[Senate Hearing 117-526]
[From the U.S. Government Publishing Office]
S. Hrg. 117-526
TOXIC SUBSTANCES CONTROL ACT
AMENDMENTS IMPLEMENTATION
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
JUNE 22, 2022
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
50-067 PDF WASHINGTON : 2023
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
THOMAS R. CARPER, Delaware, Chairman
BENJAMIN L. CARDIN, Maryland SHELLEY MOORE CAPITO, West
BERNARD SANDERS, Vermont Virginia,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
JEFF MERKLEY, Oregon JAMES M. INHOFE, Oklahoma
EDWARD J. MARKEY, Massachusetts KEVIN CRAMER, North Dakota
TAMMY DUCKWORTH, Illinois CYNTHIA M. LUMMIS, Wyoming
DEBBIE STABENOW, Michigan RICHARD SHELBY, Alabama
MARK KELLY, Arizona JOHN BOOZMAN, Arkansas
ALEX PADILLA, California ROGER WICKER, Mississippi
DAN SULLIVAN, Alaska
JONI ERNST, Iowa
LINDSEY O. GRAHAM, South Carolina
Mary Frances Repko, Democratic Staff Director
Adam Tomlinson, Republican Staff Director
C O N T E N T S
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Page
JUNE 22, 2022
OPENING STATEMENTS
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 1
Capito, Hon. Shelley Moore, U.S. Senator from the State of West
Virginia....................................................... 3
WITNESS
Freedhoff, Hon. Michal, Ph.D., Assistant Administrator, Office of
Chemical Safety and Pollution Prevention, U.S. Environmental
Protection Agency.............................................. 5
Prepared statement........................................... 8
Responses to additional questions from:
Senator Carper........................................... 24
Senator Merkley.......................................... 28
Senator Capito........................................... 30
Senator Inhofe........................................... 50
ADDITIONAL MATERIAL
Letter to Dr. Michal Ilana Freedhoff from the American Chemistry
Council et al., July 8, 2022................................... 87
TOXIC SUBSTANCES CONTROL ACT AMENDMENTS IMPLEMENTATION
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WEDNESDAY, JUNE 22, 2022
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee, met, pursuant to notice, at 10:01 a.m. in
room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper
(Chairman of the Committee) presiding.
Present: Senators Carper, Capito, Whitehouse, Markey,
Kelly, Padilla, Inhofe, Sullivan, and Ernst.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Good morning, everyone.
Let me begin by welcoming our witness, no stranger in this
room, Dr. Michal Freedhoff, and thank you, Michal, for joining
us today for an important hearing. Michal, we are pleased to
welcome you back to the EPW Committee as the Assistant
Administrator for the Office of Chemical Safety and Pollution
Prevention.
As we gather here today, I believe today is the sixth
anniversary of the enactment of the Toxic Substances Control
Act legislation, among others. Senator Inhofe, myself, and a
lot of folks worked on it. David Vitter, Tom Udall, all kinds
of people worked on it. It was a great bipartisan triumph at
the time.
As we gather here today, my hope is that this hearing will
offer us a much needed and timely opportunity to explore one of
the more daunting challenges that we face, and that is
protecting our health and the health of our families while also
preserving the capacity of chemistry to enrich our lives and
spur innovation.
Given the complexities of this task and the intricacies of
the science that accompanies it, not just anyone can do that.
It should come as no surprise that the miracle of modern
chemistry comes with potential risks and rewards.
In many cases, industries have invested large amounts of
resources and expertise to develop the chemicals that surround
us in our everyday lives and make our lives better. Having said
that, they are not the ones we expect to tell us all we need to
know about the potential shortcomings or negative health
impacts that those chemicals can pose.
So, we turn, as we often do, to our government to serve as
our watchdog and our protector of our people. In this case, it
is the EPA. And through the Toxic Substances Control Act, or
TOSCA as we affectionately call it, Congress has vested the
responsibility of protecting Americans from chemicals that pose
an unreasonable risk to us and our environment with EPA's
Office of Chemical Safety and Pollution Prevention.
With that being said, I am not sure we have found a person
more qualified to lead that effort than the witness before us
today. Dr. Freedhoff is a Ph.D. chemist who has spent countless
hours working with many of us to create a law that can actually
provide the protections that Congress intended when TSCA was
initially enacted in 1976, but fixing the law is only half the
story.
The harder part is dealing with the complexities, with the
competing interests, and daunting mechanics of implementing
that law. Senator Inhofe, Senator Markey, and a number of our
colleagues on both sides likely recall the high expectations
that accompanied our shared sense of accomplishment and relief
at enacting the Lautenberg Act in 2016.
Still, no matter how capable the leadership at EPA is, the
agency simply cannot meet these expectations without adequate
support from Congress and from the Administration. Implementing
TSCA requires experts and financial resources to rigorously
test literally thousands of chemicals, quickly turn around risk
assessments and chemical reviews, and establish the protection
against those chemicals that can put our lives and our
livelihoods at risk.
As Dr. Freedhoff will point out in her testimony today,
EPA's staff has continually faced the high expectations and
workloads that we created in 2016 armed with flat budgets. To
be fair, this is a shared responsibility. Faced with the
previous Administration's efforts to strip the agency of
critical personnel and resources, we in Congress did not
respond by providing EPA with the budget increases that this
law requires. To put it frankly, we collectively dropped the
ball.
Not surprisingly, today, the agency is missing deadlines
and delaying decisions, which contribute to growing grievances.
Advocates are frustrated with EPA's delayed pace in reviewing
and regulating harmful chemicals. Meanwhile, those in
industries are disheartened by having to wait sometimes a year
or more for new chemicals to be approved or not approved.
It is clear that no one is happy with the current
situation. This leaves advocates and companies feeling
compelled to look for nefarious explanations for those unmet
aspirations and expectations: Faulty science, regulatory
overreach, skirting the law, and inappropriately close ties
between EPA staff and industry.
Fortunately, there is a fundamental solution to all of
this. I am going to say that again: Fortunately, there is a
fundamental solution to all of this, and that is to provide the
agency the resources it needs to get the job done, the job we
all want them to do, the job that we all need for them to do.
We might be pleasantly surprised to see how much better
both the law and EPA start to look if the Congress and the
Administration actually work together going forward to ensure
that the agency has the qualified people on board, with the
resources needed to meet the letter of this new law.
My suggestion is that we give them that chance. We need to
do more. I have committed to working together with members of
this Committee to ensure that we provide the agency with the
resources they need in fiscal year 2023 and to then hold EPA
accountable, going forward, in protecting us from harmful
toxics while allowing chemistry to usher in a new world of
clean energy and life saving technologies.
Dr. Freedhoff, we look forward to hearing from you today,
in no small part, because you have quite a tale to tell us.
Before we hear from you, though, I want to hear from our
Ranking Member, Senator Capito for her opening remarks.
Senator Capito.
OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Capito. Thank you, Mr. Chairman, and welcome back
to the Committee, Dr. Freedhoff. It is nice to have you here.
Today, we are holding a hearing, as the Chairman has said,
on EPA's ongoing implementation of the Toxic Substances Control
Act, TSCA. In 2016, Congress passed in a bipartisan way,
overhauled the TSCA Program, strengthening EPA's authority to
evaluate and regulate new and existing chemicals. These were a
significant, as you know, working then, a significant
bipartisan achievement.
Among other changes, the revised TSCA Program established
legally enforceable deadlines for EPA decisions. These
deadlines are a key facet of the new TSCA, and one I would like
to particularly focus on today. The Chairman has already talked
a bit about this.
Since being confirmed in your role, you have repeatedly
stated, including in your testimony today, that a lack of
resources is the reason EPA has repeatedly missed statutory
deadlines. With regard to existing chemicals, you have said,
``It shouldn't come as a surprise that we expect to miss every
single deadline for the final risk management rules for these
first 10 evaluations and every single deadline for the next 20
risk evaluations.''
Well, I have to be clear here. It does come as a bit of a
surprise to hear a blanket pronouncement such as this, in
particular, when the EPA's appropriations over the past few
years have been developed in a bipartisan way.
You have blamed the root cause of TSCA's delay on the prior
Administration gutting the program, but we are 18 months into
the Biden administration. Compared to 2016, you have dozens
more full time equivalent employees working within the TSCA
Program, and user fees have risen by over 600 percent.
In 2021, EPA issued 146 final determinations on new
chemical submissions, fewer than any other year of the prior
Administration. The Obama administration, which was tasked with
standing up the entire new TSCA Program, issued 92
determinations from June 23, 2016 until the end of its final
year in office.
In contrast, as of last month, your office has issued final
determinations only 23 times for 2022 submissions over a
comparable amount of time. And that is really the crux of the
issue that we will be talking about today.
Previous administrations were able to do more with fewer
resources. I guess the question would be, why is that? It seems
that internal changes pushed by the Administration to the TSCA
Program are undermining EPA's ability to meet its statutory
obligation. Ten risk evaluations finalized between June 2020
and January 2021 have all now been reopened, adding to a more
supposedly already overstretched staff's plate.
According to your previous statements, impacted communities
will now have to wait until at least 2025 to see an eventual
risk management rule for these high priority chemical
substances.
In your requests for more robust funding to the TSCA
Program, you continually point to the increased workload that
your office is facing. It kind of seems to me that a lot of the
workload is self-generated mission creep of the TSCA Program
that is not required by the statute.
Under the Biden EPA, risk evaluations must now include
exposure pathways covered by other EPA administered statutes
like the Clean Air and Clean Water Act, as well as assess fence
line community exposure.
Your office has revised risk evaluation models to make
highly questionable assumptions that OSHA standards are
insufficient and that workers are not routinely wearing PPE.
Finally, the agency is no longer issuing risk findings for
individual conditions of use but is adopting a ``whole
chemical'' approach.
Taken together, these policy changes have created a
situation where existing chemicals under review will most
certainly face an unreasonable risk determination going
forward. This expansion of your office's work beyond what TSCA
requires has exacerbated the workload issues and is at odds
with the intent of the statute.
In addition, it seems staff resources have been diverted to
programs without existing authorizations, like IRIS and Safer
Choice, with EPA prioritizing elective programs over
statutorily authorized programs.
I don't have to tell you this, but in today's turbulent
economic times, the importance of reliable, efficient domestic
supply chains for key technologies like semiconductors and
batteries has become increasingly apparent. Even feedstocks
essential for the Biden administration's renewable energy
priorities, like batteries and solar panels, are being held in
regulatory limbo. Delays in approving new chemical submissions
directly impact our economic and national security, and
ultimately, will help fuel inflation and scarcity.
We can all agree that everybody will benefit from getting
this TSCA implementation on track. I look forward to hearing
what specific actions you plant to take administratively,
beyond just asking for additional resources, to fulfill the
office's statutory obligations in a timely and cost effective
manner.
Thank you. I yield back.
Senator Carper. Thank you, Senator Capito.
We now turn to our witness, Ms. Freedhoff.
We welcome you.
Michal is currently serving as the Assistant Administrator
of the Office of Chemical Safety and Pollution Prevention at
the Environmental Protection Agency. Prior to her confirmation
in that position, in June 2021, she joined EPA as a Principal
Deputy Assistant Administrator for the Office of Chemical
Safety and Pollution Prevention in January 2021, right after
the inauguration of the President.
Dr. Freedhoff has more than 20 years of Government
experience, most recently, as the Minority Director of
Oversight for this Committee. She began her congressional
service in 1996, in then Congressman Ed Markey's office as
Congressional Science and Engineering Fellow, after receiving a
Ph.D. in physical chemistry at the University of Rochester. Dr.
Freedhoff has also served on the staffs of the House Science
Committee, the House Select Committee on Energy Independence
and Global Warming, the House Energy and Commerce Committee,
and the House Natural Resources Committee.
Her environmental expertise spanning a range of policy
areas for legislative work includes the 2016 reauthorization of
TSCA, the 2019 legislation to address PFAS contamination, fuel
economy provisions in the 2007 Energy Independence and Security
Act, and a law requiring the creation of an online data base of
potential consumer product safety defects.
Somehow, in the midst of all that, colleagues, she managed
to bring four children, four babies into the world and raise
them, four children any of us would be proud to claim as our
own.
Once, you worked as a member of our team here on this
Committee.
I used to say that she never slept. My guess is she
probably still doesn't sleep now.
I don't know how you do it all, but we are here to figure
out how we can enable you and the folks that you lead to do
your jobs even better today.
With that, your statement will be entered for the record,
and then we will start some questions. Thank you. Please
proceed. Welcome.
STATEMENT OF HON. MICHAL FREEDHOFF, PH.D., ASSISTANT
ADMINISTRATOR, OFFICE OF CHEMICAL SAFETY AND POLLUTION
PREVENTION, U.S. ENVIRONMENTAL PROTECTION AGENCY
Ms. Freedhoff. Good morning, Chairman Carper, Senator
Inhofe, Ranking Member Capito, and other members of the
Committee. Thanks for inviting me to testify on EPA's
implementation of the Toxic Substances Control Act, or TSCA.
It was exactly 6 years ago that many of us gathered at the
White House to witness the historic amendments to TSCA being
signed into law. For nearly 40 years, TSCA had largely failed
to serve its purpose: To protect people and the environment
from the risks of dangerous chemicals. I was proud to be a part
of that bipartisan group that negotiated the Lautenberg Act.
I was also proud a few months ago to propose the rule to
ban the ongoing uses of chrysotile asbestos, more than 30 years
after the previous failed attempt became the emblem for why we
needed to rewrite the law. Unfortunately, on amended TSCA's
sixth birthday, I think we can all also agree that things
aren't yet working as everyone had hoped. Despite the best
efforts of our dedicated staff, we are missing many of our
statutory deadlines, our scientific peer reviewers and the
courts have been critical of our work, and the public lacks
confidence in our chemical safety efforts to date.
Having the public's trust is essential to realize the
promise of TSCA reform. It is in everyone's interest for the
public to be able to trust EPA when it says that a chemical
that industry makes and sells is safe, or when EPA writes a
rule, to say how that chemical can be safely used. For the
entire 6 years since the law was enacted, the agency has faced
some major challenges, and central to all of them was a lack of
resources.
The 2016 TSCA amendments told EPA in no uncertain terms to
scale up. The program's workload skyrocketed virtually
overnight and doubled again several years later. But in the
law's first 4 years, EPA never once made a congressional budget
request for new resources to implement the new work. As a
result, budgets for the new law remain just about exactly the
same as the budget for the old, broken law. Although the new
law gave EPA the authority to collect fees from chemical
companies, we have only collected about half as much as
Congress intended.
The President's fiscal year 2022 budget request was the
very first one that requested additional TSCA funding, but the
agency didn't receive everything we asked for. In our 2023
budget request, we have asked for an increase of almost $64
million and 201 FTE for the TSCA Program. That is based on an
extensive analysis of how much the law will actually cost to
implement the way Congress expected it to be implemented.
We will also update the fees rule and are doing all that we
can to increase efficiencies and improve our processes. But the
truth is, the years of compounding budget and workload
challenges have taken their toll. The last Administration
missed the deadlines for 9 of the first 10 risk evaluations,
and for just about the entirety of the new law's existence, we
have struggled to complete new chemical reviews as quickly as
Congress intended.
It is simple, elementary school math. We won't do more with
less. We will do less with less. For instance, we are working
as quickly as we can to put measures in place to protect people
from exposures to dangerous chemicals like trichlorethylene,
methylene chloride, and asbestos. The deadlines for those final
rules and those first 10 chemicals are in just a few months,
and we won't make a single one of them. Without additional
resources, we won't get more than a handful of those rules on
the books before 2025 or beyond.
We are conducting about two dozen risk evaluations with
statutory deadlines that start to hit later this year. Absent
the resources in the President's budget, it is unclear whether
we will even be able to complete half of them before 2025.
There will be real consequences if we don't get those
resources. Communities, workers, children, all of us, really,
will go even longer without the health protections we need and
deserve.
Congress also wanted our new chemical reviews to be both
protective and fast, but our budget for new chemicals now is
actually less than it was before the new law because about 15
percent of the new chemical staff were permanently moved by the
previous Administration to work on risk evaluations. With more
work and less staff, we will continue to fall short of
Congress's expectations.
It is also very clear to me that added resources are not
just about meeting deadlines. Resources will also let us build
the infrastructure of a well run, sustainable program. We are
focused not just on getting the chemicals reviewed and the
rules written, but in ways to build that infrastructure,
maximizing use of the scientists and the resources we do have,
and because science is the backbone of everything we do at EPA,
we are reaffirming our commitment to scientific integrity
across the board.
The path forward is clear. We need to implement the law
that Congress wrote, and to do that, we need to build a
foundation for a sustainable program, one that delivers the
promised health and environmental protections, one that brings
the predictability that stakeholders expected it to bring, and
one that can endure for years to come. I am confident that,
with sufficient resources, the law can and will deliver on
those promises.
Thank you again for the opportunity to testify, and I look
forward to your questions.
[The prepared statement of Ms. Freedhoff follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Thank you again for joining us. Thank you
for that testimony.
I will start off and then yield to Senator Capito and
Senator Inhofe and others who join us.
You may not be surprised to know that we have heard from
many chemical companies that the new chemical review process at
EPA has essentially stalled. This goal to complete these
reviews under the Lautenberg Act amendments to TSCA, as you
know, set about 90 days. With the resources you have, how long
is it taking to complete these reviews?
Ms. Freedhoff. Thanks very much for that question. The
answer is it depends on the chemical, because some are more
complicated than others to review. But I would say that for the
entirety of the last 6 years, the agency has had typically 200
to 300 new chemical submittals that are waiting for agency
action, and our backlog, so to speak, is the same as it has
been for just about the last 5 years.
Senator Carper. If Congress provided the full $64 million
boost requested in fiscal year 2023 for our chemical programs,
would that enable you and your team to meet this target?
Ms. Freedhoff. I think it would sure help a lot. The truth
is that the New Chemicals Program is even more challenged than
the rest of TSCA. Before the law was changed, EPA only had to
do reviews on about 20 percent of new chemicals that came into
the agency. After the law was changed, EPA had to do 100
percent.
Not only did the last Administration fail to ask for any
more money to complete what is about five times the amount of
work, they actually cut the New Chemicals budget by about 15
percent by moving the staff over to work on existing chemical
risk evaluations instead. So that is why we are operating with
less than 50 percent of what we think we need to review
chemicals both quickly and protectively. It is why we only have
two human health assessors to review the hundreds of new
chemical submittals that come every year, and it is why we will
continue to struggle with these new chemical reviews until we
are able to get the toxicologists and other health experts that
we need on board and trained and ready to do work.
Senator Carper. All right. Is there anything that the
chemical companies can do when they submit their applications
that might help the process move more quickly?
Ms. Freedhoff. Actually, there is, and I appreciate you
asking that question. I think, a lot of times what happens is
that companies don't give us all of their data up front, and so
they will give us something, say, 30 days in or 60 days in, and
then we have to basically restart the clock and redo the risk
assessment.
That doesn't just hold up the line for that particular
company, it holds up the line for everybody else, because
everybody is stuck behind them waiting for their work to be
redone with the new information.
One thing that we are actually doing and are getting ready
to announce in the coming days is, we actually took a look at
the types of data that companies weren't giving us up front and
analyzed the reasons for delays in reviewing those companies'
new chemical submittals. And we are going to do some pretty
aggressive educational outreach to industry so that they can
know what would help us get the work done more quickly.
Senator Carper. OK. We appreciate your candor with respect
to the budget situation facing the TSCA Program. We fully
support getting the agency the resources that you need to
properly implement this important piece of legislation to
protect our communities against the risk from toxic chemicals.
I have two questions, then I am going to yield to Senator
Capito. Would you just give us a sense of what EPA will and
won't be able to do under TSCA if you do not get the additional
money and people requested for fiscal year 2023?
Ms. Freedhoff. Absolutely. It is important to remember,
before the law was changed, EPA did zero comprehensive risk
evaluations under TSCA. After the law was changed, EPA was on
the clock to do 10, and then that doubled again to about two
dozen now. If we don't get the resources, we will not be able
to do even half of those before 2025.
Before the law was changed, EPA did zero comprehensive
rules on existing chemicals because of the failed asbestos ban.
We are now writing 10 different rules, and without the
additional resources that are in the President's budget
request, we will only be able to get a handful of those on the
books until 2025 or beyond.
With new chemicals, we will continue to occasionally be
hindering innovation and preventing the chemicals that are
needed to power the Nation, semiconductor, biofuels, battery,
and other sectors onto the market as quickly as industry
expects and as quickly as the law says.
There are real consequences, not just to people's health
because of the delays for protections to be put into place, but
there will also be delays for industry for them to get their
new chemicals to market.
Senator Carper. One last question, and then I will yield to
Senator Capito. Will the funding and personnel included in the
fiscal year 2023 budget take care of the entire program, or is
this a down payment that is going to take several years to pay
off?
Ms. Freedhoff. I think it is like any business. We have had
6 years of budgets that were far too low. It is going to take
time to dig out of that hole. I do think that any large, new
venture requires a sustained level of resources and requires a
sustained level of effort on the agency's part the increase its
efficiencies and find ways to work smarter, not harder. We are
committed to doing our part of that as well.
Senator Carper. Thank you so much.
Senator Inhofe.
Senator Inhofe. OK. Michal, first of all, it is nice to see
you again. It is kind of funny because we have always gotten
along famously in spite of the fact that we disagree probably
on more things than we have agreed on, but on the other hand,
it has worked very well. I remember, and it was called to our
attention a few minutes ago by Senator Carper, that I chaired
this Committee back during the time that we were really busy on
the thing, and of course, on the Lautenberg bill, another
person that we are very fond of and worked very closely with,
but we were able, in fact, when we would have our meetings, the
Republicans would have a meeting once a week. They would get
around to me at that time. I think you were with Barbara Boxer
at that time.
I commented to them, I said, no, from the Committee that
actually gets things done, that was us, and we did. In fact,
you got along famously with Ryan Jackson, Alex Hergott,
Demetri, and all of these people. They really felt a very close
relationship with you.
We have some problems, and I have to say this, which will
make it a lot easier than repeating it all. I think that
Senator Capito, came out, and I agree with the comments that
she made and the problems that we are having. I have talked
also, as has the Chairman, to areas where we are having
problems.
I had questions that I was going to ask you, and I would do
it, knowing full well what the answers will be. One was, Dr.
Freedhoff, do you agree that delays in the new chemical review
process are hampering innovation and will contribute to supply
chain constraints and inflationary pressures?
Ms. Freedhoff. I do agree that delays in the new chemical
review process are delaying the introduction of new chemicals
into commerce, but I am not sure I fully understand how a
chemical that isn't yet in commerce could be causing supply
chain problems. That said, we want to do better, and I am
committed to doing what Congress expected us to do, which was
to review new chemicals protectively and quickly, and I think
we do have to do both of those things. Speed is important, and
we want to do better.
Senator Inhofe. Yes. In your opening statement, you
commented on your frustration with not being able to get, I
think you only got one out of 10 of the list of 10 that were in
there. So do you really believe the system that we are using is
the best system? There could be a frailty in that system that
is causing some of the problems that you talked about that need
heavier funding.
A lot of us believe that the EPA has had kind of the hog's
end of the funding for a long period of time. I know that you
didn't agree with the previous President with what he was
trying to accomplish, but on the other hand, there has to be an
answer. And right now, I don't know how you can just go to the
funding and say that that is where the problem is going to be
resolved.
What things, other than just the funding, what could be
done better, more efficiently, to crank out more stuff than we
are cranking out right now?
Ms. Freedhoff. I appreciate you asking the question,
because you are absolutely right. It is incumbent on the agency
to try to find ways to do things faster and better. We are
doing that.
One example in the new chemical space was our biofuels
initiative, because we noticed we had several dozen biofuels
applications in. And instead of treating them all as entirely
new things and giving them to different members of the team, we
actually created a dedicated team and streamlined the review of
those submittals so that we could get them out more quickly.
Then, we are looking at different sectors as well, where we
have a lot of applications for the same types of chemistries
coming in, seeing if there are ways we can streamline, write
down the process, and then the next risk assessor that sees a
chemical like that doesn't have to start from scratch.
We are building up our training, we are investing in the
IT, the actual infrastructure of the agency, because one thing
that has hindered the new chemicals program for years is
basically crumbling information technology that crashes, in
some cases, for weeks at a time. Whenever that happens, the new
chemical staff can't do any of their work. We are actually
investing some money in making sure that those systems are
modernized.
We are also trying to standardize our training, write down
more of our standard operating procedures in a way that is easy
for a new risk assessor to understand, and we are working with
the Office of Research and Development to modernize our
scientific approach to reviewing these new chemicals.
Senator Inhofe. I had a question that was written down
here. It is a complicated question, so I have chosen that to
ask you so I can hear your complicated answer. How can you then
justify regulations of chemical substances based solely on
benefits to carbon dioxide and exhaust particulate matter
emissions from the manufacturing of the substance, rather than
exposures to the chemical substance itself?
Ms. Freedhoff. The law tells us to do risk evaluations to
look at whether there is risk to human health or the
environment from a chemical substance under the conditions of
use. The law doesn't say that it can only be some types of
exposures or some types of uses. The law really pushed the
agency to look comprehensively at the risk that a chemical
substance posed.
Senator Inhofe. OK. Now, what I am going to do, I do want
to hear the questions and comments that will be made by Senator
Capito. As you might know and you might not know that I am
doing the Defense Authorization Bill right now, and that is
what I am holding up.
But I just want to hear more about what kind of, and try to
analyze myself, knowing the successes that you and I and those
of us here at this table have had in the past, so I can try to
analyze why we can't do a better job in terms of cranking out
more stuff and getting it done. I am concerned what is going to
happen to a lot of this stuff. Is it going to go overseas,
because there are a lot of unhealthy results and the problems
that we are having right now, so I thank you for that.
Senator Capito, I want to hear more of your comments.
Senator Carper. Senator Capito. Thank you.
Senator Capito. Thank you. I am sorry I missed your
statement. I had to go over to Commerce, so it is just one of
those days, which I am sure you, beyond many people, would
understand that.
Obviously, from my statement, it is clear from the data
that the new determinations have slowed significantly. What
steps are you taking to improve the pace at which these new
chemical determinations are issued?
Ms. Freedhoff. I appreciate the question. And it is
certainly true that our new chemical reviews have been slow for
more than 5 years. And we have just about the same number of
chemicals that are waiting for EPA approval than has
historically been the case over the past several years.
I will note, we also have 15 percent of a smaller staff,
because 15 percent of the new chemicals risk assessors were
permanently moved into the existing chemicals risk evaluation
division toward the end of the last Administration. So from day
one, we actually had less than what both the Obama
administration and the Trump administration had for new
chemical reviews.
That said, I completely agree that EPA has
responsibilities. It is not just about asking Congress for
money and continuing to do things the same way, and I 100
percent agree with you. So there are a number of things that we
have done already.
One is the biofuels initiative that we rolled out a couple
of months ago, where we streamlined the review of those types
of chemistries, because we had several dozen different biofuels
applications in front of the agency. And we realized that by
creating a dedicated team where the same people were always
reviewing that type of chemistry, and by streamlining the
review of those chemicals, we could get more of them out the
door more quickly than if we treated every one like its own new
thing over and over again. And we will be expanding that type
of initiative into other sectors in the coming weeks and
months. We are just trying to sort of narrow our focus there.
I think one thing that we have noticed over the years is
that companies often don't give us everything we need to do a
risk assessment that they feel reflects the real world
conditions.
Senator Capito. OK, so let me stop you right there, because
isn't that on everybody's plate there? Why are they not giving
you what you want? Are you telling them what you want in a
timely manner so you can hit these deadlines?
Ms. Freedhoff. I think we are realizing that is part of the
problem. The problem is us. I think that we are, so we did an
analysis of why we have to rework so many risk assessments, and
it turns out that what happens is, sometimes, after a couple of
months, a company will come and say, oh no, I am not planning
on releasing this to water, or oh, I am not making this way,
your risk assessment is wrong. We will say, OK, give us the
data, but then we kind of have to start over again from scratch
and redo the risk assessment, and that causes delays, not just
for that company, but for all the companies waiting behind.
What we are about to do is release the results of that
analysis that kind of lists and documents the type of
information that will help us if we get it on day one, and we
are going to do some pretty aggressive and proactive outreach
to companies to make sure that they understand what our data
needs are. And we are really hoping that that helps us work
more quickly as well.
Senator Capito. Well, I do know that you have had a lot of
outreach to companies and that there is a very open door there,
so that is very much appreciated by everybody.
If you have a 15 percent smaller staff over the last year
and a half, have you hired into those positions?
Ms. Freedhoff. So, the 2022 Appropriations Act gave us a
modest number of new hires.
Senator Capito. Can you not fill in the 15 percent?
Ms. Freedhoff. We have only had that many for a couple of
months because I think our spend plan was only approved a
couple months ago. So we have done and we are doing an
aggressive recruitment strategy. We have either hired or
selected or somewhere in the process about three-quarters of
the people that the 2022 Appropriations Law lets us hire.
I want to say to you, because it is true, rebuilding the
New Chemical staff is my No. 1 personal priority, and there is
not even a close second.
Senator Capito. Let me skip to, this is kind of my own
personal bugaboo, and I think it is the work from home
scenario. So EPA's YouTube channel on April 22nd had a YouTube
that said EPA future of work: Tips and tricks, and I have
talked to the EPA Administrator about this, returning to work.
You said in that, I am so looking forward to meeting as many of
you as I can. What does that mean? Have you not met them?
Ms. Freedhoff. I hadn't met them in person.
Senator Capito. Are they back now?
Ms. Freedhoff. Many of them are back. Many of them are
teleworking more than they did before. Some have applied to be
permanently remote work. I have to say, I think the entire
country is reimagining the way its work force is designed
following COVID. I think the West Virginia State legislature
just wrote a report that sounds much like what EPA has
experienced. And I think what they said was that telework has
proven to be beneficial and productive as a routine part of
conducting the business of the State. It is beneficial.
Senator Capito. I am not disputing telework, but if I had
an organization that was falling way behind, I think I might be
roping people back to the office and saying, look, it is not
working this way. I understand it is a capacity thing, and I am
not here to beat up on you. I want to help the situation, move
it quicker, like you do.
But I did find that, when you have that lack of connection,
there is also a lot of stories out there, the lack of
connection in work or people doing other things at certain
times of the day when you are principally engaged is a problem.
But you are right. That is a bigger problem than what is going
on in your office.
Ms. Freedhoff. I agree with you. It has been great to meet
my staff in person. There are intangible benefits associated
with in person meetings and walking down the hallway and seeing
people. I have really enjoyed it.
Senator Capito. Let me ask about PFAS really quickly,
because I know you know a lot about this. There are several
definitions, I guess, at EPA on PFAS. Do you think a clear and
consistent definition would be useful for the EPA?
Ms. Freedhoff. Thanks for that question. I do think so. The
definition that EPA used in its rule that Congress actually is
requiring us to do to collect historic information about the
ways PFAS is made and used, that definition was first written
by my office in 2006 for purposes of the TSCA New Chemicals
Program. We then proposed to use that definition in that rule,
and after we proposed it, the OECD, an international
organization, proposed a much broader definition.
We are now kind of looking at the public comments that we
got on that rule, and we are looking to see what a more robust
definition might look like, and whether we should be adding
additional PFAS to our original proposal for that rule.
Senator Capito. I think uniformity, obviously, is easier,
and if you are having issues with meeting deadlines, and having
clear roadmaps are always much, much more beneficial. But
apparently, Radhika Fox, when she testified before the
Committee, said that EPA was not going to be developing a
uniform definition.
I have gone over my time, and I see we have some other
members here, so I will stop here. Maybe we can get back to
this. Go ahead.
Ms. Freedhoff. Can I get 30 seconds here?
Senator Capito. Sure.
Ms. Freedhoff. I think what OECD said was, they created a
really broad definition for PFAS and then said that individual
regulators might do different things. For example, a definition
that would work for the Water Office would properly be focused
on PFAS that would be expected to be in water, whereas a
definition that worked for the TSCA Office might be one for
PFAS that are expected to be manufactured and processed.
I do think there will be some differences, but I think it
is important to think about what we all mean when we say that
something is or is not a PFAS.
Senator Carper. I believe we have been joined, by Webex, by
Senator Padilla.
Are you there, Alex?
Senator Padilla. Yes, I am.
Senator Carper. You are recognized for any questions or
comments you have. Go ahead, please. Thanks for joining us.
Senator Padilla. Thank you, Mr. Chairman. Greetings from
the Judiciary Committee. Double duty here.
Dr. Freedhoff, I would like to ask you a question about how
the use of supercomputing and computational toxicology could
assist your office with the assessment of new chemicals under
TSCA. Existing programs, as you know, that address
environmental risk and consumer product exposures rely on
scientific data, but generating this data can often be slow,
costly, and rely on animal testing.
I believe we can improve this by using supercomputers to
run models to better predict adverse health effects caused by
chemicals and to identify safer chemicals before they are in
use in manufacturing. I have been working to advance
legislation to create a consortium referred to as ``Supersafe''
to be comprised of Federal agencies, including EPA, HHS, and
DOB, along with State agencies and academic and other research
institutions with similar capabilities to supercomputing and
machine learning to establish rapid approaches for large scale
identification of toxic substances and the development of safer
alternatives.
This Supersafe Consortium would develop and validate
computational toxicology methods to predict adverse health
effects caused by toxic substances and identify the safer
chemical alternatives for use before we have widespread
chemical pollutions in air, water, land, and consumer products.
With that as the background, Dr. Freedhoff, how would a
Supersafe Consortium assist EPA in assessing new chemicals
under TSCA, and would such a program be helpful to your efforts
to review new chemicals and bolster the use of good science in
EPA's decisionmaking?
Ms. Freedhoff. Thanks very much for that question. I think
the answer is pretty simple. We are excited by any new
scientific tool that can speed up our reviews and help us meet
our obligation to reduce the use of animal testing under TSCA.
We have recently started a collaborative research program
with the Office of Research and Development, and we are making
some similar efforts to try to modernize the models and the
other scientific tools that we are using for new chemicals. And
the project that you are describing, I think, would be a really
good complement to that.
Senator Padilla. That is getting a little technical on you,
but that is what happens when you have some scientists and
engineers in the Senate and serving on this Committee.
Ms. Freedhoff. I hear you.
Senator Padilla. Just one follow up to the Supersafe
Consortium concept. As you know, TSCA also requires that EPA
reduce and replace the use of vertebrate animals in the testing
of chemical substances to the extent that is practicable and
scientifically justified. So can you talk just for a minute on
how a Supersafe Consortium and the use of these computational
tools and models help EPA meet these TSCA mandates?
Ms. Freedhoff. I think it would be a huge help. I think we
are working to develop similar models and tools to reduce the
use of animals in the TSCA Program, and any additional help we
could get through the type of consortia that you are
contemplating, I think, would be very appreciated.
Senator Padilla. OK. Well, thank you very much. I look
forward to following up with you on that.
I do have other questions, but they seem to overlap with a
question that has been raised by other members of the
Committee, so with that, Mr. Chairman, I will yield back.
Senator Carper. All right. Thanks, Senator Padilla.
I think Senator Markey is next.
I don't know that you have ever met Dr. Freedhoff, but does
she look familiar? How many years did you work for her?
[Laughter.]
Senator Markey. I think I worked for her for 16 years, and
I think you worked for her for 4 years, yes. I think that is
how it broke down.
So, one particular area where additional funding and
staffing would be very beneficial is tackling biphenyls, or
PCBs, which have been linked to cancer, immune effects, and
other health harms. Around one-third of all school aged
children may be exposed to PCBs through their school
environments, with more children likely being exposed through
daycare and other facilities, which is why I introduced the Get
Toxic Substances Out of Schools Act.
Dr. Freedhoff, would additional budgetary support help your
work with States or local educational agencies to better
understand and work on the risks that toxic PCBs pose to
children?
Ms. Freedhoff. Thanks very much for that question. And that
is an issue that comes up repeatedly whenever I talk to the
regional staff, because they are in the position of hearing
from schools, in some cases, where the lighting fixtures are so
old that the PCBs are literally dripping out of them and
exposing people. And the schools often lack the technical
expertise that they need to be able to address and mitigate the
problem. So in the 2023 budget request, we do have a modest
amount of money that is designed to augment those efforts in
the States.
Senator Markey. As Dr. Freedhoff knows, back in 1979, a
woman, Annie Anderson, came into my office with her 3 year old
boy, Jimmy, who had leukemia. She was in Woburn, Massachusetts,
and everyone was ignoring her.
Ultimately, it became a movie, a civil action with John
Travolta playing the lawyer, but in fact, it was Annie Anderson
and the mothers who were the heroes. That is who the movie
should have been about. And they identified the TCE that was
ultimately the cause for those cancers in all of those
children. Superfund was largely driven by that Woburn and by
Love Canal in terms of it going on the books in 1980.
We are still, now, dealing with the funding issues. How are
we going to provide for the protections for these devastating
cancers so that more children aren't exposed to them? The Trump
administration undermined the EPA risk determination of TCE by
refusing to look at all the negative health effects on pregnant
women and children.
Dr. Freedhoff, how is your office working to protect
families from the dangers of TCE?
Ms. Freedhoff. I really appreciate you asking me that
question, because of all the chemicals that we are writing
rules for under TSCA, TCE is the one that feels the most
personal to me. And that is because of my work for you. He
already told you some of the history of Anne Anderson with her
little boy, Jimmy, and I was re-reviewing that case, that whole
story, a few months ago in preparation for an agency meeting on
TCE. And I tell you, I was blown away to realize that Jimmy
Anderson would have been just about exactly my age, had he not
died when he was 12 years old.
In the four decades since he died, we have managed to
regulate TCE under the Clean Air Act; we have managed to
regulate it under the Safe Drinking Water Act; we have managed
to regulate it under the Superfund Law, but we have yet to
regulate its manufacturing use under TSCA. If there is one
thing that drives me every day in this job, it is knowing how
important it is to get that rule on the books.
Senator Markey. Yes. It is absolutely critical, and again,
there was always a lot of denial in the chemical industry on
that issue.
By the way, it was one of the first Superfund cleanup
sites, and now it is called the Jimmy Anderson Transportation
Center. It is where we built an incredible, industrial,
commercial, and transportation center up there, named after
that little boy.
If you could just briefly touch on asbestos. We fought hard
in 2016 to have asbestos included in that TSCA rewrite bill,
and it was with the great hope that we would be able to see
enormous progress made on asbestos, and ultimately, to see it
banned. A lot of the countries in the rest of the world have
done so.
Can you talk about the progress you are making on that
issue, and what additional resources you might need in order to
accomplish that goal?
Ms. Freedhoff. Absolutely. Thanks very much for that.
Asbestos, symbolically enough, was the very first rule that
we proposed that came from the risk evaluations under the new
TSCA Program. We did propose a ban on the ongoing uses of
chrysotile asbestos. We are taking comments on that proposal
now, and we will be looking to finalize it sometime in 2023.
As you might remember, the last Administration chose to
exclude other fiber types of asbestos, as well as legacy uses
of asbestos, from that risk evaluation. A court found that the
agency had improperly excluded those uses and types. So we are
doing a second part of the risk evaluation as a result, and
that will be done by December 2024.
Senator Markey. Thank you so much.
And Mr. Chairman, that issue is personal to me as well. My
staff director, Joe Zampitella, his father was the head of the
Asbestos Workers in Massachusetts in the 1970s and 1980s. I
only had two unions endorse me in my first race, the Asbestos
Workers and the Teachers, when I ran for Congress.
Ultimately, Mr. Zampitella passed away in 1986 from
asbestos. One of the most powerful images I can ever remember
is an entire church filled with asbestos workers, all sitting
there, row after row after row after row, because he was the
leader of the union, and he had asbestosis, and he had just
passed away.
For so many of them, they realized that would be their fate
as well, because there had been no protections that had been
put on the books.
We just have an obligation to finish this job on asbestos.
I thank you, Dr. Freedhoff, so much for all of your great work
on that.
Senator Carper. Senator Markey, thank you so much for
joining us.
I think next in line of questioning is Senator Kelly. I
believe he is going to be followed by Senator Whitehouse and
Senator Sullivan. I think that is the order.
Senator Kelly. Am I up?
Senator Carper. Senator Kelly, I think you are up. Go
ahead.
Senator Kelly. Right, thank you, Mr. Chairman.
Dr. Freedhoff, thank you for being here today. I want to
begin by discussing the latest drinking water advisory level
for PFAS chemicals, and how that impacts the work done by your
office to develop national strategies for PFAS testing and
tracking PFAS which are still in use.
As you know, last week, EPA updated the lifetime health
advisories for two of the most pervasive PFAS chemicals, PFOA
and PFOS from 70 parts per trillion to 4 parts per quadrillion
for PFOA and 20 parts per quadrillion for PFOS. These updated
guidelines are significant for the more than 20 communities in
Arizona which have recorded levels of PFAS at or above these
levels.
As I understand it, we don't have testing technology which
can detect PFAS in quadrillions yet, meaning many more
communities could also be vulnerable, more than the 20 in
Arizona.
Dr. Freedhoff, I understand that your office is responsible
for developing a national strategy to test for PFAS. How do the
new lifetime health advisories affect that work?
Ms. Freedhoff. Thanks very much for that question, Senator
Kelly.
Our testing strategy is really about the thousands of PFAS
that we don't know enough about to write health advisories or
regulate in some way, because, as you know, there were
thousands that were allowed into commerce or historically made
or used in this country. And if we try to study them one by one
by one by one, we will never get the answers that we need in
order to take action on the ones that need action taken on.
What we did was we divided those thousands of PFAS into
categories based on their structure and other chemical
properties, looked at the categories for which we had no health
information, because that is clearly the most important
question, is, what does this type of PFAS do to your body if
you are exposed, and we are designing a testing strategy
designed to fill in those data gaps.
Our first test order went out a couple weeks ago. It was
for a PFAS that is found in firefighting foam and other
products. And when we get the data back for that chemical, it
will help us understand more about the human health effects of
500 other PFAS that are similar to it.
I think there is not exactly a connection between health
advisories and our testing strategy, but our testing strategy
is designed to fill in the holes on human health data that
exist for so many PFAS.
Senator Kelly. Are you confident you are going to be able
to develop the tests necessary to detect in the quadrillions?
Ms. Freedhoff. We are not testing that way. What we are
doing is we are using our authority under TSCA to tell
companies to give us information and data about the chemical.
So sometimes it is doing modeling to show us what its effect
would be. Other times it might be animal testing, if we need to
pursue animal testing. Other times, it is information about
whether the chemical dissolves in water and would therefore be
likely to be in drinking water.
Senator Kelly. So then, my understanding is, as we test
drinking water, we are still going to be testing in the parts
per trillion, and the only way we are going to know if somebody
is exceeding the lifetime health limit in the quadrillions will
be on the data you get from companies that manufacture these
chemicals?
Ms. Freedhoff. I think it is a slightly different question.
I think, sort of taking a step back, I think EPA has
historically written a couple hundred different health
advisories for drinking water over the years, and for
information on these particular ones, I would say that the
Office of Water probably has more answers than I have.
I think, maybe one way to think about it is to think about
the lead rules. It is generally accepted that there is no safe
level of lead, and so the goal for lead in drinking water is
zero.
Senator Kelly. Yes, I got you.
Ms. Freedhoff. But the rules are what factor in the
detection levels, how to detect it, and how to treat it, and
how to remove it. I think that is what you will see. That is
sort of the difference between a health advisory for PFAS and a
rule for PFAS.
Senator Kelly. I got it. I am going to have my office
follow up with yours on this to make sure that, because these
20 communities, we know that the level is above what you just
set the lifetime health advisory for, so we need to figure out
how we are going to clean up this water. The drought situation
we are facing in Arizona right now is so critical that, at some
point here, in the near future, some communities are going to
be relying on groundwater, and we have to make sure that water
is clean. So thank you.
And thank you, Mr. Chairman.
Senator Carper. Senator Kelly, thank you so much for
joining us.
Now, live from the great State of Alaska, Senator Sullivan.
Senator Sullivan. Thank you, Mr. Chairman. Thank you very
much.
Dr. Freedhoff, I want to just begin by commenting. You have
a lot of experience with this Committee, correct?
Ms. Freedhoff. Yes.
Senator Sullivan. And TSCA?
Ms. Freedhoff. Yes.
Senator Sullivan. I would like to begin by complimenting
the Chairman and the Committee's culture here of getting things
done, big things done, big, important pieces of legislation. I
have been on this Committee since I first came to the Senate
over 7 years ago.
We have our debates, and we have our disagreements, but we
manage to actually produce legislation like TSCA. This is the
first Committee that Senator Whitehouse and I started our
series of Save Our Seas Act legislation, which are very
important laws, and the Infrastructure Bill. And there is a lot
that has happened in this Committee that I think benefits the
country and shows our fellow Americans that the Senate can work
in a bipartisan way.
With that, the TSCA Bill was actually one of the first
major pieces of legislation that I worked on as a new Senator
in 2015, and I know that you were a part of that. I think it
was a really good effort. But one thing that I am concerned
about now is, I worry that it might be in line to be subject to
abuse.
Let me give you a little bit of context. The Biden
administration is encouraging agencies that have no legislative
mandate to regulate the energy sector, choke off capital to the
energy sector, whether it is the Federal Reserve, for goodness'
sakes, whether it is the SEC, the Chairman of the SEC put out
an 800 page rule all about climate change, and he committed to
me during his confirmation process he wasn't going to do that.
He is doing it.
Comptroller of the Currency, who was nominated by this
President, said she wanted to put oil and gas businesses out of
business. The Comptroller of the Currency, what the heck does
she have to do with it? So you have this major power grab, and
of course, this is contributing to $6 a gallon gas, which is
crushing working families in America and Alaska and West
Virginia.
I was concerned to read about one of these extreme far left
groups that just petitioned the EPA to use TSCA as a way to
phase out fossil fuel production, use, and disposal. Now, you
and I worked on TSCA together. We all worked on TSCA together.
I was involved, but I am pretty darned sure that I would have
noticed a provision that somehow gave EPA authority to do
something like that.
An article called this group's filing to the EPA a ``novel
approach'' to TSCA. That is a nice way of saying that TSCA did
not give the EPA the authority to try to phase out fossil fuel
production.
Can you just definitively agree with me on that, saying
that, no, TSCA was not focused on that, we are not going to let
that bipartisan law be abused in ways that other Federal
agencies and the Biden administration are abusing their power
to try to shut down American energy, which hurts our national
security, hurts working families, drives up gas prices at the
pump.
Could you agree with me on that? You helped write this law.
You did a great job. This Committee did a great job, but this
Committee did not contemplate using TSCA to phase out energy
production in America. Do you agree with that?
Ms. Freedhoff. I do agree that the purpose of TSCA was not
to phase out energy production in America.
Senator Sullivan. And will you look at the petition, I
forget which radical group filed it, with the discerning
statutory authority of the EPA, which was not intended? You
helped draft it; we all worked on it together. It was not
intended to do that. Novel or not novel, would you agree with
me on that as well?
Ms. Freedhoff. I think I will just sort of take a step
back. First of all, we just received the petition. We haven't
reviewed it. We have an obligation to review it, and we have an
obligation to respond. So we will do that. I will also say that
we do, as an Administration, believe that climate change is an
urgent threat, but when we wrote TSCA----
Senator Sullivan. But was TSCA really focused on climate
change? It wasn't.
Ms. Freedhoff. Climate change was not debated when we
negotiated TSCA. That is absolutely the case.
Senator Sullivan. Correct. I remember.
Ms. Freedhoff. What TSCA did say, though, was that for all
the chemicals that are in commerce, EPA was supposed to study
them all and put regulations in place when EPA found risk.
Senator Sullivan. Let me just, I know I am out of time, and
I don't want to abuse this, but these kinds of back door regs,
particularly when we all worked on it, we know that that is not
what TSCA was meant to do. If you have a novel approach, you
have the President of the United States quoted recently. He is
all over the map, but we want to lower gas prices, we need to
have more oil supply right now.
Geez, OK, that is different from what he said as a
candidate, but I will take him at face value.
But I think this is a test from this White House. If they
accept this petition as another Federal agency overreach to
choke off capital to the American energy sector and then have
the President say, oh, no, we are trying to help the American
energy sector, no one is believing it. And this is going to be
another test case.
I hope that you can read the statute with fidelity to what
we agreed to here in this Committee in a good bipartisan way,
but it wasn't meant to regulate the energy sector. By the way,
neither is the SEC statutory authority. That chairman is way
over his skis.
This Administration is hurting the energy sector, hurting
American families. But I just hope you of all people take a
hard look, because you know what this statute was about, and it
wasn't about the regulation of the American energy sector. And
I hope you reject this petition.
Thank you, Mr. Chairman.
Senator Carper. You are welcome.
Senator Whitehouse, welcome.
Senator Whitehouse. Thanks very much. I am extremely fond
of my colleague, Senator Sullivan, and we work very, very well
together on a lot of areas. But I have just got to offer some
opposing views regarding some of the stuff that he said.
Senator Sullivan. I am shocked, Mr. Chairman. I am shocked.
[Laughter.]
Senator Whitehouse. For starters, when he talks about the
American energy sector, he is talking about America's fossil
fuel sector. If you look at America's energy sector, the Biden
administration is working very hard to grow as fast as we can
the renewable energy that we need for the future, because
climate change is an actual thing, and the transition has to
actually happen.
I know that there are a lot of people, and particularly the
industry, doesn't want climate change discussed by financial
regulators, but for Pete's sake, every major central bank has
sent out financial warnings about what climate change is going
to do. Freddie Mac has warned of coastal property values crash,
cascading through the economy worse than 2008. We have the
major corporate folks, most recently Deloitte, coming out with
a report talking about a multitrillion-dollar swing between
getting it right on climate and getting is wrong on climate.
So the fact that financial regulators are paying attention
to this shows nothing more than that they are paying attention.
Of course they are paying attention to this.
As for the petition being filed by extreme environmental
groups, the guy's name is Henson. He was the top scientist for
NASA. NASA got stuff driving around on the surface of Mars.
Their scientists are actually pretty good at stuff, and his
testimony first came out in this room with a Republican Senator
chairing it, John Chafee of Rhode Island, so I take this a
little bit personally. And facts have proven his testimony in
this room all those years ago extremely, extremely accurate.
There is my counterpoint to my friend Dan Sullivan's point.
With respect to TSCA and paying for it, we gave EPA
authority to levy fees to target that 25 percent of the program
would be covered by industry contributions. What percentage is
now covered by user fees?
Ms. Freedhoff. Far less than that, actually, Senator. And
the fees rule was one of those implementation challenges that I
am hoping we can course correct on, because the first fees rule
didn't kick in until fiscal year 2019. It actually excluded all
of the costs of the first 10 risk evaluations, which was the
most expensive thing the agency was working on on TSCA at that
time.
As a result, it only collected about 12 or 13 percent of
our costs, not the 25 percent that Congress expected and that
every stakeholder supported. So in the 2022 Appropriations
Bill, Congress directed us to write a fees rule that would
reflect the actual cost of implementing TSCA, and that is what
we are planning on doing.
Senator Whitehouse. OK. Where are you in that process?
Where are you with redoing that?
Ms. Freedhoff. We are close to being able to send a
supplemental proposed rule to OMB in the next couple of months.
There was a proposed rule that went out toward the end of the
last Administration, but it exempted the costs of rulemaking,
so it needs to be supplemented in order to do what it was
intended to do.
Senator Whitehouse. You think it will get to OMB by when?
Ms. Freedhoff. I think it will get to OMB sometime this
summer or fall, and we are hoping for it to be finalized before
fiscal year 2024.
Senator Whitehouse. OK. Good. Well, I have used a good deal
of my time.
Senator Carper. It was time well used. Go ahead.
Senator Whitehouse. With Senator Sullivan, but I would
remind the Committee that there are a lot of people who don't
seem to take climate change seriously, but for me and for
Chairman Carper, who come from coastal States and not very big
ones. We are looking at actual projections supported by Federal
and State government that are unrebutted that we are going to
have multiple feet of sea level rise along our shores. We have
got maps that show that people who live on Warwick Neck in
Rhode Island are going to be living on Warwick Neck Island
soon, that people who live in Bristol are going to be living in
Bristol Island soon. We have major thoroughfares that are going
to be flooded out, which are also the escape routes from
flooding.
We have enormous, enormous risks and challenges ahead of
us. We have enormous expenditures, and all you have to do is
read the newspaper, whether it is wildfires or droughts or lost
water out west or massive flooding. Things have gone haywire in
the Earth's operating systems, and we know why. And to pretend
that it doesn't have something to do with burning fossil fuels
is just simply fictional, magical thinking.
We have to address it, and I hope we will. Thank you.
Senator Carper. Thank you so much. Thanks so much for
joining us, Sheldon.
Senator Capito, I have some more questions. Would you like
to go first?
Senator Capito. Thank you. I would love that. Thank you.
I just wanted to clarify. I think you addressed this when
you talked about how you are going to handle the PFAS issue,
but I was wondering, do you intend to utilize a tiered
approach? I think you said you would, to classifying PFAS by
categorizing and prioritizing them based on different physical
properties and hazards. Is that your intention?
Ms. Freedhoff. Yes, we are.
Senator Capito. OK. And I think that some of the confusion
that we hear today is your office's role with PFAS as opposed
to the health advisory that came out from the Water Office.
This, to me, having had PFAS in our water systems and shut
down our local water systems overnight, the risk assessments
and the risk communications are so extremely important. And so
I am concerned that when you have one office from the EPA
setting an advisory level, what does advisory mean to people?
It means that if you are in that area, that it is unsafe, and
they are planning to come out with a safe drinking water level,
which is going to be higher than the advisory level.
I know this is not your problem, but it is your problem,
because it is a chemical. I don't know, how do you message that
to people when you are trying to tell them what is safe and
what isn't?
Ms. Freedhoff. I think you are absolutely right, that risk
communication is important, and as a science based agency, we
often speak scientifically and don't do as much work as we
should, speaking from my part of the agency, at translating
into words that people can really understand and access.
I think though, on the drinking water side, it is not that
different from the lead rules, because the maximum contaminant
level goal for lead is zero, because it is generally accepted
that there is no safe level of lead. The rules do factor in
detection limits and treatment techniques and other things that
present barriers to actually getting to zero. And I feel like
the agency managed that risk communication well, and I have
confidence that the agency can also succeed in the PFAS space.
Senator Capito. OK. I am concerned, because obviously, what
Senator Kelly was getting to is on the health advisory level,
we can't measure that low, and so how do you know? You don't.
Let me ask you about the PPE, because I mentioned it in my
statement with OSHA, and I think there is some concern that you
are drifting into OSHA regulations where making assumptions
that people aren't wearing PPE. So a chemical may not be safe
in a water, but if they are fully gowned up and have protective
equipment, it is safe to be in and around.
Why are you making assumptions that workers are not wearing
their PPE? Isn't that OSHA's job, rather than yours? We have
already discussed that your deadlines are last, so let us stay
in our lane, I guess, is my message.
Ms. Freedhoff. I appreciate the question. First of all, the
law tells us to look at potentially exposed and susceptible
subpopulations, and that clearly has to include workers. While
we are in extremely close contact with OSHA and NIOSH and are
coordinating with them really well, we can't just assume that
OSHA will work for everyone.
There are a few reasons for that. One is that OSHA rules
don't apply to everybody. They don't apply to self-employed
workers, and they don't apply to public sector workers who live
in a State that doesn't have an OSHA approved plan, so that is
reason No. 1.
Reason No. 2 is when you actually go on OSHA's website for
the chemical specific standards that they write, the very first
sentence of that website says that they are outdated and
inadequate for protecting worker health, because they were
written in the 1970s.
The last reason is, when you look at OSHA's top 10 most
frequent safety violations, a list that they put out every
single year, every single year, you see respirator, eye, and
skin protections safety standards among those top 10 most
frequent violations.
We can't just assume that OSHA is enough, and we can't just
assume that OSHA is used and followed by everybody. But this is
where that risk communication point you just made is so
important, because we know that a lot of companies, especially
the larger manufacturers, go beyond what OSHA requires them to
do when they are looking out for their workers, and we know
that.
I think it is incumbent on the agency to make sure to
communicate that when we write our risk evaluations, so that
people aren't unduly afraid of an absence of a safety measure
that is actually there at their facility where they work.
That is something that we do plan to do. As we move toward
risk management, I think what we are striving for is
consistency with OSHA rules when OSHA rules are enough,
consistency with best industry practices when best industry
practices are enough, and to basically level the playing field
and make sure that everyone is protected, no matter who they
work for or where they live.
Senator Capito. I think the goal of that, obviously, is
what TSCA is about, but we have other agencies. My concern is
to get to your core functions and to meet those obligations
that are outlined very specifically in the law, and that you
have additional, whether it is OSHA or somebody else, Clean
Water, Clean Air, whatever, entities that are tangential to
TSCA, important.
I am just concerned about, as the mission creep, or if you
take on too much, you are not going to get anything done. I
just put that on your table. I appreciate everything, you have
been very candid in your answers. I appreciate your service.
You are doing a good job. Thank you.
Ms. Freedhoff. Thank you.
Senator Carper. I have a few more questions, if your
schedule allows.
When I ran out of time for my question and yielded to
Senator Capito, we were talking about resources, which you have
been talking about literally all morning. I want to come back
to this just for a minute. The question is regarding the fiscal
year 2023 budget. And my question is pretty straightforward.
Will the funding and the personnel that are included in the
fiscal year 2023 budget take care of the entire challenge of
the problems you face in doing your job, or is this a down
payment that will take several years?
Ms. Freedhoff. I think, in order for the program to work
sustainably, it will need a sustainable investment of
resources. It will need an updated fees rule, and it will need
us to work on modernizing our approaches and streamlining them
when we can so that we can make the costs of our work go down
using the lessons we have learned over the past 6 years.
Senator Carper. OK. With respect to work force, I suspect
Senator Capito has experienced the same thing, I like to do
customer calls in Delaware. A lot of them are to businesses.
Now that we are both back up for business here, we have a
lot of folks who want to come and meet with us. Just before I
came to this hearing, I had a significant American business
that came in and talked about how they are doing and what their
challenges are. And they said work force. They just can't find
folks with the kind of training, the interest, and the will,
the ability to do the jobs that they need to fill.
I hear that all over the country, all over the country. I
am sure it is something that you face. Talk a little bit about
the expertise that you are looking for to meet your ability to
do your job. Talk about the skills that you are looking for and
are maybe find the hardest to fill. Is there anything, is there
something that we need to be doing about the hiring process
that exists?
We tried; I think we had a situation at the IRS that they
took forever to hire people. Some good work has been done and
that has been addressed, at least in part, but we need to focus
on this. What can we do, what are the needs, the expertise,
what are you looking for, and how are you trying to find it?
What can we do to help?
Ms. Freedhoff. I appreciate the question. It is daunting to
think about staffing up so quickly. We are putting together a
pretty aggressive recruitment strategy, particularly for New
Chemicals, because we don't just want a handful of
toxicologists now. We want to build relationships with
universities so that we have a steady stream of people that we
can draw from to perform that role, because it can be a pretty
specialized role.
I also think the Title 42 authority that Congress provided
the agency with, which lets us hire a small number of much more
senior scientists in a much more streamlined hiring process, is
actually going to be really helpful to the agency moving
forward. But I agree with you, we will need to really work hard
to tell people how exciting an opportunity it is to come and
work on a new law that has barely scratched the surface of its
potential. I think that will be appealing to a lot of the
Nation's younger scientists and engineers.
Senator Carper. When I talk to people, a lot of times, at
some point in our conversation, when they are talking about
what they do for a living and their careers and all, and I will
ask them, what gives you joy in your work. That is what I ask
them, what gives you joy in your work.
A lot of times, what I hear from people, basically, is they
like helping people. They like helping people. I think there is
a great opportunity for folks who work with you, for you to
help people, not just to help make sure that we are looking out
for folks and their families on the safety side, but also to
make sure that we are providing economic opportunity and job
creation on the economy side.
The world has changed a lot since I was graduating from
school and going off to be in the Navy in the Vietnam war. But
I am convinced that there was a generation of young people
coming out of high school, colleges, and so forth these days
that want to help people. And if they had some idea that they
could do it through an endeavor, really, the endeavor that you
are leading, I think they would want to do that.
I would just urge you to find ways to communicate that
clearly, maybe. Ask most people in colleges: How would you like
to work on TSCA? I haven't a clue. I think there is something
to be said for being able to message better.
Is the expertise that you need, is it out there?
Ms. Freedhoff. It is out there. It is out there. I think
there are people graduating from college every year with
amazing education in environmental science and toxicology and
ecology. I really do think the work force is there, and I agree
with you. The people at EPA are incredibly excited and
committed to the mission of the agency, and really do get
excited by the opportunity to help people, as you said.
Senator Carper. Let's talk a little bit about good science,
and perhaps a good example is your decision to consider risks
of a chemical broadly rather than consider the so called
conditions of use. When you assess the risk of a chemical, as I
understand it, the conditions of use refer to the processes or
protections that companies might use to minimize releases and
exposure to the chemical. I believe you would assert that the
decision to consider risks broadly is the scientifically sound
way to proceed. I may be mistaken there, but I understand the
industry feels that good science dictates that you consider
conditions of use in these risk evaluations.
Question: Would you help us understand this disagreement
over how science should be used to assess chemical risk?
Ms. Freedhoff. Absolutely. So, the law does says study the
chemical substance over its conditions of use, and the risk
evaluations do look at the risk attached to each condition of
use. And they analyze that risk, and we are going to continue
to do that.
I think where industry is not in full agreement with our
approach is they think that when we say that an entire chemical
substance poses unreasonable risk, they think that is unfair,
because they think that there are some risks and some
conditions of use that are not risky at all. There are some
conditions of use that are very risky, and there are some
conditions of use that are less risky. And they want everyone
to know which those are.
We agree with them on that, and we are going to continue to
tell people which of the uses are more risky than others and
which are the ones that are most likely to be regulated. But I
do think that people have the ability to sort of understand the
agency's process. It is kind of like Americans know how much
junk food is too much. They know how much medicine is too much.
They know how much sun is too much, and when it is time to put
sunscreen on.
Ultimately, what our risk evaluations are saying to people
is how much of a chemical is too much and what are the ways
that that chemical is used that are too risky. Then, when we
get to rules, what we want is for the public to trust that we
have evaluated the risks, that we have properly addressed them,
and our rule says to people, this is how this chemical can be
used safely.
I think that is on us to communicate properly, and we do
plan on doing a better job in this regard and also would
absolutely welcome industry's feedback when they think we have
missed the mark on the communications front.
Senator Carper. OK. One of the things that gives me joy is
working with my colleagues across the aisle to take on
challenging issues and getting input from all directions and
all different quarters and being able to enact meaningful
legislation, thoughtful legislation. As you will recall, I was
so proud of this Committee and the Congress and the
Administration at the time for our ability to collaborate with
industry and with the folks at EPA in order to enact
legislation. Very proud, a high moment from the years that I
have been here.
I am just, as we sit here today, 6 years later, to see how
that dream, the hope that we had, is not being realized. It is
deeply troubling to me. I know it is to my colleagues. This has
not been a Committee--this has not been a hearing. It is not
our nature to cast aspersions at you or the folks that you lead
and the folks at EPA, but we have got to do better. I like to
say, and Senator Capito has heard me say more often than she
wants, everything I do, I know I can do better. Everything I
do, I know I can do better.
This is a shared responsibility. One member of our staff
likes to say, ``Teamwork makes the dream work.'' I think there
is a lot of good intention here to get this right. And we need
to. A lot of people are counting on us, and we need to get it
right.
With that, I want to thank you, Dr. Freedhoff, Michal,
thank you for sharing your experience and your expertise with
us today. Thank you for all that you did to help make this
legislation a law in our country and try to enact it.
There is, surely, no road to success without a full
understanding of the challenges that you face in implementing a
critical Federal law. This is not easy. This is hard. And the
implications couldn't be greater. They include the health of
our families, the health of our communities, and include our
environment and our ability to tap novel chemistries to hasten
our transition to a more stable climate, to obtain medical
breakthroughs, and hopefully, someday, a litter free circular
economy.
I look forward to much help across the dais, and I think I
have heard from our colleagues here that there is a strong
interest in doing that, and help throughout the Senate to
ensure that you get the resources that you and your colleagues
need to succeed and help all of us succeed.
With that, a little bit of housekeeping. I would like to
ask unanimous consent to submit for the record materials that
relate to today's hearing.
Hearing no objections, so approved.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Senators will be allowed to submit written
questions for the record through the close of business on
Wednesday, July 6th, 2022. We will compile those questions,
send them to our witness, and ask Dr. Freedhoff to reply by
Wednesday, July 20th, of this year, if you would.
With that, this hearing is adjourned. Thank you again so
much.
Thank you.
[Whereupon, at 11:28 a.m., the hearing was adjourned.]
[all]