[Senate Report 109-220]
[From the U.S. Government Publishing Office]
Calendar No. 373
109th Congress
2d Session SENATE Report
109-220
_______________________________________________________________________
ENGINE COOLANT AND ANTIFREEZE BITTERING AGENT ACT OF 2005
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1110
together with
MINORITY VIEWS
March 14, 2006.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
second session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Drager Kurth, Deputy Staff Director
Ken Nahigian, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
Calendar No. 373
109th Congress Report
SENATE
2d Session 109-220
======================================================================
ENGINE COOLANT AND ANTIFREEZE BITTERING AGENT ACT OF 2005
_______
March 14, 2006.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 1110]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
1110) TITLE to amend the
Federal Hazardous Substances Act to require engine coolant and
antifreeze to contain a bittering agent in order to render the
coolant or antifreeze unpalatable, having considered the same,
reports favorably thereon without amendment with
amendments deg. with amendments (in the nature of a
substitute) deg. and recommends that the bill joint
resolution deg. (as amended) do pass.
Purpose of the Bill
The purpose of the Engine Coolant and Antifreeze Bittering
Agent Act of 2005, as reported, is to reduce the number of
antifreeze poisonings in children and animals through the
addition of denatonium benzoate to ethylene glycol-based engine
coolant and antifreeze products.
Background and Needs
The bill would amend the Federal Hazardous Substances Act \1\
(FHSA), under which the Consumer Product Safety Commission
(CPSC) has the authority to regulate engine coolant and
antifreeze. Three States already require the addition of
denatonium benzoate in antifreeze. Denatonium benzoate is an
aversive agent which imparts an extremely bitter taste upon
contact with the tongue. With a number of States considering
mandates to add bitterant to antifreeze, there is a concern
that inconsistent State laws would force manufacturers into
creating several different formulations, thereby affecting the
production of engine coolant and antifreeze products. This
legislation would set forth one national standard for the
production of embittered engine coolant and antifreeze
products.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 1261-1278
---------------------------------------------------------------------------
Ethylene glycol based antifreeze is a hazardous substance
with a sweet taste. Animals (particularly dogs) are drawn to
ingest the liquid, which can be lethal in small doses. An
estimated 10,000 dogs and cats are poisoned by antifreeze each
year.\2\ Children are also potential victims of antifreeze
poisoning. A 1998 study by the American Association of Poison
Control Centers (AAPCC) found that 801 children that year had
been exposed to, or poisoned by, ethylene glycol, the primary
active ingredient in many engine coolant and antifreeze
products sold to consumers.\3\ More recently, according to the
2003 AAPCC Annual Report, there were 592 ethylene glycol
poisonings of children under 6, and 803 in children between 6
and 19.\4\
---------------------------------------------------------------------------
\2\ Washington State University Veterinary Medical School, cited by
U.S. Conference of Mayors, Mayor Martin Chavez (Albuquerque, NM),
``Bittering Agent Makes for Safer Kids, Wildlife and Pets,''
www.usmayors.org/uscm/us_mayor_newspaper/documents/06_07_04/
bittering.asp, Accessed December 9, 2005.
\3\ See AAPCC Website, ``1998 Pediatric Exposures,'' http://
aapcc.org/, Accessed December 9, 2005.
\4\ See 2003 AAPCC Annual Report, Table 22A, ``Ethylene Glycol,''
www.aapcc.org/poison1.htm, Accessed February 3, 2006.
---------------------------------------------------------------------------
By requiring the addition of denatonium benzoate to
antifreeze, this bill would reduce the possibility that a child
or animal is drawn to accidentally ingest a deadly amount of
antifreeze. This aversive method also has been used to deter
ingestion of a multitude of other consumer products, including
deer repellant, nail polish, household cleaners, paints,
windshield washing fluid, and to coat electrical
cables.5
---------------------------------------------------------------------------
\5\ Bitrex Website A Product of McFarlan Smith, ``List of
Applications,'' http://www.bitrex.com/pages/why_bitrex_frameset.htm5,
Accessed January 30, 2006.
---------------------------------------------------------------------------
The bill's mandate addresses two substances, ethylene glycol
and denatonium benzoate.
ETHYLENE GLYCOL
Ethylene glycol is a toxic, clear, colorless, and sweet
tasting liquid that is used as the primary compound in the
majority of engine coolant and antifreeze products. Due to the
inherent sweet taste of ethylene glycol, improper disposal or
leakage of antifreeze in non-commercial settings has raised
concerns that unsecured ethylene glycol-based antifreeze poses
an unnecessary health risk to both children and animals. Child
resistant safety caps are already used by antifreeze
manufacturers to prevent injuries. The addition of denatonium
benzoate as a bittering agent could reduce even further the
number of incidents connected to ethylene glycol poisoning.
DENATONIUM BENZOATE
Denatonium benzoate is a bittering agent/additive commonly
distributed in the United States under the brand name of
Bitrex. According to the California Institute of Technology's
Center for Science and Engineering of Materials, denatonium
benzoate is recognized as the most bitter substance known. In
minute quantities, denatonium benzoate can render household,
garden, or automotive products unpalatable, thereby deterring
ingestion by children and animals.\6\
---------------------------------------------------------------------------
\6\ Center for the Science & Engineering of Materials Website,
``The Most Bitter Substance,'' www.csem.caltech.edu/material_of_month/
bitrex.html, Accessed December 9, 2005.
---------------------------------------------------------------------------
Summary of Provisions
S. 1110 is a product safety measure that would require
manufacturers of engine coolant and antifreeze products to add
a bittering agent so as to render those products unpalatable to
children and animals. To ensure that the bittering agent would
not present unreasonable adverse effects to the environment,
the introduced version of S. 1110 was amended to include an
environmental evaluation by the CPSC. The revised bill would
preempt State law, instituting a national standard for the
production and distribution of engine coolant and antifreeze
products sold in non-wholesale containers. Additionally,
assigned liability provisions in the bill would ensure that
manufacturers of antifreeze, denatonium benzoate, and
alternative bittering agents could be held liable for harm
caused by their respective products. In recognition of the
possibility that new bittering agents may become available, the
CPSC would be authorized to approve the use of alternative
bittering agents through rulemaking. However, Commission
approval of the use of alternative bitterants in antifreeze
would be contingent upon the alternative being found to be as
effective as denatonium benzoate, both in terms of its
bittering capacity and compatibility with motor vehicle
engines, and that it would not cause an unreasonable adverse
effect on the environment.
Legislative History
Senator Allen, with Senator Pryor, introduced S. 1110 on May
24, 2005. Cosponsors of the bill include Senators Inouye,
Stevens, Domenici, Warner, Baucus, Santorum, Collins, Ensign,
Murkowski, and Martinez.
On July 18, 2005, the Subcommittee on Consumer Affairs,
Product Safety, and Insurance held a hearing on S. 1110. A
diverse group of Federal and State government officials,
companies, associations, and private parties with expertise in
regard to bittering antifreeze appeared before the Committee.
On November 17, 2005, the Committee on Commerce, Science, and
Transportation considered the bill in open Executive Session.
Chairman Stevens offered an amendment. The Committee adopted
the amendment by a voice vote with Senator Boxer, Senator
Nelson of Florida, Senator Cantwell, and Senator Lautenberg
asking to be reported as voting ``no'' on the amendment and the
underlying legislation. The Committee ordered S. 1110 be
reported with amendments.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
December 14, 2005.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1110, the Engine
Coolant and Antifreeze Bittering Agent Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Geoffrey
Gerhardt.
Sincerely,
Douglas Holtz-Eakin.
Enclosure.
S. 1110--Engine Coolant and Antifreeze Bittering Agent Act of 2005
S. 1110 would direct the Consumer Product Safety Commission
(CPSC) to issue regulations requiring the use of a bittering
agent in antifreeze and other engine coolants. The purpose of
the bittering agent would be to make antifreeze unpalatable to
humans and animals. Prior to issuing its regulations, the CPSC
would be required to conduct an environmental impact evaluation
in conjunction with the Environmental Protection Agency. The
bill would require the CPSC to ensure that manufacturers comply
with the new regulations, and maintain compliance records.
Based on information provided by the CPSC, CBO estimates that
implementing S. 1110 would increase spending subject to
appropriation by less than $500,000 annually.
The legislation would preempt state laws that require the
addition of bittering agents in antifreeze and would establish
a uniform federal standard. The bill also would limit liability
claims associated with the addition of bittering agents to
antifreeze. The preemption and the limitation on liability
would be intergovernmental mandates as defined in the Unfunded
Mandates Reform Act (UMRA).
Although the preemption would limit the application of
state law, it would not impose a duty on states that would
require additional spending. The liability protection would be
narrow in scope--providing protection primarily to
manufacturers and other entities involved in distributing
antifreeze that includes a bittering agent. CBO is unaware of
any current or pending case that would be affected by the bill;
consequently, we estimate that the costs of the mandates would
be small and would not exceed the threshold established in UMRA
($62 million in 2005, adjusted annually for inflation).
S. 1110 contains private-sector mandates as defined in UMRA
on manufacturers of engine coolant and antifreeze that
distribute their products to be sold by retail businesses. In
the event that the CPSC finds evidence that the use of the
bittering agent denatonium benzoate (or a comparable
alternative) has no ``unreasonable adverse effect on the
environment,'' those manufacturers would be required to:
Add denatonium benzoate to their product
mixtures that are comprised of more than 10 percent
ethylene glycol; and
Keep detailed records of any bittering
agents used in their products.
CBO estimates that the aggregate direct costs of complying
with those mandates would be minimal compared to the annual
threshold established by UMRA for private-sector mandates ($123
million in 2005, adjusted annually for inflation).
Under S. 1110, if the CPSC determines that the use of the
bittering agent in engine coolant or antifreeze would have no
adverse effects on the environment, coolant and antifreeze
manufacturers would be required to add the agent to certain
product mixtures. The bill would exempt coolant and antifreeze
distributed to original manufacturers (such as motor vehicle
manufacturers) and garages that purchase wholesale engine
coolant or antifreeze for purposes other than retail sales.
According to industry sources, about 160 million gallons of
coolant and antifreeze are sold in the U.S. retail market each
year. Industry and government sources indicate that adding the
bittering agent to product mixtures would cost manufacturers
less than $0.03 per gallon of coolant or antifreeze.
Furthermore, the industry expects to incur some costs
associated with upgrades necessary for storing denatonium
benzoate at manufacturing plants. Industry sources estimate
such costs to fall between $50,000 and $70,000 per plant. Based
on those data, CBO estimates that the costs associated with
this mandate would not exceed $6 million per year.
Also, contingent upon the CPSC's determination, coolant and
antifreeze manufacturers would be required to record the trade
name, scientific name, and any active ingredient of any
bittering agent used in product mixtures. The bill also would
require manufacturers to make those records available to the
public. Since manufacturers would already have such
information, CBO expects the costs associated with such record
keeping to be minimal.
The CBO staff contacts for this estimate are Geoffrey
Gerhardt (for federal costs), Leo Lex (for the state and local
impact), and Craig Cammarata (for the private-sector impact).
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 1110 would require the CPSC, in consultation with the EPA
and appropriate State and local officials in California and
Oregon, to perform an evaluation to determine whether the
inclusion of denatonium benzoate in engine coolant and
antifreeze has caused any unreasonable adverse effects on the
environment in the foregoing States. Because the CPSC already
regulates the proper labeling of engine coolant and antifreeze,
the number of persons covered by this bill should be consistent
with levels impacted under current Federal standards related to
the regulation of engine coolant and antifreeze. The evaluation
will not include new animal or human testing, so the necessary
resources for concluding such an evaluation are significantly
reduced.
ECONOMIC IMPACT
S. 1110 is not expected to have an adverse impact on the
nation's economy. Rather, the imposition of one national
standard for the production of engine coolant and antifreeze
will avoid market inefficiencies that could have resulted if
each State regulated the production of the particular products.
The antifreeze industry, up to this point, has borne the cost
of adding denatonium benzoate to engine coolant and antifreeze.
The estimated cost of adding denatonium benzoate to antifreeze
is minimal, approximately ``two or three cents a gallon [of
antifreeze].'' \8\
---------------------------------------------------------------------------
\8\ Matt Palmquist, ``Pet Project,'' San Francisco Weekly Website,
www.sfweekly.com/Issues/2002-03-27/news/bayview_print.html, Accessed
December 9, 2005.
---------------------------------------------------------------------------
PRIVACY
S. 1110 would have minimal effect, if any, on the privacy
rights of individuals.
PAPERWORK
The Committee does not anticipate a major increase in
paperwork burdens for private industry resulting from the
passage of this legislation. In those areas where the bill
would require additional paperwork, it is aimed at providing
consumers with the right to petition manufacturers of engine
coolant or antifreeze for a record of any bittering agents used
in the relevant products. A certain amount of additional
paperwork, however, would result from the bill's mandate for
the CPSC to evaluate bittering agents used in California and
Oregon. The CPSC would publish in the Federal Register its
findings from this evaluation within 90 days after enactment of
the Act.
Section-by-Section Analysis
Section 1. Short title.
Section 1 sets forth the short title of the bill as the
``Engine Coolant and Antifreeze Bittering Agent Act of 2005.''
Section 2. Addition of bittering agent in antifreeze.
Section 2 of this bill would amend FHSA by adding section 25
to FHSA, which would establish a national standard for the
production and distribution of engine coolant and antifreeze
products by requiring the addition of a bittering agent.
Section 25(a)(1)(A-C) would require the CPSC, in consultation
with EPA and State and local officials in California and
Oregon, to evaluate whether evidence exists of any unreasonable
adverse effect on the environment resulting from the addition
of denatonium benzoate in engine coolant and antifreeze
products.
Section 25(a)(2)(A) would require all antifreeze products
containing more than 10 percent ethylene glycol to have a
chemical concentration of at least 30-50 parts per million of
the bittering agent denatonium benzoate. The 10 percent
threshold would cover all off-the-shelf, retail antifreeze
products made with ethylene glycol.
Section 25(a)(2)(B) would allow for additional bittering
agents to enter the market if the CPSC decides, through a
rulemaking, that an alternative additive is as effective as
denatonium benzoate and does not present an unreasonable
adverse effect to the environment.
Section 25(a)(3) defines ``unreasonable adverse effect'' as
that which poses an unreasonable risk to human health or the
environment, after taking into account economic, social, and
environmental costs and benefits.
Section 25(a)(4) would establish that any antifreeze product
manufactured without denatonium benzoate or an approved
alternative be considered a banned hazardous substance. The
CPSC would have the authority to impose penalties on
manufacturers of antifreeze that fail to add the bittering
agent. If the omission is purposeful, or a repeat offense, the
CPSC could fine a manufacturer up to $500,000 when a human
death occurs, under current regulations.\7\
---------------------------------------------------------------------------
\7\ 15 U.S.C. 1264
---------------------------------------------------------------------------
Section 25(b) would require antifreeze manufacturers to
maintain a record, available to the public upon request, of the
antifreeze product trade name, a record of the scientific name
(ethylene glycol), and a compilation of any active ingredients
of the relevant bittering agent (denatonium benzoate).
Section 25(c) would assign liability to manufacturers,
processors, distributors, recyclers, or sellers of engine
coolant and antifreeze products, manufacturers and distributors
of denatonium benzoate, and manufacturers and distributors of
any alternative bittering agent. It would establish assigned
liability based upon which product, i.e., antifreeze,
denatonium benzoate, or alternative bittering agent, is proven
to have caused personal injury, death, property damage, damage
to the environment (including natural resources), or economic
loss. If the injury, death, damage, or loss stems from the
inclusion of denatonium benzoate in an engine coolant or
antifreeze product, the manufacturer, processor, distributor,
recycler, or seller of the engine coolant or antifreeze product
would not be held liable. The bill would not afford any
protection from liability to manufacturers and distributors of
denatonium benzoate or alternative bittering agents.
Section 25(d) would preempt all State or political
subdivision statutes and regulations that prohibit, limit,
standardize, or impose any requirement different from the
Federal standard set forth by this Act.
Section 25(e) would exempt sales of motor vehicles that
contain engine coolant or antifreeze, or sales of wholesale
containers of engine coolant or antifreeze containing more than
55 gallons of antifreeze, from the Federal standard imposed by
this Act.
Minority Views of Senator Boxer and Senator Lautenberg
S. 1110, the Engine Coolant and Antifreeze Bittering Agent
Act of 2005, undermines the ``polluter pays'' principle by
including broad liability waivers; supporting the use of a
chemical, denatonium benzoate, which could threaten public
health and environmental quality, including drinking water
supplies; undercutting pollution prevention efforts; promoting
a product of questionable effectiveness; and preempting State
protections. Congress recently rejected oil industry supported
efforts to enact legislation limiting polluters' liability for
the clean up of methyl tertiary butyl ether, or ``MTBE'' that
contaminates water supplies. S. 1110 raises similar concerns.
S. 1110 contains a waiver of liability for the manufacturers,
processors, distributors, recyclers, and sellers of engine
coolant or antifreeze that contains denatonium benzoate, or
``DB.'' This waiver provides protection for these commercial
entities from liability for any personal injury, death,
property damage, environmental damage (including natural
resources) or economic loss related to DB in engine coolant or
antifreeze.
The parallels between DB and MTBE are striking. Both
chemicals exhibit properties that increase risks of groundwater
contamination. According to the U.S. Environmental Protection
Agency (EPA), there is insufficient information available to
assess the safety of DB. While the EPA acknowledged a lack of
data, the Agency promulgated a Risk Potential Profile for
Bitrex, a commercial brand of DB. The data for the profile was
extrapolated from a related chemical, not from an examination
of DB itself. The EPA predicted from this profile that DB is
water soluble; expected to resist biodegradation; and expected
to show the greatest movement in groundwater when applied to
sandy soil. The EPA emphasizes that ``this analysis should not
be construed to be an Agency position on the health and safety
of Bitrex [DB]. As stated, not enough information is available
to the Agency at this time to make such a finding.''
All of these factors are especially troubling given that S.
1110 will likely trigger a substantial expansion in the
production, use, and disposal of DB. This raises serious
concerns because coolant is frequently disposed of down drains,
where it flows into waste water treatment plants, or simply
dumped onto the ground. Manufacturers of DB note that it is the
bitterest substance known to man. Thus, even if DB was actually
safe for consumption, its potential to ruin drinking water
supplies should be obvious. Congress needs to consider very
carefully whether introducing DB into car radiators throughout
the United States is sound environmental policy at a time when
our drinking water supplies are already limited and in danger
of contamination from a variety of pollution sources. Doing so
with a liability waiver only increases the potential for
disastrous results.
S. 1110 also benefits manufacturers of coolant or antifreeze
that decide to use toxic ingredients in their products, rather
than promoting existing non-toxic alternatives. Many antifreeze
and coolants are toxic because their manufacturers use ethylene
glycol. Other manufacturers sell coolant or antifreeze with
propylene glycol, a non-toxic substance that meets the American
Society for Testing and Materials' standards for coolants. The
Agency for Toxic Substances and Disease Registry states that
``large amounts of ethylene glycol can damage the kidneys,
heart and nervous system. [Yet], [p]ropolyene glycol is
generally regarded as safe for food.'' \1\
---------------------------------------------------------------------------
\1\ Agency for Toxic Substances and Disease Registry, ToxFAQs for
Ethylene Glycol and Propylene Glycol, (available at: http://
www.atsdr.cdc.gov/tfacts96.html).
---------------------------------------------------------------------------
The Federal government should support the use of the least
toxic alternative or non-toxic coolants, (such as propylene
glycol) that will eliminate the cause of poisonings, instead of
limiting the liability of manufacturers of a potentially
dangerous chemical.
Perhaps most importantly, the introduction of DB into
millions of automotive radiators throughout the United States
is unlikely to prevent accidental poisoning from ethylene
glycol. The legislation's favorable treatment of toxic,
ethylene glycol based products and promotion of bittering
agents, including DB is especially unwise because studies have
questioned the effectiveness of bittering agents in reducing
poisonings in children and animals. In 2004, the Oregon Poison
Control Center concluded:
The first law mandating addition of DB was never
necessary, as unintentional [ethylene glycol] or
[methanol] exposures in pre-school age children did not
cause measurable toxicity. The mandatory addition of DB
to automotive products has produced no measurable
reduction in unintentional pediatric toxic alcohol
exposures in Oregon. There is no compelling reason to
consider similar legislation in other jurisdictions.''
\2\ [emphasis added]
---------------------------------------------------------------------------
\2\ Michael E. Mullins (Division of Emergency Medicine, Washington
University School of Medicine, St. Louis, Missouri) and B. Zane
Horowitz (Oregon Poison Center, Oregon Health Sciences University,
Portland, Oregon), Was it Necessary to Add Bitrex (Denatonium Benzoate)
to Automotive Products?, 46 Vet. Hum. Toxicol. 150, 151, 152 (2004).
---------------------------------------------------------------------------
The Congressional Research Service also noted that a ``recent
review concluded that with respect to carnivores, `products
that contain denatonium derivatives . . . are ineffective
repellents, almost regardless of species.' '' 3
[emphasis added] Even industry-sponsored studies ``indicate
that BITREX did not impart any aversive properties to
antifreeze.'' \4\ [emphasis added]
---------------------------------------------------------------------------
\3\ Linda-Jo Schierow, Congressional Research Service, Background
Information on Denatonium Benzoate, CRS-4 (2004).
\4\ Letter from Mary Jane Von Allmen to the Consumer Product Safety
Commission (Aug. 26, 1991).
---------------------------------------------------------------------------
In contrast, a study from the University of California at
Davis on the efficacy of animal repellents concluded,
``[g]enerally, products which have repeatedly demonstrated good
efficacy in our trials are those products that produce
sulfurous odors.'' \5\
---------------------------------------------------------------------------
\5\ Dale Nolte and Kimberly Wagner, Comparing the Efficacy of
Delivery Systems and Active Ingredients of Deer Repellents, Proceedings
of the 19th Vertebrate Pest Conference, University of California at
Davis, 93 (T.P. Salmon & A.C. Crabb, Eds.) (2000).
---------------------------------------------------------------------------
S. 1110 would prevent the States from developing laws that
conflict with its provisions. Thus, S. 1110 would not allow a
State to enforce a requirement that manufacturers use an
``aversive'' agent in toxic coolant, rather than a
``bittering'' agent. This preemption provision would apply even
though studies have found that alternative aversive agents may
be more efficacious than bitter tasting substances. The Federal
government should not enact legislation that strips away the
ability of a State to better protect the health and safety of
its citizens.
S. 1110 also requires that the Consumer Product Safety
Commission (CPSC) conduct an evaluation, including a cost
benefit analysis, within 30 days of enactment that analyzes
whether the ``use'' of DB has any ``unreasonable adverse
effects.'' The CPSC must conduct a similar evaluation on future
bittering agents used in lieu of DB. S. 1110 defines
``unreasonable adverse effects'' to mean ``an unreasonable risk
to human health or the environment, taking into account the
economic, social, and environmental costs and benefits.''
As an initial matter, Congress should not require a substance
without knowing whether it has ``unreasonable adverse
effects,'' particularly in conjunction with a liability waiver.
There are other serious problems with the CPSC provision,
including the choice of the CPSC and its use of cost-benefit
analysis. The CPSC does not have sufficient expertise in
assessing the environmental fate, transport, and effect of
chemicals. Nor does the CPSC have sufficient expertise in
determining the human health effects of chemical pollutants.
Moreover, the CPSC cannot effectively assess a chemical's
effect on wildlife, drinking water supplies, water treatment
plants and a myriad of other factors implicated by the use of
DB. Mere consultation with EPA and the States of Oregon and
California is not a sufficient substitute for critical
expertise, in that the EPA already determined that existing
data is insufficient to evaluate the effect of DB on health and
safety.
Coolant and antifreeze manufacturers should remain fully
responsible for their products, including the damages they
cause. S. 1110 undercuts this basic requirement.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
Federal Hazardous Substances Act
SEC. 25. ADDITION OF BITTERING AGENT IN ANTIFREEZE.
(a) Bittering Agent.--
(1) Environmental evaluation required.--
(A) In general.--Within 30 days after the
date of enactment of the Engine Coolant and
Antifreeze Bittering Agent Act of 2005, the
Consumer Product Safety Commission shall
commence an evaluation, in consultation with
the Environmental Protection Agency and
appropriate State health and environmental
officials in Oregon and California, to
determine whether there is evidence that the
use of the bittering agent denatonium benzoate
in engine coolant or antifreeze has an
unreasonable adverse effect on the environment.
(B) Certain tests may not be used.--The
evaluation may not include any new animal or
human testing.
(C) Deadline.--The Commission shall complete
the evaluation within 90 days after the date of
enactment of that Act and publish its findings
in the Federal Register.
(2) Use of bittering agent.--
(A) In general.--Unless the Commission, in
its evaluation under paragraph (1), finds there
is evidence of an unreasonable adverse effect
on the environment, any engine coolant or
antifreeze that is manufactured on or after the
date that is 180 days after the date of
publication of the Commission's finding in the
Federal Register, and that contains more than
10 percent ethylene glycol, shall include not
less than 30 parts per million, and not more
than 50 parts per million, denatonium benzoate
as a bittering agent in order to render the
coolant or antifreeze unpalatable.
(B) Alternative agent.--If the inclusion of
denatonium benzoate in engine coolant or
antifreeze is required under subparagraph (A)
and the Commission finds that--
(i) an alternative bittering additive
is as effective as denatonium benzoate
in rendering coolant or antifreeze
unpalatable in terms of both its
bittering capacity and its
compatibility with motor vehicle engine
coolant and antifreeze, and
(ii) there is no evidence that the
use of the alternative bittering
additive has an unreasonable adverse
effect on the environment,
then the Commission may initiate a rulemaking
to permit the use of the alternative bittering
additive in lieu of denatonium benzoate.
(3) Unreasonable adverse effect defined.--In this
subsection, the term `unreasonable adverse effect on
the environment' means an unreasonable risk to human
health or the environment, taking into account the
economic, social, and environmental costs and benefits.
(4) Failure to comply.--Any engine coolant or
antifreeze described in paragraph (2) that is not in
compliance with that paragraph shall be--
(A) considered to be a banned hazardous
substance; and
(B) subject to section 5.
(b) Recordkeeping.--
(1) In general.--A manufacturer of an engine coolant
or antifreeze described in subsection (a)(1) shall
maintain a record of the trade name, scientific name,
and any active ingredient of a bittering agent used
under this section.
(2) Availability to public.--Any record maintained
under paragraph (1) shall be made available to the
public on receipt by the manufacturer of a request from
any person.
(c) Limitation of Liability.--
(1) In general.--Subject to paragraph (2), a
manufacturer, processor, distributor, recycler, or
seller of an engine coolant or antifreeze described in
subsection (a)(1) shall not be liable to a person for
any personal injury, death, property damage, damage to
the environment (including natural resources), or
economic loss that results from the inclusion in the
engine coolant or antifreeze of denatonium benzoate in
accordance with subsection (a).
(2) Exception.--Paragraph (1) shall not apply in any
case in which a cause of liability referred to in that
paragraph is unrelated to the inclusion in an engine
coolant or antifreeze of denatonium benzoate. Nothing
in this subsection shall be construed to exempt any
manufacturer or distributor of denatonium benzoate, or
an alternative bittering additive the use of which is
permitted under subsection (a)(2), from any liability
related to denatonium benzoate or the alternative
bittering additive.
(d) Preemption.--No State or political subdivision of a State
shall establish or continue to enforce, with respect to retail
containers containing less than 55 gallons of engine coolant or
antifreeze, any prohibition, limitation, standard, or other
requirement relating to the inclusion of a bittering agent in
engine coolant or antifreeze that is different from, or in
addition to, the requirements of this section.
(e) Exemption.--This section does not apply to--
(1) the sale of a motor vehicle that contains engine
coolant or antifreeze; or
(2) a wholesale container of engine coolant or
antifreeze that contains 55 gallons or more of engine
coolant or antifreeze.