[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] TITLE I OF THE TOXIC SUBSTANCES CONTROL ACT: UNDERSTANDING ITS HISTORY AND REVIEWING ITS IMPACT ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY OF THE COMMITTEE ON ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION __________ JUNE 13, 2013 __________ Serial No. 113-54 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Printed for the use of the Committee on Energy and Commerce energycommerce.house.gov __________ U.S. GOVERNMENT PRINTING OFFICE 85-444 WASHINGTON : 2014 ______________________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. COMMITTEE ON ENERGY AND COMMERCE FRED UPTON, Michigan Chairman RALPH M. HALL, Texas HENRY A. WAXMAN, California JOE BARTON, Texas Ranking Member Chairman Emeritus JOHN D. DINGELL, Michigan ED WHITFIELD, Kentucky Chairman Emeritus JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts JOSEPH R. PITTS, Pennsylvania FRANK PALLONE, Jr., New Jersey GREG WALDEN, Oregon BOBBY L. RUSH, Illinois LEE TERRY, Nebraska ANNA G. ESHOO, California MIKE ROGERS, Michigan ELIOT L. ENGEL, New York TIM MURPHY, Pennsylvania GENE GREEN, Texas MICHAEL C. BURGESS, Texas DIANA DeGETTE, Colorado MARSHA BLACKBURN, Tennessee LOIS CAPPS, California Vice Chairman MICHAEL F. DOYLE, Pennsylvania PHIL GINGREY, Georgia JANICE D. SCHAKOWSKY, Illinois STEVE SCALISE, Louisiana JIM MATHESON, Utah ROBERT E. LATTA, Ohio G.K. BUTTERFIELD, North Carolina CATHY McMORRIS RODGERS, Washington JOHN BARROW, Georgia GREGG HARPER, Mississippi DORIS O. MATSUI, California LEONARD LANCE, New Jersey DONNA M. CHRISTENSEN, Virgin BILL CASSIDY, Louisiana Islands BRETT GUTHRIE, Kentucky KATHY CASTOR, Florida PETE OLSON, Texas JOHN P. SARBANES, Maryland DAVID B. McKINLEY, West Virginia JERRY McNERNEY, California CORY GARDNER, Colorado BRUCE L. BRALEY, Iowa MIKE POMPEO, Kansas PETER WELCH, Vermont ADAM KINZINGER, Illinois BEN RAY LUJAN, New Mexico H. MORGAN GRIFFITH, Virginia PAUL TONKO, New York GUS M. BILIRAKIS, Florida BILL JOHNSON, Missouri BILLY LONG, Missouri RENEE L. ELLMERS, North Carolina Subcommittee on Environment and the Economy JOHN SHIMKUS, Illinois Chairman PHIL GINGREY, Georgia PAUL TONKO, New York Vice Chairman Ranking Member RALPH M. HALL, Texas FRANK PALLONE, Jr., New Jersey ED WHITFIELD, Kentucky GENE GREEN, Texas JOSEPH R. PITTS, Pennsylvania DIANA DeGETTE, Colorado TIM MURPHY, Pennsylvania LOIS CAPPS, California ROBERT E. LATTA, Ohio JERRY McNERNEY, California GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan BILL CASSIDY, Louisiana JANICE D. SCHAKOWSKY, Illinois DAVID B. McKINLEY, West Virginia JOHN BARROW, Georgia GUS M. BILIRAKIS, Florida DORIS O. MATSUI, California BILL JOHNSON, Missouri HENRY A. WAXMAN, California, ex JOE BARTON, Texas officio FRED UPTON, Michigan, ex officio C O N T E N T S ---------- Page Hon. John Shimkus, a Representative in Congress from the State of Illinois, opening statement.................................... 1 Prepared statement........................................... 2 Hon. Paul Tonko, a Representative in Congress from the State of New York, opening statement.................................... 3 Hon. Henry A. Waxman, a Representative in Congress from the State of California, opening statement............................... 24 Witnesses Kathleen M. Roberts, Vice President, B&C Consortia Management, LLC............................................................ 4 Prepared statement........................................... 7 Charles M. Auer, Principal, Charles M. Auer & Associates, LLC.... 25 Prepared statement........................................... 28 Answers to submitted questions............................... 129 Alfredo Gomez, Director, Natural Resources and Environment, Government Accountability Office............................... 50 Prepared statement........................................... 52 Answers to submitted questions............................... 134 Beth D. Bosley, President, Boron Specialties, LLC................ 76 Prepared statement........................................... 78 Answers to submitted questions............................... 138 Daniel Rosenberg, Senior Attorney, Health and Environment Program, Natural Resources Defense Council..................... 85 Prepared statement........................................... 88 Answers to submitted questions............................... 145 Jeanne Rizzo, President and CEO, Breast Cancer Fund.............. 99 Prepared statement........................................... 101 Answers to submitted questions............................... 157 TITLE I OF THE TOXIC SUBSTANCES CONTROL ACT: UNDERSTANDING ITS HISTORY AND REVIEWING ITS IMPACT ---------- THURSDAY, JUNE 13, 2013 House of Representatives, Subcommittee on Environment and the Economy, Committee on Energy and Commerce Washington, DC. The subcommittee met, pursuant to call, at 10:16 a.m., in room 2322 of the Rayburn House Office Building, Hon. John Shimkus (chairman of the subcommittee) presiding. Members present: Representatives Shimkus, Pitts, Murphy, Harper, Cassidy, Bilirakis, Johnson, Tonko, Green, DeGette, Capps, McNerney, Barrow, and Waxman (ex officio). Staff present: Charlotte Baker, Press Secretary; Jerry Couri, Senior Environmental Policy Advisor; Kirby Howard, Legislative Clerk; David McCarthy, Chief Counsel, Environment and the Economy; Tina Richards, Counsel, Environment; Chris Sarley, Policy Coordinator, Environment and the Economy; Jacqueline Cohen, Democratic Counsel; Greg Dotson, Democratic Staff Director, Energy and Environment; Elizabeth Letter, Democratic Assistant Press Secretary; Stephen Salsbury, Democratic Special Assistant; and Ryan Skukowski, Democratic Staff Assistant. OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS Mr. Shimkus. This subcommittee will come to order. I will recognize myself for 5 minutes for my opening statement. Today's hearing is on Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact. TSCA Title I addresses chemical substances and mixtures in commerce. Title I gives EPA extraordinary authority to regulate manufacturing and interstate commerce affecting chemical substances and mixtures, from their manufacture, processing and distribution in commerce, to their use and disposal. TSCA is not your garden-variety environmental law. To help place the size and scope of it into context, the American Chemistry Council estimates based on the Numerical List of Manufactured Products prepared by the Census Bureau, more than 96 percent of all manufactured goods are touched by the business of chemistry and the activities potentially regulated by EPA under TSCA. Title I of TSCA has remained largely unchanged for 37 years. Mr. Dingell has been here longer than that, though most have not. Indeed, many of the nuts and bolts of TSCA policy evolution have occurred outside the legislative context. Legislation recently introduced in the other body has heightened interest in congressional action on TSCA. I, for one, think we should closely examine TSCA and be open to legislation to update and reform it. Any attempt to do so from our end should start with fundamental oversight of how TSCA is designed and operated. With many new members on this committee and subcommittee, today's hearing is the first installment towards that end. Let us start by asking the following questions: What authorities does EPA have under TSCA? What is TSCA's practical legal reach? How many chemicals are currently in commerce? How wide is TSCA's regulatory reach concerning chemicals in the commercial universe? Which authorities is EPA using? Which authorities is EPA not using? How do TSCA authorities relate to one another and to other federal laws? What activities are currently being carried out under TSCA? What parts of TSCA do or do not work well? Are there legal gaps in TSCA? How does EPA currently set an agenda for reviewing chemicals? Does it need legal authority to do so? What is the history and extent of information protection under TSCA? What are the issues that come with it? Thanks to our distinguished witnesses for joining us today to help us get a better handle on what the law is, how EPA has been implementing it, what it is like being regulated under it, and where witnesses think its successes and failures lie. I urge members to make every effort at this hearing to learn the fundamentals of current law. That is the purpose of today's hearing, rather than to argue for or against any TSCA reform legislation. I now yield 5 minutes to the ranking member of our subcommittee, Mr. Tonko from New York. [The prepared statement of Mr. Shimkus follows:] Prepared statement of Hon. John Shimkus Today's hearing is on Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact. TSCA Title I addresses chemical substances and mixtures in commerce. Title I gives EPA extraordinary authority to regulate manufacturing and interstate commerce affecting chemical substances and mixtures, from their manufacture, processing, and distribution in commerce, to their use and disposal. TSCA is not your garden variety environmental law. To help place the size and scope of it into context, the American Chemistry Council estimates based on the Numerical List of Manufactured Products prepared by the Census Bureau more than 96 percent of all manufactured goods are touched by the business of chemistry and the activities potentially regulated by EPA under TSCA. Title I of TSCA has remained largely unchanged for 37 years. Indeed, many of the nuts and bolts of TSCA policy evolution have occurred outside the legislative context. Legislation recently introduced in the other body has heightened interest in congressional action on TSCA. I, for one, think we should closely examine TSCA and be open to legislation to update and reform it. Any attempt to do so from our end should start with fundamental oversight of how TSCA is designed and operated. With many new members on this committee and subcommittee, today's hearing is the first installment towards that goal. Let's start by asking the following questions: 1.) What authorities does EPA have under TSCA? 2.) What is TSCA's practical legal reach? 3.) How many chemicals are currently in commerce? 4.) How wide is TSCA's regulatory reach concerning chemicals in the commercial universe? 5.) Which authorities is EPA using? 6.) Which authorities is EPA not using? 7.) How do TSCA authorities relate to one another and to other federal laws? 8.) What activities are currently being carried out under TSCA? 9.) What parts of TSCA do or do not work well? 10.) Are there legal gaps in TSCA? 11.) How does EPA currently set an agenda for reviewing chemicals? Does it need legal authority to do so? 12.) What is the history and extent of information protection under TSCA? What are the issues that come with it? Thanks to our distinguished witnesses for joining us today to help us get a better handle on what the law is, how EPA has been implementing it, what it's like being regulated under it, and where witnesses think its successes and failures lie. I urge members to make every effort at this hearing to learn the fundamentals of current law. That's the purpose of today's hearing, rather than to argue for or against any TSCA reform legislation. # # # OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. Tonko. Thank you, Chair Shimkus. Good morning, everyone, and thank you, Mr. Chair, for holding this hearing on the Toxic Substances Control Act, better known as TSCA. I understand the subcommittee will be holding additional hearings on this program. I look forward to hearing from additional witnesses on this very important topic. We have all heard the stats related to chemical production and use. Some 80,000 chemicals are in use with hundreds of new chemicals coming into production every year. The advances in chemistry and biology and the adoption of new manufacturing processes over the past decade have shortened the time necessary for development and manufacture of new chemicals. There are many benefits to this progress, and some challenges. The line between chemistry and biology has become much less definitive. We should give some consideration to how well current law is suited to evaluate new chemicals in light of these new developments. This law has been with us now for many years, enough years to provide us with ample experience of its application and its utility. The law has not lived up to expectations. It has not provided a sufficient amount of information for the public about the potential hazards of chemicals that they encounter in their daily lives. There are many chemicals in commerce today that have very little information about their potential risks to human health or the environment. Some have none at all. Successive Administrations have devised policies to reduce the backlog of chemical assessments. None of these efforts have been very successful. The law has also proven ineffective at removing harmful chemicals from the market. Congress had to take separate action to eliminate PCBs and asbestos when mounting evidence demonstrated the problems with these chemicals. It is not a good track record. If we have safer alternatives to chemicals on the market, the Environmental Protection Agency should be able to act in a timely fashion to remove harmful substances, making way for safer products to move into commerce. I am certain we will hear about all of these issues this morning from our expert team of witnesses. I recognize there are several proposals introduced in the Senate to amend this law. This hearing and the additional one to come will provide us a solid base from which to evaluate these proposals against current law. I look forward to the testimony of our witnesses again here today, and I thank you all for being here to share your views on what is a very important topic. With that, I yield back. Thank you, Mr. Chair. Mr. Shimkus. The gentleman yields back his time. Is there anyone else seeking recognition for an opening statement on the majority side? Is there anyone seeking recognition on the minority side? Seeing no one, we will then move to our panel. We would like to welcome you all here. All your statements have been submitted for the record. You will be given 5 minutes to give your oral statement. We are not going to be punitive in punishing but don't go too long because this is a large panel. Just for your information, there is another committee hearing going on on the first floor. Members will be coming up and down for that. You are competing with the Secretary of Energy. You can see where I am. Many members are down there trying to get their licks in on him. Let me start by recognizing and welcoming Kathleen Roberts, who is the Vice President of B&C Consortia Management LLC. You are recognized for 5 minutes. STATEMENTS OF KATHLEEN ROBERTS, VICE PRESIDENT, B&C CONSORTIA MANAGEMENT, LLC; CHARLES M. AUER, PRINCIPAL, CHARLES M. AUER & ASSOCIATES, LLC; ALFREDO GOMEZ, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE; BETH BOSLEY, PRESIDENT, BORON SPECIALTIES, LLC; DANIEL ROSENBERG, SENIOR ATTORNEY, HEALTH AND ENVIRONMENT PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL; AND JEANNE RIZZO, PRESIDENT AND CEO, BREAST CANCER FUND STATEMENT OF KATHLEEN ROBERTS Ms. Roberts. Thank you, Chairman Shimkus, Ranking Member Tonko, members of the subcommittee. I am here today to provide a brief overview of the regulatory program under the Toxic Substances Control Act, a TSCA 101, if you will. I have spent more than 20 years with chemical companies to understand and comply with TSCA. I was with the American Chemistry Council for 17 years, and I have been with Bergeson and Campbell for 4 years, where I work as a non-attorney professional. As stated, I currently am Vice President of Bergeson and Campbell's affiliate B&C Consortia Management. My remarks today are on my own behalf and do not necessarily reflect the views of Bergeson and Campbell, B&C Consortia Management or any of their clients. In my view, the regulatory process under TSCA is logical and almost element in its simplicity. New chemicals must be notified to EPA. This is a small, very simple flow chart trying to show how they connect. New chemicals must be notified to EPA. For any chemical on the TSCA inventory, EPA can gather information through Section 8. If more information is needed, EPA can require testing under Section 4. If there are still concerns, EPA can apply necessary risk management controls through Sections 5 or 6. When TSCA was first enacted, companies informed EPA which chemicals were produced or imported into the United States at that time. This resulted in the initial TSCA inventory and was issued in 1979. These chemicals are also often referred to as grandfathered chemicals. Any chemical that was developed and marketed after 1979 has gone through a New Chemical Assessment under Section 5. This involves the submission of a Premanufacture Notice that includes information on chemical identity, description of byproducts, anticipated production volumes, molecular formula, intended categories of use, and other available information. EPA's decision options for PMN- subject chemicals are: entry into commerce not allowed, entry into commerce allowed with no restrictions, entry into commerce allowed after submission of additional data, or entry into commerce allowed with certain regulatory or testing actions applied. Assuming EPA has allowed the chemical to enter into commerce, the manufacturer typically submits a Notice of Commencement, and at that time the new chemical is added to the TSCA inventory and becomes an existing chemical. All existing chemicals, meaning all those listed on the TSCA inventory, are subject to regulations under 4, 5, 6 and 8. There are other sections of TSCA that also apply to existing chemicals but in the brevity of time I will not try to go through all of them. Section 8, as I mentioned, is focused on information collection. Section 8(a) authorizes EPA to issue rules requiring companies to submit information on categories of use, quantities produced or imported, and/or health and environmental effects. As of 2006, EPA has issued 33 8(a) rules covering about 1,200 chemicals. Also under Section 8(a) is the Chemical Data Reporting Rule. This is an existing cyclical reporting cycle under which manufacturers and importers are required to report production, process and use information for chemicals manufactured or imported over 25,000 pounds per year at a single site. The last reporting cycle was in 2012, and information on about 7,700 chemicals was submitted. Section 8(c) requires companies to record and retain allegations of significant reactions to any chemical substance. If EPA issues an 8(c) data call-in, companies are required to submit that information to EPA. Only two such data call-ins have been issued. Section 8(d) authorizes EPA to issue rules requiring companies to submit lists or copies of ongoing and completed unpublished studies. As of 2006, EPA has issued 51 8(d) rules on about 1,200 chemicals resulting in about 50,000 studies being submitted to EPA on a broad range of end points. Under TSCA 8(e), entities are required to immediately report information that reasonably supports the conclusion that a chemical substance presents a substantial risk. As of 2006, there were about 16,500 8(e) notices submitted. According to EPA statistics, about 200 notices are submitted per year. EPA can use the information collected or submitted under these 8(c) provisions to identify whether a particular chemical is of concern or if more information is needed. If that is the case, EPA can use its Section 4 authority to issue test rules requiring companies to conduct tests on certain chemicals. EPA has required testing for about 200 chemicals under Section 4 or under its enforceable consent agreement options. Keep in mind, however, that as I have mentioned, EPA can require testing as part of that new chemical review, and that has occurred for about 300 chemicals. Section 6 authorizes EPA to issue rules to manage risks for existing chemicals. Risk management options include restrictions on production levels, restrictions for certain uses, restrictions on releases to environments, warning labels and the like. As noted earlier, under Section 5, EPA is authorized to issue restrictions on new chemicals. They also can be applied to existing chemicals pursuant to EPA's Significant New Use authority. While only six chemicals have been subjection to Section 6 requirements, EPA has applied restrictions to thousands of chemicals through Section 5. I would like to briefly highlight three challenges or three areas that I think there may be some issues with. In my view, EPA has been particularly constrained when trying to use its TSCA authorities that require rulemakings. These challenges aren't necessarily unique to TSCA rulemakings as I think all rulemakings are fairly cumbersome and often take 3 to 5 years. Likewise, while I see great output from EPA's New Chemical Review process, there is less so in the existing chemical arena. In my view, that may be because the new chemical notification has a statutory review period of 90 days. There is nothing similar in the existing chemicals program. And finally, I would like to touch on the issue of confidential business information as that is often raised as a red flag for TSCA. Keep in mind that TSCA compels chemical companies to provide a wealth of sensitive data. For example, companies have to provide detailed information on how chemicals are processed and manufactured. And while there are clearly legitimate needs for EPA to have this type of information to achieve its statutory goals, I believe there are also very legitimate needs for companies to have that information protected as confidential. Thank you so much for this esteemed opportunity. I would be pleased to answer any questions. [The prepared statement of Ms. Roberts follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you very much. If the panel will hold for a minute, we welcome the ranking member of the full committee, Mr. Waxman. Without objection, I would like to allow him to give his opening statement. Then we will return to the panel. It is always good to take care of the ranking member of the full committee. So with that, I recognize Mr. Waxman for 5 minutes. OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. Waxman. Thank you very much, Mr. Chairman. I thank the panel for allowing me to give my opening statement, even though you have already started your presentations to us. I want to commend the chairman for holding this hearing, which begins our committee's work on the Toxic Substances Control Act. TSCA is an important law because of its role in protecting the American public from dangerous chemicals, and it is long overdue for strengthening. In recent years, EPA has undertaken a serious effort to reform TSCA through the exercise of its regulatory authorities. The Agency has formulated action plans for ten chemicals and classes of chemicals, which are some of the most dangerous chemicals on the market, and Agency deserves credit for those efforts. But EPA's authority is limited and progress has been slow, even for the chemicals that are the worst of the worst. Four years ago, there was widespread agreement among industry, labor and nongovernmental organizations that TSCA needs to be reformed. The EPA Administrator said that TSCA had proven to be ``an inadequate tool for providing the protection against chemical risks that the public rightfully expects.'' The American Chemistry Council said it wanted to work with ``stakeholders, Congress, and the Administration to make reform a reality.'' And a coalition of public interest groups said that ``By updating TSCA, Congress can create the foundation for a sound and comprehensive chemicals policy that protects public health and the environment, while restoring the luster of safety to U.S. goods in the world market.'' The Committee put considerable effort into building on this consensus and modernizing TSCA. In 2009 and 2010, we held numerous hearings and convened a robust stakeholder process. We examined what testing should be required for all chemicals, how information should be protected, and what safety standard chemicals should be required to meet. While we made considerable progress, we did not complete the job. And that is why this hearing and the future ones to come are so important. We need to hear from all stakeholders and work together, if we can, to modernize this important environmental law. Even with recent progress towards bipartisan cooperation, we have significant work ahead of us to achieve that goal, but it is certainly a worthy goal for this Congress. I thank all of the witnesses for being here today. I look forward to hearing your testimony. I want to apologize that I am not going to be here the whole time because I have no control over the schedule, and we have another subcommittee meeting at the same time with the Secretary of Energy and I am trying to be back and forth. If I am not here to hear your testimony, I will probably be here to ask you questions about your testimony because our staff has had a chance to review it in advance. Thank you, Mr. Chairman, for allowing me to make this statement, and I yield back. Mr. Shimkus. The gentleman yields back his time. The chair now recognizes Mr. Charles Auer, Principal, Charles Auer & Associates LLC, so you are recognized for 5 minutes. STATEMENT OF CHARLES M. AUER Mr. Auer. Thank you, Mr. Chairman. I thank you for this opportunity to provide an oral summation of my written testimony to this TSCA hearing--I do have a copy of the law. It is very old, an original copy--before the Subcommittee on the Environment and the Economy. I am pleased to be part of this esteemed panel. I also appreciate and note the chairman's statement of openness to reform. Thank you for that. Very important. As outlined in my testimony, I was a long-time EPA employee who worked on TSCA issues for over 30 years. I am a chemist by training, and at my retirement held the position of director of the EPA office responsible for TSCA implementation. I left EPA in early 2009 and now work as a consultant for a variety of clients including companies, trade associations and others. I note that my testimony is mine alone and that I am not speaking for or on behalf of anyone else. The first section of my testimony provides an overview of TSCA's authorities, which Kathleen has nicely covered. The second section reviews available statistics relating to various TSCA provisions and attempts to describe the footprint of regulatory and voluntary actions taken by EPA. The section explores several sections including how many new chemicals have been submitted to and been regulated by EPA. Available statistics indicate that about 48,000 new chemicals have been notified to EPA including as Premanufacture Notifications and as regulatory exemptions under Section (5)(h)(4). As I thought about my testimony, I came to several realizations, and one of these is that over 15,000 new chemicals have received some kind of regulatory action under TSCA. I am sure this is news to most people in the room. This includes action under Section 5(e) as a consent order, a Significant New Use Rule, a section 5(h)(4) regulatory exemption or a voluntary withdrawal action. I have included the Section 5(h)(4) exemption chemicals in this list because the exemptions process requires a grant or deny determination by EPA and the chemicals are legally subject to the terms of the exemption. One aspect that can be confusing is that the use of the term ``exemption'' refers to a chemical being exempted from the normal new chemicals process and instead such new chemicals are subject to the exemption process. Note also that companies choose to go the exemption route because it combines timeliness and certainty. EPA will decide within 30 days, for example. And EPA likes them because it produces an acceptable outcome without a protracted negotiation. Voluntary withdrawals by the company are included because this is often done in the face of possible EPA regulation. This set of 15,000 new chemicals regulated represents over 30 percent of all new chemicals submitted to EPA under TSCA, and as I noted, this is an interesting statistic that I even though I had been in the program for lo these many years had not previously appreciated. How many existing chemicals have been tested or were the focus of risk management efforts? The story is not so good here. About 200 chemicals were tested under Section 4, and a small number, a very small number of chemicals were regulated under TSCA in section 6 including PCBs. However, it is useful to note, EPA has also used Section 5(a)(2), Significant New Use Rule authority, in regulating over 300 existing chemicals including PBTs, carcinogens and other toxic or risky chemicals, and among those are some very well known bad actors. See my testimony for details. The third section discusses relevant TSCA sections with an eye to exploring which aspects have worked or not worked. Areas that I suggest have worked include the initial creation and maintenance of the inventory, the new chemicals program and the citizens petition process. The existing chemical programs on testing and management are identified and discussed as areas that did not work very well, although as alluded to in my testimony, some very good outcomes have been obtained under both Democratic and Republican Administrations. With that, let me step back for a moment. This is not a partisan issue although important principles are at play. The issue is, however, complex, and that complexity needs to be both recognized and be respected. Getting it right is critical and essential to protecting health and the environment while assuring the future competitiveness of the United States. To achieve these goals, the final product of any TSCA reform effort, in my view, must be workable and effective for both EPA and the regulated industry. Back on testimony. With regard to legal gaps, I note that while Sections 4 and 6 may not rise to legal gaps in authority, although I suspect others might differ, there is a need to strengthen and improve these authorities. Concerning actual legal gaps, I point to the need for implementing legislation if the United States is to join treaties such as Rotterdam and Stockholm. I also suggest TSCA revision to allow appropriate sharing with and receiving of confidential business information from State and possibly foreign governments that satisfy legal requirements. I note that both Canadian and EU law allow for such sharing with other national governments. The fourth and last section reviews the history of EPA's effort to set an agenda for reviewing existing chemicals, and I attempt to answer the question: why haven't these earlier attempts worked? I observed that a key issue is the way that TSCA provides broad authority but vague priority to guide EPA's work. Mr. Shimkus. Sir, we need you to move a little bit quicker. Mr. Auer. Further, I opine that EPA could do a better, more effective job if it had appropriate policy guidance outlining what among the various possibilities EPA should be doing. I briefly elaborate on a series of underlying points. I also recount that despite several attempts by EPA to create an agenda over the decades, it has proven difficult for EPA to figure the issue out on its own. In fact, it sometimes appears that EPA is always initiating a new approach. See GAO's testimony. And I take note of Mr. Tonko's useful comment in this regard, which helps to make the case for one of the central arguments in my testimony. I respectfully note that Congress has not shown much interest in TSCA over the statute's history. This is part of the problem. Mr. Shimkus. You are going to have to sum up. Mr. Auer. All right. I will do my best. I mean, I think this is important. Mr. Shimkus. Well, why don't we just--we will go to questions, and once you get asked questions. Mr. Auer. Let me---- Mr. Shimkus. You are 3 minutes, almost 4 minutes over time. Mr. Auer. I thought that was how much time I had left. Mr. Shimkus. No. We have been overly compassionate here. [The prepared statement of Mr. Auer follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. We will pause here. We will move to our next panelist and hopefully through the questions and answers we can ferret out some of your other fine points that you want to make. So the chair now recognizes Alfredo Gomez, Director, Natural Resources and Environment for the Government Accountability Office. Sir, you are recognized for 5 minutes, and maybe a minute or two over. STATEMENT OF ALFREDO GOMEZ Mr. Gomez. Mr. Chairman, Ranking Member Tonko, members of the subcommittee. I am pleased to be here today to discuss EPA's implementation of TSCA. Tens of thousands of chemicals are listed with the EPA for commercial use in the United States with an average of 600 new ones added each year. Although chemicals are important in producing goods and services, some may adversely affect human health and the environment. Congress passed TSCA to give EPA the authority to obtain more health and safety information on chemicals and to regulate chemicals it determines post unreasonable risks of injury, to human health or the environment. EPA's authority is established in five major sections of TSCA, some of which have already been discussed. My statement today summarizes GAO's past work, describing challenges EPA has historically faced in regulating chemicals, and the extent to which EPA has made progress in implementing its new approach. I would like to begin by focusing on three of the biggest challenges EPA has faced in implementing TSCA. First, under Section 4 of TSCA, EPA has found it difficult to obtain adequate information on chemical toxicity and exposure because TSCA does not require companies to provide this information. Instead, the law requires EPA to demonstrate the chemicals pose certain risks before it can ask for such information. In June 2005, we reported that while TSCA authorizes EPA to review existing chemicals, the statute generally provides no specific requirement, time frame or methodology for doing so. We suggested that Congress consider amending TSCA to provide EPA explicit authority to enter into enforceable agreements requiring chemical companies to conduct testimony and to require chemical manufacturers and processors with substantial production value to develop test data. Second, under Section 6, EPA has also had difficulty demonstrating that chemicals should be banned or have limits placed on their production or use. We reported that since Congress enacted TSCA in 1976, EPA has issued regulations to ban or limit the production or restrict the use of only five existing chemicals or chemical classes out of tens of thousands of chemicals listed for commercial use. EPA told us that even if EPA had substantial toxicity and exposure data and wants to protect the public against known risks, the Agency's challenge is meeting this statutory requirement under TSCA to limit or ban chemicals. Third, under Section 14, EPA has limited ability to publicly share the information it receives from chemical companies. While companies assert that their information is confidential business information, EPA is limited from sharing it with States and foreign governments. This potentially limits the effectiveness of these organizations' environmental risk programs. We reported that EPA had not routinely challenged companies' confidentiality claims. EPA has made some progress in implementing its new approach to managing chemicals while results in other areas have yet to be realized. For example, EPA has increased its efforts to obtain chemical toxicity and exposure data and initiating chemical risk assessments. However, it may take several years before EPA obtains much of the data it is seeking. Moreover, given the difficulty that EPA has faced in the past using Section 6 of TSCA, since 2009 EPA has taken other actions that may discourage the use of certain chemicals, some of which have already been mentioned. However, it is too early to tell whether some of these actions will reduce chemical risks. Thus, it is unclear whether EPA's new approach will position the agency to achieve its goal of ensuring the safety of chemicals. EPA officials have said that the Agency's new approach is summarized in its 2012 Existing Chemicals Program Strategy. However, this strategy does not discuss how EPA will address challenges associated with obtaining toxicity and exposure data, banning or limiting the use of chemicals, or identifying the resources needed. We recommended that EPA develop strategies for addressing these challenges. In response, EPA said that while strategic planning is a useful exercise, absent statutory changes to TSCA, the Agency will not be able to successfully meet the goal of ensuring chemical safety now and into the future. This completes my statement. I would be pleased to respond to any questions. [The prepared statement of Mr. Gomez follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you. The chair now recognizes Beth Bosley, President of Boron Specialties, LLC. You are recognized for 5 minutes. STATEMENT OF BETH BOSLEY Ms. Bosley. Good morning, and thank you for inviting me here today. I am the President of Boron Specialties. We are a small fine-chemical manufacturer. We are passionate about making our products here in the United States, and we currently invest every dollar we make into accelerating our growth. We are very small, only six people altogether. We are also committed to responsible operation of our business including environmental stewardship and regulatory compliance, very important to me personally as a business owner. It is in the spirit of running a globally competitive business while protecting health and safety of our employees and the public that I speak to you today about TSCA. At the outset, I would like to make three general points on my perspective on how to update TSCA. First, TSCA is a law regulating chemical substances, not food, not drugs, and not pesticides. TSCA gives EPA the regulatory authority to regulate unreasonable risk to human health and the environment. It also regulates a broad range of chemicals. Many of those chemicals are industrial chemicals, and by that, I mean chemicals that are sold between chemical companies but not necessarily part of consumer products and not necessarily with any exposure to the public. The second point to bear in mind is the concept of risk. Risk is a combination of two things. It is both hazard and exposure, and one of EPA's jobs under TSCA is to do risk assessments and to make judgments about whether reasonably anticipated uses of chemicals would present sufficient probability of harm to people or the environment, and if so, then they are to restrict those uses. Finally, smart regulation can and should achieve its objectives without inhibiting innovation. American companies like mine are on the cutting edge of chemical innovation. TSCA has allowed us to lead the world in this regard. Any amendments to TSCA must preserve time frames and flexibility but allow this innovation to continue. They must also protect confidential business information that is at the heart of all innovation. It is really easiest to look at TSCA in terms of existing and new chemicals, and you have heard a little bit about that already this morning. New chemicals are any that are not in commerce currently, and prior to manufacturing those new chemicals, companies like mine must submit what it is called a Premanufacture Notice, or PMN, and submitted PMNs must provide all the data that they have or that they can reasonably ascertain about a chemical substance, and while it is true that upfront testing is not required, EPA is able to employ predictive technologies which interprets quite conservatively to help decide if a new chemical raises concern. Through the new chemicals program, EPA reviews roughly 2,000 chemicals every year, and that really reflects the state of innovation in the United States. It is also worth considering that new chemicals are often greener than those that they are replacing since minimizing a company's eco footprint is really a driver for innovation. Existing chemicals are those, as you have heard, that are already on EPA's inventory. The inventory consists of chemicals that were in commerce in the late 1970s plus the chemicals that EPA has reviewed through the new chemicals program. It is often referred to as over 80,000 substances. However, EPA's 2012 survey concluded that fewer than 8,000 chemicals are actively in commerce, and that is defined as being manufactured at a rate of 12\1/2\ tons per year at any single site in the United States. While the current TSCA regulation grants EPA the authority, the Agency has no mandate to assess existing chemicals, as I think you have heard from every person on the panel so far. Not surprisingly, non-mandated programs lose out in the competition for budget resources. Furthermore, when EPA does identify existing chemicals on which it needs more data, it has to go through a time-consuming rulemaking process to request testing, even when companies might be in full agreement with that testing. EPA has developed work-around mechanisms to collect the information that it needs, and those are voluntary programs and consent agreements, which industry participates in. Section 6 authorizes EPA to restrict chemicals that present an unreasonable risk, and this authority has seldom been used and is at the center of the debate over TSCA. EPA's ability to restrict existing chemicals that do not meet a safety standard could be improved by eliminating some of these significant procedural burdens. While this section certainly needs improvement, and it is true that few chemicals have been restricted under it, be mindful that chemicals may be regulated under other sections of TSCA as well. As a matter of fact, most chemicals can be and are used safely. This is why rather than banning substances outright, EPA has opted to restrict their uses instead. The provision on confidential business information in Section 14 has historically worked well to protect trade secrets and promote innovation. However, many of the claims have gone unchecked, creating a negative stigma around the concept of CBI. Protecting information regarding chemical identity and process technology are essential to maintain a competitive edge for innovative U.S. manufacturers but there are improvements that can absolutely be made to the CBI process. And please bear in mind that EPA staff sees all information, whether or not it is labeled as CBI. As a specialty chemical manufacturer and a small business, I can say unequivocally that protection of chemical identity can be critical. Given the narrow application for which specialty chemicals are used and the niche markets they serve, disclosure of chemical identity may be all it takes to give away a competitive advantage to an offshore manufacturer. The majority of Freedom of Information Act requests to EPA come from companies, many of which are overseas, not curious members of the public. This Act underscores the real threat of losing America's innovative advantage. That concludes my oral testimony, and I would be happy to take any questions. [The prepared statement of Ms. Bosley follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you very much. Now the chair recognizes Mr. Daniel Rosenberg, Senior Attorney under the Health and Environment Program of the Natural Resources Defense Council. Sir, you are recognized for 5 minutes. STATEMENT OF DANIEL ROSENBERG Mr. Rosenberg. Thank you, Chairman Shimkus and Ranking Member Tonko and members of the committee. Thank you for the opportunity to testify today. It is good to see the committee reengaging on this issue. To be blunt, TSCA is widely recognized as a failure. It has not enabled EPA to protect the public or even to assess the risks the public may face from many commonly used chemicals. It has not provided the confidence that chemical manufacturers desire from their consumers and retailers. It is no wonder the EPA, the GAO, scientists, health advocates, doctors and business leaders are all calling for reform. TSCA is riddled with fundamental structural flaws. Other environmental laws, though controversial, have been fair more effective. Perhaps the greatest original sin under TSCA was to grandfather the 62,000 chemicals on the market in 1976. There was no requirement for EPA to review those chemicals or to hold them to any safety standard. In nearly 35 years, EPA has managed to require testing of only about 200 of those substances, and has partially regulated only five. That is a problem because it means that chemicals that are known to cause harm including cancer, learning disabilities and reproductive problems in animals or humans remain in widespread use. And many chemicals are in use for which we don't have sufficient information to know whether or not they are safe. This is a public health concern, particularly considering the rising rates of cancer, mental illness and other chronic diseases in our country. One in two men develop an invasive cancer and one in four die from cancer--one in four men in the United States. One in three women develop invasive cancers, and one in five die. Roughly 1.5 million people in the United States are diagnosed with cancer each year. The CDC just released a study of mental illness in children and found 13 to 20 percent, 7 to 12 million, have mental health disorders including ADHD, mood and anxiety disorders, and autism spectrum disorders. Those rates are rising. EPA's ability to fully assess and regulate chemicals is not much better for the approximately 22,000 chemicals that have been brought to market since TSCA was enacted. The law gives EPA only a brief period--3 to 6 months--to review new chemicals and makes it hard for EPA to get the needed data. Most Premanufacture Notices are submitted to the Agency without any data on health or environmental effects. EPA has taken steps to fill the gaping holes in its authority and clear the high hurdles set by the statute, but that is not an adequate substitute for a protective system for reviewing new chemicals. But even beyond timing and data requirements, TSCA stacks the deck against EPA and public safety. The statute places the burden on EPA to prove that a chemical poses a risk and then sets a high threshold for making such a finding. This is markedly different from other effective health and safety laws. Makers of pharmaceuticals and pesticides have to show affirmatively that their products are safe, and the food quality law, the Food Quality Protection Act, that was passed unanimously by a Republican Congress, had a more protective risk or safety standard. The experience with TSCA teaches the unsurprising but essential lesson that laws without enforceable deadlines and strong safety standards don't result in action and don't protect the public. The impotence of TSCA has left a vacuum that has been filled by States and retailers. Nineteen States are currently regulating chemicals with policies ranging from bans on specific uses to disclosure requirements. This does not include mercury product bans and other policies adopted in 34 States to limit exposure to mercury. In addition, large retailers have stopped stocking some products or excluded chemicals from their supply chains. While these important actions have increased public protection in a piecemeal fashion, they are a supplemental but are no substitute for a working federal system. States and retailers have had to act, though, because of mounting scientific evidence and increasing public concern. Scientists know more about the impact of chemicals than in 1976. There are greater concerns now about the effect chemicals can have on our endocrine system and about the potential impacts of even small doses of certain chemicals. We also have more information about ongoing exposure of hundreds of substances due to the development of biomonitoring. The public understands this. NRDC has commissioned a number of polls to survey public opinion on the question of chemical reform. In both our poll and those of others, we see strong public support for real TSCA reform. Among the findings of our national poll, which is about a year old now, over two-thirds of voters, 68 percent, support ``stricter regulation of chemicals produced and used in everyday products.'' This support cuts across every political group including majorities of GOP voters--57 percent; independence--66 percent, and Democrats--79 percent. The support was even stronger for specific legislation to reform TSCA. A description of legislation that would require all chemical manufacturers to show that their chemicals are safe in order to sell them and that EPA would be able to limit some or all uses of a chemical that may harm public health or the environment yielded 77 percent support with 50 percent strongly supporting. Support, again, cut across all political, ethnic, gender and regional lines. This is an issue where Washington is way behind the people it represents. I think TSCA's one clear success has been the phase-out of PCBs that was mandated in the original law in 1976. Representative Dingell led the fight to include the PCB provision in the law, and while PCBs are still very much with us and in us, it at least did what the title of the law promises: it controlled a toxic substance. Congress should learn from that vision and take steps to really repair TSCA and protect the public, for example, requiring the phase-out of other persistent bioaccumulative and toxic PBT chemicals. There are many ways in addition to phasing out PBTs to reform TSCA in a way that protects the public and also allows the chemical industry to thrive and innovate. We would welcome the chance to work with the committee and all interested parties to develop such reform. Thank you very much for the opportunity to testify. [The prepared statement of Mr. Rosenberg follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you. The last person on the panel is Ms. Jeanne Rizzo, President and CEO of the Breast Cancer Fund, and you are recognized for 5 minutes. STATEMENT OF JEANNE RIZZO Ms. Rizzo. Good morning. Thank you, Chairman Shimkus and Ranking Member Tonko and the members of this committee for the opportunity to testify and to bring a public health perspective to this panel and discussion today. At the Breast Cancer Fund, we work to prevent breast cancer by eliminating exposure to toxic chemicals and radiation linked to the disease. So I am here today on behalf of the 3 million breast cancer survivors who are living in this country at the moment, 40,000 women and, increasingly, men who will lose their lives to breast cancer this year, and I am also here on behalf of the millions who are suffering from diseases and conditions that have been linked to chemical exposure--birth defects, asthma, early puberty, learning disabilities, infertility, cancers including breast and prostate--and I am here to state from our perspective that in no uncertain terms, the 1976 Toxic Substances Control Act is hurting us. As a matter of fact, it is killing us but not protecting us, and we have manifestation of that in the fact that there are chemicals that are transferring into our bodies, into our food, our water, our air and even into the umbilical cord of babies. That is not what Congress intended back in the 1970s when the country was grappling with the public health disaster wrought by better living through chemistry. That paradigm, the attempt was to fix that. There was really good intention, and disease rates were skyrocketing. Scientific evidence was mounting. Congress knew then as it does now, I believe, that it had to act. So it passed TSCA with great hope that that legislation would indeed protect public health. We now, as you have heard, have had 37 years of proof that the legislation has failed us. Look at breast cancer today. Two hundred and twenty-seven thousand women will be diagnosed with breast cancer this year, and 2,200 men. Women have a one-in-eight lifetime risk of breast cancer. That is a 40 percent increase since TSCA's passage. We know that only 5 to 10 percent of breast cancer can be traced back to inherited genetic factors. There is a volcanic amount of scientific evidence that points to environmental causes including chemical exposure. We know that our genes and our environment collude together to result in positive or negative health outcomes. We now have to acknowledge TSCA's failure and figure out how to design that better, like the fact that the 84,000 chemicals that are in the TSCA inventory, the 62,000 that were grandfathered in. We heard a lot about that today. So chemicals could continue to be sold without having to be looked at for their long-term impact on health and the environment. The EPA under TSCA has only been required to test a certain number of those grandfathered chemicals. They have only been able to restrict or ban five of them. If TSCA makes it so difficult to regulate a chemical that the EPA couldn't even ban asbestos, a very well-known carcinogen with a disease named after it, then clearly we have not accomplished the goal. So we have to take seriously our new knowledge that timing of exposure to chemicals matters, that low dose of chemical exposures matters, and that mixtures matter, and that is our real-life experience. So there is emerging science, the growing consensus that TSCA must be reformed. In my written testimony, I refer to three major federal reports that I encourage reading as well as the 2009 GAO report that talked about the fact that although TSCA is authorized to ban or limit chemicals, the threshold is prohibitively high. And we see States around the country, as you have heard before today, taking action. They feel they have the right and the responsibility under their 10th amendment to protect and police the safety of their residents, and they are doing that, and that is creating the kind of action that is protecting people in some States but not in all States. So we have a growing chorus urging Congress to strengthen the way we regulate chemicals and the way the American people are protected from those chemicals. We even hear businesses want that protection. So the women of this country are looking to you for your leadership. People in our military, our armed services, want assurances that their military bases will not be contaminated as Camp Lejeune was. People in polluted communities want to know that action will happen and that workers are safe. Parents want to know their 6-year-old daughters will not enter puberty and have a later lifetime risk of not only breast cancer but social, sexual issues, drug abuse as well as high-risk behavior. So our children and our grandchildren want to know that they won't face that burden. It is a burden then for Congress to take on the awesome responsibility of dealing with TSCA in an urgent manner with safety standards, the best available science, data on all chemicals, the ability to act on the worst, the right to know reasonably and responsively navigated and maintain the States' rights to protect citizens in the absence of federal action. Thank you very much. [The prepared statement of Ms. Rizzo follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you. Mr. Auer, I am going to start with you and so I will give you that opportunity. Your testimony mentions that you consider the combination of ``unreasonable risk'' and ``the least burdensome requirement,'' which is what we are going to talk a lot about over the next couple months, in TSCA to be largely unworkable. From an intuitive standpoint, it makes a lot of sense to me that regulation should not be more than appropriate and necessary to address the risk. Do you agree? Mr. Auer. Yes. Mr. Shimkus. Is your concern with the wording suggesting extreme analysis? Mr. Auer. Yes. The least burdensome and the way that it has to be squared with the to extent necessary to protect against the risk standard, I believe makes it unworkable, or largely unworkable. Mr. Shimkus. Since you agree that it makes sense that regulation should not be more than is appropriate and necessary to address the risk, do you think there is a role for the basic concepts that underlie least burdensome to be included in future chemical legislation? Mr. Auer. Yes. The concept needs to be included per my previous response. We will need to take care with the wording to ensure that it does not become a straitjacket, however. Thank you. Mr. Shimkus. Ms. Bosley, the same to you. Do you think TSCA should have a least burdensome requirement for regulations? Ms. Bosley. Certainly. I think that that is helpful for small businesses, especially like mine, but it should be much more workable than it is today. Mr. Shimkus. How would you have it operate? Ms. Bosley. So right now, EPA has to discover all the avenues themselves and then decide between the least burdensome. That is a lot of analysis. I think if you opened it up to public comment and let the public and industry and NGOs, give them the options which are out there, then they can decide among those which are least burdensome. Mr. Shimkus. How easy is it to have a chemical's production stopped or curtailed in the early going? Ms. Bosley. Oh, it is much easier in the early going. If we are going to fail, we would rather fail early before too much investment has been spent. So we very much appreciate when EPA tells us before a chemical is in full production that they are going to regulate it. Mr. Shimkus. And how critical--and you mentioned this in your opening statement, but can you again talk about how critical it is to your business for the protection of confidential business information and what do you believe that the public should be entitled to? Ms. Bosley. Sure, sure. So especially for new chemicals and once again for small businesses like mine, our chemicals and our uses are very focused and so our competitors, mostly offshore competitors, know what we are doing, and if we are to put in a PMN, Premanufacture Notice, with chemical identity right out there, then they know what we are researching, which gives them a leg up on us. They are just a lower burden in other countries. So I think protection of CBI is very important. I know that it has been overused, though. I used to work for people who would check every box as CBI on a PMN, and that is much overused. I would be happy if there was upfront substantiation and re-substantiation maybe every 5 years but the initial protections are very, very, very important. Mr. Shimkus. And Mr. Gomez, when your testimony refers to characterizations about EPA's inability to meet its goal of ensuring the safety of chemicals, does this mean that chemicals are unsafe or that EPA is having an administrative problem prioritizing chemicals and reviewing them under the law? Mr. Gomez. So just to clarify, in our testimony we make characterizations about EPA's efforts to manage toxic chemicals consistent with the agencywide strategic goal of ensuring the safety of chemicals. We didn't evaluate whether chemicals were unsafe so we were looking again at the new approach that EPA has in place and the different things that they are doing and then we are drawing questions about whether they are going to realize the results that they have taken on. Mr. Shimkus. Thank you. Mr. Auer, the Government Accountability Office and Mr. Rosenberg have been critical of TSCA and EPA's implementation of it for almost 30 years from a quantitative standpoint. Do you believe that only looking at the program from this view is appropriate? Mr. Auer. I do believe you need to take a broader view. TSCA tools can be hard to implement and use in a regulation. There are many important voluntary efforts, the high-production volume challenge program, the PEFO, a stewardship program, use of SNURs to regulate PBTs, the flame retardant tris and other very well known chemicals. I do believe you need to take a broader view. On the new chemicals, you need to look at what EPA stops as well as the effect of EPA encouraging the industry to go in the direction of safer and greener chemicals. Mr. Shimkus. This is a great panel. Thank you very much. And now I will yield 5 minutes to the ranking member, Mr. Tonko, for 5 minutes. Mr. Tonko. Thank you, Mr. Chair. Mr. Gomez, you identified three main challenges for TSCA implementation in your testimony. First, the fact the Act does not require companies to generate or provide adequate information on chemical toxicity and exposure to EPA. Can you elaborate on what the obstacles are to getting that information? Mr. Gomez. Sure. So we noted that EPA has had difficulty obtaining adequate information on chemical toxicity, and the reason being that TSCA does not require that companies test chemicals before they are manufactured. TSCA requires EPA to demonstrate that chemicals pose certain risks before it can ask for such testing. Mr. Tonko. OK. And Ms. Rizzo, what are the public health impacts and specifically the impacts on cancer risks from the lack of information that you cited? Ms. Rizzo. Thank you. There have been several reports issued. The President's panel on cancer and the environment, the national conversation on chemicals and public health as well as a recent federal advisory committee on breast cancer and the environment, an interagency committee of 21 scientists, academics, agency people, that got together to look at this issue of the impact of chemicals and cancer, breast cancer in particular, not just looking at those that are named carcinogens but endocrine-disrupting chemicals. They really have an impact in utero, in early childhood, in puberty, during lactation to trigger cells to believe that they have been exposed hormonally and to react accordingly, increasing the risk of breast cancer. We see this in animal studies and we see it in the human manifestation of the increase in breast cancer and other hormonally related cancers. Mr. Tonko. Thank you. Mr. Gomez, the second challenge you identified is that even when EPA has obtained information about the risk from chemicals, the Agency has had difficulty banning or limiting the production or use of those chemicals. Can you explain why this happens to be the case? Mr. Gomez. Sure. So we have noted that EPA had difficulty proving that chemicals posed unreasonable risk and has regulated few chemicals under TSCA. EPA has a high legal threshold to meet so EPA must demonstrate unreasonable risk, which EPA tells us that they believe that it requires them to extensive cost-benefit analyses to ban or limit chemical production. And so as I noted, since 1976 only five existing chemicals have been controlled. We have previously recommended that Congress amend TSCA to reduce the evidentiary burden EPA must meet to control toxic substances and continue to believe that such changes are warranted. Mr. Tonko. Thank you. Mr. Rosenberg, what are some of the environmental and health impacts of this inability to ban or limit these chemicals? Mr. Rosenberg. Well, you are faced with ongoing exposure both in the health and the environment to all kinds of substances, particularly I mentioned PBTs, things that persist in the environment and bioaccumulate into our bodies, so those are, by definition, around for a long time, and as long as they are not controlled, more are produced, more are released into the environment, not just in the environment like out in the forest but in our homes and, you know, our workplaces and places we are. So if you are not controlling the exposure to the substances of concern and they are still being manufactured, even if they are not still being manufactured, they might still be in products. Once they are in there, they can get out of the products, whether during the natural life of the product, as it were, or during disposal or at other times. Mr. Tonko. Thank you. Ms. Rizzo, who bears the worst effects of these avoidable hazardous exposures? Ms. Rizzo. I am sorry, sir. I didn't hear that. Mr. Tonko. Who bears the worst effects of these avoidable hazardous exposures? Ms. Rizzo. Well, I think there are vulnerable--those that are most vulnerable amongst us. We see it for children, we see it for women, we see it for communities that are disproportionately affected because of where they live, what their legacy exposures are to these toxic chemicals. So you see people that live on toxic dump sites, essentially, you know, their build environment didn't consider their chemical exposure. You see it in poor people whose access to healthier foods, healthier products is just not there so they are going to get more exposure through whether it is personal care products they use or the air pollution, the freeway they live next to, the water that isn't as safe and as healthy. So I think if we look at breast cancer, there is a dramatic increased risk in premenopausal breast cancer amongst African American women, so the vulnerable populations need the greatest protection. Mr. Tonko. Thank you. I note, Mr. Chair, my time has expired so I will yield back. Mr. Murphy [presiding]. Thank you. I will now turn to the gentleman from Pennsylvania and chair of the Health Subcommittee, Mr. Pitts, for 5 minutes. Mr. Pitts. Thank you, Mr. Chairman. Ms. Roberts, some argue that TSCA does not encourage green chemistry. Does the TSCA structure discourage U.S. companies from innovating, including the creation of green chemistry? Ms. Roberts. Thank you for the question. No, I don't believe TSCA discourages development of green chemistry. In fact, I think as Ms. Bosley had mentioned in her testimony, given the way that Section 5 new chemical notification processes are set up, U.S. companies can develop new chemicals, have them reviewed by EPA and get them to market faster, and that ability to innovate in particular helps those companies that are trying to develop greener chemicals and get them on the market. So absolutely, I think that the way the TSCA framework is set up right now, it in fact is encouraging of innovation. I don't have the numbers in front of me but I do believe that there have been reviews showing that U.S. companies have higher patents on chemical products, on polymers and the like, again showing and proving that U.S. innovation is stronger than an other parts of the world. Mr. Pitts. We hear a lot of claims about chemicals not being tested, Ms. Roberts. Is there a requirement for new chemicals to have test data provided to EPA before they hit the market? Ms. Roberts. It is a very interesting question. Actually, there is not a requirement for new chemicals to be tested before they go on the market although, again, as Ms. Bosley mentioned, there is a requirement if data is available that it be submitted with the PMN. But EPA has developed a very useful and scientifically sound program where they have predictive models where they look at molecularly similar chemicals and they can make judgments on how an analog chemical would act so they can make some considerations of hazard exposures or hazard profiles. They can look at the information that is included in the PMN and determine how this particular material might be exposed to the general public or releases to the environment. EPA staff must be given great kudos because they have taken these models that they use internally and they have made them available to companies so that companies can use these models and determine whether there are going to be issues of concern with chemicals before they even send them to EPA for market, and again, I think that helps companies pursue those areas where they are going to be developing safer and greener chemicals. Mr. Pitts. Thank you. Mr. Auer, are many new chemicals safer and greener than their chemical predecessors? Mr. Auer. That is my personal opinion and experience. I was the chair of the Structure Activity Team in the new chemicals process for over a decade. I have seen thousands of new chemicals. I know what they are competing against. My personal view is yes. There has also been some EPA work showing that these structure activity predictions can work effectively. The chemicals are also more energy efficient, more product efficient. Oftentimes they substitute for known toxic chemicals. So as elaborated in an annex to my testimony, I believe that the New Chemicals Program has been very effective in encouraging the development and introduction of safer and greener new chemicals. Mr. Pitts. To follow up, the EU with more demanding requirements to market entry has seen dramatically fewer numbers of new chemicals introduced into commerce than the United States. Are these U.S. chemicals more risky than the EU chemicals? Mr. Auer. You know, my guess is they are pretty much the same chemicals. I am sure some are unique to the United States or the EU but my guess is, most are the same, and as elaborated in my annex, looking at the same period of time and the same rules, if you will, the EU with a base set saw 3,000 new chemicals introduced. The United States saw 17,000--maybe my numbers are wrong--six times as many over the same period in time. I believe that is a profound driver for innovation, given the safer and greener answer I gave previously. Mr. Pitts. Thank you. Mr. Gomez, some argue that companies overclaim confidential business information under TSCA. Is it EPA's responsibility to challenge claims that they think are not appropriate? Mr. Gomez. We believe so, but they have not done that. Mr. Pitts. Why hasn't EPA challenged companies on CBI claims? Mr. Gomez. That is a good question, sir. I would have to get to you if we have the answer but I don't know. Mr. Pitts. Ms. Bosley, Mr. Rosenberg's testimony suggests that chemicals under TSCA should be treated like pesticides, foods and drugs. Do you agree with this view, and why or why not? Ms. Bosley. I don't agree with that view. Pesticides are meant to be bioactive and to kill bugs. Foods and drugs are also meant to be consumed and thus real chemicals are not meant to be consumed. I think as part of the risk assessment for EPA, it would certainly look at the exposure pattern that industrial chemicals are having and they are able to collect data on that. They do that every 4 years now. So EPA knows what the exposure patterns are, and based on that exposure pattern, they can decide to look at a chemical more closely, something close to what FDA might do, but only when the exposure pattern makes it necessary. Mr. Pitts. My time is expired. Thank you, Mr. Chairman. I yield back. Mr. Murphy. The gentleman yields back and now I turn to the gentlelady from Colorado, Ms. DeGette, for 5 minutes. Ms. DeGette. Thank you very much, Mr. Chairman, and I think it is great that we are having this hearing on TSCA. I have been interested in this bill since I came to Congress in 1997, and I have probably said this before: TSCA was enacted over 30 years ago and it is the only major environmental law in this country that has not been reauthorized. I think we can hear from the panel today there may be differences in nuance but pretty much everybody agrees, the industry as well as the environmental community, that TSCA really needs to be updated to keep pace with modern technology and to augment the EPA's resources and authority. Now, in the 111th Congress, two Congresses ago, this committee had significant hearings on TSCA, and one of the results of those hearings was legislation that created a process for the EPA to select and review high-priority chemicals against a minimum safety standard. We have other laws that have been effective at reducing risks related to pesticides, food and drugs but TSCA has not been effective at prioritizing action on chemicals that pose a high risk. So I want to ask some questions around these issues. The first thing I want to ask is, under Section 6 of the current law, if the EPA suspects exposure to chemicals puts people at a serious risk, something I have been looking at is, can the EPA take action in a timely manner, because, of course, there has only been six Section 6 actions. All of them took 3 to 5 years. And in my opinion, none of us those were timely. Ms. Roberts, I am wondering what you think about that. Do you think that currently Section 6 of TSCA, if there is something that puts people at a serious risk, can that really operate to help the EPA make a decision in a timely way? Ms. Roberts. Thank you for the question. There is another section under TSCA, Section 7, which I didn't review, and I apologize, but it relates to imminent hazard. So if EPA were to find a situation where there was exposure and there was clear hazard, that they could take action under Section 7 and then proceed with the Section 6 rulemaking. Ms. DeGette. But that is if there is an imminent risk, but the next level down I am talking about is something that is a serious issue. Those are the ones that are taking 3 to 5 years. Do you think that that is adequate? Because that is a big gap between Section 7 and Section 6. Ms. Roberts. I would agree. I just wanted to point out that there was that option in Section 7, but I would also agree that a 3- to 5-year rulemaking is something that is absolutely burdensome. I am not sure that is a deficiency of TSCA, however. Ms. DeGette. OK. But if we could remedy it, certainly that would be preferable, correct? Ms. Roberts. I would agree. Ms. DeGette. Let us just go down right down the row. Mr. Auer. I would agree, it would be very difficult to regulate within 3 to 5 years, probably a few years longer because of the complexities of TSCA as well as the problems that you encounter in implementing a rulemaking proposal, consider comments, finalize. Ms. DeGette. Right. Mr. Gomez. Yes, we have noted in our report that that is a long time for EPA to do that, and it would take them, just for the 83 chemicals that they have chosen right now, over 10 years to go through them. Ms. DeGette. Right. Ms. Bosley. We favor a less burdensome rulemaking process for EPA as well. Ms. DeGette. Thank you. Mr. Rosenberg. It definitely takes too long for the Agency to be able to do almost anything, certainly under Section 6 under TSCA, and the 3- to 5-year rulemaking in probably many instances is actually optimistic. The asbestos rule took 10 years, I believe, and lately even other authorities under TSCA EPA has tried to use including their publishing a Chemicals of Concern list. They haven't even been able to formally propose a Chemicals of Concern list because that has been sitting at OMB for 3 years. So the hurdles EPA faces in taking any action go far even beyond the structure of the statute, which is pretty much what we are focused on today. There are bigger challenges even than that. Ms. DeGette. Thank you. Not but not least. Ms. Rizzo. Thank you. I would agree with that, and I would say the problem goes before we even get to having to make a rulemaking that we are not looking at the proof of safety first before we balance out the cost-benefit analysis or any other decision making. We should be looking at the safety of the chemical proven first with industry providing that information to the EPA so that we don't have to deal with this rulemaking lag. Ms. DeGette. Right. And I wanted to ask you, Ms. Rizzo, because in your testimony you talk about endocrine-disrupting compounds as a chemical of increased concern, and of course, it is not just pesticides that can alter genes. It can also be compounds as well. I am wondering of TSCA enables the EPA to test and evaluate the impacts of those compounds. Ms. Rizzo. Not adequately on human health and the environment, and I think that that is the real challenge of how we look at the classes of chemicals and what we do with them and how much time it takes, so no, we have not adequately evaluated EDCs for their impact on health. Ms. DeGette. Thank you. Finally, I want to take for a minute about the confidential business information. Mr. Murphy, although he is pretending he is the chairman right now, he is actually my chairman of the Oversight and Investigations Subcommittee, I am the ranking member on that, and we both know that good oversight requires open government and access to information, not just for the committee but for everybody, and I am cognizant about protecting confidential business information. I do it in other legislation that I am sponsoring. But if a government agency is going to manage an effective confidential business information claim program, it needs three processes: substantiation by the company seeking protection, Agency verification of CBI status, and opportunity for public challenge. And TSCA's CBI claims process is absent of that framework. So Mr. Gomez, I know that GAO has studied this issue extensively. Can you tell me what happens when there are overbroad CBI claims in terms of the EPA process and decision making? Very briefly, because I am almost out of time. Mr. Gomez. We have noted that EPA's ability to share data collected under TSCA is limited when you are dealing with confidential business information. Now, EPA has made some progress recently, so we just reported in our March 2013 report, which I wanted to clarify from earlier, that EPA has expanded public access information. So since 2009, EPA has made 617 formerly confidential chemical identities public because they have gone through a review process where they have looked at previous CBI claims and came to the conclusion that they could be released. EPA has also made 783 previously unavailable health and safety findings available to the public after reviewing approximately 15,000 such filings. Ms. DeGette. Thank you. Thank you, Mr. Chairman. Mr. Shimkus. The gentlelady yields back her time. The chair now recognizes the gentleman from Pennsylvania, Mr. Murphy, for 5 minutes. Mr. Murphy. Thank you, Mr. Chairman. Ms. Roberts, first of all, can you just tell me what other federal environmental laws contain the regulatory reach of TSCA that allows regulation of manufacturing, processing, interstate and foreign commerce, use and disposal of chemicals and mixtures of chemicals and what are the law governing chemicals? Is TSCA the only one? Ms. Roberts. Absolutely not. TSCA--well, the chemical industry I think is probably one of the most regulated industries out there. In addition to TSCA, you have the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA. You have got regulations looking at food, drug, and cosmetics. There is the Clean Air Act, Clean Water Act, RCRA, Hazardous Materials Transport Act. There are numerous ones that are out there. I think the uniqueness of TSCA is recognizing that there are these other regulatory statutes that cover these particular special use or applications of companies and that TSCA is really to capture those that remain, the industrial chemicals, as I think Ms. Bosley appropriately pointed out. Mr. Murphy. As a sum total of all those, do TSCA and other bills prevent the EPA from evaluating chemicals of concern in any way that causes EPA to ignore or stops them from evaluating health risk? Ms. Roberts. No, sir, there is nothing in TSCA that would hinder EPA from going through that. I think what has been noted in the testimonies of most of us is, the fact that there is not a specified prioritization process for existing chemicals. There has been plenty of opportunity and programs where the Agency has started up such programs but for whatever reason they did not sustain momentum. Mr. Murphy. Mr. Auer, is pollution prevention or other steps that would have reduced emissions a component of judging this unreasonable risk? Mr. Auer. There is a Pollution Prevention Act, and as I interpret the meaning of ``unreasonable risk'' under TSCA, I interpret ``pollution prevention'' for substitutes, et cetera, et cetera all to be important components which go into that meaning of ``unreasonable risk,'' so, yes, pollution prevention is encompassed. Mr. Murphy. OK. Someone told me that water may not meet the standards of passing TSCA. Is that true? Mr. Auer. I think it is listed on the inventory. I don't know that we have assessed it. Mr. Murphy. I know in certain amounts if inhaled it can be lethal. Mr. Auer. Well, it can. There is water intoxication. Mr. Murphy. And I am not making light of that, but I do want to find out health effects, and I want us to focus on science, and that is critically important. Ms. Bosley, welcome here from western Pennsylvania. You mentioned that the cost and practicality of blanket testing requirements for chemicals would discourage new chemicals from coming to market. So generally speaking, how much would a well- characterized study on a new chemical cost your company? Ms. Bosley. So if we were to do what is called a base set of testing as maybe is required in Europe, a single chemical could cost between a half a million and three-quarters of a million dollars, which is more than the profit my company makes in 5 years' time. So we certainly wouldn't--especially on a new chemical when we don't know the markets, so when we submit a PMN, we back up 90 days from when we think there will be commercial manufacture and usually more than that because we want to give ourselves time. We haven't fully assessed the market yet or the economics yet or even the final product form so we would never undertake that testing if it were to cost that much under such an unknown market analysis. Mr. Murphy. If you had to receive regulatory approval prior to developing and selling any of your products, similar to the REACH program that they have in the European Union, what would happen to your customers and your business? Ms. Bosley. They would be gone. They would go overseas where you don't need those sorts of protections before you enter into a market. I can say that because there is not testing when we first put in a PMN, it doesn't mean that we have stopped testing. EPA has another provision within TSCA called TSCA AD where when we do have new test data, we are required to submit it to EPA but only if it is adverse. So if we have predicted a certain toxicity and our chemical actually comes back less toxic than that, we have no provision to give that information to EPA. Mr. Murphy. So the EPA does not get that information? Ms. Bosley. They do not. Mr. Murphy. Do you take any steps at your location to deal with reducing any potential human hazards? Ms. Bosley. Oh, of course. We assess all the hazards that we can when we are first making a chemical. EPA does allow us to go into the lab and start making a chemical under an R&D exemption before we file that PMN. So we are able to assess a broad range of hazards before we are interested in entering to market, and every step we take, there is a risk assessment done within my own company, and we reduce the risk of that chemical exposure to humans and to the wastes that we generate. That is all part of our new chemical process. Mr. Murphy. Beyond that of what the EPA requires? Ms. Bosley. Oh, much beyond what EPA requires, yes. Mr. Murphy. Why? Ms. Bosley. It is good business sense. We are a small chemical company. We have limited resources. We don't want to spend our money getting rid of waste. We want to spend our money on new product development and innovation. Mr. Murphy. And taking care of your employees? Ms. Bosley. That is right. Mr. Murphy. Thank you. I yield back. Mr. Shimkus. The gentleman yields back his time. The chair now recognizes the gentlelady from California, Ms. Capps, for 5 minutes. Mrs. Capps. Thank you, Mr. Chairman. It is so easy to focus on all the details of this statute and miss the big picture of why we are here, in my opinion. I would like to focus on one of the most important reasons for this law. Increasingly, researchers tell us that environmental exposures are a key factor in the onset of cancer. That means we need an effective Toxic Substance Control Act reform to fight cancer. According to the President's Cancer Panel in May of 2010, 41 percent of Americans will be diagnosed with cancer at some point in their lives, and about 21 percent will die from cancer. The panel also found that the true burden of environmentally induced cancer has been grossly underestimated and that the American people do not have sufficient information about harmful chemical exposures or how to prevent them. In February of this year, the interagency Breast Cancer and Environmental Research Coordinating Committee released a new report called ``Breast Cancer and the Environment: Prioritizing Prevention.'' We are fortunate to have with us here today a member of that committee who was involved in crafting that work. Ms. Rizzo, based on your work on that report, can you briefly describe the emotional, physical and financial burden of breast cancer? And that is a huge question to ask you in a very short time. Ms. Rizzo. Thank you. We talked about the fact that 3 million women in this country are living having been diagnosed with breast cancer and 40,000 families will deal with death. Friends, families, when you think about the total number of people impacted by this disease in this country, it is overwhelming. The report did an analysis of the amount of money spent on the diagnosis and treatment of breast cancer, and that is about $17.5 billion a year. That doesn't relate all the additional costs--the human cost, the cost of childcare, the cost of getting to your treatments, the loss of work. So it is a tremendous burden on the country and a burden on the economy, a burden on the contribution of women to our world, to our social justice as mothers. We have lost mothers, lost school teachers. So the burden is quite dramatic, and the report addressed that pretty significantly. Thank you for asking. Mrs. Capps. What can we do as policymakers to lessen that that burden or to prevent this terrible disease altogether? Ms. Rizzo. What actions do we need to take? Mrs. Capps. What can we do as policymakers? Ms. Rizzo. As policymakers, to look at the exposures to chemicals that have evidence of harm and to navigate the science, weigh the evidence. If you are making a decision for or against an exposure, as for proof of safety rather than unreasonable risk of harm. I think we have the wrong paradigm, and it is demonstrated in the fact that there are so many people with chronic illnesses and that we are finding these toxic chemicals in our bodies. Mrs. Capps. So is there a role, and would you describe what it might be, the TSCA reform can play in preventing breast cancer? Ms. Rizzo. Absolutely. I think one of the key issues in TSCA reform is to look at the science. The National Academies of Science gave a report on how to look at doing the science, giving authority to the EPA to look at the science that isn't just good laboratory practices but to look at the academic science that could inform their decision making. So I think the safety standards have to be met on that. I think we also have to look at the way TSCA can look at the regulatory process, speeding it up, look at vulnerable populations. I think all of those contribute to the prevention of disease. Ms. Capps. For so many women, men, families, communities, the fight against breast cancer is a matter of life and death. We have it in our power to limit some of the environmental exposures that can cause this disease. I thank the chair for calling this hearing, and I hope it is the start of a serious effort to address the problems in TSCA and to better protect the American public. Thank you very much, and I will yield back the balance of my time. Mr. Harper [presiding]. The gentlelady yields back and I now recognize Mr. Johnson from Ohio for 5 minutes. Mr. Johnson. Thank you, Mr. Chairman, and I want to thank our panel members for being with us today. Mr. Auer, your testimony mentions that new chemical regulations can apply to more than one company. How frequent is this practice? Mr. Auer. Thank you for the question. It is quite frequent. There can be a toll manufacturer. There can be downstream companies that buy that chemical. When EPA negotiates a 5(a) order, a requirement can be to extend those requirements downstream. EPA also has Significant New Use Rule authority, which can apply those requirements to any other company that makes or processes that chemical. Mr. Johnson. OK. Some people have critically testified before this committee in the past about the regulatory and management outcomes under TSCA. Have the regulatory and management outcomes been as limited as some suggest? Mr. Auer. As I overelaborated in my statement as well as in my testimony, there are a lot of facts there. I am not arguing that enough has been done, but I think there has been a mischaracterization of the extent of the work. The fact that 300 or more existing chemicals are regulated under SNURs, many of those are any-use SNURs. They are basically out of the market, as well as the other requirements. They are consequential and they need to be given due account. Mr. Johnson. OK. Does TSCA promote innovation, in your view? Mr. Auer. You know, I think the way TSCA struck the balance with new chemicals in taking the tough decision not to require testing and the costs associated with that has resulted in the United States leading the world in the innovation of new chemicals which, as I indicated before, I believe to be safer and greener. That is key. Mr. Johnson. All right. Ms. Bosley, you mentioned that the Existing Chemical Program faces challenges. How could EPA have such a performance disparity between new and existing chemical programs? Ms. Bosley. I think that all lies in the mandate from Congress. Frankly, the mandate and the time frames are very well laid out in TSCA for new chemicals but not so in existing chemicals. EPA has broad authority for existing chemicals to prioritize, to ban, to limit uses, but I think very few resources since there is no mandate. Mr. Johnson. Well, what are your views on a strategy that relies on tailored restrictions rather than outright bans? Ms. Bosley. Oh, I think restrictions are generally a better idea. So even in the asbestos case, let us just say, there are zero exposure but very critical uses of asbestos today in aerospace, space shuttle operations, some firefighting operations that a ban of asbestos would have eliminated and there was no clear alternative. So if you can demonstrate that there is a no-exposure use for even a very hazardous chemical, that use should be allowed to go on, so restrictions are much better than bans. Mr. Johnson. Well, thank you, Mr. Chairman. I yield back the remainder of my time. Mr. Shimkus. The gentleman yields back his time. The chair now recognizes the gentleman from California, Mr. McNerney, for 5 minutes. Mr. McNerney. Thank you, Mr. Chairman. I thank the panel for testifying today. Mr. Rosenberg, I understand there are some 84,000 synthesized chemicals used in the United States today. Is that about right? Mr. Rosenberg. There are roughly 84,000 chemicals on the TSCA inventory. They are not all in use at any one particular time, and the estimates are maybe that there is quite a bit fewer that are actually in use right now. We don't have as great a picture on that as we would under a better functioning TSCA. But any of those chemicals that are on the inventory can be used, manufactured or used at any given time. So if they are not in use now, they could be at some time in the future without additional review currently. Mr. McNerney. How many of those have been cleared for use of those 84,000? Mr. Rosenberg. Well, the 62,000 roughly were grandfathered in, so those made it, and I believe the bulk by volume of chemicals that are in use now are from that original 62,000. The 22,000 were reviewed. I think there is some discussion about the extent that they were reviewed but the 22,000 chemicals have some amount of review. Mr. McNerney. So in your opinion, there are many chemicals that are being used even according to manufacturer's specifications finding their way into the environment and to human bodies? Mr. Rosenberg. Yes, absolutely that is the case, and the one piece of evidence for that is the CDC has done its biannual biomonitoring of people and has found--the more they look for, the more they find, but they have found hundreds of chemicals widely in people's bodies and their blood. So there is no question that even chemicals used as intended, whatever that might mean, are still winding up in people's blood or in their bodies and their tissues in ways that I assume weren't intended and are not good for people's health, presumably. Mr. McNerney. Ms. Rizzo, have you heard of the term ``chemical trespass''? Ms. Rizzo. Yes, sir, I have. Mr. McNerney. Would you explain what that means, please? Ms. Rizzo. That is basically, I haven't given you permission to put that chemical in my body. It is trespassing into my body. That is how it is used. So I think when Mr. Rosenberg referred to biomonitoring, when you measure in blood, urine, cord milk, other body specimens, the presence of chemicals that you did not intend to have in your body that way, you didn't ask for it, you didn't give permission, that is what the trespass it. Mr. McNerney. Thank you. Mr. Rosenberg, do you share the view that the statutory changes are needed to protect human health and the environment from unsafe chemicals, or is the EPA going to be able to do this without statutory changes? Mr. Rosenberg. No, they won't be able to do it without statutory changes, and it is interesting, if you go back and look, GAO has been saying essentially that for 20 or 30 years. They wrote their first report on TSCA in 1980. They identified very much the same problems then that they are identifying now and it is really up to Congress to step up and take this effort seriously, and at this point the law is such a failure that, you know, a broader range of stakeholders is recognizing that it is causing problems--I talked about this a little bit in my testimony--as a result of this vacuum that is left by EPA's inability to take action, even when they have tried to. States are adopting all kinds of different use restrictions and other bans and activities, and the marketplace is also taking action. I don't think any of that is a bad thing but it is a sign that TSCA is really not working. I mean, there is some preemption authority under TSCA but it has never been exercised as far as I know because they have never been able to accomplish anything that would even hint at preemption. So it is a nonfunctioning law to a great extent, not a total extent but a large extent. Mr. McNerney. Well, is bureaucratic delay in clearing chemicals part of the problem in protecting our safety? Does anyone want to answer that on the panel? Mr. Auer. The New Chemicals Program takes 90 percent of its decisions within 90 days. The remaining chemicals, there can sometimes be a bit of delay but, you know, within months or sometimes longer everything is decided. Mr. Rosenberg. It would be absolutely critical for Congress to seriously look at streamlining EPA's ability to do different things including getting data from companies and taking actions, both regulatory action and assessment actions, and there is, in addition to whatever hurdles EPA faces, one hurdle is that they are underresourced significantly and particularly in this program, so that is a problem, and then I mentioned this earlier, OMB has been sort of roadblock for even things that EPA has tried to do, particularly in the last few years, with their existing authority. They have taken a number of steps to try to get more information out to the public and assess chemicals, and every step of the way they have been bogged down by OMB, and that a whole other major problem. Mr. McNerney. Thank you, panel members, and thank you, Mr. Chairman. Mr. Shimkus. The gentleman's time is expired. The chair now recognizes the gentleman from Mississippi, Mr. Harper, for 5 minutes. Mr. Harper. Thank you, Mr. Chairman, and thank each of you for being here and giving us your insight. We have many things we need to look at as we go back and review this and see where we are, and I would like to start with Ms. Roberts, if I could. Thank you for your earlier presentation. I tried to squint as best I could to read the slide and follow that, but thank you for your time on that. Can you tell me what the practical difference is between the authority in Sections 4 and 8 to develop information? Ms. Roberts. Sure. My apologies for the small print on the slides, but I did want to try to fit everything into one slide so that people could sort of reference it back. So under Section 4, EPA has the authority to require testing, and I am trying to find the exact wording, but if there is concern of an unreasonable risk for a chemical, that is one finding that EPA can make to issue a test rule, or if the chemical is produced or released into the environment in substantial quantities, that is the second finding that EPA would have to make in order to issue a test rule. It seems to me that the Section 8 provisions that currently exist give EPA that opportunity to collect that information. Section 8(e) requires companies to immediately inform EPA if there is a substantial risk on a chemical. Section 8(c) requires companies to provide EPA upon request information that they gather from their companies. So I think that would make that first finding the significant risk. The second finding of production volumes are already collected under the chemical data reporting, which occurs every 4 years, or under Section 8(a) should EPA decide they want to gather that information. Mr. Harper. OK. Can EPA gather enough information under Section 8 to justify a test rule under Section 4? Ms. Roberts. It is my belief that they could, yes, sir. Mr. Harper. Now, I know Mr. Rosenberg had argued that CBI should be protected less and re-substantiation required for these claims. What are the issues that come with it? Ms. Roberts. I think we need to recognize that TSCA covers a huge gamut of different industries and different businesses, and so while the idea of re-substantiation on a certain periodic time may make sense for some companies, it may not for all. So for certain companies, for example, Coca-Cola comes to mind. They are not going to share their formulation ever. So if they had to re-substantiate that every year, and I realize it is not covered under TSCA but it is the first example that came to mind, that would be very problematic for them. And again, keep in mind the type of information that is required under TSCA under New Chemical Notification. You have to tell the EPA what the byproducts are, what the impurities are. That could be very meaningful information for a competitor because now they know what you are using to manufacture that. Volumes produced, again, could be very meaningful to a competitor to get a better understanding of what your market share is so that they may be able to glean into it. So again, CBI is extraordinarily important and really should not be taken lightly. Mr. Harper. Thank you for that. Ms. Roberts. My pleasure. Mr. Harper. Mr. Gomez, if I may ask you, the Acting Administrator of EPA's Chemical Office told you that the law makes it impossible for EPA to assess and regulate chemicals. How will EPA use its requested $67 million for this office in fiscal year 2013? Mr. Gomez. That is a very big question, and a good question, and that is something that we will have to get back to you on since EPA is not here, who could probably better answer it. But EPA, one thing that I do want to mention though, EPA has this new approach that I talked about in my statement, and so in this new approach, they are doing new things using the existing TSCA authority. So one of the things that we talked about earlier already is they are extending those Significant New Rule uses where they have added a lot more chemicals that they are looking at, so they are trying different things to try and get more information. We noted that basically it is too early to tell whether that is going to be achievable or not, especially since in their strategy they haven't laid out some key elements that we think are needed for them to succeed. Mr. Harper. Do you agree with that assessment, that the resources are not there, that $67 million is not sufficient to do this? Mr. Gomez. Sure. That is what the Agency has told us also that it is a reason because of resources but it is not something that we have looked at specifically to see if they have the resources. Mr. Harper. And you will have to give me a quick answer on this, but your testimony mentions the EPA creation of a Chemicals of Concern list under Section 5(b)(4) and the delay of this list at OMB. Could you please explain in very short order for me the specific understanding of and maybe the criteria for the ``may present'' clause which either gets a chemical on or off the list? Mr. Gomez. Well, very briefly, that is something I will have to get back to you on, but that list is still at OMB. It has been there for a while. So---- Mr. Harper. I would appreciate it if you could give me a detailed answer to that. Mr. Gomez. We will do that. Mr. Harper. Thank you very much. I yield back my time. Mr. Shimkus. The gentleman yields back. The chair now recognizes the gentleman from Texas, Mr. Green, for 5 minutes. Mr. Green. Thank you, Mr. Chairman. I appreciate your holding this timely hearing on the Toxic Substance Control Act. Over the years--and again, some of you may not know I represent a district that is heavy petrochemical, the biggest petrochemical complex in the country, second in the world. There is nearly universal consensus among all stakeholders that we need to have TSCA reform, and it is necessary to provide greater regulatory certainty for the industry while giving EPA the necessary authority to protect human health and the environment from hazardous chemicals, and I know the Senate just before the death of Senator Lautenberg, he and Senator Vitter had introduced legislation that had been put together as a compromise. We have had TSCA reform legislation in the House and Senate for it seems like my whole career here, and it has never gotten anywhere. So maybe we need to see what we can do to bring the parties together which the Senate has been doing and work across the aisle. My first question is for the whole panel. In 2008, I introduced a bill that would have banned the import, manufacture and distribution of asbestos in response to a 1991 court hearing that the EPA's attempted ban of the substance did not follow the least burdensome requirement clause under TSCA. My question for everybody on the panel: If the least burdensome requirement were removed from TSCA, would EPA have a strong authority to protect human health and environment and be able to uphold future bans on known dangerous substances like asbestos before a court trial? If you could do yes or no, obviously we have a big panel. In fact, we have more panel than we do members. Ms. Roberts. Although I am not a lawyer, I think I am going to say it depends. I think I would be concerned if there was not a least burdensome aspect in the regulation simply because banning an entire chemical versus picking certain applications that are high risk could be problematic, and so I think there is some good reason for least burdensome, and I leave that as my answer. Mr. Auer. I think the ``the'' in ``the least burdensome'' is a big part of the problem. I do think that those concepts are important and need to be accommodated in any such determination. Mr. Green. Mr. Gomez? Mr. Gomez. Sure. That is something that really is a policy call, I believe. I mean, GAO has gone on record to say that it is a high legal threshold for EPA to meet and has had difficulty meeting that, and if that is changed, whether or not that results in different outcomes. Mr. Green. Anyone else on the panel? Ms. Bosley. I agree with Charlie that ``the least burdensome'' is probably too high a threshold but ``least burdensome'' should be in the mix there as far as the risk- making decision. Mr. Rosenberg. ``Least burdensome'' is definitely a problem, and EPA would be better able to regulate without it. TSCA contains a bunch of options that EPA has to use, and there is no reason that they should or would always go to the maximum option that they have but in certain instances that is the most health protective, and since the statute is intended to be health protective, that should have priority. Ms. Rizzo. Yes, I would just add that the burdensome part is also the burden on public health that should be weighed evenly with the burden on business in making that decision. Mr. Green. OK. Ms. Roberts, in your testimony you state that the EPA has been constrained when using its rulemaking authorities. Why is that, and what are the ramifications of that constraint? Ms. Roberts. In my view, the reason that they are constrained is because rulemakings in general take a long time. There is a lot of administrative procedures that are required under rulemakings so that, I believe, is the problem. The ramifications are that they can't gather information in a timely manner and therefore can't make decisions as far as risk management or the needs for testing. Mr. Green. Also in your testimony, you note that EPA could implement a prioritization process which specifies timelines for Existing Chemical Review. Could you elaborate on the benefits of a prioritization process and how it would improve TSCA? Ms. Roberts. Sure. Again, because under the New Chemical Review there is a certain statutory deadline that is associated with that, if there were a specific deadline or at least for a prioritization of existing chemicals that EPA will go through during a review, I think that would keep EPA sort of on the straight and narrow. They would get some work accomplished. As I had said before, there are programs that have started and stopped. I think what we need is to maintain momentum under one particular prioritization program. Mr. Green. Mr. Chairman, in my last 14 seconds, I guess, Mr. Gomez, and you might have to get back with me on this. In your testimony, you note that EPA has difficulty in obtaining adequate information on chemical toxicity and exposure. Has GAO provided recommendations to EPA on how to improve information gathering so that the status of EPA's actions on these recommendations, and also in your professional opinion, does EPA have sufficient resources--staff, funds--to effectively run TSCA? Mr. Gomez. Certainly. We have noted and have commented on the first part of your question and talked about the SNURs that we mentioned earlier, that that is the way that EPA is getting additional information now. The second part of the question we will have to get back to you on. Mr. Green. Thank you. Thank you, Mr. Chairman. Mr. Shimkus. The gentleman's time is expired. The chair now recognizes the gentleman from Louisiana, Mr. Cassidy, for 5 minutes. Mr. Cassidy. Thank you all. Mr. Rosenberg, just a couple things. You listed the statistics for cancer, how prevalent it is in our society, but you did not mean to suggest those are all due to chemical exposure, I presume? Mr. Rosenberg. That is correct. Mr. Cassidy. I will just say, your testimony kind of gave way to that. Secondly, let me ask you, you are not also suggesting that when you say that even minimal exposure can cause cancer that there isn't a threshold effect? Anyone who has ever had a hangover has had formaldehyde in their body, and yet--formaldehyde as a metabolite of alcohol--but yet it is not known to cause cancer in that low level or probably half the room wouldn't be here. And so again, you are not suggesting there is not a threshold effect, which is a fairly well documented scientific concept. Mr. Rosenberg. Yes. The most recent National Academy of Sciences studies actually recommend EPA's methodology for assessing chemicals not to assume a threshold. They traditionally have not assumed a threshold but---- Mr. Cassidy. They haven't, but the Native American of Sciences criticized the EPA for not doing so in their methodology on their formaldehyde sort of regulation. As a doctor, I will acknowledge that aflatoxin is something we are all exposed to. It is well known as a carcinogen for liver cancer but it is only over a certain threshold that risk poses itself, not the amount that we get opening up a little bit of an old jar of peanut butter. If you will send that to me, I would like to see where they deny that there is not that threshold effect. Mr. Rosenberg. Absolutely. I would be happy to send that to you. Mr. Cassidy. Ms. Rizzo, it turns out my wife is a breast cancer surgeon, and so we were on vacation recently, and you may think we don't have a life, but we were actually looking up the literature on chemical exposure and breast cancer, so it just so happens and serendipitously---- Ms. Rizzo. On your vacation, sir? Mr. Cassidy. What is that? Ms. Rizzo. Was that on your vacation? Mr. Cassidy. It was on our vacation, believe it or not. Again, get a life, huh? Now, I was struck, though, when I looked at the literature that really if you look at the top nine things that are associated with breast cancer, chemicals are not on that top nine or top eight or top seven, and when they speak--unless you include estrogen or hormonal therapy, and then they attribute that overwhelmingly to the metabolic syndrome with high rates of obesity and low rates of physical activity. While we were speaking, I loaded the document that you have in reference 3, the recent IB whatever, and they again emphasize the role of obesity and the metabolic syndrome, absence of physical activity, but don't give the prominence to chemicals except insofar that rat mammary tissue is affected but they admit that it is unclear how well that would translate to human studies. Any comments on that? Because from your data, from your presentation, I get a sense that chemicals are the etiology, and my wife has just told me you have to reassure women as to what--rightly reassure them as to what the real risk is because they can modify cigarettes and alcohol and weight and physical activity. If you add the existential concern of chemicals, which is very unproven as to their role, then that makes it harder for the physician to provide that reassurance. What are your thoughts on that? Ms. Rizzo. Well, we are sympathetic with the uncertainty and with the difficulty that it provides. If you look at all of the known risk factors, you can account for maybe half of breast cancer. I will give you an example that might be working looking at---- Mr. Cassidy. Well, no, not if you include estrogen because obviously women--my wife always says, and believe me, if I could channel my wife here, I would be a much better man. My wife would say that the primary risk factor for breast cancer is being a woman, and she would then say that it clearly is related to hormones because it happens after menarche, and that the earlier the menarche, i.e., the longer the exposure to estrogen, the higher the risk, and then you go into cigarette smoking and alcohol. Now, we do know the risk factor, and it is estrogen exposure. Ms. Rizzo. Well, it is also estrogen-mimicking exposure, and that is where the toxic chemicals come in. Mr. Cassidy. Now, that literature, though, is very thin. I have looked at it, and it is principally among rat mammary tissue, and it is unclear from the scientists, and that article that you referenced points this out, that it is unclear how well you can translate rate data to human data. Do you dispute that? Ms. Rizzo. I don't think that was the conclusion of the report. The animal-to-human paradigm was an essential factor in this issue. The hormonal factor, the chemical exposure factor-- I will give you another example. Mr. Cassidy. Those are two different issues, though. The hormonal factor again is related to physical activity and obesity. The more physical activity, the less obesity, and the more obesity, the earlier the age of menarche, that is so well established, and my wife is always preaching that gospel, so that is why I want to make sure that we acknowledge what we know to be the strongest risk factors and also acknowledge that the role of chemicals is really not as well defined. Ms. Rizzo. Which part of that would you like me to challenge back? Mr. Cassidy. The very last one, because all the studies I have read were all on rat data, so unless the rat data is---- Ms. Rizzo. No, there is also human data. We are in the middle of a human experiment, and I will give you a couple examples of that. Camp Lejeune, the military base, where these military men were exposed to solvents in the water. We have over 100 cases now of male breast cancer as a result of that exposure to that toxic chemical. Male breast cancer is not an ordinary occurrence. You wouldn't expect a cluster of it. Very highly associated to a chemical exposure. So that is one factor that I wanted to point out. Mr. Cassidy. I have read about this 3 years ago so I am a little rusty but the Army takes some issue with that epidemiology, as I recall. I am not saying you are wrong. I am just saying that before we accept it as totally unchallenged, I think I remember that the Army does challenge that. Is that fair? Oh, I am sorry, the Marines. I don't want to offend anybody. Ms. Rizzo. No, it was Marines. The ATSDR is looking into that at the CDC, and I am more than happy to follow up with some additional information on that. And the second part has to do with the BRCA gene and---- Mr. Cassidy. That is purely genetic. Ms. Rizzo. Yes, that is genetic, but there is a four- or five-fold increased risk of breast cancer in women with the BRCA gene than there was back in the 1940s. Mr. Cassidy. But then also if you look at the mean body weight of women from now relative to the 1940s, the mean body weight is significantly higher than it formerly was, again supporting the fact that obesity and the estrogens produced by adipose tissue, or fat tissue, is a stronger risk factor as your paper promotes. Ms. Rizzo. I would also look at obesogens, sir, and I am happy to send you some on the chemicals that act as obesogens that are contributing to early childhood obesity and early puberty. Mr. Shimkus. The gentleman's time is far expired. I have enjoyed the questioning. Now the chair recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. Mr. Waxman. Thank you, Mr. Chairman. I want to continue to pursue that issue because there are a lot of different causes for disease and we can isolate some but we can't know all the factors that are happening. Every day American people come in contact with a wide range of chemicals in their food packaging, in their furniture, in their workplace. They believe these chemicals have been found to be safe, that they have been tested, but this is a mistaken impression. In many cases, chemicals simply aren't tested, and in some cases, even chemicals that we know pose substantial risk remain in the products that we use every day. As cancer rates and the rates of other serious health issues arise, we have an obligation to do more. So Ms. Rizzo, what are some of the carcinogenic chemicals that have been linked to breast cancer or to mammary tumors in animal studies? Ms. Rizzo. Well, I think you can look at some of the--you know, we have benzene, we have the solvents, we have some of those chemicals, organochlorines, the persistent bioaccumulative chemicals. Then we have those chemicals that disrupt the endocrine system that we were speaking about earlier that are provocative, that act like estrogen, that trick your body into believing you have been exposed to estrogen, which we know a woman's lifetime exposure to estrogen increases her risk. So if your body is exposed to chemicals that act like estrogen, they provoke in the same way. We saw that with hormone replacement therapy. I don't think anybody can forget years ago when the Women's Health Initiative study came out, and millions of women stopped taking hormone replacement therapy, which was increasing risk between 26 and 40 percent, and we saw a drop in breast cancer incidence at that point because women exposed to that hormone for 4 years or more had a dramatic increased risk. So we know that hormonally active chemicals, biologically active chemicals are connected to breast cancer. Mr. Waxman. Are those the same as carcinogens? Ms. Rizzo. They are not categorized as carcinogens. They provoke in a different way. They can set is up for other exposures that provoke rapid cell C invoice or interfere with periods of time when our cells are in rapid cell development. Mr. Waxman. Have adequate restrictions been imposed on these chemicals that you are discussing to prevent human exposure to the extent possible? Ms. Rizzo. I would say no, they are not. Mr. Waxman. What are some of the ongoing uses of those chemicals that might lead to dangerous exposures? Ms. Rizzo. Those chemicals, I will give you--there are chemicals in our food can linings. There are chemicals in personal care products. They are not all under the control and auspices of the Environmental Protection Agency. But that which EPA and TSCA does to assess risk, to look at chemicals has an influence across the broad spectrum of uses. So if we don't test chemicals that we are exposed to in a real way every day in real time, in mixtures, in accumulation and over time, then we will never fully understand, as was raised, what their contribution is but we know that if in cell studies they are making cells turn into cancer, if they are giving mammary tumors in animals, then we should expect a similar impact on humans. We do that to test pharmaceuticals. We like animal testing when we are trying to approve a pharmaceutical for clinical trial. We don't like it so much when it tells us the chemical may harm us. Mr. Waxman. My colleague was talking about other factors-- obesity, cigarette smoking. I would assume that gene that would make a woman more susceptible or more likely to have breast cancer would be another factor. If those factors are serious factors, does that negate the impact of these chemicals? Ms. Rizzo. Not at all, and 5 to 10 percent of breast cancer is associated with the breast cancer gene. Smoking is a chemical, so let us not forget, tobacco smoke and secondhand smoke are chemicals. When you look at the obesity and you look at the contributing factors to obesity and you look at some of the chemicals in food packaging and in food, then we have to ask the question, what are the other exposures that are contributing to that. It is not simply a matter of eating too much. Mr. Waxman. Let me ask you about these endocrine disruptors because you seemed to single them out as the most serious. Have those chemicals been adequately restricted or banned, and what are some of their ongoing uses to which we might be exposed? Ms. Rizzo. Endocrine disruptors have not been, and I think there is an effort--the endocrine disruption panel that should be working on this is, I don't know, 10 years behind time, I think. We can certainly get more information for the committee. I don't want to mistake that time frame. But that is not an insignificant effort that needs to be made to look at the impact of endocrine-disrupting chemicals, and we are not talking just about breast cancer. We are talking about testicular cancer, prostate cancer. These are hormonally responsive cancers, and it is demonstrated in cell and animal studies. So I think it is very important that we look at those, that we study them adequately and that where we don't need them, we shouldn't be using them when they are non-essential. There are things that we essentially need but we don't need to have some of those chemical exposures, and I think it will spur innovation if we say we are concerned about them, come up with an alternative to bisphenol-A or to phthalates or to some of the others. And I am sure our American industry can do it. We are smart. I am confident in them. Mr. Waxman. Thank you, Mr. Chairman. Mr. Shimkus. The chair thanks the ranking member. The chair wishes to thank you all for a really productive and educational hearing. I want to advise you that you will be receiving written questions as were posed, and your answers will be included for the record. I want to advise members that there will be five legislative days for members to submit opening statements for the record. Finally, with all the interest in this subject, we are going to leave the record open to receive helpful comments on this subject. Without objection, so ordered. The hearing is now adjourned. [Whereupon, at 12:14 p.m., the subcommittee was adjourned.] [Material submitted for inclusion in the record follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]