[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

                               ----------                              

  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










                                                         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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      Available via the World Wide Web: http://www.gpo.gov/fdsys/
                                ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

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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

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                                                                   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.
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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.
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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.
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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:]
    
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    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:]
    
    
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    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.
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    Senator Inhofe. We are adjourned.
    [Whereupon, at 12:35 p.m., the committee was adjourned.]
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