[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
REGULATION OF EXISTING CHEMICALS AND THE ROLE OF PREEMPTION UNDER
SECTIONS 6 AND 18 OF THE TOXIC SUBSTANCES CONTROL ACT
=======================================================================
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
__________
SEPTEMBER 18, 2013
__________
Serial No. 113-83
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
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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 FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania ANNA G. ESHOO, California
GREG WALDEN, Oregon ELIOT L. ENGEL, New York
LEE TERRY, Nebraska GENE GREEN, Texas
MIKE ROGERS, Michigan DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
MICHAEL C. BURGESS, Texas MICHAEL F. DOYLE, Pennsylvania
MARSHA BLACKBURN, Tennessee JANICE D. SCHAKOWSKY, Illinois
Vice Chairman JIM MATHESON, Utah
PHIL GINGREY, Georgia G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington DONNA M. CHRISTENSEN, Virgin
GREGG HARPER, Mississippi Islands
LEONARD LANCE, New Jersey KATHY CASTOR, Florida
BILL CASSIDY, Louisiana JOHN P. SARBANES, Maryland
BRETT GUTHRIE, Kentucky JERRY McNERNEY, California
PETE OLSON, Texas BRUCE L. BRALEY, Iowa
DAVID B. McKINLEY, West Virginia PETER WELCH, Vermont
CORY GARDNER, Colorado BEN RAY LUJAN, New Mexico
MIKE POMPEO, Kansas PAUL TONKO, New York
ADAM KINZINGER, Illinois JOHN A. YARMUTH, Kentucky
H. MORGAN GRIFFITH, Virginia
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Ohio
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina
7_____
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, Ohio HENRY A. WAXMAN, California (ex
JOE BARTON, Texas officio)
FRED UPTON, Michigan (ex officio)
(ii)
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. Fred Upton, a Representative in Congress from the State of
Michigan, prepared statement................................... 99
Witnesses
Mark A. Greenwood, Principal, Greenwood Environmental Counsel,
PLLC........................................................... 5
Prepared statement........................................... 8
Answers to submitted questions............................... 109
William K. Rawson, Partner and Chair, Chemical Regulations,
Product Strategy and Defense Practice, Latham & Watkins, LLP... 22
Prepared statement........................................... 25
Answers to submitted questions............................... 114
Jennifer Thomas, Director, Federal Government Affairs, Alliance
of Automobile Manufacturers.................................... 36
Prepared statement........................................... 38
Answers to submitted questions............................... 117
Justin Johnson, Deputy Secretary, Vermont Agency for Natural
Resources, On Behalf of the Environmental Council of the States 45
Prepared statement........................................... 47
Lemuel M. Srolovic, Chief, Environmental Protection Bureau,
Office of New York State Attorney General...................... 52
Prepared statement........................................... 54
Linda Reinstein, President/CEO and Co-Founder, Asbestos Disease
Awareness Organization......................................... 64
Prepared statement........................................... 66
Submitted Material
Letter of September 17, 2013, from Kathryn Alcantar, Campaign
Director, Californians for a Healthy and Green Economy, to Mr.
Waxman, submitted by Mr. Shimkus............................... 100
Statement, dated July 24, 2013, of Californians for a Healthy and
Green Economy, submitted by Mr. Shimkus........................ 101
Letter of September 18, 2013, from Linda Lipsen, Chief Executive
Officer, American Alliance for Justice, to Mr. Shimkus and Mr.
Tonko, submitted by Mr. Shimkus................................ 104
Resolution of ECOS, ``Reforming the Toxic Substances Control
Act,'' dated September 17, 2013, submitted by Mr. Shimkus...... 106
REGULATION OF EXISTING CHEMICALS AND THE ROLE OF PREEMPTION UNDER
SECTIONS 6 AND 18 OF THE TOXIC SUBSTANCES CONTROL ACT
----------
WEDNESDAY, SEPTEMBER 18, 2013
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 2:05 p.m., in
room 2123 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Murphy, Latta,
Harper, McKinley, Bilirakis, Johnson, Tonko, Pallone, Green,
DeGette, McNerney, Schakowsky, Barrow, and Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Jerry
Couri, Senior Environmental Policy Advisor; David McCarthy,
Chief Counsel, Environment and the Economy; Andrew Powaleny,
Deputy Press Secretary; Chris Sarley, Policy Coordinator,
Environment and the Economy; Jacqueline Cohen, Democratic
Senior Counsel; Greg Dotson, Democratic Staff Director, Energy
and Environment; and Kara van Stralen, Democratic Policy
Analyst.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. I call this subcommittee hearing to order, and
I want to thank you all for coming. I ask unanimous consent
that all members of the subcommittee have 5 days to submit
their opening statements for the record, and I recognize myself
for 5 minutes.
Today's hearing continues the subcommittee's examination of
the Toxic Substances Control Act, including statutory
provisions, regulatory implementation, and practical outcomes.
On June 13, our subcommittee held a hearing on the history and
impact of Title I of TSCA. On July 11, the subcommittee
explored regulation of chemicals before they enter commerce,
under TSCA Section 5, and protection of sensitive business
information, under TSCA Section 14. I believe these hearings
have helped us understand a law as complex as it is broad.
Our focus now is on regulation of chemicals once they are
in commerce, under TSCA Section 6, and the role of Federal pre-
emption, under TSCA Section 18.
These two sections of TSCA have been subject to a great
deal of discussion. Notwithstanding the testimony of three of
our witnesses at the July 11 hearing that TSCA Section 5 is
doing a fine job reviewing and, if necessary, limiting the use
of new chemicals, some argue that TSCA is broken and because
TSCA Section 6 has not produced more bans or other limits on
chemicals. Others, including some on our panel today, suggest
that concern is overstated.
EPA has been more active issuing regulations on TSCA
Section 5 new chemicals than it has been on TSCA Section 6
ones, but it has issued regulations under Section 6. Charlie
Auer, who testified in our June 13 hearing stated that TSCA
Section 6 ``had surprising early success in efforts between
1978 and 1980.'' The question is, What has changed?
Today we explore just what TSCA Section 6 asks EPA,
including what ``unreasonable risk'' is and whether this is a
novel concept under Federal law. We will also examine
requirements in the law regarding the application of ``least
burdensome'' regulations. We will study the role of risk
assessment and cost-benefit analysis, how and whether it is
done, and what role it plays in the final rulemaking decision.
Understanding Section 6 and its link to the pre-emption
provisions in TSCA Section 18 is also important. If EPA has
taken action to test a chemical or regulate a new existing
chemical in commerce, TSCA forecloses State action unless the
State or locality meets one of four criteria. In many areas the
States should handle local pollution issues, because they have
a wealth of experience and capability to do so. But chemical
regulation is not an area where States have traditionally taken
a lead role because of the impacts on interstate commerce.
In our June TSCA hearing, witness Beth Bosley said TSCA is
a law about products, not pollution. TSCA vests EPA with
authority to regulate risks to humans and the environment from
chemicals that are not otherwise covered by some more targeted
statute. TSCA is about making interstate commerce in chemicals
work for all of us.
I thank all our witnesses for appearing today, and look
forward to their insights about the appropriate roles of the
parties and the uniqueness of TSCA in this respect. I urge
members to take today's opportunity to learn the fundamentals
of these Sections of the law.
And now I want to thank the panel. Once I get through with
our opening statements, I will then do the introductions of
each one of you. We do appreciate you being here. There is kind
of an excitement of trying to address a 30-year-old law that we
haven't really revisited in many years. I spent a lot of time
during the break talking to various diverse groups of
interested parties, so I think it is an exciting time and it
really reinforces the need to at least have these hearings,
become more educated, learn from you all, and see if we can
move to bring a very old law kind of up to date.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
Today's hearing continues the subcommittee's examination of
the Toxic Substances Control Act,including statutory
provisions, regulatory implementation, and practical outcomes.
On June 13, our subcommittee held a hearing on the history and
impact of Title I of TSCA. On July 11, the subcommittee
explored regulation of chemicals before they enter commerce,
under TSCA section 5, and protection of sensitive business
information, under TSCA section 14. I believe these hearings
have helped us understand a law as complex as it is broad.
Our focus now is on regulation of chemicals once they are
in commerce, under TSCA section 6, and the role of Federal pre-
emption, under TSCA section 18.
These two sections of TSCA have been subject to a great
deal of discussion. Notwithstanding the testimony of three of
our witnesses at the July 11 hearing that TSCA section 5 is
doing a fine job reviewing and, if necessary, limiting the use
of new chemicals, some argue that TSCA is broken because TSCA
section 6 has not produced more bans or other limits on
chemicals. Others, including some on our panel today, suggest
that concern is overstated.
EPA has been more active issuing regulations on TSCA
section 5 new chemicals than it has been on TSCA section 6
ones--but it has issued regulations under section 6. Charlie
Auer, who testified in our June 13, hearing stated that TSCA
section 6 ``had surprising early success in efforts between
1978 and 1980.'' The question is, What has changed?
Today we explore just what TSCA section 6 asks of EPA,
including what ``unreasonable risk'' is and whether this is a
novel concept in Federal law. We will also examine requirements
in the law regarding the application of ``least burdensome''
regulations. We will study the role of risk assessment and
cost-benefit analysis, how and whether it is done, and what
role it plays in any final rulemaking decision.
Understanding section 6 and its link to the pre-emption
provisions in TSCA section 18 is also important. If EPA has
taken action to test a chemical or regulate a new or existing
chemical in commerce, TSCA forecloses State action unless the
State or locality meets one of four criteria.
In many areas the States should handle local pollution
issues, because they have a wealth of experience and capability
to do so. But chemical regulation is not an area where States
have traditionally taken a lead role because of the impacts on
interstate commerce.
In our June TSCA hearing, witness Beth Bosley said TSCA is
a law about products, not pollution. TSCA vests EPA with
authority to regulate risks to humans and the environment from
chemicals that are not otherwise covered by some more targeted
statute.
TSCA is about making interstate commerce in chemicals work
for all of us. I thank all our witnesses for appearing today,
and look forward to their insights about the appropriate roles
of the parties and the uniqueness of TSCA in this respect. I
urge members to take today's opportunity to learn the
fundamentals of these sections of this law.
Mr. Shimkus. With that, I would recognize the ranking
member from New York, Mr. Tonko, for 5 minutes.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair, and good afternoon. Thank
you, Chair Shimkus, for holding this important hearing. Thank
you to the members of our panel for participating and sharing
information. I am especially pleased to have Mr. Srolovic from
the New York State Attorney General's Office here with us
today. As one who served in the New York State Assembly for 25
years, we work closely with the agency, so it is good to have
you here.
This afternoon, we will hear from witnesses on Section 6,
the regulation of hazardous chemical substances and mixtures,
and on Section 18, preemption. As I observed in previous
hearings, and as we have heard from previous witnesses, the
Toxic Substances Control Act has not worked well. We have too
little information about many of the chemicals we encounter
every day. Even when it becomes common knowledge that a
chemical is harmful, the Environmental Protection Agency does
not have sufficient authority to restrict or ban that chemical
from the market.
Under the current law, individual States retain sufficient
authority to act independently on behalf of their citizens.
Although some States' actions are not permissible under Section
18 of the current law, it has been possible for States like New
York to take action to restrict or ban harmful chemicals. In
the absence of Federal actions, States have filled the void.
States have used their authorities to protect the public when
chemicals are found to indeed cause harm.
While it is good to know that State governments are
watching out for their citizens, the Federal Government should
be an active participant in this effort and be providing a
uniform level of protection for all citizens. The major
failings with current law have little to do with the provisions
that define the relationship between Federal and State action
on toxic chemicals. They stem from the lack of a strong safety
standard to protect the public and our environment. Section 6
of TSCA does not provide EPA with the tools needed to ensure
that chemicals in commerce are safe.
I am sure we will hear more about Section 6 and its
failings from some of our witnesses today. Chemicals that are
harmful should be removed from the market and make way for
safer alternatives. Revision of this law is long overdue. I
hope we will be able to make changes that will provide the
assurances of safety desired by the public and the incentive
for innovation and regulatory certainty needed by industry.
Thank you again, Mr. Chair, for holding this important
hearing. We have another fine group of witnesses on this panel
this afternoon, and I thank you all for participating in this
hearing. I look forward to hearing your testimony, and with
that, I yield back.
Mr. Shimkus. Gentleman yields back his time. The chair
seeks anyone on the Majority side for an opening statement.
Seeing none, chair looks to the Minority side. Seeing no member
interested in an opening statement, we will turn to you all.
I just hearken back to my opening statement and trying to
sort out the different sections and what they are doing and why
they are doing, which reemphasizes the fact that why we invited
you here, to help us try to make sense of all these provisions
and where they work and where there may be questions about
perfecting aspects of the law.
So let me welcome you all here. The first one we will
recognize for 5 minutes, Mr. Mark A. Greenwood, who is the
principal with Greenwood Environmental Counsel in Washington,
DC. Sir, your full statement is in the record. You are
recognized for 5 minutes for an opening statement. We won't
be--we will be very patient on the time unless you go
extraordinarily long and then we will have--we will start
gaveling. So you are recognized for 5 minutes.
STATEMENTS OF MARK A. GREENWOOD, PRINCIPAL, GREENWOOD
ENVIRONMENTAL COUNSEL, PLLC; WILLIAM K. RAWSON, PARTNER AND
CHAIR, CHEMICAL REGULATIONS, PRODUCT STRATEGY AND DEFENSE
PRACTICE, LATHAM & WATKINS, LLP; JENNIFER THOMAS, DIRECTOR,
FEDERAL GOVERNMENT AFFAIRS, ALLIANCE OF AUTOMOBILE
MANUFACTURERS; JUSTIN JOHNSON, DEPUTY SECRETARY, VERMONT AGENCY
FOR NATURAL RESOURCES, ON BEHALF OF THE ENVIRONMENTAL COUNCIL
OF THE STATES; LEMUEL M. SROLOVIC, CHIEF, ENVIRONMENTAL
PROTECTION BUREAU, OFFICE OF NEW YORK STATE ATTORNEY GENERAL;
AND LINDA REINSTEIN, PRESIDENT/CEO AND CO-FOUNDER, ASBESTOS
DISEASE AWARENESS ORGANIZATION
STATEMENT OF MARK A. GREENWOOD
Mr. Greenwood. Chairman Shimkus, Ranking Member Tonko, and
members of the committee, thank you for the opportunity to
testify here today. My name is Mark Greenwood, I am an
environmental lawyer, and I have the dubious pleasure of saying
I have worked on TSCA for 25 years. Now that is a long time.
Some of it was in private practice where I advised clients on
many issues, but it also was during my time at EPA. I was the
Associate General Counsel for Pollution Prevention and Toxics,
and I was in pesticides. I was also Director of the Office of
Pollution Prevention and Toxics as well. This is the part of
EPA that actually regulates under TSCA.
I am going to be addressing Section 6 in my comments here
today. Obviously that is a very important section. It is the
section under which the Agency does regulate existing
chemicals. But I think as you alluded to, Mr. Chairman, it is
also important politically because when people say that TSCA is
a broken statute, they tend to refer to Section 6. And so it is
all the more important to understand how it has worked and the
structure of the law.
I am going to talk about three general issues that are
within Section 6, the first being the unreasonable risk
standard, which is the basic guideline for regulation. Under
Section 6C, what that means is EPA has to weigh four factors:
the health and environmental risk of substances, the benefits
of those substances, the availability of alternatives, which
also includes their risks, and the reasonable and ascertainable
economic consequences of the rule. I think it is important to
recognize up front that this is not a standard that is unique
to TSCA. In fact, if you look across Federal law, you will find
that a vast majority of the laws that regulate products in
commerce include either the unreasonable risk standard per se,
or a set of factors that essentially replicate the factors I
just mentioned.
Certain aspects of this standard are really not that
controversial. Everybody, of course, assumes we want to look at
environmental risks and health risks. The alternatives are also
a very important consideration, because it tends to determine
whether any change would be a significant technological change
for industry, and the risks associated with those is an
extremely important consideration, because if you take an
action against one chemical that pushes people into another
chemical that is more risky, of course, that was not a good
result.
There is an area of, I think, controversy which primarily
comes up in the area of how to consider the benefits of a
product and the cost issues. Now what that very quickly tends
to go to is the issue of cost benefit analysis. TSCA does not
require cost benefit analysis, but it is a framework in which
that certainly would be allowed. One of the things I think is
important for you to consider as you think about how this Act
would work is recognize that for over 30 years, the Executive
Branch has pursued various executive orders on regulation that
require cost benefit analysis. So that is part of the framework
in which EPA and other agencies will be working. And so I think
for your purposes, it is really important to think about your
view of cost benefit analysis when you are trying to decide
whether this unreasonable risk standard makes sense.
Now the second area I would like to talk about is something
called the least burdensome alternative. Basically Section 6
says EPA shall regulate, but it must try to find the least
burdensome alternative in its regulatory strategy. Now as a
general matter, Federal agencies probably think this is fairly
reasonable. In my corner, this would be called smarter
regulation. You want to try to find a way of achieving your
environmental objective, your health objective without having
major disruption in the economy and in the society, if you can.
That is a worthy goal. It makes sense. I think most people
agree with it.
Now, this is the one area that I would focus on where I
would say that the decision corrosion-proof fitting, which is
the decision related to asbestos, did some damage to what EPA
can do, because essentially the corrosion-proof fitting case
says that in order to meet this standard of least burdensome
alternative, it is up to EPA to look at essentially each
alternative that could possibly be less burdensome than the
alternative they are considering. Now, that is a much bigger
job than EPA and other agencies generally do, and it is broader
than the obligations under the executive order. So this is
becoming, I think, a very serious issue for consideration. I
can absolutely tell you when we first looked at the corrosion-
proof fitting decision at EPA, this was the issue that stuck in
everybody's mind because it looked to us like it could be a
process of what we call paralysis by analysis, which we would
have to be looking at many, many options doing many and many
cost benefit analyses on each one and there was a deep concern.
So again, I think this is one of those key issues that you want
to think about and ask the question, here we have a very broad
principle of least burdensome alternative that makes sense to
many people. Now the question is in implementation, how can you
run something like that so it does not create unreasonable
analytical obligations for an agency who needs to act.
A third topic I will just mention briefly is the procedures
that are in Section 6. Now as you are probably aware, most
Federal agencies do rulemaking through notice and comment
rulemaking. That procedure is required under Section 6, but
there is an additional set of requirements in Section 6 which
would call for a legislative hearing, something like an event
like this where EPA people ask questions of people who are
participating, but also an opportunity for cross examination,
which creates a sort of trial type of proceeding inside the
rulemaking. Now, there is not a lot of history on this one. It
was really only used once, which was in the asbestos rule. I
participated in that particular proceeding. I will say that
there was probably a bit more heat than light in that
proceeding, and I am not sure how valuable it was. But I think
this is the kind of issue that you want to think about, whether
or not the procedures that are there add value and are
warranted.
So with that, I thank you again for having the chance to
testify, and I look forward to your questions.
[The prepared statement of Mr. Greenwood follows:]
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Mr. Shimkus. Thank you very much.
Now I would like to recognize Mr. William Rawson, Partner
and Chair, Chemical Regulations, Product Strategy, and Defense
Practice with Latham and Watkins here in Washington, DC. Sir,
you are welcomed. Again, your full statement is in the record.
You are recognized for 5 minutes.
STATEMENT OF WILLIAM K. RAWSON
Mr. Rawson. Thank you, Chairman Shimkus, Ranking Member
Tonko, and distinguished members of the committee. Thank you
for inviting me to testify today on the subject of the Toxic
Substances Control Act. I have practiced environmental law,
particularly in the area of TSCA, for 25 years, and have co-
authored two TSCA desk books published by the Environmental Law
Institute. I am testifying today solely on my own behalf. I do
have some preparative remarks, and I will use those to keep me
within the time limits.
I do understand that the purpose of the hearing today is
not to address specific legislative proposals or to advocate
any specific changes, but rather to share perspectives on the
current statute, particularly Section 6 and Section 18, and I
will address in my remarks both sections.
Starting with Section 6, it is certainly true that there
have been a few rulemaking actions undertaken by EPA under that
section, and this has contributed to the erosion of public
confidence in the statute and the failed asbestos rulemaking. I
would urge the committee to take a very close look at the
corrosion-proof fittings decision, however, because I think it
demonstrates that EPA in that rulemaking had committed
procedures in such areas that compelled the court to set
portions of the rule aside.
I will address three requirements in Section 6. The first
is least burdensome requirement. As. Mr. Greenwood has
testified, that is, in fact, the way most agencies try to
regulate, to engage in smart regulation, meaning impose the
requirement that meets the regulatory objective while imposing
the least burden. It is quite similar to the language that we
see in Executive Order 13563, which directs agencies to
identify and use the best and most innovative and least
burdensome tools for achieving regulatory ends. The executive
order directs each agency to tailor its regulations to impose
the least burden on society consistent with obtaining
regulatory objectives. So that part of the statute is good
policy consistent with what we see in executive orders issued
by this and previous administrations.
Secondly, concerning unreasonable risk, as Mr. Greenwood
has described, this also is a standard found common in many
environmental health and safety statutes, and it also parallels
language that we find in the executive orders, including the
one cited in my testimony. It is very similar to the standard,
for example, that EPA uses when regulating non-food use
pesticides, and I will read that standard. It requires EPA to
consider any unreasonable risk to man or the environment from
the pesticide, and to take into account the economic, social,
and environmental costs and benefits of the use of any
pesticides. So we can see similarities between the standard in
TSCA and the standard in other environmental statutes. And
Executive Order 13563 similarly directs EPA and other executive
agencies to take into account benefits and costs, both
quantitative and qualitative, and to propose or adopt a
regulation only upon a reasonable determination that its
benefits justify its costs.
The third aspect of Section 6 I will address briefly is the
fact that it places the burden on EPA to demonstrate the need
for regulation. This also is not unique. When EPA promulgates a
standard, for example, under the Clean Air Act, it typically
carries the burden to demonstrate why the particular control or
level of protection that is proposed is necessary to protect
human health. EPA does apply very conservative health
protection methodologies when making risk-based findings under
TSCA or any environmental statute, and courts typically give
EPA wide latitude to makes those kinds of judgments.
I think it is important to recognize that before the failed
asbestos rulemaking, EPA had successfully promulgated several
Section 6 rules, albeit on a much smaller scale. No legal
challenge. It is important to note in the corrosion-proof
fittings case that the court actually started with a
presumption of validity of the rule and upheld portions of the
rule, and set other portions, major portions aside because of
the procedural assumption of errors to which I alluded earlier
and that are described in my testimony.
It is certainly true that conducting a rulemaking under
TSCA or any environmental statute is very challenging, but one
of the lessons of corrosion-proof fittings, in my judgment, is
that we should not easily or lightly put procedural or
substantive requirements aside, as they help ensure the quality
or integrity of any rulemaking and any resulting regulatory
decision. In my judgment, changes to Section 6 should not
simply make it easier for EPA to ban chemicals, but should
support sound regulatory decisions that meet all of the
objectives of the statute.
I would urge that the number of rulemaking actions taken
under TSCA Section 6 is not necessarily the right metric for
evaluating the adequacy of the statute, because it doesn't
recognize the many times EPA has evaluated chemicals and
decided no action is needed because there were no significant
risks or the chemical was a low concern for further action. It
also doesn't recognize what EPA has accomplished in other parts
of the statute, voluntary product stewardship initiatives and
the like. All of these are described in EPA's Web site, and I
would direct the committee's attention to that Web site for
more information.
The big concern that I would raise with TSCA is that I feel
EPA needs a strong mandate to do something about the backlog of
chemical--assessments of existing chemicals. A clear mandate
and adequate resources are needed, in my judgment, to enable
EPA to assess in a timely manner the potential risks to health
and the environment from chemicals that are present in commerce
in significant quantities, and that mandate should direct EPA
to prioritize so that the highest number of high priority
chemicals can be addressed as quickly as possible, or within
reasonable timeframes.
I will quickly close with one comment on preemption, and
that is it has played a very limited role under TSCA to date
because it only comes into play when EPA has acted under
Sections 4, 5, or 6, and States that typically have not been
active with respect to testing TSCA Section 4 or new chemical
regulation TSCA Section 6, and relatively few actions have been
taken under Section 6, putting aside the regulation of PCBs, so
it hasn't been a significant issue yet. But the preemption
provision in TSCA is, in fact, similar to preemption provisions
in other statutes and it is a well-accepted concept.
Thank you very much.
[The prepared statement of Mr. Rawson follows:]
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Mr. Shimkus. Thank you very much.
I would like to now recognize Ms. Jennifer Thomas, Director
of Federal Government Affairs for the Alliance of Automobile
Manufacturers here in Washington, DC. Same thing, your written
statement is in the record and you have 5 minutes. Thank you
for coming.
STATEMENT OF JENNIFER THOMAS
Ms. Thomas. Thank you, Chairman Shimkus, Ranking Member
Tonko, and members of the subcommittee. My name is Jennifer
Thomas and am I the Director of Federal Government Affairs to
the Alliance of Automobile Manufacturers, which is a trade
association that represents 12 auto makers that make roughly
three out of every four new vehicles sold in the U.S. each
year. On behalf of the Alliance, I appreciate the opportunity
to offer our views on TSCA and the need for one national
program for chemical regulation.
Not only are auto makers producing more fuel efficient and
safer cars than ever, we have also made tremendous strides in
reducing the amount of substances of concern from autos. For
example, for more than a decade, auto makers have maintained an
industry focus, global substance of concern list, and tracking
database to actively reduce their usage in global production.
The industry has invested more than $30 million on these
systems, which now tracks more than 2,700 substances, to ensure
that restricted substances are not in our products. Auto makers
have eliminated the use of lead wheel weights, mercury-
containing switches, asbestos-lined brake pads, and are
currently phasing out the use of deca as a flame retardant, and
working to identify an alternative brake friction material to
replace copper. But we recognize that there is more work to do.
TSCA remains the only Federal environmental statute that
has not been substantively revised. We support modernizing TSCA
in part because inaction at the Federal level is creating an
environment in which States feel compelled to go out on their
own to regulate chemicals, creating a patchwork of State
standards. As you might suspect, such a patchwork presents
great obstacles to effective chemical management for large
industry sectors, in particular, manufacturers of complex
durable goods, such as autos. The Alliance strongly believes
that modernizing TSCA to avoid a balkanized approach to
chemical management is more in line with today's manufacturing
realities.
The average auto has 30,000 unique components, and each
individual component is comprised of multiple chemicals and
mixtures. Many components are obtained from our suppliers as
finished products, which are then integrated into the vehicle.
Auto makers recent steps to streamline production and reduce
costs through common design and platform sharing resulted in
better products for our customers and allowed us to stay
competitive in this global market. An overwhelming array of
State chemical regulations, rather than one Federal chemical
management program, increases costs, hinders flexibility, and
reduces competitiveness. Multiple State programs also have the
potential to conflict with stringent fuel economy and safety
standards. To meet the aggressive 54.5 miles per gallon fuel
economy standards by model year 2025, auto makers will be
relying on lightweight materials like plastics that contain
multiple chemical components. Auto makers spend billions of
dollars annually on R&D to advance fuel efficiency, innovate
new safety technologies, and develop more sustainable materials
before the need of any regulation. A myriad of State programs
has the potential to derail this progress by shifting the
industry's focus from R&D to regulatory compliance. We readily
acknowledge that States have a very important role to play, and
the Alliance supports a process by which States can address
their specific chemical concerns with EPA in a common
scientifically-based framework under TSCA. Legislative efforts
to modernize TSCA should seek collaborations with States to
achieve product safety, yet continue to maintain strong Federal
preemption provisions. A unified national program would provide
much-needed regulatory certainty while ensuring that products
and chemicals are uniformly safe across all 50 States.
Moving forward, it is critical that any legislative efforts
to modernize TSCA consider the unique concerns of complex
durable goods manufacturers. Currently, article exemptions are
in place for most TSCA requirements. However, we are noticing a
significant trend at the State level targeting not just
chemicals, but consumer products or articles. The Alliance
urges the committee to consider establishing clear standards
for the regulation of articles under TSCA and support the
continued use of existing article exemptions in most
circumstances.
Finally, legislation modernizing TSCA should allow
sufficient lead time to investigate and qualify viable
alternatives, maintain a de minimus threshold of .1 percent for
chemical control actions, and provide an exemption for
service--for automotive service parts. Such an exemption would
avoid any disruption in the supply of thousands--hundreds of
thousands of replacement parts and allow auto makers to
continue to fulfill customer warranties and replace existing
fleet.
The Alliance appreciates the opportunity to offer our views
on TSCA and the need for one national program for chemical
regulation. We stand ready to work with this committee on any
efforts to modernize this important policy. Thank you again,
and I look forward to any questions you might have.
[The prepared statement of Ms. Thomas follows:]
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Mr. Shimkus. Thank you.
Chair now recognizes Mr. Justin Johnson, Deputy Secretary
for the Vermont Agency for Natural Resources from the great
State of Vermont. Sir, you are welcome and you are recognized
for 5 minutes.
STATEMENT OF JUSTIN JOHNSON
Mr. Johnson. Thank you, Chairman Shimkus and Ranking Member
Tonko, and the other members of the committee. It is a real
honor to come down and speak to you about this today. I am the
Deputy Secretary of the Agency of Natural Resources in Vermont,
but today I am representing the Environmental Council of the
States, which is made up of the leaders of the State and
territorial Environmental Protection Agencies.
Just yesterday, ECOS passed a resolution on this matter at
our annual meeting over in Arlington, and I will be summarizing
that position today.
First of all, I would say that ECOS members are very keen
to see reform of TSCA. It is very important to us for a number
of reasons, which I will spell out. In particular, we have four
top issues of concern: preemption, chemical assessments, the
safety standard, and CBI, which I know is not the specific
topic today and you have addressed before, but that is also an
important one.
Preemption is the number one topic, simply because States
do not want to lose the ability to act to restrict a chemical
in order to prevent harm to the public or the environment. This
ability to act is important to States as a backstop to either a
Federal program that does not work as intended, or a Federal
program that acts slowly or fails to act when reliable
scientific data indicates that action is needed. Without this
ability to act, the only recourse would be to come back to
Congress to do what we are doing, and it is a very high bar
indeed. Retaining our ability to act does not mean that 50
States with 50 different chemical laws is the outcome. States
are only looking to have the ability to act on chemicals in a
way that their legislatures, governors, and people deem
appropriate. It is expensive and time consuming to take these
actions, and the way States are these days, we are not looking
for more work, but we will act if we need to to protect
citizens.
States have lost confidence that TSCA works as thoroughly
or as quickly as it ought to, leaving States to pass their own
laws and rules on chemical management. However, if TSCA did
work thoroughly and quickly, there would be much less incentive
for States to act with additional requirements. State authority
would be preserved, but seldom invoked. As a practical matter,
implementation of a comprehensively reformed TSCA will render
the State implementation issue largely moot, as States will
focus their increasingly limited resources on other priorities.
During the last 20 years, however, States have acted to
fill the regulatory void of the Federal level, illustrating the
vitally important role States play in providing a backstop to
Federal inaction. With regard to the current impact of TSCA
Sections 6 and 18 on the exercise of States action or on common
law authority, we suggest that because EPA has acted on so few
chemicals under TSCA, preemption of State authority has not
been an issue to date.
States believe that for TSCA to work well, there are at
least three other key requirements. Chemical assessments need
to be conducted. There are thousands of chemicals that the EPA
hasn't acted on. Currently, EPA must conduct reviews of new
chemicals to determine if they are a threat. Because of the
current TSCA requirements for EPA to generate most of the data
itself, this burden is beyond the Agency's capability and so
very few get reviewed. Most chemicals simply pass into
commerce. When this happens, States may see a problem with some
of these and then act. The key, then, is for EPA to prioritize
and review high priority chemicals, then it can focus on the
chemicals of greatest concern. But EPA doesn't currently have
the resources to conduct this process, so industry should
supply some or all of the needed data. This is why ECOS says
that TSCA reform should ensure that the burden is effectively
placed on manufacturers.
The safety standard burden of proof should be less onerous.
Currently, States think that the action standard the EPA is
held to is too high in their ability to restrict a chemical's
use. Currently, TSCA's safety standard requires EPA to prove
that harm from a chemical has occurred before it can restrict
use of the chemical. This is almost an impossible standard for
EPA to meet. In our resolution, we ask that TSCA be reformed so
that EPA can take expedited action when a chemical presents a
very serious or immediate risk to public health or the
environment, including the ability to impose interim conditions
to be in effect until EPA has had the opportunity to make a
safety determination. This will help alleviate State concerns
about the effectiveness of TSCA.
Finally, I will just say on confidential business
information, States need access to confidential data to help us
fulfill our requirements to protect citizens and the
environment. We understand that States should have to follow
Federal guidelines that restrict distribution of these
materials, but we believe that that is an important step in
making TSCA more open and available to people so they can
understand the decisions that are being made. There are other
issues, but during our resolution and with the permission of
the committee, I would provide a copy of that final resolution
as an addendum to my written testimony.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Johnson follows:]
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Mr. Shimkus. Thank you, sir.
Now chair turns to--and I hope I don't butcher it--Lemuel
Srolovic. Close? All right. That is the last time I am going to
try. Chief of the Environmental Protection Bureau of New York
State Office of the Attorney General. Sir, you are welcomed.
Your full statement is in the record and you are recognized for
5 minutes. Just hold on for one second. Let's see if we can
get--there should be a light that goes on if you press it. If
not, just grab one of your other panelists'----
STATEMENT OF LEMUEL M. SROLOVIC
Mr. Srolovic. A little help from the sister State here.
Thank you.
Chairman Shimkus, Ranking Member Tonko, and distinguished
committee members, thank you for the opportunity to testify
this afternoon on behalf of Eric T. Schneiderman, Attorney
General of New York.
For many decades, New York has been a leader in protecting
public health and the environment from toxic chemicals. That
exercise of traditional State power has allowed New York to
protect its citizens and natural resources, and to serve as a
laboratory for nationwide solutions to threats posed by toxic
chemicals.
For example, in 1970, the State of New York banned the use
of the insecticide DDT, which was devastating many bird
populations, including the American bald eagle. EPA followed
New York's lead in banning DDT. Now when you travel from New
York City to Albany along the Hudson River, you can routinely
see bald eagles along the way and it is a highlight of that
trip.
New York has taken other actions to protect public health
and the environment by restricting the sale and use of products
containing harmful chemicals. Some of those actions include to
protect babies and young children, New York has banned
bisphenol A, or BPA, in pacifiers and baby bottles for use in
children under 3 years of age. BPA has been shown to mimic the
behavior of estrogens, potentially causing changes in the onset
of puberty and reproductive functioning. New York also
restricts the concentration of lead, cadmium, mercury, and
chromium in product packaging. Lead and mercury are probable
human carcinogens, while cadmium and chromium are known human
carcinogens. To protect New Yorkers that rely on groundwater
for their drinking water supply, New York prohibits the sale or
distribution of gasoline within the State containing methyl
tertiary butyl ether, or MTBE. MTBE has been shown to have
adverse health effects, and when in drinking water, may impart
bad taste and odor.
The goal of TSCA is to establish necessary and appropriate
Federal restrictions on the manufacture and use of chemicals
that present an unreasonable risk of injury to the health of
Americans or the environment. Attorney General Schneiderman
strongly supports this goal, and recognizes the critical
contribution that TSCA, in partnership with State efforts,
could make in ensuring the adequate protection of public health
and the environment.
Unfortunately in practice, TSCA has largely failed to live
up to its goal because only a small number of chemicals have
been tested, and just a handful have been restricted.
It is essential that TSCA be reformed to require EPA to
increase its knowledge of the toxicity of the potentially
dangerous chemicals on its inventory as quickly as possible,
and to impose appropriate restrictions on their manufacture and
use as necessary to adequately protect public health and the
environment.
Over on the Senate side, a pending bill, S.1009 proposes to
reform TSCA in important respects. Attorney General
Schneiderman believes that a number of these amendments
represent critical improvements to TSCA; however, the Attorney
General also believes that that legislation could be further
improved.
Protecting the Nation's public health and the environment
is best achieved through a dynamic Federal-State relationship
in which the authority of States to enact enforced protections,
which are at least as stringent as Federal protections, but may
also be more stringent, is preserved. That relationship
animates our national laws regarding air and water pollution,
hazardous waste, pesticides, as well as TSCA. TSCA's preemption
provision preserves the States' traditional authority to
restrict chemicals that States have found dangerous, as well as
allowing States to continue to serve as laboratories for
nationwide solutions.
In considering necessary reform of TSCA's regulatory
provisions, the traditional authority of States to take action
to protect their citizens and the environment from threats
posed by toxic chemicals should be preserved.
In conclusion, achieving TSCA's goal of ensuring the
adequate protection of public health and the environment from
toxic chemicals is critically important, as is preserving the
authority of States to protect public health and the
environment. Because TSCA has not met its goal, Attorney
General Schneiderman strongly supports your efforts and offers
the full assistance of our office to you and your colleagues as
you review this important Federal law.
Thank you, and I look forward to any questions.
[The prepared statement of Mr. Srolovic follows:]
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Mr. Shimkus. Thank you, sir, and now the chair recognizes
Ms. Linda Reinstein, correct, President, CEO and Cc-Founder of
Asbestos Disease Awareness Organization from California. You
are welcomed and you are recognized for 5 minutes.
STATEMENT OF LINDA REINSTEIN
Ms. Reinstein. Thank you for giving me the honor and the
opportunity to testify today at your critically important
hearing.
I know far too well that toxic chemicals are not just
threats. They are a real part of life and death for many
Americans. During the past 10 years since I have been coming to
Washington, more than 100,000 Americans have lost their lives
because of asbestos. I want to make it clear, I am neither a
lobbyist nor an attorney. I am a mesothelioma widow.
I co-founded the Asbestos Disease Awareness Organization
back in 2004. We have become the largest independent non-profit
organization in the United States dedicated to eliminating
asbestos-caused diseases.
It is important for me today. I want to dedicate my
testimony to Janelle and to Michael. Tragically, Janelle lost
her life to mesothelioma just a few months ago. She was only 37
years old. She has left behind her husband and an 11-year-old
son. Michael, age 29, a mesothelioma patient, is fighting for
his life and he faces limited treatment options.
My husband, Alan, was diagnosed with pleural mesothelioma
in 2003. We had never heard of this asbestos-caused cancer, and
we shortly learned it was incurable. Alan chose to undergo
radical surgery. They removed a left rib, his left lung,
resected his pericardium, and surgically replaced his
diaphragm. When mesothelioma attacked his remaining lung, he
was then tethered to oxygen and he felt like he was breathing
through a pinched straw each breath, every second, every
minute, every day. In 2006, my then 13-year-old daughter and I
were by his side as he took his last breaths and died.
Sadly, our stories are far too common. Asbestos is a known
human carcinogen, and it remains legal and lethal in the United
States. The Toxic Substances Control Act, TSCA, has failed to
protect public health and our environment. In 1989, EPA issued
a final rule under Section 6 of TSCA banning asbestos-
containing products. In 1991, however, this rule was overturned
by the 5th Circuit Court of Appeals. As a result, there was no
ban on the manufacture, importation, processing, or
distribution in commerce of asbestos-containing products.
Asbestos has been banned in 54 countries without an
economic consequence. It is time for TSCA reform, and more
importantly, the burden of proof should shift to the chemical
manufacturers to prove their chemicals are safe.
I want you to know that consumer, environmental, and
occupational exposures continue. From 1900 to 2010, we have
used more than 31 million tons of asbestos, and since 1965,
nearly 1.4 million tons of asbestos have been used in friction
products: brakes, clutches, and others. But I ask you today,
each of you, do you know where asbestos is in your home, in
your district, or inside the Capitol?
Your constituents can't manage the toxic risks on their
own. It was reported that 2,600 tons of asbestos debris were
removed after the Joplin, Missouri tornado, and I want you to
know that there are tons of toxic debris that littered the
coastline after Hurricane Sandy. It was California's Prop 65,
not the EPA, that removed a child's toy from the consumer
shelves that was contaminated with asbestos. Horrifically, last
year we imported 1,060 tons of asbestos to meet so-called
manufacturing needs.
Now I want to be clear about this also. I have tried for 2
years through FOIA requests to identify who is importing
asbestos, what is being manufactured, and where is the end
product being used? My questions have all gone unanswered. Due
to trade laws such as U.S. Code Title 13, Chapter 9, Section
301(g), the information is all confidential. Yet asbestos has
caused the largest manmade disaster. The CDC NIOSH statistics
from 2000 to 2010 revealed 43,464 Americans have died from
mesothelioma and asbestosis, and those are just two of the
asbestos-caused diseases.
So when we think about cost benefit analysis and some of
the other hoops that we have to jump, I want you to think about
the lives that are claimed as you draft and pass meaningful
TSCA reform. For Alan, Janelle, Michael, and the hundreds of
thousands of other asbestos victims and their families, we
deserve responsibility, accountability, and transparency, and
without these three, no one is safe. No one.
The asbestos facts are irrefutable. Every day, 30 Americans
die from preventable diseases. We cannot alter history or bring
back the dead; we can only learn and work to learn to save the
future lives. It is time for Congress to protect public health
and pass meaningful TSCA reform legislation which truly
empowers the EPA to finally ban asbestos.
As I have been saying for 10 years, one life lost to a
preventable asbestos-caused disease is tragic. Hundreds of
thousands of lives lost is unconscionable. Prevention remains
the only cure. I have attached to my testimony a petition
signed by 2,700 people who support a ban of asbestos, and I
welcome your questions. Thank you.
[The prepared statement of Ms. Reinstein follows:]
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Mr. Shimkus. Thank you. We appreciate your testimony.
Now I would like to recognize myself for 5 minutes for the
first round of questions. My first question goes to Mr.
Greenwood.
You mentioned this in your opening statement, but for
clarification, TSCA Section 6 provides EPA broad authority to
regulate chemicals if EPA reasonably believes a chemical
``presents or will present an unreasonable risk of injury to
health or the environment.'' EPA imposed controls range from
chemical bans to restricted uses to warning label requirements.
What does unreasonable risk mean in the TSCA context?
Mr. Greenwood. Mr. Chairman, as I indicated a little bit in
my initial statement, it involves a balancing of multiple
factors. I mean, you have to look at the risks. You have to
look at product benefits. You look at alternatives, and then,
of course, you look at costs. So I think the key thing there is
it is a combination of those factors and an analysis. It does
not necessarily require, for example, cost benefit analysis,
but that is often done.
It is useful to perhaps recognize since asbestos is such a
topic here that a cost benefit analysis was done on asbestos
under the executive order, not under TSCA, and the
administration determined that despite the significant risks,
that rule was worth sending out. So the point is I think what
you look at here is both of the factors that were considered,
but they still led to decision to try to ban asbestos. So that
doesn't necessarily, as unreasonable risk, mean you are doing
less for more regulation.
Mr. Shimkus. And you reiterated what you said in your
opening statement. You have health and environmental risks, I
think benefits, availability of alternatives, and economic
consequences of the rule. That was the kind of four criteria
that we use to evaluate that. And you believe this is a
workable standard for TSCA?
Mr. Greenwood. I think it is and can be. I mean, I think--
again, as I mentioned and I think Mr. Rawson mentioned, too,
you got to remember that the unreasonable risk standards is out
there and in many ways the prevailing standard that exists for
regulation of products. And so you see experiences in other
parts of the government, including pesticides at EPA, where
there has been a very active program with an unreasonable risk
standard. So I think the issues that you see in TSCA, at least
with Section 6, as I mentioned in my testimony have less to do
with the unreasonable risk standard than they do with that
interpretation of what least burdensome alternative is.
Mr. Shimkus. And Mr. Rawson, Mr. Greenwood referred to you.
Do you agree with that, those statements?
Mr. Rawson. I do. I think because you see the same standard
in other statutes, including statutes administered by other
agencies such as the Consumer Products Safety Act administered
by the CPSC, and we see the basic criteria that make up the
unreasonable risk standard in the executive order issued by
this administration and similar executive orders issued by
prior administrations. So I do think it is the right target to
aim for.
Mr. Shimkus. Having said that, do you think that the
preemption provision similarly needs to be strengthened?
Mr. Rawson. Well, the preemption provision in TSCA acts
similar to the preemption provisions in the Consumer Products
Safety Act and some other statutes. It basically says if EPA
hasn't acted, States are free to act. Where EPA has acted under
particular sections, then States typically can't act, although
there are some exceptions. States can adopt identical laws to
make them enforceable under State law. The States can actually
prevent the use of the chemical within their boundaries, other
than for the use to make other chemicals or mixtures. So there
is still some latitude for the States.
In terms of strengthening it, the one thing that the
current preemption clause doesn't do, it preempts State action
when EPA acts to regulate. If EPA takes a hard look at a
chemical and says this one is OK, this activity is safe, there
is no risk, it doesn't preempt us in the absence of regulation.
It doesn't prevent States from saying well, we are going to
regulate it. So one thing that could be considered is when EPA
takes a hard look, all the interested stakeholders have an
opportunity to comment and have their say and no risk is found,
you could argue that preemption could make sense there to have
national uniformity. That is not the current approach.
Mr. Shimkus. Thank you. Ms. Thomas, some people think TSCA
Section 6 should not include any exposure of magnitude effect
considerations. What else--what other considerations should be
evaluated?
Ms. Thomas. Thank you for the question. While I am not a
TSCA expert by any means, we would support that a process where
active chemicals in commerce are evaluated, are prioritized,
and assessed in a science-based, risk-based manner that takes
into full account things like chemical use, hazard information,
potential exposure, and the availability of alternatives. And
we would be more than happy to work with you to try to find
that right balance so that all of those things are
accomplished.
Mr. Shimkus. So if I can restate what you--you think that
there is--a robust science assessment would be helpful in this
process?
Ms. Thomas. Absolutely, yes.
Mr. Shimkus. Great. I thank you for your answers.
I would now like to yield to Mr. Tonko, the Ranking Member,
for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. I thank the witnesses
again for their testimony, and particularly welcome Mr. Johnson
and Mr. Srolovic from my home State who can provide an
important State perspective.
In recent years, it appears as though States have led the
way on chemical regulation, as EPA's program has faltered. It
is vitally important that we hear from them today. Any effort
to reform TSCA should protect the hard work States have devoted
to protecting their citizens from the risks of dangerous
chemicals, and learn from those success stories.
Mr. Srolovic, can you describe briefly some of the chemical
risks New York has been working to address?
Mr. Srolovic. Yes, Ranking Member Tonko. Thank you.
In New York, the most recent example I alluded to in my
testimony was the risk to groundwater and public health posed
by MTBE. That assessment led to the ban that was successfully
defended from a challenge. I think overall, what we found, our
kind of lesson learned is that environmental laws work best
when there is a strong State and Federal partnership, and the
problem with chemical regulation is that we don't have an
effective Federal partner. And while New York continues to use
its traditional authority to protect public health and the
environment, we can't do it alone. We need EPA to have a clear
mandate and the authority and the resources to timely assess
the myriad of chemicals in our society for risks to health and
the environment, and to enact appropriate restrictions.
Mr. Tonko. Thank you. EPA's attempts to regulate asbestos
have utterly failed in light of industry-backed litigation.
Have the New York State regulations faced legal challenges, or
Vermont, if you can share your story, either of you?
Mr. Johnson. So Vermont has not had a successful challenge.
We also banned MTBE in gasoline. The challenge for Vermont with
its 620,000 residents and one toxicologist is that we just--we
have looked at some chemicals, we have a lot of concerns, but
we don't have an ability. We just haven't had an ability to do
the work that we think ultimately ought to be done at the
Federal level. We are absolutely in agreement in Vermont that a
nationwide process would be the most appropriate one. It would
work best for everybody if it was comprehensive and robust, but
we will certainly be looking--you know, if this latest approach
attempt to sort of reform TSCA doesn't come to fruition, I
think the pressure will be on in my legislature to do more in
Vermont. I think it will take a lot of work, but we could be
successful.
Mr. Srolovic. The New York ban on MTBE, as I mentioned, was
challenged by industry. My office successfully defended that
through trial. The district court found that the exercise of
New York's traditional power to protect its groundwater and its
public health were not in conflict with the approval or
authorization of MTBE as a gasoline additive by EPA under the
Federal Clean Air Act. So in that case, the court found, in
fact, that there was no conflict between the State and Federal
regimes, and that basic decision was just recently revisited by
the U.S. Court of Appeals for the Second Circuit in a case
involving New York City groundwater contamination, and again
found that there was no conflict between these two programs.
Mr. Tonko. Thank you. It is interesting to note that after
New York acted to address the risks of the pesticide DDT, EPA
followed suit. Mr. Srolovic, one of things this subcommittee
should understand is what tools States need in a situation
where Federal and State requirements are the same. If EPA
adopts chemical regulations that mirror rules currently in
place in New York, does New York still need authority to
enforce the existing New York State requirements, or is it
sufficient for the State to rely on Federal enforcement or the
availability of citizen suits under TSCA?
Mr. Srolovic. It is important for States to retain the
ability to adopt under their own State laws the same
requirements as the Federal requirements. And the reason for
that primarily is that it then allows the State environmental
agencies--in New York, it is the Department of Environmental
Conservation--but the environmental regulatory agencies around
the State do the bulk of day-to-day enforcement of our
environmental laws, whether it is a State standard or a Federal
standard. And having the ability which is presently preserved
under TSCA for States to adopt that same requirement under
their own law is very important for enforcement around the
country.
Mr. Tonko. I see that I have exhausted my time, so I yield
back. Thank you, Mr. Chair.
Mr. Shimkus. Gentleman yields back his time. The chair now
recognizes the gentleman from Pennsylvania, Mr. Murphy, for 5
minutes.
Mr. Murphy. Thank you, Mr. Chairman, and I thank the
distinguished panel for being with us today.
Mr. Greenwood, I am just trying to get a sense from your
testimony, a couple clarifications. Which is more important to
help us get to the truth on chemical safety questions, peer
review of data and scientific analysis, or cross examination
requirements under TSCA's Section 6C?
Mr. Greenwood. Well, I guess I would opt for peer review.
Let me amplify that a bit. I do think, particularly in the
context of TSCA Section 6, by the time you get to this cross
examination stage, there has been a fairly extensive airing of
the issues, and at the point--at least with my experience with
asbestos, by the point you were talking about cross
examination, there was essentially everybody hunkered down in
their own positions taking shots at each other. To me, a better
approach is what we see often with peer review, which is more
typical of what we see today in regulation, where experts come
together, see if they can develop consensus, see if they can
provide some useful advice to an agency. And my general sense
is that is probably more valuable.
Let's say that peer review is not necessary every time,
because depending on the issue and the rulemaking, you may not
need that, but my general experience is that has been more
successful.
Mr. Murphy. Let me ask also then about cost benefit
analysis. Does that also proceed in any kind of a scientific
version, and what kind of data is included in a cost benefit
analysis?
Mr. Greenwood. Well, the range of data could be quite
extensive. Obviously you are looking at the most best available
information you can find. For the cost side, it is often a
little easier. The real challenge is usually how you articulate
benefits, because the key aspect of cost benefit analysis is
you try to monetize if you can and compare, as apples to
apples, costs and benefits. And some of that is much easier to
do for some benefits than others, and that becomes one of the
difficult challenges, but it can work well.
Mr. Murphy. Thank you. Is the requirement that EPA consider
the availability of viable substitutes for chemicals for
specific uses appropriate?
Mr. Greenwood. I think it absolutely is. It is critical, I
would say, for at least two good reasons. One is it is critical
in making a clear signal about whether there is going to be a
technological issue. In other words, if you find that there are
no alternatives, then you know you are entering a world in
which you could have significant disruption, and that is an
important thing to understand.
The other thing about alternatives is it helps set up this
question of shouldn't there be some assessment of those
alternatives to see if they are better or worse, because the
worst thing you want to do is push one chemical out of the
economy and substitute another one that has got a bigger
hazard.
Mr. Murphy. Let me ask another question about this
scientific quality of these decisions with regard to when they
try to make a good risk decision, how does a focus on
conditions of use of a chemical affect that scientific quality?
Mr. Greenwood. That is a very important question, and I
think it comes up more and more, because the question is as you
have a general concern about a chemical, you need to translate
that into something that you can actually do. And part of that
is to look, then, at uses of chemicals. Once you know what the
uses are, you can then do better exposure assessments, because
you have very tangible situations to look at. It is also,
again, critical for this issue of alternatives. Once you know
exactly what your use is and your technology, then you can
begin to ask the question what really are the realistic
alternatives for that particular function, that use, and that
exposure?
Mr. Murphy. Thank you.
Mr. Rawson, a quick question here. In your experience, we
know that in the 37-year history of TSCA, EPA has only
successfully imposed restrictions on, I think, five chemicals
using Section 6. Does this mean that TSCA provides EPA
inadequate authority to regulate, or there are some other
issues there?
Mr. Rawson. Thank you. Well, it certainly reflects the
track record, but my own personal view is it reflects more
EPA's reaction to the corrosion-proof fittings decision than
problems with the statute itself. We have walked through the
core elements of Section 6 and shown how they are actually in
line with the standard practice for most agencies trying to
address unreasonable risk and where possible, use the least
burdensome approach to address the problem. But of course, the
approach has to address the problem. So that is fairly standard
and what is in the statute is consistent with smart regulation.
The problem with corrosion-proof fittings is that there are
some really serious issues with the rulemaking. I don't want to
drag through those, but the Agency alters exposure assessment
in very significant ways after the hearings were closed, and so
nobody had a chance to comment. It was presented with really
credible evidence that substitutes would actually cause more
deaths than would be prevented by the rule. So these were big
issues. We were all familiar with the adage that bad law
makes--excuse me, bad facts make bad law. In this case, I think
we had a situation where bad facts made for a very strong
decision, and the Agency took that as saying that somehow now
Section 6, because of this judicial gloss, is harder than what
most agencies have to do. My feeling is that there are all too
many statements in that decision that say if you had done it
better, if you hadn't made these egregious errors, the court
would have been much more deferential. So I sort of feel like
too much of a hard lesson was learned from that decision.
Mr. Shimkus. Gentleman's time is expired. Chair now
recognizes gentleman from California, Mr. McNerney, for 5
minutes.
Mr. McNerney. Thank you, Mr. Chairman. I thank the
witnesses for coming today.
I would like to start with Mr. Greenwood. What would you--
or how would you formulate an alternative to a least burdensome
alternative? How would you formulate something better than
that?
Mr. Greenwood. Well, one of the things I think is worth
looking at is the way the current executive order frames the
issue. It basically says that you are supposed to be looking at
alternatives that are potentially effective and reasonably
feasible. There is kind of an implied rule of reason there. The
agent has to look at large, broad options. He doesn't have to
look at every possible version, every possible variation, and I
think----
Mr. McNerney. So that has to be done in language, right,
that can be followed?
Mr. Greenwood. Yes.
Mr. McNerney. That is a bit of a challenge. Do you have a
specific wording or specific language that you would want to
use?
Mr. Greenwood. Well again, I think if you use that language
and then kind of focus on the way it has been implemented in
executive orders, I think you find a system that works,
because--just to give you a ballpark, it is very common for
agencies to, let's say, look at three or four large options,
which is within the scope of their capability. They can analyze
them, they can present the information. It goes to public
comment. It is work. It takes a little bit of effort. It takes
a bit of time, but it is not an impractical approach.
Mr. McNerney. Mr. Rawson, I believe you said that Section 6
places the burden on the EPA to demonstrate the need for
regulation. What would you think would be a better approach
than having the burden on the EPA?
Mr. Rawson. So I actually think that is fine. I think it is
fairly typical that the burden is on the Agency to justify its
action. But I think the burden should often be on industry to
supply much of the information, the test data, to provide
information on exposure and other information that would
support that decision. So my view of the world is that industry
should supply much of the information, the Agency should make
the decision about risk, and then if it finds a significant
risk, propose the least burdensome approach that would address
that risk.
Mr. McNerney. Well the opposite would be to require
industry to prove that their chemicals are safe.
Mr. Rawson. Right. That is effectively what is happening
right now with new chemical regulation, because with new
chemicals companies have to--and this was covered by the
previous hearing, of course, they have to provide a pre-
manufacture notice. Typically, EPA either gets the information
it wants or the restrictions it wants, or the PMN is withdrawn.
But with the universe of existing chemicals and all the myriad
uses and so on, it is just not practical at this point in time
to have industry prove a negative for every chemical for every
use. What we really need, in my judgment, is EPA to have a
mandate and the resources to prioritize and address in a
reasonable timeframe the high priority chemicals, hopefully
identify that most uses of most chemicals don't pose
unreasonable risks, and then focus on the ones that might.
Mr. McNerney. Well, the European countries, at least some
of them, appear to have the mandate that you are talking about.
Mr. Rawson. What they have is a mandate under their current
program, known as REACH, a requirement that industry assemble
chemical safety reports, dossiers, on their chemicals. But in
only very limited circumstances will there be a requirement to
seek authorization to continue uses. It is a very narrow subset
of chemicals for which that approach would be taken.
Mr. McNerney. Well, I believe that you implied in your
opening remarks that the EPA asbestos rule--overturning of the
EPA asbestos rule had a chilling effect on that Agency's
ability to conduct further rulemaking. Is that--did I hear you
right about that?
Mr. Rawson. Yes, and Mr. Greenwood was there at the time.
He was head of OPPT, and he has described that in his
testimony. So certainly the Agency read that opinion and
thought wow, this is hard. Maybe we shouldn't try to do this.
Maybe we should act in other ways. I wasn't there. When I read
the opinion, I am more struck by the errors, procedural and
substantive errors that really forced the court's hand. And I
would urge, there are some statements. I will just read one
statement. This is in the conclusion where the court sort of
tries to say to the Agency look, you can do this again, just
follow some of the things I have said. And the court said EPA
does not have the duty under TSCA of affirmatively seeking out
and testing all possible substitutes. But when an interested
party comes forward with credible evidence that the planned
substitutes present a significant and even greater toxic risk
than the substance in question, the Agency must make a formal
finding on the record, otherwise the court can't evaluate. So
to me, again, what I feel is that bad facts made a strong
decision. I think it was premature to conclude that Section 6
just couldn't work anymore.
Mr. McNerney. All right. Thank you, Mr. Chair.
Mr. Shimkus. Gentleman's time is expired. Chair will now
recognize the gentleman from Mississippi, Mr. Harper, for 5
minutes.
Mr. Harper. Thank you, Mr. Chairman, and thank you for
holding this very important hearing.
If I could, I will start with Mr. Greenwood, and my
question would be should overall statutory standards for
science and data quality in regulatory decision-making be made
more stringent?
Mr. Greenwood. I think these questions about data quality,
there are already some restrictions under the Information
Quality Act that actually have been incorporated into many
agencies' procedures, so I think you are seeing some of that. I
do think it is difficult to, in a sense, regulate or legislate
good science, so I think to some extent, this is one of these
things where if you have a robust process where good science
can be heard--we mentioned peer review earlier--I think these
are the sorts of mechanisms that will help improve better
science and how decisions are made.
Mr. Harper. What was the take home lesson for EPA in the
1991 corrosion fittings court decision?
Mr. Greenwood. Well, I think we just heard my view and Mr.
Rawson's view of how we reacted. The Agency reacted, I think,
very strongly with a notion that as we read the opinion, we
were seeing this as a case that says you need to evaluate each
individual option that is less burdensome, and that one of the
things we were afraid of was a tactical approach that we would
see with industry would continue to put in front of us more and
more alternatives and options and suboptions. And with TSCA
being as broad as it was, you could do almost anything. The
ability to do that was very real, so this is one of those
issues that it was interesting at the time, it was the
consensus of the lawyers, the managers, and the staff that this
was a new world. This was a new set of burdens on the Agency
that we weren't really quite ready for. Remember that at the
time, the executive order that we were operating under required
that we develop alternatives and look at options. We did that.
However, that was not enough for this court.
Mr. Harper. Mr. Rawson, if I could ask you, some States
have been more active than others, obviously, in regulating
chemicals. Have any State requirements for chemicals been
preempted by TSCA in its 37-year history?
Mr. Rawson. By and large the answer is no, because
preemption is triggered under three sections, Section 4,
testing, and Section 5, new chemicals, and States typically
haven't been active in those areas. And then Section 6, where
we have heard that EPA has promulgated very few regulations,
apart from the PCP regulations. There is at least one case out
of Louisiana where a parish's attempt to prevent the siting of
a PCP disposal facility was preempted, but there are other
cases where narrow regulations at the State level governing the
disposal of PCPs were not preempted. But by and large, thus far
preemption has not been a significant factor.
Mr. Harper. Well, let me ask you--in your opinion, of
course--if TSCA is amended to require EPA to more
systematically assess the safety of chemicals in commerce, do
you think TSCA's preemption provision similarly needs to be
strengthened?
Mr. Rawson. As I suggested earlier, an argument could be
made that right--well, right now preemption only is triggered
when EPA acts by regulation. That is similar to what happens,
for example, with the CPSC. When CPSC promulgates a regulation
governing a product, States can only do the same thing. They
can't do something different. There is an obvious reason for
that.
But what we don't have here is a situation where EPA takes
a very hard look, everybody with an interest comments, and
concludes this product is safe, no regulations are required.
That doesn't have a preemptive effect. One could argue that if
it is done right once, it doesn't have to be done 50 other
times. One could also argue the opposite, that States should be
free to be more stringent.
Under the current approach, by the way, they have the
ability to petition the EPA for an exemption to be more
stringent, and they have the ability to just simply say you
can't use the chemical in our State. So there are--there is
latitude now, even when EPA has acted, for some State role.
Mr. Harper. Ms. Thomas, if I could ask you, how are your
members affected under current TSCA by California's green
chemistry law?
Ms. Thomas. That is a great question. Thank you very much.
So we are seeing a trend at the State level towards going
beyond regulating just chemicals and starting to regulate
consumer products, and they are using broad definitions of
consumer products that would capture autos. A perfect example
is the California Safe Consumer Products regulations, which
would give the Department of Toxic Substances authority to
regulate up to 10 components in a 3-year period to undergo
alternative assessments, and the way component is designed--
defined, it would capture things, complex things like vehicle
assemblies, transmissions, which in itself is a very complex
component made up of multiple subcomponents and materials, and
more importantly, the likelihood of exposure is minimal to
nonexistent. So the idea of having to do an alternatives
assessment for a transmission would be extremely costly and
take many years, so imagine that times 10 in a 3-year period.
So it is simply not feasible and very, very complicated.
Mr. Harper. And who would you expect would ultimately bear
that cost, additional expense?
Ms. Thomas. We would, the auto makers.
Mr. Harper. OK. All right, I yield back.
Mr. Shimkus. Gentleman's time is expired. Chair now
recognizes the gentlelady from Colorado, Ms. DeGette, for 5
minutes.
Ms. DeGette. Thank you very much, Mr. Chairman. I want to
thank all the witnesses for being here. Sometimes I feel like I
am in that movie ``Groundhog Day'' because I have been on this
committee for 16 years now. I can't tell you how many hearings
we have had where the witnesses come in and say, you know,
there is consensus. Everybody agrees we need to figure out what
to do about TSCA. Maybe we will have the magic moment this
year, and I would be certainly happy to work with you, Mr.
Chairman. I think everybody agrees, we need to do something,
particularly about Section 6.
And you know, when I was sitting here thinking when you
talk about Section 6 of TSCA, I mean, the reason we have seven
options for controls of chemicals in TSCA is they are all
supposed to be actual regulatory options, not barriers towards
trying to regulate and to enforce against potentially dangerous
chemicals. You know, Section 6, ever since the asbestos
debacle, has just really not been an actual regulatory option
for the EPA, and that is a problem. It is a problem because for
whatever reason, whether you think the court decision was
proper or not, the EPA doesn't feel like they can go back and
go through that same regulatory process again. So I think we
really need to think about why that section doesn't work on its
own and what we can do, especially after you hear testimony
like Ms. Reinstein gave us today about the very real health
effects that asbestos is having. And I want to thank you for
sharing that human moment with us.
Mr. Greenwood, in your testimony you said accurately that
many Federal laws share a common pattern of weighing health and
environmental risks against the cost and benefit of action, as
well as the availability of alternatives. Under the Clean Air
Act, the EPA sets national ambient air quality primary
standards that protect public health regardless of cost, but
implements those standards who state implementation plans that
incorporate cost benefit analysis. And so I am wondering, could
a framework where chemical determinations are made based only
on health risks but are implemented considering the cost or
benefit of different options be more effective? What do you
think about that?
Mr. Greenwood. I mean, I think that is an option that is
worth considering. You mentioned the Clean Air Act. Essentially
that is what you have in the Safe Drinking Water Act as well.
Ms. DeGette. Right.
Mr. Greenwood. So that is a model. I think one of the
questions will be kind of what factors distinguish those things
that are the health-based criteria from those things that would
be this unreasonable risk notion.
Ms. DeGette. Right.
Mr. Greenwood. And so I think that is a key factor, but
certainly, that is a model that could be considered.
Ms. DeGette. Well you know, one thing that the EPA says
when thinking about how they are going to have reform is they
say chemicals should be reviewed against safety standards that
are based on sound science--that is a radical concept, by the
way, sometimes in this committee--and reflect risk-based
criteria protective of human health and the environment. What
do you think about that standard? Mr. Greenwood, what do you
think about that?
Mr. Greenwood. Well, I think----
Ms. DeGette. That is what the EPA says that their
guidelines should be.
Mr. Greenwood. Well, I think that is what they think they
do, and that is exactly what their guideline is. But I think
that is certainly part of at least a component of the
unreasonable risk standard that we think of as this notion of
looking at the risks through looking at exposure and hazard,
and then perhaps getting into the risks of the alternatives. So
I think it is consistent with unreasonable risk in that sense.
Ms. DeGette. OK. So Mr. Srolovic, New York has been really
successful in placing restrictions on dangerous chemicals. What
was the process that New York used in making those
determinations?
Mr. Srolovic. The restrictions at the State level in New
York have been legislative decisions, so those bans or
restrictions that I mentioned work through our State
legislation process.
Ms. DeGette. OK, but I assume the legislature used some
kind of a basis for making those determinations?
Mr. Srolovic. Indeed. They----
Ms. DeGette. Let me ask you this. Is it a cost benefit
analysis or an analysis of alternatives? Do you know?
Mr. Srolovic. It includes those considerations, certainly.
When the--for example, the BPA ban was passed, all the voices
were heard: industry, producers, users, the medical community.
So there in essence was a legislative hearing process that led
to the legislature making that balance that considered all of
those factors.
Ms. DeGette. And they used--did they use science?
Mr. Srolovic. Indeed.
Ms. DeGette. OK, just checking.
Mr. Johnson, you know, you talked about the need for States
to know about some disclosure. That got me to thinking about
the EPCRA statutes that relate to storage of chemicals. We
could do something similar with TSCA for chemicals--for
disclosure of chemicals, right, where you are letting people
know what those chemicals are but maybe not disclosing
proprietary information?
Mr. Johnson. Right. I think there is a balance in there
that was--there was attempt to achieve, originally. The problem
was, from what I understand, is that you--for a long time,
companies take the box that said confidential--the material is
automatically confidential without any much review and today,
as a State official, I can go on the Internet and read material
about chemicals that EPA, by statute, cannot talk to me about
because it is confidential.
Ms. DeGette. Right, right. OK. Thank you. Thanks, Mr.
Chairman.
Mr. Shimkus. Gentlelady's time is expired. Chair now
recognizes the gentleman from Ohio on the top panel, Mr. Latta,
for 5 minutes.
Mr. Latta. Well, it is good to know we have two Ohioans
here on the committee, Mr. Chairman. Thanks very much, and
thanks very much for our panel for being with us today.
If I could ask a couple questions to you, Ms. Thomas, if I
may. Are some of the public policies in conflict with others
when it comes to designing and producing a new car or truck,
and kind of following up on that, how often does that happen,
and is it the Federal that are really conflicting with the
State, or vice versa?
Ms. Thomas. Thank you, Congressman. Yes, multiple State
laws and regulations have the potential to comply with Federal
environmental and safety standards. You know, a good example is
in order to meet the aggressive fuel economy standards for
model years 2017 through 2025, my members are going to be
relying heavily on lightweight materials like plastics that
contain chemicals like flame retardants in them. And NTSA,
under DOT, also has authority to regulate the flammability
standards, so we comply with those standards by using flame
retardants. But then at the State level, you are seeing bills
banning different flame retardants that are used in different
products, but in the same way, so the problem becomes when
they--when requirements for a couch are misapplied in error to
an automobile, which obviously is very different from a couch.
Mr. Latta. Let me follow up. On page four of your
testimony, you--it calls for continually--pardon me,
continuation of regulatory exemption for articles. Would you
want these exemptions to preempt States, or should States be
allowed to regulate beyond those exemptions on the articles?
Ms. Thomas. Yes, so I am happy to be here today to talk
about the proactive steps that my companies have been taking to
reduce substances of concern from their vehicles. We work with
our suppliers on maintaining a tracking database for--to ensure
that restricted substances of concern do not end up in our
vehicles.
But the reality is a car is a very complex product with
thousands of components, each made up of multiple chemicals and
mixtures, so any requirements at the State level become very
challenging, because they each have their own hurdles. So we
would like to see a strong Federal approach that focuses on
specific applications with potential for actual consumer
exposure. We believe that would be a more effective approach
than an overly broad one.
Mr. Latta. Thank you.
Ms. Thomas. And yes, Federal action should preempt State
action on that regard.
Mr. Latta. Thank you.
Mr. Johnson, on the last page of your testimony you have a
couple things you say. The second one of the unaddressed issues
is timelines for chemical reviews. And you also state--you say
that perhaps similar deadlines to the EPA would be appropriate
and would ensure timely actions, because States are doing
certain things when it is coming to set deadlines for air and
water permit issuance. But you say in the last line then that
you are currently unable to suggest what those deadlines ought
to be. Any idea, though, because are we running the situation
where it is dragging on too long on the Federal side and we
need to get these things resolved, and what would you
personally like to suggest?
Mr. Johnson. I appreciate the question. You know, it is a
bit of a challenge. Our members passed the resolution without
any ``no'' votes, and they are a pretty broad group, the
States. I think that the biggest concern for us is that when
you look at your--and it has already been stated here, 37
years, five chemicals, it seems to us that it needs to be
quicker than that. You know, when EPA is in a process of
reviewing a chemical, I think certainly for my State of
Vermont, if EPA could get through that process--I don't know
whether it is somewhere 6 months, 2 years to get through all
the processes that would need to happen, and make a regulatory
decision on that that was transparent and open, then that
would, I think, make it much easier for us to address issues of
concern from the people in my State. Because what happens is
they come in year after year just asking the State to do
something, and we are ever hopeful that something might happen
at the Federal level, but 3, 4, 5, 6 years later, it starts to
get difficult to sort of just defer to the Federal EPA on these
things.
Mr. Latta. Thank you very much, and Mr. Chairman, I see my
time is expired and I yield back.
Mr. Shimkus. Gentleman yields back his time. Chair now
recognizes gentleman from Texas, Mr. Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman, for holding the third
hearing on TSCA reform. Just for the panel, I have a district
in Houston in East Harris County. It is home to one of the
largest collection of chemical plants in the country, and
seeing TSCA that works for the affected is important by this
important statute, including industry and employees and workers
and consumer advocates is vital to our constituents and the
regional economy.
Mr. Rawson, are you aware of any voluntary safety
initiatives or product stewardship programs run by the chemical
manufacturers?
Mr. Shimkus. Can you check your microphone?
Mr. Rawson. Thank you. Yes, there are quite a few. Some in
collaboration with EPA and other stakeholders that are
described in EPA's Web site, initiatives to phase out certain
chemistries without having to determine that they present an
unreasonable risk, but because sufficient concerns have been
raised, and there are many private--I shouldn't say private.
There are many product stewardship initiatives that are not
done with the Agency but are just part of the good practices of
a company. So to my view, this is certainly an important part
of making sure that chemicals or manufacture processed and used
safely.
Mr. Green. So EPA has collaborated with chemical
manufacturers in promoting some of the programs and----
Mr. Rawson. Yes, it has, and in many cases, with other
stakeholders at the table.
Mr. Green. OK. Do you know how many rulemaking actions have
been taken by the EPA under Section 6 since the corrosion-proof
fittings ruling?
Mr. Rawson. I cannot think of one. They tried for many
years with respect to grout materials, but ultimately it was a
very long process and controversial, but ultimately became
unnecessary because personal protective equipment was developed
that made it unnecessary.
Mr. Green. OK. So are the requirements for rulemaking under
Section 6 too burdensome for EPA to regulate?
Mr. Rawson. Well, so we can have a range of opinions at the
table. My view is that the statute creates the right target.
Corrosion-proof fittings read EPA the riot act a little bit,
and so--and the Agency concluded let's not try that again. My
feeling is they gave up a little bit too quickly. But if there
are ways we can make easier without--easier to make good
decisions. To me, the goal here is to make good decisions that
meet all the objectives of the statute, not just to make it
easier to ban chemicals. So that is what we want to do. If we
make changes, we want to make sure that anything that is done
helps EPA make good decisions to consider all the factors,
unreasonable risk, safety of alternatives, et cetera.
Mr. Green. So you testimony is we really need a structure
for EPA to do it? They have enough--do you think they have
enough resources to be able to do it if we gave them a
statutory structure?
Mr. Rawson. I think they could use some more resources, and
particularly as described in my testimony, I think it would be
helpful if they really sped up the review of existing
chemicals. And you know, we hear over and over again with five
in 37 years, and that is the number regulated, but they have
actually assessed hundreds, thousands. We need a much more
transparent way to keep track of that so people can have more
confidence in what is being done, and a greater through put.
Mr. Green. OK. Mr. Greenwood, are the requirements for
rulemaking in Section 6 too burdensome for EPA to regulate
chemicals?
Mr. Greenwood. Pardon me? I didn't----
Mr. Green. Is the rulemaking requirements in Section 6 too
burdensome for EPA to regulate chemicals?
Mr. Greenwood. Well I think--as I have indicated a couple
times now--I think there is a problem with the least burdensome
alternative finding, the way it has been interpreted. I think
unreasonable risk can work as a framework for it. I do think
some of the procedural parts of it also may not be necessary.
Mr. Green. If there was one change in Section 6, what would
it be that you could suggest?
Mr. Greenwood. Well, I would try to fix the corrosion-proof
fitting determination on least burdensome alternative.
Mr. Green. Ms. Reinstein, back in 2008 I was acting chair
of the subcommittee, and I actually introduced a bill to ban
asbestos in TSCA, and I ended up getting a lot of contacts
from, you know, asbestos is a substance that comes out of the
ground in California and different places. But one, I would
like to thank you for your leadership and I am sorry about
learning of the passing of your husband. I also represent not
only an industrial area, but a lot of seafarers, and over the
years, asbestosis is something that is part of their life and
their families. Can I ask how did consumers first learn about
the dangers of asbestosis or asbestos?
Ms. Reinstein. How can consumers learn about the dangers?
That is a very mystifying question and it is very important
because although there are 10,000 Americans that die every
year, because the nature of the disease latency period makes it
very difficult for the workers and families. So I think we
obviously have to work with the medical community, but also go
back to labor unions and increase awareness. And that is what
ADO has been trying to do is work with the congressional
leadership and unions to indeed just do that. But you are
right, it is an ongoing problem.
Mr. Green. Which professions are more exposed--American
workers exposed to asbestos? I know, like I said, people work
on ships. Our ships used to be covered with asbestos because of
the threat of fire. Any other professions?
Ms. Reinstein. That is another great question. If you use
the NIOSH database, you can actually sort by industry and you
can clearly see that there is a large group between ship
building, obviously anyone who served on ships like the
veterans, as well as construction and also the auto industry.
Those three groups of workers have been most plagued by
asbestos exposure.
Mr. Green. OK. Mr. Chairman, I know I am out of time and I
appreciate your patience.
Mr. Shimkus. Gentleman's time is expired. Chair now
recognizes gentleman from Ohio, Mr. Johnson, for 5 minutes.
Mr. Johnson of Ohio. The other gentleman from Ohio.
Mr. Shimkus. Last, but not least.
Mr. Johnson of Ohio. There you go. Mr. Johnson--that is odd
for me to say. I don't say that very often. I can tell by your
accent you are from the other side of the family, I think. Do
the States participate in EPA's implementation of TSCA today,
and if so, how?
Mr. Johnson. Well, they have in a fairly small way. I mean,
I think the biggest challenge for the States is because EPA has
been so challenged to get to chemicals, one of the things that
States have really felt is necessary is a better way for States
to sort of be the petition or somehow to get the chemicals that
are coming up and being raised as of concern among citizens in
States to get EPA to look at those. It is a challenge because I
think as has already been mentioned, new chemicals there is
somewhat of a process for, but we have this huge group of
chemicals that got grandfathered in 37 years ago, and I think
certainly amongst the people in our States, the idea that they
may be dangerous but we don't know, but they are in commerce
and we will get back to them maybe never is just not an answer.
Mr. Johnson of Ohio. Well maybe I am a little unclear. Are
they delegated any authority under TSCA today or do they have
to go ``Mother, may I'' to----
Mr. Johnson. Well, what happens today is because EPA hasn't
really assessed a lot of chemicals, they don't have to go to
EPA to do it. They go to the State legislature and if they can
pass a regulation like California or New York or Oregon or
Washington or Maine have done----
Mr. Johnson of Ohio. So they have to assume the authority?
Mr. Johnson. Then they would assume it, yes.
Mr. Johnson of Ohio. Do the States engage in chemicals
management?
Mr. Johnson. Some States do and some States don't. It is--
except for California, which is at the moment or is just about
to roll out a pretty comprehensive regulation that is--they
spent the last 3 years working on that would be sort of more of
a system approach, most States have done it on a chemical-by-
chemical basis because of a particular concern raised. And as
was mentioned earlier, it usually goes through the legislature.
People come in and say we need you to do something about this
chemical, and so I would say that that has been--in those
States that have done it, there is certainly a way to do it,
but it is not particularly efficient and it means you have a
spotty landscape.
Mr. Johnson of Ohio. Why do you think some States have
engaged more actively in chemical management than others?
Mr. Johnson. Part of it is resources. Some bigger States
have just been in a better position to do it, because they have
been able to bring some resources to bat, either through their
health department or their environmental regulatory agency.
Some States have just had individual legislators who have a
particular interest who have been able to bring something
forward and get it passed. States like mine have been somewhat
reticent to get into the business of regulating chemicals,
because we haven't worked out how we would actually pay for it.
And we quite honestly think that it makes sense to do it at the
Federal level. Our market in Vermont is pretty small, and we
don't want to somehow isolate ourselves by having a block to
commerce that would just have us cut out of the market.
Although we don't have a lot of industry, we do have an IBM
chip manufacturing plant and the semiconductor industry is one
of the ones a bit like the car industry, a lot of components
involved in there. But it is really a resource issue.
Mr. Johnson of Ohio. One final one for you, Mr. Johnson. Do
some of the concerns that States have addressed fall under laws
other than TSCA or agencies other than the EPA, for example,
FDA or OSHA?
Mr. Johnson. They do, although in pesticides, for instance,
and Food and Drug Administration there has been a lot more
activities by those agencies. It is sort of the reverse,
generally pretty good. I think people feel confident. The
American people seem pretty confident in those agencies, with
the occasional sort of thing that stands out as an issue,
whereas TSCA is almost the other way. It is like generally not
confident with the occasional thing that stands out as being
OK.
Mr. Johnson of Ohio. Sorry I didn't have any questions for
the rest of you. It was just more comfortable family to family
here, so thank you.
Mr. Johnson. I appreciate it.
Mr. Johnson of Ohio. Mr. Chairman, I yield back.
Mr. Shimkus. Gentleman yields back his time. Chair now
recognizes ranking member of the full committee, Mr. Waxman,
for 5 minutes.
Mr. Waxman. I thank you, Mr. Chairman.
Today the subcommittee continues its oversight work on the
Toxic Substances Control Act, tackling two important and
related issues: EPA's authority to regulate harmful chemicals,
and the ability of States to take action when necessary.
EPA's regulation of chemicals can be an important part of
protecting families from harmful environmental exposures and
pollution. Unfortunately, TSCA has so far fallen short of its
objectives. Its failures have meant avoidable suffering,
disease, and death. Asbestos is one of the clearest examples.
Over the course of 10 years, EPA undertook a rulemaking and
built an exhaustive record in an attempt to regulate this
dangerous toxin, but the court threw it out and essentially,
EPA gave up hope of using TSCA to address chemical risks.
Mr. Rawson, you suggested in your testimony that you agree
with the court's decision to throw out EPA's asbestos rule.
Specifically, Mr. Rawson seems to argue that the automobile
brake pads should remain on the market unless EPA can prove
that brake pads not containing asbestos are safe to use.
Ms. Reinstein, you know firsthand the terrible suffering
associated with exposure to asbestos, and what can you tell us
about the health risks posed by exposure to asbestos from brake
pads?
Ms. Reinstein. Thank you, Ranking Member Waxman, and you
are also my Congressman so it is lovely to finally meet you in
person.
We know that asbestos is a carcinogen causing disability
and deaths. I can only tell you that those who are diagnosed
with these diseases and their entire families suffer. We have
many asbestos victims who have changed brakes and have inhaled
and obviously been exposed to asbestos. And again, the latency
period complicates it. There is no cure for any of these
diseases; however, prevention is a cure. Substitutes do exist.
Mr. Waxman. In your view, if Congress were to consider TSCA
reform legislation, should we ensure that EPA be able to put an
end to the ongoing asbestos exposures in this Nation?
Ms. Reinstein. I think that if there is a bill passed that
can't do that, it needs to go back to the wood shed. Clearly,
any TSCA reform must ban asbestos.
Mr. Waxman. Thank you. Ms. Thomas, you represent 12 major
automobile manufacturers. Do your manufacturers still use
asbestos brake pads and linings on new cars?
Ms. Thomas. To the best of my knowledge, no.
Mr. Waxman. Do you or your members have concerns about the
safety of non-asbestos brake pads?
Ms. Thomas. I am sorry, repeat that question one more time.
Mr. Waxman. Do you or your members have concerns about the
safety of non-asbestos brake pads?
Ms. Thomas. No.
Mr. Waxman. But my understanding is that brake pads
containing asbestos remain on the market today. Asbestos can
still be found in imported brake pads sold in the aftermarket.
Isn't that correct?
Ms. Thomas. Yes, that is my understanding.
Mr. Waxman. Now, Mr. Rawson, I would like to go back to
you. Let's put aside whether the court decided the asbestos
case correctly or EPA built the best record it could over the
course of its 10-year effort. Do you think that this was a good
policy outcome? Do you believe it was good for the public for
asbestos to remain on the market? Public health advocates and
State regulators remain concerned about asbestos in brake pads.
For example, some States, including California, have passed
bans on asbestos brake pads.
Mr. Rawson. Thank you for the question. First of all, I
obviously don't take lightly the hazards of asbestos and share
the sympathies of everybody in this room for all families who
suffered losses as a result. So I take that as seriously as
everybody else. At the time of the rulemaking, new cars were
already not using asbestos in brake pads.
Mr. Waxman. Well what do you think the policy ought to be?
Do you think it was a good policy outcome?
Mr. Rawson. I am trying to answer that.
Mr. Waxman. Do it very quickly, because my time is running
out.
Mr. Rawson. The issue was with replacement brakes, using
non-asbestos brake pad on a car engineered for a brake pad
could cause many more deaths than it would prevent. An EPA
study said that and EPA experts said that the loss of life from
putting the wrong brake pad on the car would far outweigh any
benefit of the rule. The problem was EPA didn't answer that.
Had they answered that----
Mr. Waxman. Let me ask Mr. Srolovic, how important is it to
maintain the ability of States to take actions like that to
address health risks from chemicals when EPA can't? It is an
important issue. I can't support legislation that would
undermine the few protections that are in current law or that
would preempt successful State efforts to protect the public.
What do you think?
Mr. Srolovic. Congressman, I think it is very important to
preserve the traditional power of States to take legislative
regulatory action under their traditional powers to protect
their citizens and their environment from the hazards posed by
toxic chemicals.
Mr. Waxman. Thank you. Well, I appreciate that. I am sorry
to have cut you off, but my time is already over and I have to
yield back to the chairman to call on another member.
Mr. Shimkus. And he knows how tough I am on time, so thank
you. I thank the ranking member. Chair now recognizes my
colleague from Illinois, Ms. Schakowsky, for 5 minutes.
Ms. Schakowsky. Thank you, Mr. Chairman. I had some
questions for Mr. Greenwood which really go back to the history
of TSCA.
You made the argument that the EPA struggled over resource
allocation in the early years of TSCA, and here we are almost
40 years later and I can't imagine that efforts by this body to
get funding--by this body to gut EPA funding--we are talking
about cutting, including the interior and environmental
appropriations bill, by 34 percent, a 34 percent cut to the EPA
have made it much better.
But here is my question. What TSCA-related risks to human
health and the environment can be anticipated if the EPA were
severely underfunded?
Mr. Greenwood. That is a major question. It is hard to
translate that, a budget cut into specific actions. I think the
budget situation at EPA, as I understand it, is that they are
very limited on what they can do on new chemicals. The staffing
is as lean as it can be----
Ms. Schakowsky. I am sorry, on new chemicals?
Mr. Greenwood. On new chemicals. And as to existing
chemicals, they have started to lay out a fairly, I think,
constructive plan with a list of 83 work plan chemicals that
they are trying to address, and they have a budget for it and I
think it is something that I think we all would like to see
progress. They are going to be using good science to assess and
then decide what they can do from a risk management point of
view. My guess is that that is the area that is most likely to
be hurt if there are severe budget cuts, and I think it is not
in the interest of most of us.
Ms. Schakowsky. Thank you. It seems to me that the EPA's
effort to address asbestos is illustrative of some of the
underlying problems of TSCA and the existing chemicals. As you
said in your testimony, asbestos was seen as a test case to
prove the efficacy of TSCA. Still, it took 10 years from the
advance notice of proposed rulemaking to the official ban, and
that ban was overturned in 2 years and despite the findings
that there are no safe levels for asbestos, many products from
kids' toys to car brakes, which we were just talking about,
have been found to contain asbestos since 1991. And as Ms.
Reinstein said, 30 Americans die each day from preventable
asbestos-caused disease. So what does the asbestos case tell us
about TSCA and how should the law be changed, amended, fixed to
ensure that dangerous products, you know, many years and
decades later aren't still on the market?
Mr. Greenwood. Well, I think that the case has told us that
there are parts of the structure of the statute that prevent
problems from getting decisions made. I have mentioned this now
multiple times. The least burdensome alternative----
Ms. Schakowsky. I apologize for coming so late.
Mr. Greenwood. No, that is OK. Least burdensome alternative
provision and how it was interpreted by the court, I think most
of us felt that EPA at the time after the decision came down
was a surprise and was something that would have long term
effects. I think it is important to recognize though that we
didn't necessarily think that the other parts of the statute
couldn't work. I don't recall any discussion where people
thought that unreasonable risk was an inappropriate standard.
It was very focused on this one issue, so I think for most of
us at EPA at the time, that was the major takeaway message of
concern.
Ms. Schakowsky. Thank you. Again, I apologize for having
you repeat it, but I appreciate your indulgence.
Thank you. I yield back, Mr. Chairman.
Mr. Shimkus. Gentlelady yields back her time. The chair
wants to thank the panelists here today. Again, this is the
third of a set of hearings on TSCA. As my colleague from
Colorado said, this is one everybody would like us to do
something on, hopefully something positive, and it is kind of
exciting to open up the can of worms and start pulling them out
and see what works and what doesn't. So I appreciate your
attendance and look forward to working with you. I appreciate
the involvement of the Minority and the very active questioning
and the like.
I would like to ask unanimous consent for a letter to Mr.
Waxman from Californians for a Healthy and Green Economy, as
well as a press statement from CHANGE to be submitted into the
record, also a letter from the American Alliance for Justice
that was sent to myself and Mr. Tonko concerning State tort law
to be submitted for the record, and a resolution from ECOS,
which they have been very helpful over my time as a chairman in
dealing with issues, referenced by Mr. Johnson in his
testimony. That will all be submitted into the record. Without
objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. And with that, I would like to declare the
hearing adjourned.
[Whereupon, at 3:52 p.m., the subcommittee was adjourned.]
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