number of States are taking action on chemicals to protect
    their residents. And the private sector is making their own
    decisions about chemicals to protect their interests and to
    respond to consumers.
        The Administration is committed to using the current
    statute to the fullest extent possible. But the nature of the
    statute has limited progress. In the last 6 years, the EPA has
    identified more than 80 priority chemicals for assessment under
    TSCA. We have completed final assessments on specific uses of
    four of those chemicals with a fifth to issue soon. Of these
    five chemicals, two show no significant risks. The remaining
    three show some risks.
        To address these risks that are identified in these three
    assessments, EPA is considering pursuing action under Section 6
    of TSCA. It is clear that even with the best efforts under law
    and resources, we need to update and strengthen TSCA and
    provide the EPA with the appropriate tools to protect the
    American people from exposure to harmful chemicals.
        The EPA believes it is critical that any update to TSCA
    include certain components. In September 2009, the
    Administration announced a set of six principles to update and
    strengthen TSCA. While the Administration has not yet developed
    a formal position on the new bill, we continue to feel strongly
    that updated legislation should provide EPA with the improved
    ability to make timely decisions if a chemical poses a risk and
    the ability to take action as appropriate to address those
    risks.
        We believe that it is vitally important to assuring the
    American public that the chemicals they find in the products
    they buy and use are safe.
        Mr. Chairman, thank you again for your leadership on TSCA
    reform. I would be happy to answer any questions you or the
    other members have. Thank you.
        [The prepared statement of Mr. Jones follows:]

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        Senator Inhofe. Thank you, Administrator Jones. That is an
    excellent statement.
        We are going to have a 5-minute round. I will lead off and
    I would say this. OK, they are going to be 6-minute rounds. So
    mine will be eight questions that will really require probably
    a one-word response.
        Mr. Jones, the Administration does not have a formal
    position on any TSCA legislation at this time, is that correct?
        Mr. Jones. That is correct.
        Senator Inhofe. So you will not be able to tell us if EPA
    believes this bill as a whole is better than current law or
    not?
        Mr. Jones. That is correct.
        Senator Inhofe. How many chemicals have been regulated
    under Section 6 of the current TSCA by the Obama
    administration?
        Mr. Jones. Zero.
        Senator Inhofe. And how many chemicals have been regulated
    under Section 6 of the current TSCA since 1990?
        Mr. Jones. Zero.
        Senator Inhofe. The current TSCA safety standards have been
    criticized for incorporating cost benefit analysis into safety
    determinations. Does the bill we are discussing today
    successfully remove any cost benefit analysis from safety
    determinations?
        Mr. Jones. Yes.
        Senator Inhofe. A lot of discussion has gone on over how
    many chemicals EPA should be required to review at any time,
    any particular time. If EPA had access to an unlimited amount
    of resources or user fees, is there a limit to EPA's capacity
    to review, with your current staffing, to review chemicals?
        Mr. Jones. I believe there is. I am sorry, this will take
    more than one word. But from my experience, even in the
    pesticides program, where we have about three times as many
    resources under the Food Quality Protection Act, the most
    output we are able to do is in the range of about 40 a year.
    Based on that experience, I would expect that would probably be
    true in the TSCA sense as well.
        Senator Inhofe. Thank you, Mr. Jones. You said previously
    that EPA has identified around 1,000 chemicals with some
    concerns. If EPA were to make 20 or even 40 of those chemicals
    high priorities under the bill, doesn't that leave the States
    with over 950 chemicals to regulate?
        Mr. Jones. That is my understanding of how the bill is
    written.
        Senator Inhofe. I know the EPA is working on Section 6
    actions regarding the particular chemical in paint strippers.
    Can you please explain how that action would preempt States,
    under current TSCA, the current law, and if you took that
    action today under current law, would that preempt Proposition
    65 labeling in California?
        Mr. Jones. Under current law, we don't have a lot of
    experience because we don't do many Section 6 rules. But if we
    were successful with a Section 6 rule in the example that you
    gave, Senator Inhofe, my understanding is that current law
    would preempt States from doing anything other than exactly
    what we did, or they could actually ban the entire chemical for
    all commercial uses.
        Senator Inhofe. So there can be some preemption under the
    current law?
        Mr. Jones. There would be current preemption.
        Senator Inhofe. I thought that was the case.
        Last, as I was listening to you go through the
    Administration's TSCA principles in your opening statement, one
    thing I noticed you didn't mention was preemption. Does the
    Administration have a formal position on preemption?
        Mr. Jones. The Administration consciously did not include a
    principle on preemption, even though we understood how critical
    it was ultimately to a bill. We do not have a principle on
    preemption.
        Senator Inhofe. Thank you very much, Mr. Jones.
        I have used half of my 6 minutes. So at the proper time, we
    will give an additional 3 minutes to my friend, the author of
    this bill, Senator Vitter.
        Senator Boxer.
        Senator Boxer. Thanks so much, MR. Chairman.
        I absolutely don't believe in allowing the perfect to be
    the enemy of the good. That is such an important point. That is
    why I would be thrilled to support a good bill. I also say you
    can call something a beautiful name. This bill has a beautiful
    name, named after a magnificent Senator.
        But when the experts look at it, they tell me unequivocally
    it is not better than current law. As a matter of fact, many
    say it is worse. Some of them are out in the audience today.
    They are doctors, they are nurses, they are environmentalists.
        I just want to say for the record, because Senator Udall is
    my friend, we just really disagree on this one, he said don't
    make attacks personal. And he is right on that. It has nothing
    to do with personalities. It has to do with children of the
    United States of America, it has to do with the families of the
    United States. It has to do with Trevor, who is sitting out
    there, who, thank God, survived brain cancer that he got when
    he was exposed to chemicals in an otherwise beautiful,
    beautiful lake.
        So I am not going to stop saying what I think. I am going
    to escalate saying what I think. Because the information that I
    have is brought to me by, and these are some of the groups, the
    Breast Cancer Fund, the Lung Cancer Alliance, the Asbestos
    Disease Awareness Organization, the Consumers Union. The legacy
    of our veterans, military exposures, these all oppose this bill
    strongly. The National Hispanic Medical Association, the
    Medical Disease Clusters Alliance, the Oregon Public Health
    Association, the Birth Defects Research for Children
    Organization, the National Medical Association, which is
    African-American doctors. The Physicians for Social
    Responsibility from a number of States, the American Nurses
    Association, as I said before. The Delaware Nurses Association,
    the Maryland Nurses Association. Kids v. Cancer, the Autism
    Society. Clean Water Action, Earth Justice, League of
    Conservation Voters. NRDC, Sierra Club, Alaska Community Action
    on Toxics.
        And it goes on and on. The New Jersey Environmental Counsel
    opposes this. The New Jersey Environmental Federation. The New
    Jersey Environmental Justice Alliance. Environmental Advocates
    of New York.
        So here is why they oppose the bill. It stops States from
    being able to protect their citizens from chemicals. And many
    attorneys general are stunned by its preemption.
        Now, I was pleased that Senator Udall said, let's look at
    the New York Times. Absolutely, look at the New York Times.
    They criticized the preemption in this bill. Let's fix that.
    Let's fix the preemption. All of our States care about their
    citizens. Why should we have a bill that is so opposed and
    dramatically opposed by more than 450 organizations get through
    here, a weak bill that studies 25 chemicals, that is all you
    are assured of over 7 years, and no action required?
        So I could go on with the list, but we are putting it in
    the record. I think it is very, very clear. Senator Udall talks
    about 80,000 chemicals. He is right. Twenty-five chemicals will
    be studied over 7 years. And guess what? If any one of them is
    studied, the States can do a thing anymore. They are done. And
    I am not going to allow that to happen to anybody's people,
    regardless of State.
        So I want a good bill. I don't want a perfect bill. And we
    don't have it here. That is why Senator Markey and I worked so
    hard to get a good bill. This isn't about partisanship, or who
    you can get on your bill. It is about who you protect. And it
    is shocking to me to see who is behind this bill. It is. It is
    shocking to me.
        Now, Mr. Jones, California's attorney general recently sent
    a letter describing the ways State authority to set strong
    chemical safety standards and enforcing existing laws is
    preempted in the Vitter-Udall bill. Do you agree that all of
    the erosions of the State authority described in this letter
    are in fact enabled by the bill text?
        Mr. Jones. I think the California State attorney general
    accurately characterized how preemption would work under the
    bill, yes.
        Senator Boxer. Well, thank you. Because Kamala Harris, she
    protects kids. That is what she is known for. And this was
    unusual for her, to write such a letter.
        Mr. Jones, even if EPA does propose a ban or other
    restrictions on a chemical, isn't it true there is no deadline
    in the Udall bill by which that ban restriction has to be
    implemented by industry, which could mean that while State
    action would be completely preempted, it could also be far
    longer than 7 years before any Federal regulation goes into
    place?
        Mr. Jones. There is no time deadline, that is correct.
        Senator Boxer. All right. So here we have a bill that is
    being sold as protecting everybody and there is not even a
    deadline to enforce one chemical.
        Assistant Administrator Jones, some State attorneys general
    and California EPA have argued that the way the Udall-Vitter
    preemption provisions are drafted raises a concern that a
    State's Clean Air, Clean Water or other environmental laws
    could also be preempted. Do you agree with that assessment?
        Mr. Jones. There is some ambiguity in the way those
    provisions are drafted, so yes.
        Senator Boxer. So yes?
        Mr. Jones. It is possible that those kinds of statutes --
        Senator Boxer. So it is possible. Let's be clear. That in
    this bill we are not only talking about preemption of
    chemicals, but the State's Clean Air, Clean Water or other
    environmental laws could be preempted and the answer is, oh,
    yes.
        Mr. Jones. As it relates to chemicals, that is correct.
        Senator Boxer. Yes. That the Clean Air, Clean Water or
    other environmental laws could be preempted.
        Let's be clear what we are dealing with here. We are
    dealing with a bill that does harm, when they want to prevent
    harm. That is why these groups are opposing. Do you think the
    groups, I am not asking this, this is rhetorical, the groups
    who oppose this bill want to support, just like I want to
    support, a bill named after Frank Lautenberg? It would be a
    happy moment. But not this bill. This bill does not reflect the
    work I did with him in the past. I am just speaking as one
    colleague.
        Thank you.
        Senator Inhofe. Thank you, Senator Boxer. Senator Vitter.
        Senator Vitter. Thank you, Mr. Chairman.
        Thanks, Mr. Jones, for your testimony. You referred to the
    Obama administration's essential principles on TSCA reform
    which were issued several years ago. Sort of your guiding
    principles. I want to go to those.
        The first is that chemicals should be reviewed against a
    safety standard that is based on sound science and reflects
    risk-based criteria, protective of human health and the
    environment.
        Is the safety standard in the Udall-Vitter bill we are
    discussing today consistent with this principle?
        Mr. Jones. Yes, I believe so.
        Senator Vitter. OK. Second principle. EPA should be given
    the tools necessary to ensure that manufacturers are providing
    the agency with the necessary information to conclude that new
    and existing chemicals are safe and do not endanger public
    health or the environment, or else action will be taken. Again,
    are the provisions in this Udall-Vitter bill granting EPA new
    authorities to collect information as well as removing barriers
    like EPA having to prove a chemical poses an unreasonable risk
    prior to collecting information? Are those parts of the bill
    consistent with this second principle?
        Mr. Jones. Yes.
        Senator Vitter. OK, third principle. EPA needs clear
    authority to take risk management actions when chemicals do not
    meet the safety standards, as well as the flexibility to take
    into account a range of considerations, including sensitive
    sub-populations, cost, availability of substitutes and other
    relevant considerations. I know your staff has flagged one
    issue in technical assistance with regard to some articles
    language in the bill, but I am confident we can come to a good
    agreement with your office and we are working on that. Other
    than that work in progress, are the changes to the safety
    standard and Section 6 of this Udall-Vitter bill consistent
    with this third principle?
        Mr. Jones. I appreciate your flagging the articles issue. I
    think that is a barrier to being consistent with the
    principles. If that issue were addressed, then I believe the
    answer would be yes.
        Senator Vitter. Great. I appreciate your work on that. We
    will continue to work and resolve that.
        The fourth principle delineates that EPA should have the
    authority to set priorities for conducting safety reviews as
    well as clear and practicable deadlines for the completion of
    chemical reviews. Does the Udall-Vitter bill we are talking
    about today have clear and practicable deadlines and grant EPA
    the authority to set priorities for conducting safety reviews
    consistent with this principle?
        Mr. Jones. The principle also reflects a desire that there
    be timely decisions. I think as Senator Boxer mentioned, there
    are some questions with respect to the pace. Is the 25
    chemicals in 7 years timely; I think there is a good argument
    that doesn't meet the timely test. Other than not meeting that
    timely test, yes, I think it is consistent with the other
    elements of that principle.
        Senator Vitter. OK. And then the fifth principle states
    that TSCA reform should encourage green chemistry, assure
    transparency, and include stricter requirements, including
    substantiation for a manufacturer's claim of confidential
    business information. Are the bill's requirements on
    confidential information as well as the new green chemistry
    provision, consistent with this fifth principle?
        Mr. Jones. Yes.
        Senator Vitter. OK. Then finally, the sixth principle
    states that TSCA reform should give EPA a sustained source to
    defray the cost of funding for implementation. Is the user fee
    section of the bill consistent with this principle?
        Mr. Jones. Yes.
        Senator Vitter. Thank you very much, Mr. Jones. Your work
    and EPA's work with us has been very constructive. I know it
    will continue to be, with the hours of consultation and work.
    We have adopted many, many elements, including language you
    have given us. So we will continue that work, particularly in
    the areas I just flagged. Let me reserve the balance of my time
    for wrap-up. I may not use it, but let me reserve that.
        Senator Inhofe. Thank you, Senator Vitter.
        I would like to place into the record a letter supporting
    the Lautenberg Chemical Safety Act, signed by six attorneys
    general, and a letter of support signed by a number of TSCA
    legal experts. Without objection, so ordered.
        [The referenced material follows:]

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        Senator Inhofe. I would also like to place into the record
    a letter of support signed by five former high-ranking EPA and
    Justice Department officials, including an assistant attorney
    general and three former EPA general counsels, that not only
    supports the bill but strongly reviews a previous letter of law
    professors in their claims.
        Without objection, so ordered.
        [The referenced material follows:]

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        Senator Inhofe. Senator Booker.
        Senator Booker. Thank you, Chairman Inhofe, and Ranking
    Member Boxer, for calling this very important hearing.
        I want to start, and very importantly, in complimenting
    Senator Udall and Senator Vitter for coming together across the
    aisle to work in a bipartisan fashion on this critical issue of
    fixing our Nation's broken system of evaluating the impact of
    toxic chemicals on human health. Any efforts at a bipartisan
    compromise in the U.S. Senate should be hailed and praised in
    and of itself.
        I want to acknowledge the progress that Senators Udall and
    Vitter have made in working together in good faith on this
    bill. There has been progress. The version of the bill we are
    considering today has made improvements over the past year in
    critical areas, such as the definition of the safety standard
    and the explicit protections for vulnerable populations.
        But I have multiple concerns with the bill as currently
    drafted, and as yet cannot sign on. My concerns include the
    following. The timing of preemption, as Senator Udall has
    already entered into the record, in the New York Times, clearly
    puts front and center the timing of preemption for high
    priority chemicals, is a serious problem and defect in this
    bill. The right of States to co-enforce has been taken away.
    Why should we be afraid of States' rights to take action,
    especially when the EPA's budget, as we are seeing right now,
    continues to get hacked away and away?
        There is also limited judicial review for low priority
    determinations. And there are not sufficient provisions, and I
    feel very passionately about this, to limit the testing of
    chemicals on animals where scientifically reliable alternatives
    exist that would generate equivalent information. I intend to
    continue working with Senator Vitter and Senator Udall, the
    bill's co-sponsors, in hopes of addressing these issues and
    making the bill better.
        But I have some specific questions for Hon. Jim Jones. Mr.
    Jones, I want to thank you for your testimony, for your
    candidness and for being so forthright. You testified regarding
    the list of six Administration principles for TSCA to be
    updated and strengthened. That is where I would like to focus.
    When the Administration is reviewing this bill in its final
    form to decide whether to support it or oppose it, will those
    six principles be the only consideration, or will the
    Administration look to other elements of the bill?
        Mr. Jones. The Administration will absolutely look at the
    bill in its totality. And there will be elements that are not
    related to the principles that I am confident will be brought
    to bear on that evaluation.
        Senator Booker. Right. So to be clear, holding onto those
    six principles by this committee is not enough. The
    Administration will evaluate the totality of the bill and its
    impacts, is that correct?
        Mr. Jones. That is correct.
        Senator Booker. When deciding whether to ultimately support
    or oppose the bill, will one issue the Administration considers
    be preemption and whether or not the bill strikes a right
    balance between the Federal Government and State government
    authority on chemical safety regulation?
        Mr. Jones. I am confident that preemption will be a
    critical element of how the Administration ultimately looks at
    the totality of the bill and whether or not it strikes the
    correct balance.
        Senator Booker. I am assuming you are using that word
    critical very purposefully.
        Mr. Jones. I am.
        Senator Booker. It is a pretty significant element, which
    draws a large amount of the justifiable criticism of the bill
    as it stands right now.
        Mr. Jones. It is.
        Senator Booker. To have years of a gap between which States
    can act appropriately is very problematic. Would you agree?
        Mr. Jones. Senator, I don't want to weigh in on the policy
    elements of exactly how it is drafted, only to say the
    Administration will be looking very hard ultimately at how
    preemption plays into the overall bill.
        Senator Booker. Your courage of weighing in will be noted
    for the record, sir. I appreciate that.
        [Laughter.]
        Senator Booker. Mr. Jones, under current TSCA States are
    permitted to co-enforce any restrictions EPA may ultimately put
    in place. This new bill takes away the rights of States to co-
    enforce. Is there any reason you are aware of why State co-
    enforcement would be problematic in any way, and that removing
    this important provision would be necessary?
        Mr. Jones. Co-enforcement exists in most if not all
    environmental statutes. I am not aware of scenarios whereby it
    creates a problem. It basically allows, as has been mentioned,
    States to enforce their own rules as long as their rule exactly
    the same as the Federal rule. So you have more cops on the
    beat.
        Senator Booker. I see my time is waning. Finally, and
    hopefully we will have another round, another issue I am
    concerned with is animal testing, unnecessary animal testing,
    cruel animal testing, inhumane animal testing. I am doing
    everything I can to make sure the bill minimizes that to the
    extent possible. Specifically, I believe there are alternative
    testing methods and strategies that exist that the EPA
    Administrator has determined are scientifically reliable and
    would generate equivalent information. I want to know, is this
    an issue with EPA that you are in agreement with me about there
    being alternative equally scientifically reliable ways to do
    it, ways to limit animal suffering, animal cruelty and animal
    testing?
        Mr. Jones. Senator, we are very invested, particularly our
    colleagues in the Office of Research and Development, in
    pursuing non-alternative animal testing. My office has been
    very aggressive in working with those colleagues to see that
    those tests are deployed when they are scientifically robust
    and ready to be deployed.
        Senator Booker. Thank you very much. Thank you, Mr.
    Chairman.
        Senator Inhofe. Thank you very much. Senator Capito.
        Senator Capito. Thank you, Mr. Chairman. Thank you, Mr.
    Jones for being here.
        I would like to begin by asking to submit into the record
    several statements in support of the TSCA bill. One from the
    attorney general of West Virginia, one from the president of
    Building and Construction trades, one from the Smart
    Transportation Division, which is the former United
    Transportation Union, one from International Association of
    Sheet Metal, Air, Rail and Transportation Workers, one from
    International Association of Machinists and Aerospace, and one
    from Bridge Structural, Ornamental and Reinforcing Iron
    Workers.
        Senator Inhofe. Without objection, they will be a part of
    the record.
        [The referenced information follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Capito. Thank you, Mr. Chairman.
        Mr. Jones, let me begin, before I get into my questions,
    ask if you are familiar with the chemical spill that happened
    in the Kanawha Valley of West Virginia about 15 months ago?
        Mr. Jones. Yes, I am, Senator.
        Senator Capito. I am a supporter of this bill, I will say
    that from the outset. I do think that TSCA is not the primary
    law which would govern accidental spill into the water. But I
    think TSCA can be a useful resource in situations like the Elk
    River spill. I am pleased to be an original co-sponsor of this.
        Under TSCA, can EPA share confidential information it
    collects with States, under the present law?
        Mr. Jones. No.
        Senator Capito. What about local governments?
        Mr. Jones. No.
        Senator Capito. And then first responders and medical
    practitioners?
        Mr. Jones. No.
        Senator Capito. No. Does this, the Lautenberg bill, give
    EPA new authorities to share confidential information with
    States?
        Mr. Jones. Yes.
        Senator Capito. Local governments? Mr. Jones. Yes.
        Senator Capito. Medical providers?
        Mr. Jones. Yes.
        Senator Capito. One of the frustrating aspects of the Elk
    River spill, for those of us who live in the Kanawha Valley,
    which I do, is that we didn't have any kind of information and
    actually very little information about MCHM, which was the non-
    toxic chemical that spilled into our water that caused us to
    all cease the use of our water for an extended period of time.
        Does this bill include new language which would require EPA
    to share information related to exposures and releases of a
    chemical substance obtained under this program with other
    Federal agencies or offices within EPA, to better coordinate
    and address the failures that we saw at the Elk River spill?
        Mr. Jones. Yes.
        Senator Capito. Thank you. Also on the conditions of use
    definition in the bill, does it allow EPA flexibility to
    consider accidental releases and spills in the prioritization
    of chemicals as well as the safety assessment and
    determination?
        Mr. Jones. It does.
        Senator Capito. It does. Well, I would tell my colleagues
    and those in the audience and those listening that this would
    really go, I think, a long way toward helping what occurred
    with the non-toxic spill in our community. What happened was it
    just sort of fell literally between the cracks of any kind of
    regulatory regime. The State has stepped in on tank regulations
    and other regulations to try to alleviate, to try to make the
    information. But the sharing of information I think would be
    great. The water company didn't even know what was upriver from
    their water intake and what the toxicity of that was.
        With that, I yield back my time.
        Senator Inhofe. Thank you, Senator Capito. Senator Carper.
        Senator Carper. Thanks, Mr. Chairman.
        Mr. Jones, welcome. It is good to see you. Thanks for your
    service.
        Looking at the audience, seeing Bonnie Lautenberg back here
    and seeing Jill Udall, I am reminded of a question I often ask
    people who are married, particularly people who have been
    married a long time. I ask them, what is the secret? And I get
    a lot of answers. Some are very funny and some are actually
    quite poignant. The best answer I have ever gotten to that
    question is the two Cs. The two Cs. Communicate and compromise.
    That is not only the secret for a long marriage between two
    people, it is also the secret for a vibrant democracy. I would
    add maybe one third C to that, and that would be collaborate.
        What we have seen in the legislative process here is an
    effort for us to communicate better with one another, and with
    a lot of stakeholders and with EPA. At the same time, to see if
    we can't develop some consensus and some compromise and
    collaborate.
        I think we are making progress.
        It is ironic, when the bill was first introduced by Frank
    and by Dave Vitter several years ago, it was roundly endorsed
    by the New York Times, which today finds that the much stronger
    version of that bill is not yet up to par. There is a real
    irony there. I hope that is not lost on everyone in the room.
        Let me say, about a year ago I sent a letter, with about a
    dozen of my colleagues, sent a letter to Senator Udall and
    Senator Vitter, calling for nine fundamental changes to a
    previous draft of the bill to make it more protective of public
    health. This new draft addresses each of them, including a
    risk-based standard, protection of vulnerable populations, new
    testing authority for EPA and an enforceable schedule for
    action on chemicals.
        I would just ask, Mr. Jones, I understand that in 2009, EPA
    laid out several key principles for TSCA reform. We talked a
    little about those already. Can you tell me just very briefly
    if those requests that I made a year ago are consistent with
    EPA's TSCA reform principles?
        Mr. Jones. I was actually preparing for this hearing re-
    reading that letter. It actually in many ways reads like the
    Administration's principles, so yes. I would say it does.
        Senator Carper. Thank you.
        I believe that despite the important progress on key
    issues, more could be done to ensure that TSCA reform offers
    Americans confidence that EPA will be able to protect us from
    risky chemicals, something that both public health advocates
    and the chemical industry seek. To that end, in a more recent
    letter, just a week or so ago, to the bill's sponsors, I have
    highlighted three areas where I would like to achieve a good
    deal more progress. I think at least one of our colleagues has
    already referred to one or more of these.
        But first, I think States should have an appropriate role
    in working with EPA to implement and oversee a new Federal TSCA
    program. Second, State regulations are halted, I think, too
    soon in the chemical assessment and regulation process with
    respect to highly toxic chemicals. And the third point that I
    would like for us to drill down on and maybe do a better job on
    is with respect to making sure that the public should have,
    that we have asked whether EPA has acted appropriately in
    making chemical prioritization decisions.
        My question is, simply, would these additional changes also
    be consistent with EPA's principles for meaningful TSCA reform?
        Mr. Jones. Thanks, Senator Carper. As I mentioned in answer
    to Senator Booker, the Administration did not take a position
    on preemption, although we will ultimately view that as an
    important element in any bill. So I can't speak to the first
    two issues you raised.
        Interestingly, the third issue related to judicial review
    of low priorities, the concept of a low priority wasn't really
    on the radar when we developed the principle. So there is
    nothing that speaks directly to it. I would just say that it is
    unusual for final agency actions not to be judicially
    reviewable.
        Senator Carper. OK, thanks. And my third question, I want
    to just go down a little bit on what might be an appropriate
    role for the States. My colleagues may remember, those who were
    here when we debated Dodd-Frank, one of the sticking points was
    the regulation of nationally chartered banks. Nationally
    chartered banks did not want to be regulated by States, by
    State regulators, by State attorneys general, by the State
    Governors. They wanted to be regulated under the national
    charter.
        It took us a while to figure out how to thread the needle
    on this one. But in the end, part of what we said is, you know,
    the Consumer Finance Protection Bureau could issue regulations
    with respect to nationally chartered banks, the States
    attorneys general could enforce those. That was the compromise
    that we struck. And it not a perfect parallel to the issue that
    is before us here. But it is the kind of thing that we need to
    do again. If we could find it with respect to nationally
    chartered banks and the rights of the States to be involved in
    the regulation, I think we can probably find it here.
        I would just ask you, I agree that this bill would fall
    short of offering States a similar role from enforcing Federal
    rules under TSCA, which might limit how well TSCA safety rules
    are able to protect Americans from certain risky chemicals.
        Mr. Jones. It does limit States from having that role that
    is referred to as co-enforcement.
        Senator Carper. All right. I certainly want to say, I want
    to stop for a minute, Tom Udall has left the room, but you all
    just tell him I said, bravo. It is Navy talk for good job. I
    know it has been hard for him, probably hard for you. But I am
    pleased that he stuck with it and showed the kind of leadership
    that he has.
        I also want to say to David Vitter, David, thank you for
    your patience in working with me and a lot of other folks. We
    are not to the finish line, but we are getting closer. I
    appreciate that.
        And to our chairman, thank you for the way you have
    conducted ourself in this role as our chairman, particularly
    with respect to this issue. I am encouraged by the words of the
    ranking member that maybe those three Cs, communicate,
    collaborate and compromise, maybe we are about ready to seize
    the day. Thanks so much.
        Senator Inhofe. Thank you, Senator Carper.
        Now, Senator Fischer.
        Senator Fischer. Thank you, Mr. Chairman.
        Mr. Jones, innovation is core to business, and it is key to
    keeping the United States a leader in technology. We need
    efficient market access for our innovation to keep America's
    competitive edge.
        As this legislation is currently composed, is it grounded
    in sound science? Does it facilitate an efficient and
    transparent product review process? Will it protect
    confidential business information? And does it provide a single
    Federal regulatory regime?
        Mr. Jones. On the first three questions, I would say the
    answer is yes. On the single Federal regime, the bill, as does
    current law, it is not changed at all, requires the agency to
    ensure that there isn't another Federal agency that could
    better manage the chemical before we step into the breach to
    regulate the chemical. But that is a requirement to the
    existing law, and it is maintained under TSC, under the bill in
    front of us.
        Senator Fischer. OK. And key for any new regulations to
    work is confidence from the industry that any confidential
    business information shared with regulators will be protected.
    What safeguards are in place with the existing rules, and does
    this legislation preserve or strengthen those protections that
    are out there?
        Mr. Jones. The general critique that is heard around
    confidential business information under the current law is that
    it is allowed to be applied too broadly to things that really
    are not trade secrets. What the bill before us does is preserve
    the trade secret confidentiality, but makes more publicly
    available information that really isn't about trade secrets,
    things along the line of health and safety data. But the trade
    secrets are still allowed to be confidentially protected as
    long as the manufacturer is able to substantiate why it should
    be.
        Senator Fischer. And do you think safeguards are in place?
        Mr. Jones. I believe safeguards are in place, yes.
        Senator Fischer. Thank you. Clear communication of
    regulatory requirements that may result in approval or denial
    of new products is crucial, we know, for any regulation to
    work. So what is the process that EPA will use to establish the
    new regulatory review timelines laid out in this legislation?
    Do you have the manpower and the bandwidth so that you can
    handle any new regulations with this new legislation?
        Mr. Jones. The bill before us would require EPA to
    establish all the kinds of procedures that you are describing,
    either through rule, or some of them through policy. Both of
    those would require there to be notice and comments. There
    would be public participation, how we establish the process
    that would ultimately govern implementation of the statute.
        I believe with the fee provision that is included in the
    bill that the agency would have the resources to implement the
    requirements. In the absence of fees, we would not.
        Senator Fischer. But with the fees, you would be able,
    right now, you feel you would have the manpower then that you
    could implement the bill?
        Mr. Jones. With the fees that are in this bill, yes.
        Senator Fischer. And in addition to petrochemicals, many
    chemical substances are also manufactured from bio-based
    chemicals and renewable feedstock like corn. So would S. 697
    give EPA the ability to designate many of those, or even
    batches of those chemicals, from renewable feed stock as low
    priority chemicals?
        Mr. Jones. It certainly would open that as an avenue. We
    would obviously have to look at everything on a case by case
    basis. But that would become a potential avenue for that class
    of chemistry.
        Senator Fischer. Under current law, is EPA required to
    assess existing chemicals?
        Mr. Jones. No, we are not.
        Senator Fischer. Does the bill that we are discussing today
    require you to assess those existing chemicals?
        Mr. Jones. Yes, it does.
        Senator Fischer. Also, an important part of TSCA that
    Senator Carper alluded to in his comments, it is in this reform
    bill, it has been widely discussed, and that is protecting
    vulnerable populations, such as pregnant women and children.
    Does the vulnerable populations definition in this bill assure
    that the agency has the necessary tools and flexibility so that
    you can identify and protect any potentially vulnerable
    populations that are considered in this review of the safety of
    the chemical substance?
        Mr. Jones. I believe so, yes.
        Senator Fischer. Thank you very much. Thank you, Mr. Chair.
        Senator Inhofe. Thank you, Senator Fischer. Senator Markey?
        Senator Markey. Thank you, Mr. Chairman, very much. We
    thank you, Bonnie Lautenberg, for being here and bringing Frank
    Lautenberg's great legacy of fighting for toxic protections to
    us.
        The job that we have on this committee is to make sure that
    there is a bill that does give protections for the next
    generation, that we have to put in place learning the lessons
    of the past.
        My first question. The Massachusetts Toxic Use Reduction
    Act is a multi-faceted pollution reduction law that has been
    successful at decreasing the amount of toxic waste in
    Massachusetts by 50 percent and spurring innovation of safer
    chemical formulations to replace other, more dangerous ones.
    The Massachusetts Attorney General, Maura Healy, recently sent
    me a letter describing the way State authority to set strong
    chemical safety standards and enforce existing laws is
    preempted in the Udall-Vitter bill. The letter also highlighted
    the concerns that this bill could preempt actions taken under
    the Massachusetts Toxic Use Reduction Act and could further be
    used to interfere with State action related to water quality,
    air quality, or waste treatment or disposal.
        Do you agree that all of the erosions of State authority
    described in this letter are in fact enabled by the bill's
    text?
        Mr. Jones. I think that the Massachusetts attorney general
    accurately characterized how preemption would work as it
    relates to State requirements.
        Senator Markey. So the answer is yes, it does accurately
    characterize the impact on State enforcement. Next question on
    preemption. The Udall-Vitter bill says that as soon as EPA
    starts to study a chemical it has designated as high priority,
    States are prohibited, prohibited from taking new actions to
    regulate that toxic chemical. Since the bill also allows EPA as
    long as 7 years to finish work on each chemical, do you agree
    that this could mean that there will be no protections, that
    chemicals on either the State or Federal level potentially for
    7 years or longer would then be in place?
        Mr. Jones. Yes.
        Senator Markey. Next. The Udall-Vitter bill allows, allows
    the chemical industry pay extra money, pay extra money for EPA
    to classify a chemical as high priority. Do you agree that this
    provision could be used by the chemical industry to stop a
    State from moving forward with plans to regulate a dangerous
    chemical? Because as soon as EPA starts to study a high
    priority chemical, that would be paid for by the chemical
    industry, that States would then be prohibited from regulating
    it?
        Mr. Jones. Yes. I would just say that the bill appears to
    have a cap on the number of times the EPA could do that. It is
    15 percent of the total number of high priorities. But the
    answer is yes.
        Senator Markey. The answer is yes. So the chemical industry
    could pick those chemicals that would not be in fact subject to
    jurisdiction by the States.
        Next, the Udall-Vitter bill requires EPA to begin working
    on the first 25 high priority chemicals in the first 5 years
    after enactment. How long would it take under the bill for EPA
    to have to complete work on those first 25 chemicals? And just
    to be clear, EPA has to start work on 25 chemicals 5 years
    after enactment. Each chemical study can take 7 years to be
    finished. So the study on a chemical that begins in year five
    after enactment will then not have to be finished for 12 years
    in total. Is that correct?
        Mr. Jones. That is correct.
        Senator Markey. That is correct.
        Next. If it takes 12 years to finish work on the first 25
    chemicals, do you agree that given the Udall-Vitter bill's pace
    and today's methods for assessing chemical risks, it will take
    more than 100 years to finish studying the 1,000 chemicals that
    you have previously said were the most in need of assessment?
        Mr. Jones. If EPA stuck to the minimum requirement in the
    statute for that entire period of time, the answer would be
    yes.
        Senator Markey. Next. Flame retardants, a widely used in
    commercial products like couches, clothing and cars, EPA has
    expressed concern that certain flame retardants which can leach
    from consumer products are persistent biocumulative and toxic
    to both humans and the environment. Question: does the Udall-
    Vitter bill make it more difficult than existing law for EPA to
    regulate a chemical like flame retardants in a couch or chair
    even after EPA has found that the chemical is unsafe?
        Mr. Jones. This relates to the articles discussion we were
    having earlier. The draft bill creates a fair amount of
    analytical burden related to any time we are looking at a
    chemical in an article. That aspect would make them do it.
        Senator Markey. It does make them do a separate analysis
    for every type of product that contains that chemical. You are
    right. Separate analysis.
        And finally, in 1989, EPA tried to ban asbestos under its
    TSCA authority. But the industry successfully overturned the
    ban in court in part because the court found that EPA had not
    met the substantial evidence standard that TSCA required them
    to meet. The Udall-Vitter bill does not change this standard,
    even though it can be a much harder standard to meet than the
    one used in other environmental laws.
        Question: do you believe that the use of this same
    substantial evidence language that has already been the subject
    of litigation would increase the likelihood that EPA would be
    sued using some of the very same arguments industry used
    successfully to overturn the asbestos ban?
        Mr. Jones. Our legal team is observing courts who are
    treating substantial evidence and arbitrary and capricious
    similarly. That being said, I would expect that a company that
    opposed the Section 6 rule would try to make the substantial
    evidence arguments that were made in the asbestos case.
        Senator Markey. And again, asbestos front and center. We
    have to be very careful what we do here to make sure that there
    is true enforcement. I thank you very much.
        Senator Inhofe. Thank you, Senator Markey. Senator
    Barrasso.
        Senator Barrasso. Thank you very much, Mr. Chairman.
        Mr. Jones, as a medical doctor, I have long pointed out the
    important role that chemicals play in our society. This law and
    its regulations touches so many aspects of our lives, as well
    as our economy. Therefore, I think it is critical to make sure
    the law appropriately balances the risks associated with a
    chemical, the monetary costs of chemical regulation, and the
    social and societal benefits that may come from the use of that
    chemical as well.
        As I understand it, one of the key flaws of the current law
    that EPA has identified is the language in the statute called
    ``least burdensome.'' TSCA states that EPA should apply the
    least burdensome means of adequately protecting against the
    unreasonable risk of a chemical. This provision has been blamed
    by some as the reason why the law has been so ineffective.
        Now, this bill removes that reference to least burdensome.
    So the question is, despite the removal of this language, if
    EPA were to find a chemical doesn't meet the safety standard
    under the legislation, would there still be a mandate for the
    agency to conduct a cost benefit analysis in forming any rules
    to regulate the chemical substance?
        Mr. Jones. The standard is a risk-based standard under this
    bill. We are required to conduct a cost benefit analysis in
    choosing the appropriate risk management to apply. But the risk
    management that we apply needs to meet the safety standard,
    which is a risk only standard.
        Senator Barrasso. I noticed the Administration's TSCA
    principles include specific reference to the need for EPA to
    take into account costs in risk management decisions. Is EPA
    supportive of some level of cost benefit analysis?
        Mr. Jones. The agency and the executive branch in general
    thinks cost benefit analysis is very important for regulation,
    which is why for the last 30 years the government, the
    executive branch has required of itself to do cost benefit
    analysis. The difficulty that we have had under TSCA is that
    most of the benefits that we are worried about the health
    benefits, are not easily monetized. So we end up with a very
    cost-biased standard. Because it is easy to monetize the costs,
    but you can't monetize the benefits, which makes it very
    difficult to show that your benefits outweigh your costs.
        Senator Barrasso. So given that, is the particular cost
    benefit language in this bill implementable by the agency?
        Mr. Jones. I believe so.
        Senator Barrasso. Does the cost benefit language in the
    bill require a cost benefit analysis at the appropriate time,
    this is a question of time, rather than, say, during a chemical
    safety determination which is based solely on science, unlike
    the current law?
        Mr. Jones. That is how the Administration's principles are
    related. The risk management has some consideration for costs,
        but the safety determination should be risk only.
        Senator Barrasso. So under S. 697, is EPA directed to
    consider non-quantifiable costs, such as the social and
    societal benefits of a chemical in any potential regulations?
        Mr. Jones. It believe it would include that.
        Senator Barrasso. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Barrasso. Senator
    Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        Mr. Jones, there are places where the EPA's existing
    regulatory authority preempts conflicting State regulation, is
    that correct?
        Mr. Jones. That is correct.
        Senator Whitehouse. Is there any place in EPA's existing
    regulatory authority where EPA regulations preempt State
    regulations before those regulations are promulgated?
        Mr. Jones. Not that I am aware of.
        Senator Whitehouse. And you probably would be in a position
    to know?
        Mr. Jones. My knowledge is not all-encompassing of all
    regulations. But the ones that I have worked with --
        Senator Whitehouse. Let's stick with the chemical area,
    then.
        Mr. Jones. The chemical area, no.
        Senator Whitehouse. This would be a novelty?
        Mr. Jones. Yes.
        Senator Whitehouse. In which you create what might be
    called a death zone when a chemical is not regulated by EPA
    because the process has only begun, and yet no other
    government, no State government, no one else can regulate that
    chemical, irrespective of what risk it may present to the
    public?
        Mr. Jones. That is correct.
        Senator Whitehouse. In your experience with the rulemaking
    process, do the industry participants in the administrative
    process of rulemaking to some degree control the pace of that
    rulemaking through the actions that they can take in that
    rulemaking process?
        Mr. Jones. In my experience, they participate more
    vigorously than most other stakeholders. And the timing in
    which they will submit information has sometimes the potential
    to make things take longer than one might otherwise expect.
        Senator Whitehouse. So it is within the power of an
    industry participant in the regulatory process to slow down the
    regulatory process, just through the nature of its procedures.
        Mr. Jones. I like to think that the government does
    maintain that control. But my experience indicates that things
    can take longer because of the kinds of information that we are
    presented with and the timing with which the information is
    sent.
        Senator Whitehouse. Understood. I think you have said this
    before, but you expect that there could be as many as a
    thousand or more chemicals that will end up on the high risk
    list?
        Mr. Jones. The thousand number comes from when we developed
    our current work plan chemicals, we scanned the field of data
    that is out there associated with chemicals and found 1,000
    chemicals for which there was some hazard data that to us meant
    it warranted some evaluation. There are likely to be more than
    that that ultimately do express hazard data, but it is just not
    known to us at this point.
        Senator Whitehouse. As a Federal official involved in
    health and safety regulation, is it your view that our
    sovereign States under our Federal system of government also
    have an important role in health and safety regulation to
    protect their own citizens?
        Mr. Jones. I do.
        Senator Whitehouse. And does EPA work often with State
    officials and State regulators to assure the health and safety
    of the American people and the population of their States?
        Mr. Jones. Yes, we do.
        Senator Whitehouse. In fact, in some cases, you have
    delegated the authority to State officials to implement Federal
    law, have you not?
        Mr. Jones. That is correct.
        Senator Whitehouse. So can you think of any place in EPA's
    jurisdiction in which a State is forbidden to co-enforce an
    identical State law to the Federal law?
        Mr. Jones. I don't know of an example of that.
        Senator Whitehouse. If you were a Senator who was presented
    with frequent attacks on EPA's budget, annual attacks on EPA's
    budget, and you were concerned that 1 day those attacks might
    succeed and EPA's enforcement capability might be drastically
    limited, would it not be wise to have the prospect of State
    enforcement of a similar standard just to make sure that the
    public health and safety was protected by someone?
        Mr. Jones. I think our experience with co-enforcement is
    that is important, even in the absence of declining budgets.
    Regulations or any law is only effective if there is
    enforcement of that law.
        Senator Whitehouse. The industries' concern is that there
    not be too many different regimes of regulation that they have
    to comply with, correct?
        Mr. Jones. That is what I have heard.
        Senator Whitehouse. So if there is an identical regime, an
    industry effort to prevent that identical regime from being
    enforced isn't an effort to deal with the legitimate problem of
    too much or conflicting regulation by definition, correct?
        Mr. Jones. That logic holds true to me.
        Senator Whitehouse. It is simply an effort to make sure
    that there are enough cops on the beat to catch them if they
    misbehave.
        Mr. Jones. I don't know what their motivation is, or
    anyone's motivation on that is.
        Senator Whitehouse. It is the only remaining one, it seems
    to me, if that first one disappears.
        Finally, with respect to the determination of whether a
    chemical is low priority or high priority, which is roughly, I
    think, low risk or high risk, who gets to challenge or review
    if EPA has made a bad determination among these thousands of
    chemicals, or if new information comes up that suggests that
    something is no longer appropriately on the low risk or low
    priority list?
        Mr. Jones. My understanding, in the drafting, it is a
    little tricky to get one's head around it, is that only a
    State, if the State originally commented on the original
    designation, would have the potential for challenging a low
    determination. That is as I understand it, but I could be
    mistaken. I am pretty confident, though, it is only limited to
    States. But I think it is a State that has participated in the
    process heretofore.
        Senator Whitehouse. If new information were developed
    during the 7-years of review or at any time in the future after
    a low priority designation, you could end up with a situation
    in which nobody could challenge that error?
        Mr. Jones. That is how I understand the draft.
        Senator Whitehouse. Thank you very much.
        Senator Inhofe. Thank you, Senator. Senator Boozman?
        Senator Boozman. Thank you, Mr. Chairman.
        Asbestos, not only asbestos but things in that category
    that we have had trouble dealing with in the past, it is one of
    the problems that is being the least burdensome rule. Under
    this legislation, we would get rid of the least burdensome, is
    that correct?
        Mr. Jones. That is correct.
        Senator Boozman. OK, good. Upon enactment, would this bill
    allow the EPA to make asbestos and similar things and other
    concerning chemicals a high priority, and therefore the first
    chemicals through the safety assessment and determination
    process?
        Mr. Jones. It would allow that, yes.
        Senator Boozman. So this would be a mechanism to get rid of
    the things that we have the most concern about?
        Mr. Jones. It would allow us to make it a high priority and
    then require us to do a safety determination and then act if
    the risk is unacceptable, yes.
        Senator Boozman. Good, thank you. Does the bill have a
    deadline for EPA to promulgate a final rule to regulate a
    chemical if it is found to not meet the safety standard?
        Mr. Jones. Yes, it does. Two years after we have made a
    safety determination that the chemical does not meet the safety
    standard.
        Senator Boozman. OK, good. Thank you for that
    clarification.
        Senator Inhofe. Thank you, Senator Boozman. Senator Cardin?
        Senator Cardin. Thank you, Mr. Chairman. I thank you for
    holding this hearing to allow us all to reflect once again on
    how fortunate we were to serve in the U.S. Senate with Frank
    Lautenberg. He was an incredible force on this committee and a
    person who put the health of our children as his highest
    priority. Bonnie, it is wonderful to see you in our committee,
    and I thank you for continuing his work.
        I also want to thank Senator Udall and Senator Vitter for
    reaching across party lines to come together and try to move
    forward an issue that we all know needs to be dealt with. The
    current TSCA law does not work. We have a responsibility to
    enact a law that will work.
        I want to thank Senator Boxer for her passion on this issue
    and recognizing that we can do better and continuing to raise
    those issues. I want to thank Senator Markey for his leadership
    on this issue as well.
        Senator Carper is not here, but I do really want to thank
    him. He has really been trying to get all of us together at
    various times to move this issue forward, and spends a great
    deal of time to get there.
        Mr. Chairman, I was listening to my colleagues, and they
    have raised many of the issues that I intend to raise. Just to
    underscore. But I have not heard any real response. I hope this
    means that we may be able to center in some areas that can
    really bring us together. Senator Booker started with that
    earlier in his round of questioning. Senator Udall mentioned
    the fact, let's get together and let's continue to work on this
    bill. He mentioned the New York Times editorial, and several of
    us have commented on some features of the New York Times.
        But in two respects dealing with preemption, it seems to me
    that there are clear improvements that we need to incorporate
    in this bill. The first is that just by making a start of a
    study on a high priority, it preempts the States from acting.
    And that process could take as long as 7 years. So we could be
    7 years without any action on a chemical that has been
    determined to be a high priority, preempting the States from
    taking action that would seem to me, and would seem, I think,
    to most reasonable people, and Mr. Jones has already responded
    to this, it would be somewhat unprecedented to have that type
    of preemption before there is any Federal action at all. So I
    would just urge us that that seems like a pretty easy area to
    start moving on the preemption issue.
        Quite frankly, preemption has been our most visible area of
    difficulty. So if we can make some progress on preemption, I
    think we then start to talk with our attorneys general and
    figure out a way we can get this done.
        The second thing that Senator Whitehouse just talked about,
    and that is the co-enforcement issue, and Senator Whitehouse
    raised some good points. Mr. Jones, you responded that under
    any circumstances, regardless of your budget, it is better to
    have more cops on the beat as we are trying to enforce the
    laws.
        But let me just challenge you. I looked at the budget that
    is being recommended in the House of Representatives by the
    Budget Committee. The information presented to me shows that in
    2024 alone, if that budget were enacted, the non-discretionary
    spending would be 30 percent below the 2014 level, adjusted for
    inflation. And the House has shown some propensity to not be so
    generous to the EPA budgets. So if the EPA budget sustained
    that type of an attack, would that have an impact on your
    ability to be able to enforce these laws?
        Mr. Jones. Absolutely.
        Senator Cardin. We are facing realities here that your
    budgets could very well be hit. So it is another reason why the
    co-enforcement issue, to me, should be an easy one for us. To
    the extent we can get our States helping us enforce our
    standards, they have to use our standards under the bill, I
    can't understand why there would be any objection to allowing
    the States to move forward. Brian Frosh, the Attorney General
    of Maryland, will be on the next panel. He is here. He is an
    independent attorney general that is interested in the public
    welfare. He is my lawyer, because I am a citizen of Maryland.
    We certainly will want him enforcing these standards in our
    State and helping EPA do that. I think you are shaking your
    head, so I just want the record to show that Mr. Jones is
    enthusiastically shaking his head, as is Brian Frosh, the
    Attorney General of Maryland.
        [Laughter.]
        Senator Cardin. I want to get to one other issue in the
    time that remains. Maybe you can help me on this. That is, can
    you explain the difference between the safety standard of
    unreasonable risk to health and reasonable certainty of no
    harm? Do you have good legal doctrine for me to understand the
    difference between those two standards?
        Mr. Jones. Reasonable certainty of no harm is the standard
    we apply in our pesticides program, which we have through our
    actions interpreted it to mean that there shouldn't be a cancer
    risk greater than one in a million, or that we have had
    adequate margins of exposure for thresholds. Unreasonable risk
    with the way in which it is characterized in the current bill,
    without cost consideration or the prohibition against cost
    considerations, would ultimately be defined by the way in which
    the agency implemented it. So we would obviously be only able
    to consider risk in that determination and we would have to
    make judgments about what level of risk defined an unreasonable
    risk.
        Senator Cardin. So we don't have a track record on that
    standard?
        Mr. Jones. Not with that standard in the, with the
    prohibition of giving cost any consideration which is how it is
    drafted right now.
        Senator Cardin. So that adds some uncertainty to it?
        Mr. Jones. Yes.
        Senator Cardin. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Cardin. Senator Rounds.
        Senator Rounds. Thank you, Mr. Chairman.
        Mr. Jones, I am brand new, but I understand that in
    November 2014, you testified before the House on TSCA, and
    during that hearing you stated that there were several specific
    improvements that were need in any TSCA legislation to be
    meaningful for the agency.
        Does this particular proposal, S. 697, which would amend
    TSCA to give the EPA new authorities to obtain information at
    multiple stages in the process, how would this differ from the
    current process? And I believe this is an example of a
    bipartisan approach that clearly has the support of a lot of
    the members of the committee here. I think this may be very
    well a stepping stone in terms of how we do business within the
    committee on other issues as well.
        But I would sure like to know what your thoughts are in
    terms of how this would change the existing process.
        Mr. Jones. The biggest change is that right now, there is
    no duty upon the EPA to look at existing chemicals for safety
    at all. So we can do nothing in that respect and be in
    compliance. The Lautenberg bill requires us to look at existing
    chemicals and creates a schedule for doing that. That is
    probably one of the fundamental changes.
        The other fundamental change is that it changes the
    standard upon which we have to evaluate a chemical. And as has
    been mentioned before, it eliminates one of the hurdles that we
    experienced, which is this requirement to find the least
    burdensome way in which to regulate chemicals. Then it also
    eliminates the cost benefit balancing that was previously
    required and gives us a risk-based standard that allows us to
    give cost considerations without having to say the actual
    benefits literally outweigh the costs.
        Senator Rounds. Does the definition of conditions of use,
    which is found within the bill, allow EPA to review not only
    the uses intended by the manufacturer but also those that go
    beyond the label, but that are reasonably foreseeable?
        Mr. Jones. Reasonably foreseeable is the language, I
    believe, so yes. There would be things that are beyond how it
    is labeled but can be foreseen to occur.
        Senator Rounds. How would these changes help the EPA? Would
    these give you more tools to do your job better?
        Mr. Jones. The principle, one of the tools is a legal one,
    in that the standard is one that takes away the principal
    barriers that we are experiencing today. So those are tools.
        The other is kind of loosely a tool, requiring us to do
    something that we are not otherwise required to do. It is not
    exactly a tool, but a particularly relevant piece to the bill.
        Senator Rounds. Thank you, Mr. Chairman. I yield back the
    time.
        Senator Inhofe. Thank you, Senator Rounds.
        Senator Sanders.
        Senator Sanders. Thank you, Mr. Chairman. Like others, I
    want to welcome Bonnie Lautenberg here. Jane says hello and
    thank you for reminding us of all the great work that Frank has
    done.
        I also want to thank Senator Markey and Senator Boxer for
    their leadership on addressing this very, very important issue.
    Mr. Chairman, I got involved in this issue soon after I was
    elected to the U.S. House. I will never forget it. I got a call
    from a woman in Montpelier, Vermont. And she said something
    which frankly I initially did not believe. She said that, we
    installed in our home in Montpelier a brand new carpet. And as
    the carpet was unrolled, it off-gassed and she and her kids
    became pretty sick. I thought, this doesn't sound right. I
    really did. I was disbelieving of that.
        Well, we did a little study on it, and it turns out that
    all over this Country in many States there were attorneys
    general working on the issue, and I see Mr. Jones is
    acknowledging it. This has been a problem. A lot of chemicals
    in new carpets off-gas. And if there is not proper ventilation,
    people can become sick. That is how I got involved. We have
    made some progress on that, by the way, I became involved in
    this.
        It seems to me that our goal is not to argue whether or not
    the current TSCA bill is adequate. I think we have all agreed
    that it is not. The real issue is, given the fact that we have
    tens of thousands of chemicals, of which many of them we know
    very little about, we don't know how they interact with each
    other, we don't know how they impact vulnerable populations
    like kids or people who are ill.
        It seems to me that we have the obligation to pass
    legislation which in fact protects the people of this Country,
    especially our children. Now, my concerns about the bill that
    we are discussing today, the Vitter-Udall bill, is that it
    makes it extremely difficult for the EPA to ban or phaseout
    toxic chemicals even after determining that they are dangerous.
    That does not make a lot of sense to me. That the bill
    prohibits States from enforcing safety standards that are
    identical to Federal standards, even if EPA enforcement is
    inadequate, the bill prohibits States from taking actions on
    chemicals even after determining that a chemical is dangerous
    if the EPA really identifies a chemical as one deserving of
    attention, and the bill enables the chemical industry to
    preemptively place chemicals on the so-called high priority
    list, preempting States like Vermont from taking action for
    many years.
        Now, I find two aspects of this discussion somewhat
    interesting. First of all, virtually every hearing that we
    hold, every markup that we hold, we hear constant attacks
    against the EPA, as I think Senator Whitehouse and Senator
    Cardin have indicated. We expect the majority party right now
    to go forward with massive cuts in the EPA. And now we are led
    to believe that it should not be States like Vermont and
    Massachusetts or California who have been vigorous in dealing
    with this issue, they should not have the responsibility to go
    forward, but it should be in EPA, which the Republicans want to
    substantially cut.
        Frankly, I don't think that passes the laugh test, if I may
    say so.
        A second point, on a more philosophical basis, I hear many
    of my Republican friends talking about federalism. I believe in
    federalism. I think that is a remarkable concept, which says,
    we have 50 States out there, each doing different things. We
    learn from each other, Federal Government learns from them, the
    States learn from the Federal Government. But essentially to
    tie the hands of States, especially those States who have been
    most active on this issue, and say, we just want a Federal
    Government, by the way, we want to cut the funding for that
    agency which is asked to enforce this legislation, doesn't make
    a whole lot of sense to me.
        So I strongly support what Senator Markey and Senator Boxer
    are trying to accomplish.
        Let me ask, Mr. Jones, a question if I can. Mr. Jones, if
    we adopted the Udall-Vitter bill as proposed, isn't it true
    that this would weaken the ability of States like the State of
    Vermont to take action to limit toxic chemicals?
        Mr. Jones. The State of Vermont would not be able to take
    action on a chemical that EPA designated as a high priority.
        Senator Sanders. Well, that is enough for me.
        Senator Inhofe. Thank you, Senator Sanders. Senator
    Merkley.
        Senator Merkley. I thank you very much, Mr. Chair. I would
    also like to welcome Bonnie. It is good to see you again. I
    know that our colleague, Senator Lautenberg, worked mightily to
    try to take on these chemicals, for the benefit of everyone's
    health in this Nation. We are all engaged in that common
    enterprise. I think we can concur that things that are damaging
    toxins, cancer-causing chemicals in everyday products, we
    should find other ways to make those products. That is what
    this is all about. The question is whether this bill at this
    moment gets us there. If it doesn't, what further changes do we
    need to make.
        Under the existing TSCA law, there is State enforcement, is
    there not, Mr. Jones?
        Mr. Jones. Yes, there is.
        Senator Merkley. But under this law, there would not be
    State co-enforcement?
        Mr. Jones. That is correct.
        Senator Merkley. So in some ways, that is a step away from
    a strong enforcement regime?
        Mr. Jones. Yes.
        Senator Merkley. And under the existing TSCA law,
    preemption occurs only when the regulations are put into place?
        Mr. Jones. That is correct.
        Senator Merkley. But under this law, they are not put into
    place in that same fashion?
        Mr. Jones. When the EPA identifies a chemical as high, a
    State is preempted.
        Senator Merkley. So if, for example, the EPA was to
    identify a chemical as high risk and a State said, oh, it has
    been identified as high risk, we want to put a label on these
    products to warn people, they would be preempted from doing so
    under this law?
        Mr. Jones. High priorities determined by the statute, but
    basically what you said is correct, that once we have
    identified a chemical as high priority, a State would be
    preempted from labeling or any other restriction.
        Senator Merkley. And that preemption might exist for all
    the years that were being referred to that it might take for
    EPA to act on that particular chemical? The State would not
    act, the Federal Government would not yet have acted, and yet
    we know there is a high risk item out there?
        Mr. Jones. That is correct.
        Senator Merkley. One of the issues we had come up in Oregon
    was regarding flame retardants. The story on this goes back to
    the tobacco companies essentially wanted to downplay the role
    of cigarettes causing house fires, because they had the
    accelerants in the tobacco and they dropped into the cushions.
    They said, well, let's focus on the problem really being the
    furniture, and there should be flame retardants in the
    furniture.
        So there has been a massive requirement for flame
    retardants and a lot of the foam has 3 to 6 percent by weight
    flame retardants. And yet we found out later that not only were
    they cancer-causing but they did nothing to prevent house
    fires. So here we are, and this is also in, for example,
    carpets, and my colleague referred to that. Here are babies
    crawling on carpets full of flame retardants that have toxic
    chemicals in them and breathing the dust in. That is a big
    problem.
        But here is the situation. There is not just one chemical.
    There is a family of chemicals. They are called congeners. But
    209 chemicals in that family. So imagine essentially when
    Oregon wanted to regulate one chemical, the chemical industry
    came out with a different version of the flame retardant. So if
    there are 209 potential versions just in this one family and
    you have to do basically one at a time, doesn't this create an
    indefinite ability for the industry to keep putting cancer-
    causing chemicals into our carpets without the ability to kind
    of catch up, if you will?
        Mr. Jones. Flame retardants, for many of the reasons you
    described, Senator, are very challenging. Even under the
    existing statute, we are attempting to assess these compounds
    by doing it in groups as opposed to individually, so that we
    avoid the scenario you are describing, where the serial
    evaluation just keeps leading to potentially unproductive
    substitution. It is a very difficult challenge.
        Senator Merkley. Will you be saying that the EPA has the
    resources to evaluate 209 versions of the chemical at the same
    time?
        Mr. Jones. We are looking at about 20 of them right now. We
    try to pick the 20 that have potentially the greatest hazard
    and exposure.
        Senator Merkley. Another concern here is that the
    designation for low priority can be taken, in fact is taken,
    according to the flow chart under this bill, before there is a
    safety analysis. Doesn't that seem a little bit like putting
    the cart in front of the horse?
        Mr. Jones. The way we have read the standard for low
    determination which is likely to meet the safety standard is
    that you would have to be so confident in it being low hazard
    and low exposure that you don't need to do a safety
    determination. That is how we would read that provision.
        Senator Merkley. And up to the judgment of the EPA within
    the resources that it might particularly have under any given
    Administration or budget regime?
        Mr. Jones. The judgment is the key word there, because of a
    lack of judicial review of that determination.
        Senator Merkley. That is a significant concern, what you
    have pointed out, the lack of public being able to challenge
    that low priority determination, given the flexibility that can
    occur among different Administrations.
        Mr. Jones. I agree. It is kind of interesting when you
    think of, there is no judicial review, does it really matter
    what the standard is, because nobody can challenge you.
        Senator Merkley. Well, there is a section in the bill, and
    I will wrap up on this note. There is a section in the bill
    which has a, let me turn back to it here, it has a history that
    is called a nomenclature section. This bill has been in there
    since 2013. There is a great deal of uncertainty as to what
    this section is actually trying to accomplish. Can you fill us
    in on that?
        Mr. Jones. My understanding is that some of the
    nomenclature around how a chemical was originally placed on the
    TSCA inventory, which is important in terms of how the statute
    operates. If you are on the inventory, you can sell a chemical
    in commerce. But there is a lot of interest by particular
    manufacturers that that nomenclature be maintained, that we
    don't start changing the way in which we describe what a new
    chemical is, for example. The desire is to maintain the
    longstanding way in which a new chemical in particular was
    placed on that inventory.
        Senator Merkley. So this simply is a naming provision with
    no implications for whether something makes it onto a list of
    high priority, low priority or in any other way influences the
    policies regarding this particular chemical?
        Mr. Jones. I would actually like to get back to you on
    that, Senator. I don't think I have a good answer.
        Senator Merkley. I would appreciate working with you all.
        Senator Inhofe. Thank you, Senator Merkley. We want the
    next panel to be prepared to come forward, but I retained 4
    minutes of my time, which I will allow the author to use, if he
    so desires.
        Senator Vitter. Thanks very much, Mr. Chairman.
        And thanks, Mr. Jones. I just have a few wrap-up questions
    on some key issues we have been discussing. Let's start with
    preemption. Doesn't the Udall-Vitter bill grandfather in
    permanently all State chemical specific regulations that were
    in place January 1st, 2015?
        Mr. Jones. That is correct.
        Senator Vitter. So if a State has already acted, even if
    EPA takes on a chemical, even if EPA says, you can drink this
    and you will have a great life, that State regulation is still
    in effect?
        Mr. Jones. That is saved, that is correct.
        Senator Vitter. Doesn't the Udall-Vitter bill grandfather
    in California's Proposition 65?
        Mr. Jones. That is correct.
        Senator Vitter. OK. Doesn't it keep in place any State
    regulation that exists prior to the EPA taking up a chemical
    until the EPA makes a conclusion in its study?
        Mr. Jones. That is correct.
        Senator Vitter. So if a State has a regulation on a
    chemical that EPA takes up, that regulation doesn't go away
    unless and until EPA essentially blesses the chemical?
        Mr. Jones. Or regulates it, yes.
        Senator Vitter. Correct. OK. And then there was this
    discussion of industry priorities and how somehow that is some
    grand conspiracy to get rid of State regulations, which it
    isn't. Isn't it true that EPA has complete discretion over
    accepting or denying those requests, over accepting or denying
    that money and that request to take up any certain chemical?
        Mr. Jones. That is correct, and as I mentioned, we are also
    limited under the bill to only 15 percent of all priorities can
    come from that stream. We have complete discretion in how we
    determine what the priority is.
        Senator Vitter. And to go directly to Senator Markey's
    question, isn't it true that when EPA takes up a chemical
    through this particular route, that in fact the preemption
    rules are different? And in fact, States can act while you are
    studying the chemical, completely contrary to what Senator
    Markey said, until EPA makes a final decision?
        Mr. Jones. That is correct. For chemicals that come in
    through that venue, the preemption rules are different.
        Senator Vitter. So for that particular path, the rules are
    different and more allowing of the State regulations to
    continue?
        Mr. Jones. Yes.
        Senator Vitter. Let me go to this issue of the 25 chemicals
    over so many years. I want to very clear, so everyone is clear,
    that is a minimum, that is a floor, correct?
        Mr. Jones. What we are statutorily required to do, yes.
        Senator Vitter. Yes. And in fact, the Udall-Vitter bill
    gives EPA more authority, correct?
        Mr. Jones. We can do more, yes, it does.
        Senator Vitter. And the Vitter-Udall bill gives EPA more
    resources through user fees, correct?
        Mr. Jones. Yes.
        Senator Vitter. And it gives EPA more resources through
    this route of chemical companies being able to supplement your
    budget, even though you retain all the control, is that
    correct?
        Mr. Jones. That is correct.
        Senator Vitter. So obviously, if you zoom past 25, if you
    get to 40, if you go past 40, there is no ceiling, there is
    nothing in the law preventing you from doing that?
        Mr. Jones. No ceiling.
        Senator Vitter. And then a final comment, which is simply
    that, we are talking about this in the context of environmental
    regulation, we are the environmental committee. But I would
    suggest this bill is at least as similar, maybe more similar to
    product regulation when the Federal Government regulates
    products in commerce. Because these chemicals go into products
    in commerce. So I think we need to have the preemption
    discussion in that context. I think when we do, you see that
    these sorts of rules are the norm and not the exception.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Mr. Jones. We appreciate your
    very straightforward way of answering the questions. You are
    excused.
        We would ask the next panel to come forward. Because of the
    timing, we are going to ask you to try to abbreviate your
    statements as you see fit. And then we will change and have 5-
    minute rounds for questions instead of six.
        While they are being seated, let me tell everyone who is
    here. Ken Cook is President and Co-Founder of the Environmental
    Working Group. Brian Frosh is Attorney General of the State of
    Maryland, he has been referred to several times. Dr. Lynn
    Goldman is Dean of Public Health, Milken Institute School of
    Public Health, George Washington University. Dr. Edward McCabe
    is Senior Vice President and Chief Medical Officer of the March
    of Dimes Foundation. And Dr. Richard Denison is the Lead Senior
    Scientist of the Environmental Defense Fund.
        We will have 5-minute opening statements, if they can be
    abbreviated we would appreciate it. We will start with Mr. Cook
    and work the other way.

    STATEMENT OF KEN COOK, PRESIDENT AND CO-FOUNDER, ENVIRONMENTAL
                             WORKING GROUP

        Mr. Cook. Mr. Chairman, Ranking Member Boxer, thank you
    very much. I want to thank everyone on the committee for
    holding this critically important hearing.
        Congress has not sent a major Federal environmental
    protection law to the President's desk for signature in 19
    years. It will be 19 years this summer, to be exact, when we
    saw President Clinton, in the space of a couple of months, sign
    landmark amendments to the Safe Drinking Water Act and put into
    law a new reform system for pesticide policy. Nineteen years
    ago, and that was it.
        We have decades of passing major Federal environmental
    regulation and law that preceded that. But I think we all know
    that if it came down to it, not a single one of those landmark
    laws would pass this Congress today. Not a one. We celebrated
    50 years of the Wilderness Act last fall. Now, probably most
    people in this room have been in a wilderness that was
    protected under that law. Does anyone remotely believe that we
    could pass the Wilderness Act today? No.
        And the reason is that in the past, we have seen
    environmental law and regulation come about because of advances
    in science, public support, engagement of both parties, and
    both parties acting through bipartisanship in the service of
    environmental protection and public health, and not the other
    way around.
        Today, much as we salute the advances that have been made
    and the engagement that has happened, we still look at an end
    product, the bill before us today, that is severely flawed. I
    would ask that my testimony in its entirety that goes into
    detail including on matters such as preemption be entered into
    the record.
        But I want to focus on two particular issues.
        Senator Inhofe. Let me interrupt you and say all testimony,
    written testimony, will be a part of the record. Go ahead.
        Mr. Cook. Thank you, Mr. Chairman.
        Let me talk about a couple of broad issues in the context
    of constituents you might encounter as you meet with them in a
    town hall meeting talking about this bill. Let's talk first
    about perhaps a cancer survivor, maybe parents like Trevor
    Shaffer's parents, who are asking you a very simple question:
    under the proposal, under this safety standard in this
    proposal, how will you treat known human carcinogens? Known
    human carcinogens that every agency in the world knows causes
    cancer?
        And the safety standard answer will be as we just heard
    from Mr. Jones, well, we are going to try something new. We are
    going to try something that has never been tested. We are going
    to try unreasonable risk as the standard against which we will
    determine whether or not carcinogens will be regulated.
        Now, we heard Mr. Jones say that it will be up to the
    agency to determine that. And we read in the New York Times
    this morning that the tougher, preferable standard, superior
    standard, would be reasonable certainty of no harm, for which
    we do have regulatory history. It has regulated thousands and
    thousands of pesticides that are on the market today. They
    weren't all banned by that standard. It is just not a standard
    that the chemical industry wants. Because when it really works
    is when you have a dangerous chemical, a known human
    carcinogen. When you have an agent that causes birth defects,
    when you have an agent that causes serious neural developmental
    harm, that is when that standard comes in and is most important
    to have.
        The next person in line talking to you about this is
    perhaps someone who is pregnant, starting a family. I have a 7-
    year old. I have had people in that line come up to me. And
    what they are going to ask you is, this little baby is going to
    be coming into the world here in just a few months. And I am
    worried about all these chemicals that studies have shown,
    including Environmental Working Group studies, have shown. That
    baby has already been exposed to hundreds and hundreds of toxic
    chemicals in the womb.
        Tell me, what is the pace we can expect of dealing with
    these toxic chemicals under this particular legislative
    proposal?
        The answer will be, well, we think we will get to it in 100
    years or so, get through this first list of 1,000 or maybe
    more, maybe 100 years. Now, constituents may not be surprised
    that it will take Washington 100 years to do anything. But when
    someone who is pregnant is asking you that question, what you
    are essentially telling them is, when you add up all these
    issues, you add up the money issues, the notion that there are
    people in Congress who want to put their ``boot on the neck''
    of the Environmental Protection Agency. There are concerns
    about goals and deadlines, we have heard them very well
    expressed here by many of the questions today.
        Senator Inhofe. Mr. Cook, you are over your time. Will you
    conclude, please?
        Mr. Cook. I am sorry. I apologize, Mr. Chairman. I will
    stop right there.
        [The prepared statement of Mr. Cook follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. You will have ample opportunity in response
    to questions.
        Mr. Cook. Thank you, Mr. Chairman.
        Senator Inhofe. General Frosh

              STATEMENT OF HON. BRIAN E. FROSH, ATTORNEY
                       GENERAL, STATE OF MARYLAND

        Mr. Frosh. Thank you very much, Chairman Inhofe and Ranking
    Member Boxer, members of the committee. It is an honor for me
    to be here with you. It is a special honor to be here with my
    Senator, Senator Ben Cardin. It is always a pleasure to work
    with you.
        I want to thank all the members of the committee for your
    commitment to updating the Toxic Substances Control Act. There
    is widespread agreement that this Act needs an overhaul. It is
    not protecting our constituents, it is not protecting them from
    exposure to toxic chemicals as it should. Reform is needed. But
    that reform must be built on a platform of meaningful
    protections for the public. And I am here today to ask you not
    to interfere with States' rights, the rights of States
    specifically to protect their citizens from toxic substances,
    from poison.
        As a State attorney general, and Senator Markey referred to
    me and my colleagues as the cops on the beat, I am deeply
    concerned that S. 697 would abandon the model of cooperative
    federalism that characterizes other Federal environmental laws
    and has characterized the relationship between States and the
    Federal Government for four decades under TSCA. It essentially
    puts the States out of business of protecting their people from
    poison.
        The preemption provisions that are built into this
    legislation tie the hands of States at nearly every turn. Among
    these, there is a prohibition on new State chemical
    restrictions from the moment EPA begins the process of
    considering regulation of high priority chemicals. It is a
    plain fact that the bill itself allows this EPA review period
    to last as long as 7 years. That doesn't account for
    procrastination, sloth or litigation.
        Let's say it is only 7 years. Let's say we are talking
    about a toxic chemical that is 7 years with no Federal
    regulation, 7 years during which no State can take action
    regardless of how dangerous, how toxic, how poisonous a
    chemical is, regardless of its impact on men, women or
    children.
        Seems to me the legislation has got the priorities upside
    down. If a chemical is dangerous, we should be acting as
    quickly as we can to protect our people. If the Federal
    Government cannot act swiftly and it may have come to your
    attention that it usually does not, States ought to be able to
    fill the void. States have done a good job of identifying
    threats to their citizens, and some, including Maryland, have
    passed laws that shield their people from toxic chemicals.
        The laboratories of democracy, as Justice Brandeis called
    the States, have been out in front of Congress, out front of
    the EPA and I think to the great benefit of our entire Nation.
    In Maryland, we passed laws to protect infants and children
    from ingesting bisphenol A, BPA. So have many other States. If
    you looked at EPA's website this morning, you will see the EPA
    acknowledges that it is a reproductive, developmental and
    systemic toxic in animal studies. EPA is studying it.
        Washington and Oregon restrict flame retardants like DECA
    BDE. Iowa restricts packaging containing lead, cadmium,
    mercury, hexavalent chromium. You don't want your kids chewing
    on this stuff. Maine, New York, California, many other States
    have enacted laws that protect their citizens from toxics. We
    are talking about chemicals that cause chronic diseases,
    respiratory ailments, cancer, birth defects and death.
        Usually, when the Federal Government preempts the States,
    it is because you say to us, we got this. We are regulating
    this. You don't need to worry about it. This legislation
    preempts the States before the Federal Government takes action.
    It is not, we got your back, it is, we are going to think about
    it. You sit back.
        I think we share the same objective. No one wants people to
    get poisoned. We all want an economy that is robust and healthy
    as well. State governments do a pretty good job. I ask that you
    respect their judgment. Respect the rights of States to protect
    their citizens. Let us continue to work cooperatively to
    prevent harm to people we serve. Fix TSCA. But do no harm.
    Don't preempt the States. Allow us to continue to guard the
    health and safety of our citizens and protect them from toxic
    chemicals.
        Thank you very much.
        [The prepared statement of Mr. Frosh follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, General Frosh. Dr. Goldman.

      STATEMENT OF LYNN R. GOLDMAN, M.D., MICHAEL AND LORI MILKEN
       DEAN OF PUBLIC HEALTH, MILKEN INSTITUTE SCHOOL OF PUBLIC
                HEALTH, THE GEORGE WASHINGTON UNIVERSITY

        Dr. Goldman. Mr. Chairman, and members of the committee, it
    my honor to testify today about the Frank R. Lautenberg
    Chemical Safety for the 21st Century Act, a bill to reform the
    Toxic Substances Control Act. And I do dedicate my testimony to
    the memory of Frank Lautenberg and his commitment to making
    chemicals safer.
        I am a pediatrician, and as you know, between 1993 through
    1998, I served as Assistant Administrator for the USEPA office
    that is now called the Office of Chemical Safety and Pollution
    Prevention. I first testified before this committee about the
    need for TSCA overhaul 21 years ago, in May 1994. Since that
    time, Congress did overhaul the pesticide law under the Food
    Quality Protection act in 1996. But TSCA unfortunately is
    frozen in time.
        The most important amendment in the Lautenberg Act is to
    replace the risk benefit balancing requirement in the current
    version of TSCA with a firm public health standard requiring
    that EPA make decisions solely on the basis of risk to human
    health and the environment. The provision requiring protection
    of infants, children, the elderly, pregnant women and other
    populations also is an immense improvement over current law.
        The Lautenberg Act also provides EPA with the strong
    authority it needs to order chemical testing, much as it
    currently has for pesticides.
        The 1989 Asbestos Ban and Phase-Out Rule, as you know, was
    overturned by the Fifth Circuit Court, which interpreted the
    least burdensome clause of Section 6 to imply a preference for
    end of the pipe solutions over more effective solutions, like
    replacing asbestos. The Lautenberg Act deletes that clause.
    Importantly, the Act will require that EPA actually affirm the
    safety of new chemicals and manage them to meet the new public
    health standard, something people haven't been talking about
    today.
        Provisions in the Lautenberg Act would open up vast
    quantities of chemical information, much of which never should
    have been declared confidential in the first place, or
    information for which that claim is now outdated. As a former
    California State regulator, I strongly support the provision
    allowing EPA to share this data with States, something we were
    not allowed to do when I was at the EPA.
        In 1994, I called for a clear agenda and deadlines for the
    EPA and TSCA. The proposed legislation includes deadlines for
    prioritization, safety assessment and regulation, as well as a
    reasonable transition plan. I thank you for having undertaken
    the hard work of negotiating a provision enabling EPA to not
    only collect fees but also to actually use eh fees they
    collect. Bravo for that. I appreciate your hands-ff approach to
    how EPA uses regulatory science in the context of the program
    and ask that you do not freeze the science by injecting 2015
    standards into a law that needs to work for us for a number of
    years.
        I appreciate that the actions States have taken to date and
    actions taken under Proposition 65 now and in the future would
    not be preempted by the Act. Also, the Act does not preempt
    State right to know efforts, something we haven't talked about,
    but a very important component of State activities.
        But we do have to recognize the chemical industry as a
    multi-national enterprise and the need to take actions to
    protect people in all of our States, not just State by State,
    as well as the need to have actions that recognize what the
    downsides of those actions might be, such as replacement of
    bisphenol A with bisphenol S, a chemical about which we know
    very little but probably has similar toxicity.
        Listening to the discussion here today, there is probably
    more work that is needed to do to strike the right balance in
    terms of preemption. I certainly am sympathetic to arguments
    that States can be strong co-enforcers with the EPA. I think
    that is an issue that will need further discussion.
        Other areas that I would note is that I think Congress
    could set more aggressive but realistic expectations for EPA's
    productivity, as well as taking advantage of this
    reauthorization to participate in the global Stockholm and
    Rotterdam Chemical Conventions. Twenty-one years ago, there
    were TSCA hearings. Everyone declared it was too complicated
    and everyone walked away for nearly a generation. You have
    heard many statistics describing this pace of chemical
    regulation under TSCA. But there is a human cost to inaction.
    Since 1976, 149 million babies were born in this Country. Three
    percent of them had birth defects and more than 10 percent were
    born pre-term. Eighty-six million people have died in the U.S.
    since that time, more than 25 percent from cancer.
        Each of us has our own ideas about what a perfect TSCA
    would look like. But I don't want to be facing another Senate
    committee 20 years from now giving the same testimony about
    this 60-year old law. Nor do I want to have to tell my daughter
    that she and her future children would not have a greater level
    of protection because we failed to pass a good, even if not a
    perfect, law.
        I thank you all for our willingness to work together and I
    wish you the best in finding a path forward.
        [The prepared statement of Dr. Goldman follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Dr. Goldman. Dr. McCabe.

      STATEMENT OF EDWARD McCABE, M.D., SENIOR VICE PRESIDENT AND
            CHIEF MEDICAL OFFICER, MARCH OF DIMES FOUNDATION

        Dr. McCabe. Chairman Inhofe, Ranking Member Boxer and
    members of the committee, thank you for the invitation to
    testify at this critical hearing. My name is Ed McCabe, and I
    am a pediatrician and geneticist serving as Senior Vice
    President and Chief Medical Officer of the March of Dimes
    Foundation. We appreciate this opportunity to testify today on
    the critical issue of protecting Americans and specifically
    vulnerable populations like pregnant women, children and
    infants from toxic chemicals.
        Unfortunately, the current Federal framework for the
    regulation of toxic substances is badly antiquated. As others
    have said, TSCA represents the last meaningful and
    comprehensive action taken in the field. The now outdated rules
    constructed in 1976 still govern the introduction and use of
    chemicals today, even though science has advanced in ways
    almost unimaginable at its passage.
        The safe management of toxic substances is especially
    important to pregnant women and children because they are more
    vulnerable to the potential dangers. Ample reason exists for
    concern that the developing fetus, newborn and young child are
    at increased risk of health consequences from chemical
    exposure. Given their increased vulnerabilities, pregnant women
    and children must be given an additional margin of protection
    beyond other populations.
        The legislation before the committee today, developed by
    Senators Tom Udall and David Vitter, and co-sponsored by
    numerous other Senators, including the Chairman, represents a
    critical step forward toward establishing a system of chemical
    regulation that will be protective of maternal and child
    health. This bipartisan effort is commendable, and the March of
    Dimes would like to extend our appreciation to each of you for
    your roles in this work.
        As this committee considers chemical reform legislation,
    the March of Dimes would like to share with you four principles
    that we believe are essential to the successful reform of
    America's system of regulating toxic chemicals. Legislation
    that meets these principles would represent a vast improvement
    in chemical safety for children and families everywhere.
        Legislation should specifically protect the health of
    pregnant women, infants and children. As I noted, these
    populations are especially vulnerable to toxic substances, and
    a meaningful chemicals reform legislation must recognize the
    elevated risks posed by some chemicals for maternal and child
    health and incorporate special protection for these groups.
        No. 2, legislation should establish an efficient and
    effective system and timetable for prioritizing and assessing
    chemicals. Given that over 80,000 chemicals are currently in
    commerce across our Nation, reform legislation must establish a
    sensible, practical framework for the appropriate
    prioritization and assessment of chemicals in a timely fashion.
    A system that allows for indefinite timeframes and evaluation
    of only small numbers of chemicals will fail to protect the
    health of pregnant women and children.
        No. 3, legislation should include a mechanism for requiring
    the generation of scientific data if existing data are
    insufficient to determine the safety of a substance. Under the
    current failed system, chemical manufacturers have a
    disincentive to study the impact of their products, which is
    antithetical both to transparency and to the public's health.
    In order to conduct appropriate safety assessments, the
    government must have the ability to require studies be conduct
    to produce data on safety especially related to maternal and
    child health.
        And finally, No. 4, legislation should provide timely
    access to chemical information for health care providers and
    first responders in critical circumstances. Health care
    providers and first responders must have immediate access to
    vital chemical information when they respond to known or
    suspected exposures, both to treat their patients and to
    protect themselves. Reform legislation must ensure that those
    who may be risking their own health to assist others must have
    the information necessary to make informed decisions.
        In conclusion, reforming the framework under which the U.S.
    regulates chemicals and potentially toxic substances is
    critical and long overdue. Today, a real solution appears to be
    within reach. On behalf of the March of Dimes, I thank you, Mr.
    Chairman, as well as Senators Udall and Vitter, for our hard
    work, reaching across the aisle and working to address the
    needs and concerns of many stakeholders. The March of Dimes
    stands ready to be a partner and resource as Congress works to
    produce a successful reform bill that protects the health of
    all Americans, including our vulnerable women, infants and
    children.
        Thank you for the opportunity to testify.
        [The prepared statement of Dr. McCabe follows:]

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        Senator Inhofe. Thank you, Dr. McCabe. Dr. Dennison.

     STATEMENT OF RICHARD A DENISON, PH.D., LEAD SENIOR SCIENTIST,
                       ENVIRONMENTAL DEFENSE FUND

        Mr. Denison. Thank you, Chairman Inhofe, Ranking Member
    Boxer and other members of the committee.
        The Environmental Defense Fund has been working to reform
    this badly broken and outdated law for 20 years, and I have
    personally for the past 15 years. That is why EDF supports the
    Lautenberg Act as a solid compromise that fixes the biggest
    problems in the current law, is health protective and has the
    strong bipartisan support necessary to become law.
        This legislation did not arise suddenly in this Congress.
    It is actually the culmination of a decade of hard work by the
    late Senator Frank Lautenberg, who had the courage to recognize
    that we would not get reform without opening up a bipartisan
    path. Since he and Senator Vitter introduced their bill, the
    first bipartisan TSCA reform bill, in 2013, Senator Udall has
    led negotiations with Senator Vitter and has steadily and
    significantly strengthened the bill's health protections. They
    have worked tirelessly to listen to and incorporate input from
    other members and from hundreds of stakeholders.
        The need for reforming this law is urgent. It has been
    pointed out that it has been almost 40 years since the core
    provisions have been touched. Americans have been exposed,
    meanwhile, to hundreds and thousands of chemicals every day and
    only a small fraction have ever been adequately reviewed. EPA
    cannot, under the law, regulate even known dangers like lead,
    formaldehyde and asbestos.
        The law has not kept up with science. It is increasingly
    linking common chemicals to cancer, infertility, diabetes,
    Parkinson's and other illnesses. Pregnant women, infants and
    children are especially vulnerable, as Drs. McCabe and Goldman
    have pointed out.
        I have spent much of my professional career pressing EPA to
    act under this flawed law. I have been on the opposite side of
    the table from the chemical industry on nearly every issue. But
    rare political circumstances have opened a narrow window to
    pass meaningful reform. That is because the industry has
    finally realized that they need a stronger Federal system in
    order to restore Americans' confidence in the safety of
    chemicals.
        We believe that Congress now has the best chance in a
    generation to bring this law into the 21st century. And let me
    just mention a couple of the things that it does.
        It mandates safety reviews for all of those chemicals that
    TSCA grandfathered in 40 years ago and for new chemicals before
    they can enter the market. It explicitly requires that when EPA
    judges the safety of a chemical and regulates it, it ensures
    the protection of vulnerable populations. It makes far more
    information available about chemicals by limiting the ability
    of companies to declare that information confidential.
        None of the provisions in the bill are perfect, from our
    perspective. Indeed, most of them clearly represent
    compromises. But taken individually and collectively, they are
    much more protective than the current law.
        Let me briefly turn to the most contentious issue in this
    debate: preemption. Striking the right balance has proven to be
    both exceedingly difficult and critical to garnering bipartisan
    support needed to actually pass a law. The bill is more
    preemptive than current law. But it is much less preemptive
    than the original bill.
        All State actions before 2015 would be grandfathered in,
    regardless of what EPA does later. State actions taken after
    2015 remain in effect until and unless EPA identifies a
    chemical and starts an assessment and completes that
    assessment. Those actions stay on the books. That assessment
    has to address the same uses and the same environmental
    concerns in order for it to preempt State action.
        Low priority designations are no longer preemptive. Once
    EPA initiates and sets the scope of an assessment, it is true
    that new actions by States could not be taken. However, those
    existing actions would remain in effect until the end of that
    process.
        Finally, even after EPA takes final action on a chemical,
        Federal preemption is limited in certain very important
    ways. Only restrictions by States are preempted. Other types of
    requirements, for reporting, assessment, monitoring and the
    like, are never preempted. And only State restrictions on uses
    and concerns that are within the scope of EPA's review and
    determination are preempted. States can still regulate a
    chemical for other uses and to address other concerns.
        Now, it needs to be noted that the current patchwork of
    State regulations and laws, which we have strongly supported,
    cover only a small number of chemicals and reach only a
    fraction of the American public. While nearly 200 actions have
    been taken by States to restrict chemicals, those actions have
    only restricted about a dozen chemicals or chemical categories.
    There is a huge problem we have that demands a Federal
    solution.
        Let me conclude with this. The failures of TSCA are a
    serious and growing calamity, and Congress needs to act now. We
    simply can't afford to have the best opportunity to reform this
    law squandered. Thank you.
        [The prepared statement of Mr. Denison follows:]

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        Senator Inhofe. Thank you, all of you, for your excellent
    and thoughtful and timely statements.
        I am going to ask some basic questions to each one of you,
    even though your testimony probably would have already told us
    what your answer is going to be. I just want to make sure it is
    out there, so that we can get these principal positions on
    record.
        Dr. Denison, you have 15 years invested in this thing right
    now. You as an individual and then I will as if EDF has the
    same position, do you have an official position supporting or
    opposing this bill?
        Mr. Denison. Senator, I personally and EDF supports this
    legislation as a solid compromise.
        Senator Inhofe. Thank you. Dr. McCabe, what about the March
    of Dimes?
        Dr. McCabe. The March of Dimes has not endorsed this
    legislation, but we support the beginning of a dialog. We think
    it is time, it is 40 years. I was a resident 40 years ago, and
    those in the room can see that was a long time ago. Our
    vulnerable women, children and infants deserve this. So we
    support the law, we think it is an important place to start,
    but there is a long way to go.
        Senator Inhofe. That is very good, thank you. Dr. Goldman.
        Dr. Goldman. Yes, I think as you heard from my testimony, I
    do support this legislation, at the same time recognizing that
    there are avenues that could be taken to make it stronger.
        Senator Inhofe. I see. And General Frosh, does the State of
    Maryland have a position on this bill?
        Mr. Frosh. Mr. Chairman, I am speaking for myself as
    attorney general.
        Senator Inhofe. So that answer is no?
        Mr. Frosh. I do not support it with the preemption
    provisions.
        Senator Inhofe. I see. Mr. Cook, I think we know what your
    answer is.
        Mr. Cook. Yes, Mr. Chairman, I come from the environmental
    wing of the environmental movement.
        [Laughter.]
        Mr. Cook. I do not support this legislation personally. EWG
    does not, and I can't name any other major national
    environmental group that does.
        Senator Inhofe. Thank you, Mr. Cook. Dr. Denison, do you
    believe this bill represents a significant improvement over
    current law?
        Mr. Denison. Yes, Senator, I do.
        Senator Inhofe. How about you, Dr. McCabe?
        Dr. McCabe. Yes. That is the substance of my testimony.
        Senator Inhofe. Dr. Goldman.
        Dr. Goldman. I do think it does.
        Senator Inhofe. And Dr. Denison, do you believe this bill
    significantly increases protections to public health, including
    for the most vulnerable, like children and pregnant women?
        Mr. Denison. I do, Mr. Chairman.
        Senator Inhofe. Dr. McCabe.
        Dr. McCabe. Yes, Mr. Chairman.
        Senator Inhofe. Dr. Goldman.
        Dr. Goldman. Yes.
        Senator Inhofe. This question would be for Dr. Denison and
    Dr. Goldman. If Congress fails to pass a bipartisan TSCA reform
    bill, what are the chances of all Americans being protected
    from chemicals like asbestos?
        Mr. Denison. Mr. Chairman, I believe those prospects are
    very low.
        Dr. Goldman. Thank you. I believe we would continue to see
    the same pace of progress that we have seen since 1976.
        Senator Inhofe. Thank you. Senator Boxer.
        Senator Boxer. Thanks, Mr. Chairman, very much.
        Dr. Goldman, am I correct in assuming you would not support
    a bill that you believe was worse than current law?
        Dr. Goldman. You are absolutely correct.
        Senator Boxer. OK. So I hope you will read the letters I
    will put in the record of the leading health experts, not
    chemical companies or anyone affiliated with them, who say this
    is worse than current law. I am not asking you about it, I am
    just going to ask if you will read those letters and be back to
    me with your reasons for opposing them.
        Dr. Goldman. I will read those.
        Senator Boxer. Thank you very much. And please let me know,
    because I don't understand why you are doing this, given the
    tremendous opposition of the whole environmental community, the
    health community, the breast cancer folks, the autism folks. It
    just doesn't add up. But I want you to read it and let me know.
        Dr. Goldman, Attorney General Frosh said in his statement
    that this bill, S. 697, imposes a tangled web of preemption
    that ties States' hands at every turn. He is sitting next to
    you, he is doing his job, this is his view. Nine attorneys
    general who represent more than a majority of the Country agree
    with him in that.
        Since you are a physician and not an attorney and you know
    this bill is going to be negotiated, do you think going forward
    that the concerns of the attorneys general should be considered
    as we move forward?
        Dr. Goldman. I think I said in my oral testimony that I
    think the right balance needs to be struck.
        Senator Boxer. If you could just say, I am asking yes or
    no. Do you think these nine attorneys generals views should be
    considered as we move forward?
        Dr. Goldman. Congress should consider their views.
        Senator Boxer. Thank you very much.
        Mr. Cook, recent reports indicated that floor boards that
    were imported from China contained high levels of formaldehyde,
    a known carcinogen. I don't think there is an argument about
    that. Do you agree that the Vitter-Udall bill would make it
    harder for EPA to intercept imported products containing
    dangerous chemicals like this? I am talking about, I think it
    is Section 14, is that right?
        Mr. Cook. I agree that that is the case.
        Senator Boxer. Because it really undermines the authority
    of EPA to intercept imported products that contain unsafe
    chemicals, is that correct?
        Mr. Cook. That is correct.
        Senator Boxer. So anyone who sits here and says this is
    better than current law, I urge you, Dr. Denison and Dr. McCabe
    and Dr. Goldman, to look at this. Because right off the bat,
    these products are going to get into the Country.
        On preemption, Mr. Denison, you authored a paper, and I am
    quoting from it: ``Federal policy reform should establish
    floors, not ceilings, for State government action and should
    only preclude State actions that are less protective of
    health.'' Do you still stand by your statement?
        Mr. Denison. Senator Boxer, that was a statement I made in
    2009.
        Senator Boxer. Yes, and I am going to put it into the
    record, without objection.
        [The referenced information follows:]

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        Mr. Denison. Yes. You were chair of this committee at that
    time.
        Senator Boxer. I just want to know if you stand by it. I
    don't have a lot of time to talk about it.
        Mr. Denison. I supported those statements then and I still
    support them. But the protections they provide would only be
    realized if we actually get a law put in place.
        Senator Boxer. Very important. Because here is the deal.
    The people who are experts in the law that are advising all of
    the public health groups and people that don't have a financial
    interest in this say that this bill is worse than current law
    and on top of it, it preempts. And this preemption, you have
    heard the word a lot of times, this preemption is a fatal flaw
    of this bill if you care about people. And these attorneys
    general have come in, and by the way, they didn't even get to
    see the draft document of the bill until maybe a week ago. And
    we are continuing to get documents in here.
        We just heard from the business community, Sustainable
    Business Council. I ask unanimous consent to place that into
    the record. And of course I don't have it in my hand.
        Senator Inhofe. Without objection.
        [The referenced information follows:]

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        Senator Boxer. Thank you. But this is over 100 businesses
    who are lamenting this bill, lamenting this bill, because they
    are trying to get people away from dangerous chemicals.
        Mr. Frosh, some attorneys general have argued the Udall-
    Vitter bill preemption provisions could apply to much more than
    State toxics laws, and could also preempt States' clean air,
    clean water or other environmental laws. Would preemption of
    State air and water laws have a serious impact on a State's
    ability to protect their citizens from all types of pollution?
        Mr. Frosh. Absolutely it would.
        Senator Boxer. OK. Well, this is an area we need to look
    at.
        Mr. Cook, I want to ask you something, it is very
    important. Because Senator Vitter talked about deadlines. I am
    sorry, it was another Senator, I can't remember which one. Yes,
    there are deadlines for studying about 25 chemicals over a 7-
    year period, and at that time they have to make a decision. But
    as far as I can tell from the experts looking at this, there is
    no deadline for actual implementation or action on any
    chemical. Do you agree with that?
        Mr. Cook. That is our interpretation as well, Senator.
        Senator Boxer. OK. Let it be clear. There is not one
    deadline in this bill that requires any action. There is no
    mention of asbestos. The same core test is put forward in this
    bill that resulted in asbestos being left as an orphan child.
    It is a sad situation for us, and I pray, honestly I pray and
    hope we can fix this bill. We can do it, the New York Times
    laid out some great ways to start. Let's get with it, because
    we have tried for a very long time and haven't succeeded.
        Senator Inhofe. Thank you, Senator Boxer. Senator Vitter.
        Senator Vitter. Thank you, Mr. Chair.
        When TSCA was first passed, it was actually done through
    the Commerce Committee, primarily because unlike other
    environmental laws that regulate pollutants, TSCA actually
    regulates products all over the Country and the world, an
    authority that is granted to the Federal Government by the
    InterState Commerce Clause. In fact, most products, including
    pharmaceuticals, medical devices, food, consumer products, are
    regulated by the Federal Government under statutes with strong
    preemption language.
        Therefore, there is little to no State activity in those
    areas, yet I don't believe anyone is complaining that we are
    trampling on States' rights or that is a horrible situation.
        Now, I have here what we are going to show you, a couple of
    maps, actually put out last week by one of our witnesses, the
    Environmental Working Group. They put out these two maps, among
    a few others, I think there were six total, meant to illustrate
    that States are leading when it comes to chemical regulation.
        Before anyone asks, no, we have not doctored or changed
    these maps at all. That is what the Environmental Working Group
    put out. Two of the examples they used to show that States are
    somehow leading the way.
        Now, in my opinion, when you look at maps like this, it
    absolutely shows us why we have to fix TSCA through a strong
    bipartisan compromise like Udall-Vitter. These maps show that
    only one State has regulated these two different chemicals in
    question, only a few others are even considering legislation or
    regulation. Americans in 49 of the 50 States have no
    protections at the State or Federal level.
        So based on these maps, I want to ask Dr. Denison and Dr.
    Goldman, would you say that they help exemplify why we need a
    strong, meaningful Federal system? Mr. Denison?
        Mr. Denison. Senator, I think they are illustrative of the
    fact that States have been trying to fill a Federal void for a
    long time, but there are limits to what States can do. We need
    a strong Federal system that fills in that map.
        Senator Vitter. Dr. Goldman.
        Dr. Goldman. EPA has been trying to regulate formaldehyde
    at least since 1981, to my knowledge. So that is, how many
    years that there has been the opportunity for State by State
    regulation to occur? And it just hasn't been done effectively,
    because it takes a lot of resources to do it. Very few States
    have the budget to be able to do this kind of work, having done
    it.
        Senator Vitter. Right. And let me ask you both, with the
    new fee structure and the new authority and enhanced powers
    given the EPA under Udall-Vitter, don't we have a much better
    chance of achieving broader protection of public health than we
    have now?
        Mr. Denison. I believe we do, Senator. I do want to
    emphasize that this is a huge problem. TSCA dug a very deep
    hole and we have thousands and thousands of chemicals to work
    our way through. But we have to get started and we have to
    empower EPA and give it the resources to do this job.
        Senator Vitter. Dr. Goldman.
        Dr. Goldman. Yes. I would say yes to your question.
        Senator Vitter. OK. Also talking about preemption, Mr.
    Frosh, every State, State of Maryland included, is regularly
    preempted from laws, Federal laws governing products in
    commerce. Should Maryland be able to regulate drugs, for
    instance, prescription drugs, where they are regularly
    preempted by the FDA's authority?
        Mr. Frosh. What I would say, Senator, is that when you are
    talking about poison, and that is what we are talking about
    here, States ought to have the right to regulate, especially
    where you see the kind of good luck that those charts that you
    just held up demonstrate.
        Senator Vitter. Mr. Frosh, aren't some drugs, improperly
    used, poison?
        Mr. Frosh. Certainly they are.
        Senator Vitter. DO you oppose the current system whereby
    drugs are regulated through complete preemption by the FDA?
        Mr. Frosh. I think FDA has done a pretty good job in acting
    in a timely fashion on approval of drugs.
        Senator Vitter. You don't oppose that system, which is
    built on strong Federal preemption?
        Mr. Frosh. I think EPA doesn't share that record of action.
    When you are talking about poisons, the States ought to have
    the ability to protect their citizens.
        Senator Vitter. OK. Mr. Denison, there has been this
    attempt over and over to somehow characterize this as a pure
    industry bill with somehow no support among groups that care
    about public health and safety, environmental protection, et
    cetera. Do you agree with that characterization?
        Mr. Denison. I do not, Senator. I would not try to
    characterize the positions of my colleagues in the
    environmental community, except to say that I know there is a
    range of views and a very significant spectrum between myself
    and Mr. Cook. I will say that many groups support many of the
    provisions and especially the improvements that you and Senator
    Udall have made. But they are withholding support to try to get
    additional improvements. I understand that.
        Senator Vitter. OK. Dr. McCabe, sort of along the same
    lines, do you believe that somehow you and March of Dimes are
    alone in the public health community interested in moving
    forward with a meaningful bipartisan bill like Udall-Vitter?
        Dr. McCabe. No, we are not alone. We signed a letter of
    support with our colleagues, the American Society for
    Reproductive Medicine, the American Congress of OB-GYN, and the
    Society for Maternal-Fetal Medicine. So we know that we are not
    alone. We know that many groups feel that we need to move
    forward. We are at the beginning of this, but we need to move
    it forward.
        Senator Vitter. Great, thank you.
        I would just say in closing, Mr. Chairman, that that
    illustrates, I think, a robust, healthy debate, which is great.
    But it does not illustrate, in fact it disproves that somehow
    this notion that this is an industry bill and the whole public
    health community, the whole environmental community is opposed
    to it. That is just flat-out, factually wrong. I think a lot of
    people properly support the bill and a lot of people properly
    recognize that the alternative to this bill or something like
    this bill is the status quo. That is the only meaningful
    alternative in sight any time soon. We clearly need to do
    better. Udall-Vitter does much, much, much better. Thank you.
        Senator Inhofe. Thank you, Senator Vitter. Senator Carper.
        Senator Carper. Thanks, Mr. Chairman. To our witnesses, it
    is good to see all of you. Thank you so much for joining us. To
    my neighbor from Maryland, welcome, it is good to have you here
    today.
        Dr. Denison, are you familiar with a letter, I mentioned
    one letter I sent about 13 months ago to a number of my
    colleagues, about 10 of them, to Senator Vitter, outlining nine
    changes we would like to see made in the bill? And all those
    have actually been made. But are you familiar with the letter I
    sent, I think last week, in which I mentioned three ideas,
    three issues that needed to be addressed?
        Mr. Denison. Yes, Senator, I am.
        Senator Carper. And your thoughts on those, please?
        Mr. Denison. Yes. I believe you mentioned the issue of co-
    enforcement that has been raised. I believe that is a
    legitimate concern and I think there is middle ground to be
    found. I believe a couple of your suggestions were good ones.
    The concern on the industry side is that a State might do
    something inconsistent with the Federal requirement. EPA could
    issue guidance to clarify how that requirement is to be imposed
    by a State. There could be an appeals process.
        So I am troubled by that provision. It is one of the
    provisions I don't like in an overall package I do support. I
    think some additional work on that would be appropriate.
        Senator Carper. All right, thank you. I don't know if you
    have had a chance to look at the letter that a number of us
    sent a year ago, where we outlined nine things where we would
    like to have changes made. Those have essentially been
    addressed, at least in our view. But in your opinion, does this
    legislation address that request of a year ago in a way that
    actually gives EPA new tools that it does not have under
    existing law in order to improve the protection of public
    health?
        Mr. Denison. Yes, Senator. That letter was very helpful in
    sharpening the negotiations, I believe. I think there was
    effort, and successful effort, to address each of those points.
        Senator Carper. All right, thank you. One of the points
    that I made in the letter that I sent last week deals with the
    State preemption issue. I highlighted that as an example of
    what we did in Dodd-Frank with respect to nationally chartered
    banks, and how nationally chartered banks didn't want States to
    pass laws, they didn't want State legislators and Governors and
    attorneys general telling them what to do.
        We were able to find some consensus in the way that I laid
    out, where the Consumer Protection Bureau that we have in
    Federal law was able to play a role, provide regulations that
    were endorsed by the, rather, implemented and overseen by the
    attorneys general. Do you think if we could do that in Dodd-
    Frank that maybe there is a way to thread the needle here as
    well?
        Mr. Denison. I do, Senator. That is a useful, although I am
    not that familiar with that particular case. But I think
    looking at models in other statutes, the pesticide law, for
    example, has another model for, seminal for the States in
    enforcement.
        Senator Carper. Attorney General Frosh, we are going to be
    looking to you, you don't have to respond now, but we certainly
    want to have a good conversation with you and our own attorney
    general and others as well.
        Dr. Goldman, you wrote eloquently in your testimony about
    the cost of inaction as a consequence of a failure to have a
    functional Federal toxics law. It is a testament to the idea of
    States as laboratories of democracy that several States have
    forged ahead with toxics laws in absence of a Federal system.
    Other States like my own State, Delaware, we don't have the
    capacity or the resources to run a robust State toxics program
    and we depend on EPA.
        How will having a Federal program help to reduce the impact
    of toxic exposure for people like those who live in my State
    and some other States? What would be the cost of inaction?
        Dr. Goldman. I think that how people in your State would be
    benefited is by raising the floor, having a stronger safety
    standard that would have to apply everywhere in the Country.
    And also that when new chemicals come on the market that EPA
    would have to actually affirm that those new chemicals meet
    that standard. Right now, if EPA doesn't act in 90 days,
    automatically the chemical enters the market. This bill would
    tell the EPA, no, you must affirm that it needs the new
    standard and that it is a health-based standard. It is not a
    standard for cost-benefit balancing as it is today.
        Senator Carper. All right, thank you.
        Colleagues, I would just say, two floors down is the
    committee room in which the Finance Committee meets. I serve on
    the Finance Committee. About 3 years ago we were having a
    hearing on deficit reduction, and we had some really smart
    people, brilliant people like we have here today, whose job was
    to come and tell us what they thought we should do further on
    deficit reduction.
        One of the witnesses was a fellow, Alan Blinder, who used
    to be vice chairman of the Federal Reserve, he is now a
    professor of economics at Princeton. He said in his testimony,
    he said the key to deficit reduction is health care, getting
    health care costs reined in. He said if we don't do something
    about that, we are doomed. When it came time to ask questions,
    I asked him this question. I said, Dr. Blinder, you say the key
    to deficit reduction is health care costs, and if we don't do
    something about it, we are doomed. What would you suggest we
    do? That is what I asked him, what do you suggest we do. He
    thought for a minute and he said, you know, I am not an expert
    on this, I am not an economist. But if I were in your shoes,
    here is what I would do: find out what works; do more of that.
    That is all he said.
        We know what doesn't work. And it is this law we have had
    for 40 years. We have a lot of good ideas here, we talked about
    them today, that would actually make it work a whole lot
    better. We need to pursue those. As we say in Delaware, the
    only two words in Latin I know are carpe diem, or Carper diem,
    seize the day. That day has come.
        Senator Inhofe. Thank you, Senator Carper.
        Before everyone leaves here, we are going to leave the
    record open for questions for the record for 2 weeks, without
    objection.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman, very much.
        This is another chart that was in that same study. So while
    only a few States may have acted on formaldehyde or triclosan,
    there are 169 laws adopted in 35 States that worked to limit,
    label and manage dangerous chemicals. This is from that same
    data base. For mercury alone, half the States have acted to
    protect against that exposure. Why is State action important?
    Well, when a State bans the use of a chemical like BPA in baby
    toys, companies work to reformulate the product, to comply and
    sell these products. Because then nationwide, all children
    benefit when one State acts. So we should not in any way
    downplay the role the States play here. Once States act on any
    of these things, the whole industry has to rethink if the rest
    of the Nation, at a State level, is going to move.
        Dr. Denison, in 2013, you testified on an earlier version
    of this bill in the House. During that hearing you said that
    any trigger for State preemption on a chemical ``should occur
    at the final action of the agency, which could mean either that
    EPA finds the chemical to be safe or that EPA promulgates a
    rule that restricts the use of that chemical.'' Do you still
    stand by that statement?
        Mr. Denison. I did say that, Senator, and I do believe that
    that would be the preferable approach.
        Senator Markey. OK, thank you. Now, Mr. Frosh's testimony
    states the Udall-Vitter bill ``includes the near evisceration
    of State authority to regulate toxic chemicals. For example,
    the bill prohibits States from taking action on any chemical
    that EPA has started to study, even though that could create a
    regulatory black hole if EPA never takes any action on that
    chemical. The States would not be regulating, the EPA would not
    be regulating.''
        Do any of you disagree that the protections against toxic
    chemicals that the bill is intended to create would be made
    stronger if the State preemption provisions were removed?
        Mr. Denison. Senator, I believe that the only way we get
    the protections that this bill offers is if it gets enacted
    into law. That means, in my view that --
        Senator Markey. I didn't say that. Would the bill be
    stronger if these preemption standards were taken out? Would
    the bill be stronger? That is all I want to know.
        Mr. Denison. The law would not be stronger --
        Senator Markey. I don't need your political judgment. I am
    not looking for your political judgment. I need your technical
    judgment. Would the bill be stronger?
        Mr. Denison. If it could pass into law, yes.
        Senator Markey. OK, thank you. Yes. Doctor? Yes or no?
        Dr. McCabe. This is not my area of expertise. It is not in
    pediatrics or genetics.
        Senator Markey. We will come back the other way. Mr. Cook.
        Mr. Cook. Yes, it unquestionably would be stronger.
        Senator Markey. Attorney General.
        Mr. Frosh. Absolutely, Senator.
        Dr. Goldman. I would agree with the other statements.
        Senator Markey. Mr. Cook, the Udall-Vitter bill says that
    EPA can have a total of 12 years to complete work on the first
    25 high priority chemicals. That means it will take over 100
    years to complete work on the 1,000 chemicals EPA has said were
    in most need of assessment. Do you think that a strong Federal
    program should include a requirement that the resources to
    study the safety of more chemicals, more quickly, is included
    simultaneously?
        Mr. Cook. Yes. I think it is vital that we have a faster
    pace and get more done.
        Senator Markey. Do any of the rest of you disagree that the
    more quickly EPA can act to assess chemical risks and acquire
    needed regulations, the faster the public will be protected
    from exposures to chemicals that turn out to be unsafe?
        Dr. Goldman. I stated in my testimony that Congress could
    have a higher level of expectation on the pace of effort by
    EPA.
        Senator Markey. Do any of you disagree with that comment?
        Mr. Cook. No, sir.
        Senator Markey. OK, thank you.
        Mr. Denison. Senator, I don't disagree, but I would say
    that there is a balance that needs to be struck. Because we
    otherwise could have poor assessments done or have EPA finding
    chemicals they can do quickly rather than those that need the
    most attention.
        Senator Markey. No one disagrees. No one disagrees. The
    Udall-Vitter bill makes it more difficult for EPA to regulate a
    chemical in a product like furniture or clothing, even after
    EPA has found that the chemical is unsafe. For example, flame
    retardant chemicals are found in everything from carpets to
    couches to clothing. If EPA finds that flame retardants are
    dangerous under the bill, EPA would have to assess every
    product that contains them separately. It is not even clear
    that EPA could assess the use of flame retardants in all
    clothing or in all furniture. It might have to assess each type
    of clothing and each type of furniture separately.
        Mr. Cook, do you agree that this will lead to delays in
    EPA's ability to remove or restrict known dangers from products
    that children use, wear or are otherwise exposed to, and that
    this language should be removed?
        Mr. Cook. Senator, I am from California. Those are the La
    Brea tar pits of slowdown in process that you have just
    mentioned. Yes, it will be very bad.
        Senator Markey. Thank you, Mr. Chairman.
        Senator Inhofe. Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        Let me start with my, I guess he is not my colleague,
    because I am not attorney general any longer, but I am always
    pleased to see attorneys general here.
        Attorney General Frosh, you are obviously familiar with the
    administrative rulemaking process, which has commonalities at
    the State and Federal level. Are there ways in which a
    participant, particularly a large industry participant in an
    administrative rulemaking process, can drag it out, make it
    take longer?
        Mr. Frosh. Senator, as one of your alumni once said, I am
    just a country lawyer, but I can tie you up in knots in the
    administrative process for years. Yes.
        Senator Whitehouse. So it is within the control of the
    chemical industry to a significant degree how long, what I call
    this death zone, is, in which no one is allowed to regulate a
    chemical that is in the high risk category?
        Mr. Frosh. That is absolutely right.
        Senator Whitehouse. I think that is something that we need
    to deal with. Dr. Denison, you have said that EPA needs the
    resources to do this job. I sit on the Environmental and Public
    Works Committee, I also sit on the Budget Committee where the
    other side of the aisle is constantly and relentlessly
    attacking the EPW budget, EPA budget, and I think would dearly
    love to see the, at least certain folks would dearly love to
    see the agency largely disabled from enforcement. Why does it
    make sense to prevent State attorneys general and States from
    adopting identical legislation and a least having cops on the
    beat for a rule that we would then all agree is both common and
    necessary?
        Mr. Denison. Senator, I have indicated already that that is
    an area of concern that I would to see more addressed as this
    bill moves forward.
        Senator Whitehouse. Let me ask everybody a pretty simple
    question. From the perspective of public health and safety,
    does every witness on this panel agree that this would be a
    better bill if there were co-enforcement by States so that
    enforcement is not at the mercy of EPA budgets that our
    colleague are relentlessly attacking, and no what I call death
    zone, in which there is no one who can put in a regulation of a
    chemical that is by definition in the high risk category for as
    long as 7 years and frankly sometimes perhaps longer, because
    sometimes things die at OMB well beyond what the rules allow?
        Dr. Goldman. I could say I think co-enforcement would be an
    improvement. I also think preemption being triggered by a final
    agency action, which is what I think you are asking about with
    the second question, is also a good idea.
        Senator Whitehouse. Does everybody agree?
        Mr. Frosh. I certainly agree.
        Mr. Cook. I agree.
        Senator Whitehouse. Dr. McCabe.
        Dr. McCabe. Yes. And it is important that we are having
    this bipartisan discussion.
        Senator Whitehouse. Dr. Denison.
        Mr. Denison. Yes, Senator.
        Senator Whitehouse. OK. So I think we can all agree that
    those things, we could probably go on with others, but I just
    focused on those two, since time is short in these hearings.
    But it also strikes me that in these two areas, it would be
    very hard to articulate a legitimate industry objection. So I
    would like to offer anybody a chance to try to do that. Why
    should there be either no enforcement of a standard that the
    chemical industry has agreed to live by but just doesn't want
    to see enforced? That doesn't seem to be a legitimate industry
    interest. Nor does it seem a legitimate industry interest that
    there should be a period that they could manipulate lasting 7
    years or longer in which a predetermined high-risk, high-
    priority chemical can't be regulated by anyone?
        Dr. Denison, what is the legitimate industry case for
    either of those, as opposed to just a spirit of compromise?
        Mr. Denison. Senator, you need to ask the industry that
    question. I would say on enforcement, I think I have been
    clear. On the second one, that dead zone, as you describe it,
    could work in either direction. Because those decisions at the
    end of the process can be challenged by anyone.
        So a challenge of a safe finding would also stretch out
    that period.
        Senator Whitehouse. But if you are a chemical company and
    you have a chemical that you see, uh-oh, there are some
    problems coming out here, we are starting to see some evidence
    that it is carcinogenic or poisonous in some way, if you can
    get it onto the priority list and if you can get it onto the
    list of 25 and start, get the assessment process started at
    EPA, which you can control by paying EPA to do that, you can
    then buy a potentially 7-year period whose length you can
    manipulate in which not only EPA but nobody else can regulate
    your chemical no matter how dangerous it is. Is that not a
    correct statement?
        Mr. Denison. Senator, there is one inaccuracy there, which
    is, a company that requests EPA to prioritize their chemical
    that EPA has not itself prioritized, that decision to
    prioritize that chemical does not have a preemptive effect.
    That is a deliberate part of the law to prevent exactly what
    you are talking about.
        Senator Whitehouse. So it is only where the industry has
    forced the choice. But if EPA has been convinced to do it
    through other reasons, then everything else that I said is
    accurate?
        Mr. Denison. Senator, that is why there are statutorily
    enforceable deadlines for each and every step of that process
    along the way.
        Senator Whitehouse. You ever see a recommendation stuck at
    OMB pass those deadlines?
        Mr. Denison. I don't disagree that is a, there is delay
    that could happen, regardless of those deadlines.
        Senator Whitehouse. My time is long exceeded. I appreciate
    the Chairman's courtesy.
        Senator Inhofe. Senator Merkley.
        Senator Merkley. I thank you all for your testimony. I
    think the gist of the conversation is that several different
    ways have been identified, that there seems to be considerable,
    unanimous support, as far as I could tell, in regard to the
    questions Senator Whitehouse was raising as to whether co-
    enforcement would make the bill better and whether stronger
    rules enabling States to act when the Fed has not yet put rules
    into place, there was change in the preemption provisions. I
    think I heard everyone respond yes. I just want to confirm
    that. Did I misunderstand? Everyone yes?
        [Witnesses respond in the affirmative.]
        Senator Merkley. Mr. Denison, yes.
        Mr. Denison. Yes.
        Senator Merkley. So another area where this bill changes is
    that under current rules, or under the current law, EPA has
    stronger ability to restrict the importation of articles that
    have egregious chemicals in them. And under this new version,
    it would be relying in good faith reliance on the MSDS, that is
    the Material Safety Data Sheet. Now, the MSDS are often
    absolutely incorrect in describing the chemicals that are in a
    product. By one study they are wrong somewhere between 30 to
    100 percent of the time. And of the chemicals they do label,
    they often label far smaller quantities than the actual
    quantities provided.
        Would you all agree that it would be better to have
    provisions that give EPA a strong ability to regulate imports,
    rather than a good faith reliance on MSDSs which have been just
    time and time again shown to be wildly inaccurate?
        Yes, Dr. Goldman.
        Dr. Goldman. If I may say, I do think that is an area in
    the draft that needs to be examined. But I also should say that
    the only imports today that are restricted are the few
    chemicals that EPA has ever regulated. And not to overestimate
    the impacts of that provision in current law, which have had
    very little impact because of the fact that things like
    formaldehyde, which are imports, are not regulated by EPA. But
    I do think that that is something that is worth an evaluation
    to make sure it provides not only EPA but also Customs
    enforcement with reasonable authority.
        Senator Merkley. Would anyone else like to comment on that,
    whether that would make it stronger?
        Mr. Cook. I would agree that it needs to be much stronger.
        Dr. McCabe. I would agree as well, Senator.
        Senator Merkley. OK. Thank you. I was reflecting on some of
    the debates we have had in Oregon over the inclusion of BPA in
    plastics, baby pacifiers and the nipples on baby bottles and so
    forth. We have also had a significant debate in Oregon over the
    use of BPA in the linings of cans for products. I was just
    reading an article as Senator Whitehouse was testifying how a
    company in Oregon has this year been able to eliminate BPA from
    the cans. It is doing it voluntarily. I don't believe the law
    was passed in Oregon. I would have to double check that.
        But the debate occurred because there was a State-focused
    discussion on this risk and this concern. And so we see this
    whether the State conversation is helping to drive a national
    conversation. I have a concern that if we have a law that
    basically says, States can't act, and by the way, a very, very
    slow Federal process, and by the way, when you finish that
    Federal process you can slightly change the chemical
    formulation and now you have to start the process all over
    again, that essentially you have a dysfunctional system only it
    is worse than the dysfunctional system we have right now.
    Because right now we have a dysfunctional Federal system with a
    possibility of State action. But under this law as framed at
    this moment, we have the possibility of a dysfunctional Federal
    system with no real opportunity for States to act.
        So Mr. Cook, should I not have these concerns?
        Mr. Cook. You should absolutely have these concerns. I
    mean, we have a contradiction here, right? On the one hand,
    people are testifying that despite all these State actions it
    really doesn't add up to much, not very many chemicals, doesn't
    mean anything. And on the other hand, the chemical industry is
    running here, asking for the first time ever for relief from
    all these State actions that are causing such chaos.
        So you are point on, sir. The issue is, the chemical
    industry has completely lost the faith of consumers.
    Completely. And justifiably, because they have been misled and
    worse, time and again. That has led consumers, constituents, to
    go to State legislators and ask for fixes. I am so grateful for
    the charts that Senator Vitter put up. I had a nice shot of
    them. We have so many other charts I would like to offer to
    staff. If you ever need charts from the Environmental Working
    Group, we are here at your disposal.
        But the fact is, when those laws pass in the States, they
    send shock waves through the economy, shock waves through the
    chemical industry and they begin to respond. That is why they
    are here today.
        Senator Merkley. Attorney General Frosh, I got a letter
    from my AG strongly, strongly concerned about the preemption of
    State activity. You are here to testify the same. Is this a
    widely shared feeling among attorneys general across the
    Country? I realize it has been a very short time to respond.
        Mr. Frosh. I believe it is, Senator. General Rosenblum is a
    leader. There are a number of other attorneys general who have
    submitted letters to this committee and share my strongly held
    view that States should be allowed to protect their citizens.
        Senator Merkley. Thank you very much. Thank you, Mr. Chair.
        Senator Inhofe. Thanks to all of you for appearing before
    the committee and your very thoughtful responses and your
    perseverance. Thank you for the time that you spent here. It
    has been very helpful.
        We are going to leave the record open for 2 weeks. I would
    hope the staff would take note of that for questions to be sent
    in for the record.
        Senator Boxer. Mr. Chairman, before we close down, as I had
    asked you, I have a number of letters to put into the record in
    opposition to the bill we have just discussed. One from the
    Catholic Health Association, EWG, one letter signed by the
    Advocates for Youth, the National Latina Institute for
    Reproductive Health, the National Infertility Association, the
    Union of Concerned Scientists. A whole host of professors from
    all over the Country, from north, south, east, west, who oppose
    this bill. The American Sustainable Business Council Action
    Fund, the Breast Cancer Fund, the Safer Chemicals Healthy
    Families Environmental Health Strategy Center, the Commonwealth
    of Massachusetts Office of Attorney General, letter signed by
    the New York, Iowa, Maine, Maryland, Oregon and Washington
    attorneys general. State of Washington Department of Ecology. A
    letter that I think is very instructive, signed by Safer
    States. Earth Justice. Seventh Generation. Center for
    Environmental Health.
        CalEPA, the Office of the Attorney General, my attorney
    general, Kamala Harris. We have separate letters from them.
        And I just want to say to you, thank you very much for this
    hearing. I think we have seen some consensus on this panel of
    how we can fix this flawed bill that the chemical companies
    love and hurts the people.
        [The referenced information follows:]

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        Senator Inhofe. We are adjourned.
        [Whereupon, at 12:35 p.m., the committee was adjourned.]
        [Additional material submitted for the record follows.]

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