[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Extensions of Remarks]
[Pages E2204-E2206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




THE INTRODUCTION OF COMPROMISE LEGISLATION TO FULLY IMPLEMENT THE LEGAL 
    OBLIGATIONS OF THE UNITED STATES OF AMERICA UNDER THE STOCKHOLM 
   CONVENTION ON PERSISTENT ORGANIC POLLUTANTS, POPs, THE ROTTERDAM 
CONVENTION ON PRIOR INFORMED CONSENT, PIC, AND THE AARHUS POPS PROTOCOL 
  TO THE GENEVA CONVENTION ON LONG RANGE TRANSBOUNDARY AIR POLLUTION, 
                                 LRTAP

                                 ______
                                 

                          HON. PAUL E. GILLMOR

                                of ohio

                    in the house of representatives

                        Friday, December 8, 2006

  Mr. GILLMOR. Mr. Speaker, I am glad to join Chairman Barton and 
Chairman Boehlert in introducing H.R. ___, compromise, consensus 
legislation to fully implement the legal obligations of the United 
States of America under the Stockholm, or POPs, Convention; the 
Rotterdam, or PIC, Convention; and the Aarhus POPs Protocol to the 
Geneva LRTAP Convention. This is solid public policy that I urge my 
colleagues to support because it reasonably implements the POPs and PIC 
Conventions and the LRTAP Protocol.
  Over the past 4 years, and even as recently as a few months ago, I 
have heard people ask many questions about this bill. Why is it 
necessary for this legislation to become law? If the United States is 
already attending these meetings, isn't that enough--why do we need to 
move on this bill? What does being a full partner mean to these 
agreements and what does it give the United States Government and its 
people in terms of rights and opportunities that we do not already 
have? These are all good questions, but persistent repetition of these 
inquiries shows a fatal misunderstanding of these agreements and 
exactly why it is in the interest of the United States to become a 
party with ``full'' rights under these accords.
  At a minimum, the failure of Congress to pass implementing 
legislation--thus securing Senate ratification of these treaties--
leaves the United States Government in the position of defending its 
interests and sharing its expertise only when other countries welcome 
it, not when we wish and need, for our own national purposes, to offer 
it. The U.S. Environmental Protection Agency has testified before the 
House Energy and Commerce Subcommittee on Environment and Hazardous 
Materials that it has been forced to wait long periods of time to be 
recognized because the leaders of the treaty-related meetings did not 
consider our delegation important enough to be recognized sooner. This 
situation presents a radical departure from the leadership role our 
country took in building the consensus for these pacts to exist. Our 
delegations should not be welcomed at the receptions for these 
international meetings, but barred from being integral players in the 
technological discussions and final decision-making processes in these 
treaties. Failure to support this legislation is a clear signal that 
Congress misunderstands the sophistication of our nation's chemical 
knowledge base and regulatory experience and instead wishes the United 
States to cede its traditional leadership role in international toxic 
chemicals management.
  Mr. Speaker, in 2001 the Bush administration pledged the commitment 
of the United States of America to join the Stockholm Convention on 
Persistent Organic Pollutants. That date marked the culmination of 10 
years of bipartisan cooperation and leadership concerning global 
protection of the environment and public health. These efforts included 
not just POPs, but the Aarhus Protocol on Long Range Transboundary Air 
Pollution, LRTAP, of POPs, and the Rotterdam Convention on Prior 
Informed Consent, PIC. These were not the triumphs of Republican or 
Democrat White Houses, they were the victories premised on the various 
needs and hopes of all Americans. Sadly, the benefits of these 
agreements have not been actualized because of the policy and political 
agendas of the interested stakeholders as they relate to chemical 
management. It is unacceptable that those private parties that are 
subsets of the interests in our country, whether they are businesses or 
non-profits, have as much, if not more, input than our own Government 
officials at these meetings. We must put these matters behind us and 
focus solely on making the U.S. a full partner.
  Before I go into the specifics of this legislation and address some 
of its broader themes, I want to briefly further explain why this 
legislation is being introduced and why it is different from my bill, 
H.R. 4591, which also would totally implement and make the United 
States a full partner in these agreements. First, this bill is being 
introduced as a consensus position of the majority of stakeholders who 
have testified before the House Energy and Commerce Subcommittee on 
Environment and Hazardous Materials that they want the United States to 
pass implementing legislation. Second, this legislation is different 
from H.R. 4591, as introduced, because it represents a good-faith 
compromise among Members of Congress who actively sought to sit down 
with me and work out mutually acceptable provisions. I have always been 
willing to work with any Member of Congress on compromise provisions 
despite the fact that some Members' delay in getting back to me on 
whether they wanted to work out a compromise made enactment of this 
legislation nearly impossible. Finally, this legislation is a 
collaborative work of elected officials with input from others. Some 
people think that this kind of legislation needs to be delegated to 
interest groups to forge. Not only am I dubious about punting our 
constitutional responsibility to legislate to unelected persons, but 
history has shown that the same people who have called for a consensus 
stakeholder process have twice killed the resulting bills.
  Regarding the specifics of this bill:
  First, this bill is a targeted legislative fix that fills the 
existing legal gaps and only does what is important for us to become a 
full partner in these agreements. It does not repeal any part of 
Federal environmental law, but rather adds a new section to the Toxic 
Substances Control Act to ban the manufacture, processing, distribution 
in commerce, use, and disposal of agreed upon POPs and LRTAP POPs 
chemical substances and mixtures. This new section also grants 
separate, new authority for the United States to enact new regulations 
for future additions of POPs chemical substances or mixtures to the 
Stockholm Convention or LRTAP POPs Protocol. Because there has been 
concern from a number of persons about the difficulty existing TSCA 
provisions present in the way of regulating existing chemicals, this 
bill creates a distinct and different process within TSCA that couples 
similarly rigorous and sound scientific analyses, but with a more 
deferential regulatory standard and the elimination of procedural 
hurdles that many argue have hindered EPA from taking action regarding 
chemical protection. This is not the TSCA overhaul that many critics of 
the chemical manufacturing world have wanted, but it is a solid middle 
ground that relies on science rather than emotion to address these very 
insidious chemicals, while also keeping these treaties out of governing 
American manufacturing processes and decisions.

  In addition, while many political opponents of past POPs legislative 
efforts have argued that the language in this legislation makes 
regulation of POPs more difficult and places profits of chemical 
companies over the protection of human health, a reading of the plain 
language of this legislation would prove how wrong and intentionally 
inflammatory they are to insist on this interpretation. Specifically, 
this legislation sets its regulatory standard at ``protecting human 
health and the environment'' and intends that while exercising this 
legal authority, the EPA Administrator, in choosing the means to 
provide that protection, is to balance costs and benefits. In other 
words, costs and benefits are to be taken into consideration in 
determining how to regulate a substance, not whether to regulate a 
substance.

[[Page E2205]]

  Lastly, on this point, and to further buttress the point that this 
bill is a deliberately different way of handling chemicals than the way 
they are now treated under existing Federal environmental law, the 
sponsors of this bill and I recognize that implementation legislation 
for these international agreements is a distinct context in which to 
amend U.S. law. Recognizing that the underlying statutes being amended 
address the very broad and powerful reach of the Federal Government 
into U.S. manufacturing, this legislation is solely intended to allow 
the United States to be able to participate fully in these agreements 
to the extent that it wishes. The sponsors and I do not intend for the 
regulatory standards outlined in this bill, whether singularly or as a 
package, to be a blanket precedent for other environmental legislation. 
Future Congresses should be very careful in assessing the 
environmental, public health, and other social and economic needs of 
the country before copying this standard because of the unique 
circumstances and purposes to which this legislation is tied.
  Second, consistent with the structures and rules of the POPs 
Convention, this legislation, places U.S. officials, laws, and 
standards--not those of an unelected and unaccountable international 
body--in charge of determining what specific control measures the 
United States should take. Treaties--just like allies--change and it is 
hard to predict their future. As the newly elected vice president of 
the NATO Parliamentary Assembly, I see countries use environmental and 
safety laws as non-tariff trade barriers. In fact, we need not look any 
further than the World Trade Organization case involving Genetically 
Modified Organisms, or GMO, crops for an example of how the European 
Union tried to use its laws to bar market access for our farmers. I 
believe it is reasonable to suggest that in the same way that 
environmental and labor groups argued that added environment and labor 
considerations must not be divorced from trade agreements, such as 
NAFTA and GATT, you also cannot ignore that economic and labor issues 
need to play a role when countries enact environmental laws.
  A minority of stakeholders in this country are unhappy with the 
chemicals policy of the present administration and support using a 
legal standard in this country that flows straight from these treaties 
and has the control measures also directed by the international treaty 
parties, not the United States. This type of effort not only removes 
the executive branch from involvement--the State Department has 
testified in opposition to this type of regime--but also the 
legislative branch from the process of considering the impact on U.S. 
interests and laws. Ultimately, in this construct, the judicial branch 
becomes the sole arbiter of rights and interpreter of obligations under 
these agreements--a place the framers of the U.S. Constitution never 
intended. In addition, these same persons want to use a judicial review 
standard that merely ratifies rather than questions the regulatory 
decisions of the executive branch. This circular argument on their part 
not only diminishes judicial review--which their proposals pose as the 
supreme avenue to set and resolve policy--but further reinforces a 
desire to have U.S. environmental and manufacturing policy set in 
foreign capitals. The legislation I am introducing today rightfully 
recognizes that these agreements will be law long after the current 
president is out of office and Congress should not and cannot pass 
reactionary legislation simply to hem in one leader. It is our 
obligation to pass the best legislation that will serve our country and 
its interests under every leader; this bill does that.
  Third, the public should be fully informed about actions being taken 
under these agreements and Congress should be informed when conflicts 
with existing environmental statutes occur. Neither the public nor 
Congress should be prevented from providing input to our Government 
about structures that are going to affect our lives simply because it 
is inconvenient. History will show that cooperation between parties has 
allowed our treaties to function more successfully than when either 
Congress or the public is cut out. This contains public notice and 
comment throughout the entire treaty process, including the regulation 
of chemicals as part or our country's desire to ``opt-in.''
  Fourth, this legislation preserves the existing public petition 
process under the Administrative Procedure Act and provides certainty 
to all Americans as to what rights and obligations they would have. We 
must not forget that we have both a mature chemical industry and a 
well-established set of legal rights and responsibilities that are the 
envy of most countries. This bill draws on--not adds to--the well-
founded petition processes in all environmental laws and maintains--
unamended--the current Federal-State dynamic in all environmental laws. 
Most importantly, nothing in this bill affects any other environmental 
statute, or State delegated programs under those other statutes, or any 
other environmental board constituted outside of TSCA.
  Fifth, sound, objective, peer-reviewed science should be at the core 
of any decisions made by the United States under these treaties. I 
believe we need to focus our finite resources on the most pressing 
problems, not disproportionately or fully on every problem we face 
without regard to context. Currently, an assessment of ``risks and 
effects'' is called for in other environmental statutes and is not 
unprecedented.
  In addition, the legislation being introduced today amends a 
provision contained in section 2 of H.R. 4591 that created a new TSCA 
section 503(e)(4) that relied on a determination by the EPA 
Administrator of the ``weight of the evidence'' when making a 
regulatory determination regarding restrictions on newly added POPs 
chemicals. It requires the EPA Administrator to use sound and objective 
scientific practices, the best available science, and to describe in 
the rulemaking record the quality of the scientific information on 
which the Administrator based a decision to take action against a POPs 
or LRATP POPs chemical substance or mixture.
  Sixth, this legislation alters no existing rights and 
responsibilities of the States under Federal chemicals laws. First, 
every right, obligation, and opportunity of the States that exists 
under TSCA are still available to the States. Some, including several 
Democrat State attorneys general who were up for reelection, have 
argued that States would be precluded from legislating or litigating 
around the Federal Government in a way that they can do now. Nothing 
could be further from the truth. Second, even if one were to accept the 
argument that States should be able to act any way they want, we should 
not forget that this is a treaty and that States should not unwittingly 
put the United States out of compliance with its obligations under 
these agreements through their own enactments and the State Department 
has written to me that we should not allow that to happen. Finally, to 
clarify concerns raised about potential pre-emotion possibilities in 
the face of long-standing State Department practice--that the United 
States not agree to new treaty obligations unless our country has the 
legal authorities in place to comply with those obligations, section 
6(e) of this legislation provides that any Federal pre-emption of State 
laws cannot occur unless a rule or order implementing our obligation 
has been issued under this act and has gone final or become effective. 
Concurrently, section 2 of this bill requires, in new TSCA section 506, 
that no regulation issued under this authority can become effective 
unless the United States consents to be bound to a treaty obligation 
regarding that chemical substance or mixture.
  Seventh, and finally, while this legislation is careful to ensure 
that only U.S. officials are the drivers of decisions affecting our 
Nation and its citizens--a feature expressly guaranteed by these 
treaties--I also want to point out that this legislation also 
recognizes the global nature of this treaty and the important 
contributions that other countries may make to inform our decisions. 
Section 2 of this legislation establishes a new TSCA section 
503(e)(2)(B) that allows the EPA Administrator to use internationally 
generated information or scientific studies, so long as they meet the 
scientific soundness and objectivity criteria in this legislation, in 
assessing the statutory considerations regarding the domestic 
regulation of a new POPs or LRTAP POPs chemical substance or mixture.
  Furthermore, new TSCA section 503(e)(2)(v) of section 2, requires 
domestic consideration of ``national and international consequences 
that are likely to arise as a result of domestic regulatory action 
(including the possible consequences of using alternative products or 
processes).'' In doing so, this provision's use of the word 
``consequences'' is not meant to automatically imply negative 
connotations, but rather that the EPA Administrator is to look at the 
national and international positive and negative benefits that would 
flow from domestic regulatory action. That being said, the inclusion of 
this provision is in no way meant to give new legal rights or standing 
to foreign-based entities in U.S. courts regarding U.S. domestic 
regulatory actions under this legislation or the international 
environmental accords that this legislation implements.
  Mr. Speaker, this legislation is a true compromise that represents 
the middle ground on treaty implementation legislation and a place 
where most Americans believe our policy should be. If the United States 
is to remain a leader in the global environmental debate it must have 
legislation that fully implements these treaties. The time has come for 
us to make a difference in global environmental protection from the 
most toxic of chemical substances and mixtures. I urge Congress to pass 
this legislation as soon as is practicable and make a strong statement 
of our national resolve to tackle these matters rather than place mere 
words behind our commitments.

[[Page E2206]]



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