[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
CHEMICALS IN COMMERCE ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MARCH 12, 2014
__________
Serial No. 113-125
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
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89-849 WASHINGTON : 2014
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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
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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. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 4
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 5
Prepared statement........................................... 6
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 6
Hon. Diana DeGette, a Representative in Congress from the State
of Colorado, opening statement................................. 7
Hon. Bobby L. Rush, a Representative in Congress from the State
of Illinois, prepared statement................................ 182
Witnesses
Carolyn Duran, Director, Supply Chain Ramp and Regulations, Intel
Corporation.................................................... 9
Prepared statement........................................... 12
Connie L. Deford, Director, Global Product Sustainability and
Compliance, Dow Chemical Company............................... 21
Prepared statement........................................... 23
Answers to submitted questions............................... 187
Barry A. Cik, Co-Founder, Naturepedic, on Behalf of Companies for
Safer Chemicals................................................ 31
Prepared statement........................................... 33
Roger T. Harris, President, Producers Chemical Company, on Behalf
of National Chemical Distributors.............................. 58
Prepared statement........................................... 60
Answers to submitted questions............................... 190
Michael Belliveau, President and Executive Director,
Environmental Health Strategy Center........................... 65
Prepared statement........................................... 67
Answers to submitted questions............................... 192
Jennifer Thomas, Director, Federal Government Affairs, Alliance
of Automobile Manufacturers.................................... 88
Prepared statement........................................... 90
Answers to submitted questions............................... 198
Mark N. Duvall, Principal, Beveridge & Diamond, P.C.............. 118
Prepared statement........................................... 120
Beth D. Bosley, President, Boron Specialties, LLC, on Behalf of
the Society of Chemical Manufacturers and Affiliates........... 130
Prepared statement........................................... 132
James A. Stem, Jr., National Legislative Director, Transportation
Division, Sheet Metal, Air, Rail and Transportation Union...... 137
Prepared statement........................................... 139
Philip J. Landrigan, Dean for Global Health, Ethel H. Wise
Professor and Chairman, Department of Preventive Medicine,
Professor of Pediatrics, Ichann School of Medicine at Mount
Sinai.......................................................... 144
Prepared statement........................................... 146
Answers to submitted questions............................... 205
Anna Fendley, United Steelworkers................................ 158
Prepared statement........................................... 160
Answers to submitted questions............................... 209
Submitted Material
Discussion draft, dated February 27, 2014, Chemicals in Commerce
Act, submitted by Mr. Shimkus \1\
Letters of February 12 to March 14, 2014, submitted by Mr. Tonko
\2\
Letter of March 12, 2014, from Adhesive and Sealant Council, et
al., to committee and subcommittee leadership, submitted by Mr.
Shimkus........................................................ 183
----------
\1\ The discussion draft is available at http://docs.house.gov/
meetings/IF/IF18/20140312/101890/BILLS-113pih-
ChemicalsinCommerceAct.pdf.
\2\ The letters are available at http://docs.house.gov/Committee/
Calendar/ByEvent.aspx EventID=101890.
CHEMICALS IN COMMERCE ACT
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WEDNESDAY, MARCH 12, 2014
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:00 a.m., in
room 2322 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Whitfield, Pitts,
Murphy, Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson,
Upton (ex officio), Tonko, Pallone, Green, DeGette, Capps,
McNerney, Barrow and Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Charlotte
Baker, Press Secretary; Sean Bonyun, Communications Director;
Jerry Couri, Senior Environmental Policy Advisor; David
McCarthy, Chief Counsel, Environment and the Economy; Brandon
Mooney, Professional Staff Member; Chris Sarley, Policy
Coordinator, Environment and the Economy; Jacqueline Cohen,
Democratic Senior Counsel; Greg Dotson, Democratic Staff
Director, Energy and the Environment; Caitlin Haberman,
Democratic Policy Analyst; and Ryan Schmit, Democratic EPA
Detailee.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. I would like to call the hearing to order and
welcome our guests. Obviously we have got a full committee room
as there is interest in this, and I would like to start by
recognizing myself for 5 minutes for an opening statement.
Over the past year we have participated in five hearings at
which we have dug into TSCA, learning the issues section by
section, and thinking about how we could make this law work
better. In recent weeks we have had several conversations on
the member level. We have exchanged thoughts on where we can
find common ground. Our staffs have sat down on a bipartisan
basis for many hours to discuss the language before us in the
Chemicals in Commerce Act. Those conversations have helped us
understand each other's perspectives much better. That work is
continuing and I hope will help us as members to collaborate on
a bill we can embrace going forward.
Today we give a wide variety of stakeholders the chance to
weigh in. We will hear from big and small chemical makers and
from those who use chemicals to make consumer products. We will
hear from chemical distributors, labor unions, and other
interested groups. Their testimony will show that making laws
is a very dynamic process. I unveiled the discussion draft
because I think we need a collaborative process with diverse
input.
That draft is likely to undergo changes as we work through
the provisions to find consensus. If each member of this
subcommittee sat down to write a TSCA bill, we would probably
have 25 different versions, no two of which would look alike.
Our job is to craft a bill that reflects the best of all of
us. So where might there be common ground?
So far, I think we agree that there are many chemicals
already in the market that could use closer scrutiny by EPA. We
need to be sure that EPA has the information it needs to decide
on the safety of a chemical, but they should not delay action
merely by asking for information that they don't really need.
We also agree that EPA should have the authority to impose
requirements and restrictions on chemicals that pose risks, but
those restrictions should be for the sake of improving the
protection of human health and the environment, not simply for
the sake of regulating.
We think that chemical manufacturers should be in a
position to cooperate with EPA on its close scrutiny of their
products, but they should still be able to protect confidential
trade secrets in that process. Can we achieve all that? I know
our committee members on both sides are not only willing to
try, they are already doing their best to get there and I
appreciate their hard work and I promise that I will do all I
can to make the results the best law we can enact for the
American people.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
Over the past year we have participated in five hearings at
which we've dug into TSCA, learning the issues section by
section, and thinking about how we could make this law work
better. In recent weeks we've had several conversations at the
Member level. We've exchanged thoughts on where we can find
common ground.
Our staffs have sat down on a bipartisan basis for many
hours to discuss the language before us in the Chemicals in
Commerce Act. Those conversations have helped us understand
each other's perspectives much better. That work is continuing
and, I hope, will help us as Members to collaborate on a bill
we can embrace going forward.
Today we give a wide variety of stakeholders the chance to
weigh in. We'll hear from big and small chemical makers, and
from those who use chemicals to make consumer products. We'll
hear from chemical distributors, labor unions, and other
interest groups.
Their testimony will show that making laws is a very
dynamic process. I unveiled a discussion draft because I think
we need a collaborative process with diverse input. That draft
is likely to undergo changes as we work through the provisions
to find consensus. If each member of this subcommittee sat down
to write a TSCA bill, we'd probably have 25 different versions,
no two of which would look alike. Our job is to craft a bill
that reflects the best of all of us.
Where is that common ground?
So far, I think we agree that there are many chemicals
already in the market that could use some closer scrutiny by
EPA. We need to be sure that EPA has the information it needs
to decide on the safety of a chemical, but they should not
delay action merely by asking for information that they don't
really need. We also agree that EPA should have the authority
to impose requirements and restrictions on chemicals that pose
risks, but those restrictions should be for the sake of
improving the protection of human health and the environment,
not simply for the sake of regulating.
We think that chemical manufacturers should be in a
position to cooperate with EPA on its close scrutiny of their
products, but they should still be able to protect confidential
trade secrets in that process. Can we achieve all that? I know
our committee members on both sides are not only willing to
try, they are already doing their best to get there.
I appreciate their hard work and promise that I'll do all I
can to make sure it results in the best law we can enact for
the American people.
[The discussion draft is available at http://
docs.house.gov/meetings/IF/IF18/20140312/101890/BILLS-113pih-
ChemicalsinCommerceAct.pdf]
Mr. Shimkus. With that, I still have some time. Anyone on
my side? If not, I will yield back my time and turn to my
ranking member, Mr. Tonko from New York.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair. Today we will hear the
views of a diverse panel of witnesses on the discussion draft
of the Chemicals in Commerce Act released by Chair Shimkus at
the end of February. Reforming the Toxic Substances Control Act
is a very important task. Chemicals are the fundamental
building blocks for every substance, either natural or human-
made. Years of research, development and investment have
provided us with the tremendous number of products we use each
and every day. But due to weaknesses in TSCA, some of the
chemicals we encounter in the environment each day are exposing
us to harm, and the list of chemicals in commerce has grown far
more rapidly than knowledge of their environmental, health and
safety risks.
We are all familiar with the old adage ``The dose makes the
poison.'' The father of toxicology, Paracelsus, introduced this
concept in the 1500s. Well, we have learned a lot since that
time about the many factors that influence toxicity of any
given substance, but we have not been acting on that knowledge,
at least not with respect to industrial chemicals.
Since the early 1990s, we have known that infants and
children are more vulnerable to environmental exposures than
adults, that the incidence of chronic diseases and other
developmental disorders has increased and that we are being
exposed to an increased variety and amount of chemicals in air,
water, food, and consumer products.
In 2000, the National Academy of Sciences attributed 28
percent of neurological disorders to environmental exposures.
Studies of human tissues, first through the National Human
Adipose Tissue Study in the 1980s and now for the Center for
Disease Control's National Health and Nutrition Examination
Survey, have revealed that our bodies are retaining a number of
chemical substances as a result of environmental exposures.
Evidence is mounting that we are not regulating chemicals
sufficiently. The costs of this inadequate regulatory system
are being borne by the public, at times the youngest members of
the public. TSCA was intended to provide information on the
health and safety of manufactured chemicals and to give the
Environmental Protection Agency the authority to regulate
chemicals that had the potential to harm human health or the
environment.
Well, after 40 years, there has been very little regulation
of chemicals under TSCA. We have insufficient health and safety
information about many of the chemicals we encounter every day,
and even when a chemical presents a known serious risk, EPA has
insufficient authority under TSCA to act to protect the public.
This situation must change. For older chemicals, we need to
reduce the list of chemicals that are on a perpetual to-do list
in terms of having basic health and safety information as a
basis for informed decision-making. For newer chemicals we need
a more robust review process that offers real assurance that
new products are safe.
We need more than an information system or a regulatory
system. We need a chemicals program that incentivizes
innovation, good environmental stewardship and the integration
of human health and sustainability in the product development
process. In fact, I think these concepts are all included in
the chemical industry's Responsible Care Program. Frankly, that
is what consumers are seeking, products that they know are
safe.
Finding the formula that will satisfy all stakeholders in
this issue is a tall order. Mr. Chair, you have taken on a
tough issue, one that is substantively complex and politically
contentious. You are to be commended for starting down this
road. I want to work with you and the other members of this
committee. I believe other members of the minority are eager to
participate constructively in this process also, and I thank
you for providing us an opportunity to engage in this effort.
These are early days. I understand staff members have had
some good opening discussions. I am indeed encouraged. But the
current draft does not yet strike the right balance or meet the
needs of all stakeholders. I think my observation will be borne
out by the range of testimony that we will hear today.
I am hopeful that with constructive input from the entire
stakeholder community we can produce a bill that will define a
robust, efficient and effective program for the regulation of
industrial chemicals offered in our market. I believe if we
work together, we can offer legislation that will serve the
public and the industry well and that all the members of this
committee will be proud to support.
Thank you, Mr. Chair, for calling this hearing, and to our
distinguished panel of witnesses, thank you for appearing today
and for offering your comments on what is a very important
topic. Thank you. I yield back.
I have a few seconds remaining----
Mr. Shimkus. You may.
Mr. Tonko [continuing]. If I could yield to Representative
Green.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Thank you, Ranking Member. I appreciate your
time. I just want to like the ranking member, thank our chair
for putting together the discussion draft. I just want to
caution, though, this is not a sprint. This is a marathon, and
there are a lot of issues. And I know we are going to have
additional hearings over the next few months to do this because
if we are going to really reform this law with everybody on
board, it is going to take that effort.
And I just appreciate Chairman Shimkus in your effort to do
it and look forward to continue working with you. The
discussion draft is a work in progress, and I know our staffs
have met and will continue to work together.
Mr. Shimkus. The gentleman yields back his time, and the
Chair thanks my colleagues for their kind words.
The Chair now recognizes the chairman of the full
committee, Mr. Upton, for 5 minutes.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Thank you, Mr. Chairman, and we do welcome all
of our witnesses today, especially Jennifer Thomas of the
Alliance of Automobile Manufacturers for taking the time to
join us from Brussels. So we know, Jennifer, that you are
sharing our Buy America message with Europe, and we wish you
very much success.
You know, today is an important milestone in our efforts to
modernize current law regulating the management of U.S.
chemicals, a law that has been on the books since 1976. The
discussion draft before us, the Chemicals in Commerce Act,
begins our committee conversation on how to craft reforms to
our Nation's chemical regulatory system.
We have got two objectives, one, to increase public
confidence in the safety of chemicals that are in U.S. markets,
and to streamline commerce among States and with other
countries to further our manufacturing renaissance.
Put simply, the Chemicals in Commerce Act is in fact a jobs
bill. Why? Just put yourselves in the shoes of someone
contemplating whether to invest in a new factory that produces
or uses chemicals and what location maximizes opportunity. With
options that span the globe, one would look critically at three
factors to help in the decision, the cost and supply of feed
stocks, especially oil and gas; availability of capable and
reliable workers; and ease of market access.
Market access has two parts. First, is the buyer confidence
in the product, the second is market rules free of trade
restrictions. The Chemicals in Commerce Act will improve
confidence in chemical products because EPA will apply sound
science to its safety determinations.
If EPA determines that a chemical does pose risks, EPA will
detail those risks and will write a rule placing any necessary
requirements or restrictions on it, which will apply in all 50
States. This will allow producers to operate in a seamless U.S.
market.
So let us go back to the investor's decision. Access to oil
and gas? The U.S. is looking pretty good. Reliable workforce?
Our workers are the best and many are available right now.
Market access? The Chemicals in Commerce Act completes the
package, giving the United States green lights on all three
factors.
We need to do all that we can to promote America's
manufacturing sector and create the jobs that we want. This
bill will help create those jobs not only in plants that
manufacture chemicals but also in plants that use them to make
cars, computer chips, and thousands of other goods.
So the bill is good news for jobs, the economy, and for a
safer America. We need to roll up our sleeves and get it done.
We need to work in a bipartisan basis. And my prediction is we
can get to the finish line. We need to do it, and I appreciate
the leadership of both sides as we begin to move the ball down
the field. And I yield back the balance of my time.
[The prepared statement of Mr. Upton follows:]
Prepared statement of Hon. Fred Upton
Today is an important milestone in our efforts to modernize
current law regulating the management of U.S. chemicals--a law
that has been on the books since 1976. The discussion draft
before us, the Chemicals in Commerce Act, begins our committee
conversation on how to craft reforms to our Nation's chemical
regulatory system. We have two objectives: to increase public
confidence in the safety of chemicals that are in U.S. markets,
and to streamline commerce among States and with other
countries to further our manufacturing renaissance.
Put simply, the Chemicals in Commerce Act is a jobs bill.
Why? Just put yourself in the shoes of someone contemplating
whether to invest in a new factory that produces or uses
chemicals and what location maximizes opportunity. With options
that span the globe, one would look critically at three factors
to help in the decision: 1) the cost and supply of feedstocks
(especially oil and gas); 2) availability of capable and
reliable workers; and 3) ease of market access.
Market access has two parts: first is buyer confidence in
the product, and second is market rules free of trade
restrictions.
The Chemicals in Commerce Act will improve confidence in
chemical products because EPA will apply sound science to its
safety determinations.
If EPA determines a chemical does pose risks, EPA will
detail those risks and will write a rule placing any necessary
requirements or restrictions on it, which will apply in all 50
States. This will allow producers to operate in a seamless U.S.
market.
So let's go back to the investor's decision. Access to oil
and gas? The U.S. is looking very good. Reliable workforce? Our
workers are the best and many are available right now. Market
access? The Chemicals in Commerce Act completes the package,
giving the USA green lights on all three factors.
We need to do all we can to promote America's manufacturing
sector and create jobs. This bill will help create
manufacturing jobs in not only those plants that manufacture
chemicals, but also in plants that use them to make cars,
computer chips, and thousands of other goods.
This bill is good news for jobs, for the economy, and for a
safer America. Let's roll up our sleeves and get it done.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the ranking member of the full committee, Mr.
Waxman, for 5 minutes.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Thank you very much, Mr. Chairman. Today this
subcommittee is examining a new proposal to amend the Toxic
Substances Control Act. According to the National Cancer
Institute, researchers have estimated that as many as two and
three cases of cancer are linked to some environmental cause.
Half of those are linked to tobacco and diet, but toxic
chemicals are also an important factor.
The President's Cancer Panel found that reform of the Toxic
Substances Control Act is critically needed to reduce the
incidents and burden of cancer in this country. The Centers for
Disease Control conducts biomonitoring in order to understand
when chemicals end up in human bodies, and CDC has found that
chemical exposures are ubiquitous. For example, according to
the Center's most recent data, 75 percent of the people tested
have the commonly used chemical, triclosan, in their bodies.
That chemical has been shown to interfere with hormone levels
in animals.
The CDC also found five different PBDEs in more than 60
percent of the participants. These chemicals have been linked
to serious health concerns including rising autism rates, and
these chemicals are showing up in the bodies of Americans at
levels 3 to 10 times higher than found in European populations.
This is an issue we must get right. Unfortunately, this
bill would take us in the wrong direction. Letters of
opposition have poured in. It has been called a ``gross
disappointment'' and another quote, ``wish list tailored to
ensure regulatory inaction.''
If enacted, this proposal would weaken current law and
endanger public health. That is why I cannot support the bill
in its current form.
For many years, the public health, labor and environmental
communities have worked to improve EPA's ability to require
testing of chemicals under TSCA. But this draft would restrict
existing testing authority so that EPA could only require
testing in the limited set of circumstances. On top of that,
the Catch-22 of current law would remain. The Agency would be
required to identify risk before being authorized to test for
risk. This is the roadblock that has stymied the Agency for
years.
When new chemicals are brought to market, the draft creates
a new exemptions for industry and applies new procedural
requirements to limit EPA action. For existing chemicals, the
draft would arbitrarily limit what risks EPA could consider in
assessing safety. And for dangerous chemicals, EPA would be
blocked from taking action unless alternatives are already
available. On preemption, the draft goes well beyond even the
Senate bill which has been rightfully criticized for preempting
essential State-level protections.
The current law is not working. The suffering and
uncertainty we saw in West Virginia when hazardous chemicals
spilled into the water supply has demonstrated the need for a
more effective TSCA. That is why I want to work with Chairman
Shimkus and Chairman Upton on TSCA reform. I am a realist. I
know House Democrats can pass a TSCA bill without Republican
support. But I also believe, Mr. Chairman, that House
Republicans cannot enact a law without the support of House
Democrats.
There is a lot of work that needs to be done to get a bill
we can all support. But I am committed to making this effort. I
hope we pay close attention to the testimony today and then
renew our efforts to find common ground. And I would be pleased
to yield time, yes, to Ms. DeGette.
OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Ms. DeGette. Thank you very much, Mr. Chairman. I just want
to add my comments to those of all the people on our side of
the aisle. Mr. Chairman, I want to thank you for introducing
this discussion draft and then having hearings and discussions.
It feels kind of fun to be back to regular order now, and I am
happy about it. I am also happy that you have worked with a
group of us on the other side of the aisle to really help do
this.
I agree with the ranking member that this is a Herculean
effort, one that we have tried for many decades now to
revitalize and reauthorize TSCA in a way that makes sense from
a scientific perspective.
I agree with many on this side of the aisle. This
discussion draft is not perfect, but I am hoping that we can
continue to work together in a bipartisan fashion to craft
legislation that is really going to protect the health of the
citizens of this country.
Thank you, Mr. Chairman, and thank you, Mr. Waxman, for
yielding.
Mr. Waxman. Thank you. And Mr. Chairman, our TV screen
shows a woman in a box with earphones on her head. Hi. How are
you doing? I yield the balance of my time to her.
Mr. Shimkus. The chairman yields back his time. She will
have her own time, Mr. Waxman. So I appreciate again my
colleague's nice promise and just pledge to keep working. It is
a draft, and I want to remind people, and that is the purpose
of this hearing, is to get your comments to help us then go
back and start working on this.
So we have a lot of individuals to testify. We have two
panels, so we are going to get started, and I will introduce
your whole bio across the board first so everyone knows, and
then I will direct your time specifically to you. You will have
5 minutes. There are a lot of folks here, so if you could keep
to 5 minutes as close as possible, that would help us all. Then
we will go to the question-and-answer period of time, and then
we will get the second panel up.
So at the first panel we have Dr. Carol Duran, Director of
the Chemical Risk and Compliance, Global Sourcing and
Procurement with Intel Corporation. Also joining her is Ms.
Connie Deford, Director of Product Sustainability & Compliance
of Dow Chemical Company. Mr. Barry Cik, Founder of Naturepedic
on behalf of the Companies for Safer Chemicals. We have Mr.
Roger Harris, President of Producers Council on behalf of the
National Chemical Distributors. Mr. Michael Belliveau,
Executive Director, Environmental Health Strategy Centers and
then the lady in the box, Ms. Jennifer Thomas, Director of
Federal Government Affairs for the Alliance of Automobile
Manufacturers. And just a side story, this hearing was
originally scheduled for last week. We did postpone it at the
request of my colleagues to give more time to go over the
discussion draft. Ms. Thomas was scheduled to be here, and
unfortunately she is in Brussels. So it is probably pretty late
there. But that is why we are doing this over new technology.
So with that, I would like to ask Dr. Duran to give her
opening statement. You are recognized for 5 minutes. OK. Let us
make sure the mike is on and pull it as close as you can to
you.
Ms. Duran. OK. Better?
Mr. Shimkus. That is better. Thank you.
Ms. Duran. Thank you.
STATEMENTS OF CAROLYN DURAN, DIRECTOR, SUPPLY CHAIN RAMP AND
REGULATIONS, INTEL CORPORATION; CONNIE L. DEFORD, DIRECTOR,
GLOBAL PRODUCT SUSTAINABILITY AND COMPLIANCE, DOW CHEMICAL
COMPANY; BARRY A. CIK, CO-FOUNDER, NATUREPEDIC, ON BEHALF OF
COMPANIES FOR SAFER CHEMICALS; ROGER T. HARRIS, PRESIDENT,
PRODUCERS CHEMICAL COMPANY, ON BEHALF OF NATIONAL CHEMICAL
DISTRIBUTORS; MICHAEL BELLIVEAU, PRESIDENT AND EXECUTIVE
DIRECTOR, ENVIRONMENTAL HEALTH STRATEGY CENTER; AND JENNIFER
THOMAS, DIRECTOR, FEDERAL GOVERNMENT AFFAIRS, ALLIANCE OF
AUTOMOBILE MANUFACTURERS
STATEMENT OF CAROLYN DURAN
Ms. Duran. Mr. Chairman and Ranking Member Tonko, thank you
for the opportunity to testify on behalf of Intel. My name is
Carolyn Duran, and I am responsible for supply chain regulatory
risk mitigation for chemicals used in Intel's manufacturing
technologies globally.
I appreciate your work to consider legislation to modernize
the regulation of chemicals in commerce. Founded in 1968, Intel
Corporation is the world's largest semiconductor company with
net revenues in 2013 of $52.7 billion. Intel continues to
invest in U.S. manufacturing with over half of our roughly
100,000 person employee base residing in the United States.
Intel's latest manufacturing technologies are developed and
implemented in Oregon and Arizona, and roughly \3/4\ of our
microprocessor manufacturing is domestic.
Since our inception, Intel has developed and implemented
the revolutionary technologies necessary to achieve the
transistor scaling known as Moore's Law resulting in the
smaller, faster, more efficient electronics that drive today's
economy. Advancements in chemistry and material science and an
ability to experiment with novel materials in a timely fashion
are key to these successes. As an example, our recent changes
in transistor structures require the development of many novel
materials, and we continue to research new materials and
processes to develop the radical innovations necessary to
deliver the integrated circuits that meet the needs of
tomorrow.
Fundamentally, we believe that these advancements should go
hand in hand with environmental sustainability. It is from this
background that Intel supports chemical management approaches
that enable environmental protection, safe use of chemicals and
U.S. technology innovation. Additionally, Intel works closely
with industry partners, including the Semiconductor Industry
Association and the Chemical Users Coalition. While I will
share specific examples from my own experience, many of the
concepts are also applicable to a wide range of industries that
are downstream users of chemicals.
We are interested in chemical legislation through companies
that supply us with chemicals and also as a downstream user or
processor of chemicals. With regard to the former, the ability
of our chemical suppliers to get new chemicals approved in a
timely way, to ensure the continuity of supply, and to have
intellectual property protected are all essential for Intel
manufacturing competitiveness.
With respect to the latter, our processes are tightly
controlled and perform to exacting standards. In order to
ensure quality and consistency in the production process,
chemicals used in semiconductor manufacturing is subject to
significant and redundant controls and safety measures.
Accordingly we appreciate a risk-based approached to chemicals
management policy which will allow the continued safe use of
innovative chemicals to produce leading-edge technologies.
We offer specific comments on the draft discussion in two
areas, first, managing transitions to alternatives. When the
EPA determines that a particular chemical is likely to result
in an unreasonable risk of harm to human health or the
environment, we recognize that the EPA may decide to consider
replacement of that chemical for particular uses. In this
scenario, we appreciate an approach that allows downstream user
companies to first develop a technically feasible alternative
that can be demonstrated to be safer than the existing chemical
and also allows for a reasonable implementation timeline.
In the interim, EPA can adopt appropriate measures for
reducing exposure and mitigating the chemical's risk. The
discussion draft includes these concepts in Section 6(f) and
these are critically important for highly technical, complex
manufacturing processes.
As an example, in 2006, the semiconductor industry
announced a plan to end non-critical uses of perfluorooctyl
sulfonates, or PFOS, in our manufacturing processes and to
develop substitutes in critical applications. At the time the
work began, PFOS was use pervasively throughout the industry.
EPA provided the transition time necessary for us to develop
and implement safer alternatives while maintaining product
quality and technical requirements. This allowed Intel to
successfully replace PFOS in over 300 discreet applications
across 11 manufacturing technologies.
Second, articles. The treatment of articles under TSCA is
important to Intel and many other industries that market
products in finished form that are classified as articles. Our
products are comprised of many chemicals and materials used in
extremely small volumes. These materials are typically bound in
a monolithic fashion and cannot be separated from the devised
and are not released to the environment during normal use.
Accordingly, we believe the nature of the chemical and article
should be taken into account in regulatory decision-making.
Where there is minimal risk of release or consumer exposure,
articles should be treated differently than in cases where this
likelihood of exposure is high.
For this reason, Intel supports language in Sections 5 and
6 of the discussion draft that allows EPA to address chemical
substances and specific articles when warranted, targeting
situations where there is risk from exposure to the chemical in
the article and where the risk cannot be managed through a
focus on the chemical itself. This provides a valuable roadmap
that will allow EPA to provide protection for health and the
environment while also providing important predictability for
the many industries that manufacture products considered
articles in the context of TSCA.
We look forward to working with this subcommittee and the
Congress as a whole as it continues its review of U.S.
chemicals legislation. Thank you for the opportunity to submit
this testimony on behalf of Intel.
[The prepared statement of Ms. Duran follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you. The Chair now recognizes Ms. Connie
Deford from the Dow Chemical Company. You are recognized for 5
minutes.
STATEMENT OF CONNIE L. DEFORD
Ms. Deford. Chairman Shimkus, Ranking Member Tonko and
members of the subcommittee, I am pleased to testify today and
offer comments on an issue that is critically important to the
Dow Chemical Company, reforming of the Toxic Substances Control
Act.
Reforming this important piece of legislation would allow
for a more modernized regulatory process and a stronger and
more effective Federal program for the chemicals we
manufacture. As the Global Director for Product Sustainability
& Compliance for Down, I am responsible for ensuring that
thousands of products that we put out on the marketplace are
safe for our employees, our customers and the environment. On
behalf of Dow, I am here to offer our support for the Chemicals
in Commerce Act.
Dow is a leading global manufacturer of advanced materials.
We supply customers in over 160 countries and really strive to
connect chemistry and innovation with the principles of
sustainability to help provide solutions, improve solutions,
for everyday lives. Our diverse chemistry can be found in
applications that range from food ingredients to electronics to
water purification, alternative energy including solar and wind
and personal care products.
Dow is committed to sustainability. Our ambitious 2015
goals underscore this commitment along with our actions to
ensure product safety. We also have product stewardship
management systems in place to ensure that our products are
safe for their intended uses.
As a global company, Dow strives to go beyond compliance
with multiple regulatory programs across different countries.
We have developed and adhere to our own high standards for
product safety as well as voluntary industry initiatives like
Responsible Care. Our policy is to comply with that highest
standard of safety, whether regionally or our own, to ensure
that each of our products are safe for their intended uses and
ultimately for our customers and the environment.
In order to build upon our collective effort, we believe
that the United States does need a stronger and more effective
Federal program to ensure that chemicals in commerce are safe
for their intended uses. This is why we are in support of TSCA
reform. Since 1976, the chemical industry has grown
dramatically, and yet, TSCA has remained the same. Therefore,
Dow supports a TSCA that creates a chemical management system
that will be effective and efficient, not just now but long
into the future. We believe reforming this outdated law will
improve public confidence in the safety of chemicals produced
and used in our country, will encourage innovation and
ultimately help create jobs and continue fueling America's
manufacturing renaissance.
Overall, we would highlight a reformed TSCA should include
the following. We believe it is critical that existing
chemicals as well as new chemicals meet the safety standard. We
think it is critical that there is objectivity and EPA's
evaluation of safety using the best available scientific
information. We believe EPA should be allowed to take actions
that are both timely and effective. We think it is critical
that the Agency is in a position to take timely decisions.
Provide incentives for innovation and sustainable chemistry and
enhance the U.S. competitiveness of companies manufacturing
here.
We have evaluated the Chemicals in Commerce Act and feel
strongly that this criterion has been met, and we agree with
the approaches and recommendations. We have also concluded that
it represents a significant step forward for our Federal
chemical management system and allows us to further support
this vital piece of legislation.
Dow urges the subcommittee to move this bill forward so
that the enactment of TSCA reform becomes a reality this year.
By modernizing TSCA, we can foster public confidence on how
chemicals are evaluated for safety in their applications. We
can help the United States maintain its competitive advantage
as the global leader in innovation for manufactured products
and provide certainty for business investment. We stand ready
to assist Congress in its efforts so that we at Dow are able to
ensure the benefits for society that can really be made
possible through the science of chemistry. Thank you.
[The prepared statement of Ms. Deford follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. The gentlelady yields back her time. The Chair
now recognizes Mr. Barry Cik. Sir, you are recognized for 5
minutes. There is a button. Yes, it is kind of hard to see.
STATEMENT OF BARRY A. CIK
Mr. Cik. Got it. Thank you, Mr. Chairman and members of
this subcommittee. My name is Barry A. Cik. I am a Board
Certified Environmental Engineer, a Certified Hazardous
Materials Manager, a Certified Diplomate Forensic Engineer, a
State of Ohio Professional Engineer, and an author of a
textbook for Government Institutes on Environmental
Assessments. I am a co-founder of Naturepedic, a manufacturer
of certified organic mattresses and bedding products for
children and adult.
More importantly, I am here as a representative of the
American Sustainable Business Council which includes the
Companies For Safer Chemicals Coalition, a project of ASBC. The
American Sustainable Business Council is a growing coalition of
business organizations and businesses committed to advancing
market solutions and policies to support a vibrant, just and
sustainable economy. Founded in 2009, ASBC and its
organizational members now represent more than 200,000
businesses and more than 325,000 business leaders across the
United States. The Companies For Safer Chemicals Coalition
represents a new alliance of companies focused on chemical
reform based on the principles of transparency, safety and
innovation.
Forty years ago, when I was in engineering school, I was
taught the solution to pollution is dilution. That was
incorrect. I soon found out that Lake Erie, which is where I
live close to, was dying. However, thanks to U.S. Congress, you
passed RCRA. RCRA stopped the poor industry practices of
disposing chemicals into the lake and many waterways across the
country, of course. To this day, though, you cannot have any
commercial fishing in Lake Erie because the mercury level is
way too high. The price that we pay is too high.
A few years later, I realized, I observed where the
gasoline companies were swearing that that can't make gas
without lead. However, our environment was becoming
contaminated with all that lead. Well, once again, U.S.
Congress stepped into the picture and said no, you can't do
this. And guess what? They stopped their crying and they made
gas without lead, and our cars are doing just fine.
Eleven years ago, I walked into a baby store to buy a crib
mattress for our first grandchild. What I encountered was vinyl
with phthalate chemicals, antimony, perfluorinated compounds,
flame retardants that included all kinds of really nasty stuff,
pesticides, allergenic materials. I was shocked.
The moment of truth was when the salesperson told me, come
on, knock it off. If the product wasn't safe, the government
wouldn't allow it to be sold. Well, I knew better. I decided
there and then it was time for me to stand up and say no to
toxic chemicals in consumer products. I decided to use the
power of business to make a difference and, together with my
two sons, we created Naturepedic, whose products are now sold
by over 500 retailers across the Nation.
On behalf of the American Sustainable Business Council,
Companies for Safer Chemicals Coalition, and on behalf not only
of my children and my grandchildren, but on behalf of your
children and your grandchildren, I am asking you to do the
right thing again, just like Congress did it in the past.
Our chemicals are, for the most part, are simply not
regulated. Let us be honest, they are really not regulated.
Industry reportedly produces about 250 pounds of chemicals
every year for every man, woman, and child in this country, and
there are over 80,000 chemicals available for industry to use,
with very little regulation for any of it. This is not good for
business.
Industry stopped polluting our lakes when the law,
supported by science, told them to stop. Industry stopped
adding lead to gasoline when the law, supported by science,
told them to stop. We need a system-wide change now to tell
industry to stop using toxic chemicals in consumer products.
Many business leaders, myself--
Mr. Shimkus. Mr. Cik, your time is almost out, if you could
wrap up.
Mr. Cik. All right.
Mr. Shimkus. I would be very generous in allowing you to
keep going.
Mr. Cik. I will wrap up within 1 minute. We are asking----
Mr. Shimkus. Well, how about 30 seconds?
Mr. Cik. We are asking you to----
Mr. Shimkus. You already ran over.
Mr. Cik. Fine. We are asking you to restrict or eliminate
toxic chemicals, incentivize the manufacture of safer
chemicals, create the clarity needed in the marketplace, remove
this unreasonable risk criteria which just doesn't work, hasn't
worked ever. And you know it. Create some deadlines minimum
requirements for identifying, assessing and regulating high-
priority chemicals; disclose all ingredients to the public,
provide health and toxicity testing, and avoid providing
regrettable substitutes when changing ingredients.
Feel free to communicate with me or the American
Sustainable Business Council. As well, we have given you some
written information. Thank you for your time and consideration.
[The prepared statement of Mr. Cik follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. The gentleman's time expired. The Chair now
recognizes Mr. Roger Harris. You are recognized for 5 minutes.
Welcome.
STATEMENT OF ROGER T. HARRIS
Mr. Harris. Chairman Shimkus, good morning Ranking Member
Tonko, and members of this subcommittee, I appreciate this
opportunity to testify. My name is Roger Harris. I am President
of Producers Chemical Company, and I am here today on behalf of
the National Association of Chemical Distributors for which I
currently serve as Chairman of the Board. NACD supports TSCA
reform and believes the discussion draft is a significant step
forward.
Producers Chemical is a small business located near Chicago
that generates approximately $20 million in annual revenue and
employs 25 workers which is an average-sized NACD member.
Chemical distributors are a critical link in the industrial
supply chain. The typical distributor buys chemicals in bulk,
breaks them down into smaller packaging, in some cases blending
them, and then delivers them to an estimated 750,000 industrial
customers. Our customers turn these chemicals into products
like paints and coatings, cosmetics, food and pharmaceuticals
and numerous other products that are essential to our everyday
lives.
NACD members make deliveries every 7 seconds while
maintaining a safety record that is twice as good as all
manufacturing combined. NACD members are leaders in environment
health, safety and security through implementation of NACD's
Responsible Distribution program, a third-party verified
management practice system established in 1991 as a condition
of membership. We would welcome the opportunity to discuss with
you why we take Responsible Distribution so seriously.
I will briefly discuss several issues in my written remarks
to make clear we support the draft's approach and spend the
rest of my time on the testing and reporting provisions which,
with some very important clarifications, would also be positive
steps forward.
By allowing States to regulate chemicals until EPA has
taken action and making clear that citizens may still have
their day in court if they have suffered damages because of
another's actions, the draft's preemption provision strikes the
right balance and improves on the Senate version. Likewise, the
draft protects confidential business information which is
critical to innovation and competitive markets while ensuring
emergency responders and doctors have access to lifesaving
information.
The draft also creates a 1-year guidance deadline that will
prod EPA to action and prioritizes chemicals as high or low to
focus EPA's resources on substances of the highest concern.
We also have some suggestions. Under the existing statute,
the EPA has been limited in its ability to order testing of
chemicals and mixtures. Under Section 4 in the draft EPA is
given significantly enhanced authority to require testing. That
authority is guided by Section 4(b) requiring the Administrator
to issue a Statement of Need. We fully anticipate EPA's primary
focus would appropriately be on chemicals in commercial, not
the millions of mixtures.
Nevertheless, we recommend that the introduced bill
specifically clarify Section 4(b) so that if the Administrator
were to require testing of a mixture, she explain her Statement
of Need why testing only the chemicals comprising the mixture,
rather than the mixture itself, is either infeasible or
provides insufficient information.
This would keep the focus on the chemicals of concern
rather than on millions of mixtures, reduce unneeded testing
and would place no additional hindrance on EPA in carrying out
this section.
NACD strongly supports a risk-based approach to chemical
management, which means EPA needs information not only about
hazards but exposures under chemicals and intended conditions
of use. Currently manufacturers and importers are required to
provide that but often do not know the end uses of the
products. We agree with the testimony in your last TSCA hearing
that to accomplish the aim of a risk-based regulatory scheme
the law should expressly allow the Agency to collect necessary
use-related information from downstream processors who are
formulators of consumer and industrial products. At the same
time, reporting obligations should not simply be shifted to
distributors who do not manufacture the end-use products but
are simply the middleman in the chemical supply chain for
thousands of products. But the draft is unclear on its
requirements. We recommend clarifying that EPA has the
authority to require the information from downstream processors
who are formulators of consumer and commercial products but
also explicitly state EPA should minimize duplicative reporting
under this section. Downstream formulators have the best
understanding of how they use the chemicals they buy from us.
Requiring upstream distributors to report who have
sometimes thousands of different industrial customers would
generate massive amounts of paperwork and get little useful
information for the EPA. If duplicative reporting were required
of our companies, which average 26 employees, we estimate that
more of a third of the overall reporting burden would fall on
our sector alone.
Lastly, current law does not define small processor. While
not a significant issue under existing law, it will become
extremely important for small business in numerous industry
sectors under expanded reporting provisions. That definition
should reflect the normal definitions of a small business as
outlined by the Small Business Administration.
Thank you very much for your time and attention.
[The prepared statement of Mr. Harris follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you. And now I would like to recognize
Mr. Michael Belliveau. You are recognized for 5 minutes.
STATEMENT OF MICHAEL BELLIVEAU
Mr. Belliveau. Thank you, Mr. Chairman, Ranking Member
Tonko----
Mr. Shimkus. Again, yes. Let us make sure that the mike
is----
Mr. Belliveau. There we go. The green light is on.
Mr. Shimkus. Just check our transcriber. If he is happy,
everybody is happy.
Mr. Belliveau. Chairman Shimkus, Ranking Member Tonko,
members of the committee, thank you for this opportunity to
testify today. My name is Mike Belliveau. I am the Executive
Director of the Environmental Health Strategy Center, a public
health organization, and serve as senior advisor to Safer
Chemicals, Healthy Families, a national coalition.
I appreciate the efforts of this committee to work for TSCA
reform. I have spent many hours over the last decade working
toward the same goal, and it is worthy of achieving.
Unfortunately, the Chemicals in Commerce Act as drafted, like
its Senate counterpart, would endanger public health. In its
quest for meaningful TSCA reform, the discussion draft takes
two steps forward but 12 steps backwards. Those 12 fundamental
problems with the draft legislation are detailed in my written
testimony. They include rollbacks in existing TSCA authority,
retention of fatal flaws in current TSCA and aggressive
overreach that would chill other needed protections.
Now, let me illustrate just a few of the worst features of
this bill draft by way of example. Imagine your family at home
after a long day. Your kids or your grandchildren are jumping
up and down on the couch. Your pregnant daughter or niece plops
down and curls up to rest on the couch, very normal activities,
each of which sends a puff of invisible dust into the air that
is laden with flame-retardant chemicals that come from the
couch. Those chemicals can be measured in the bodies of your
family members, and scientists have shown that those chemicals
disrupt thyroid hormones and can harm the developing brain.
Now, the House draft fails to protect those vulnerable
populations including pregnant women and children. It requires
that when a safety determination is made that such groups be
considered but does not explicitly require that the chemical be
found to be safe for those vulnerable populations.
Consideration is not enough. Protection of the health of
pregnant women and children should not be optional. It should
be mandatory.
Now, coming back to couches, Dr. Heather Stapleton, a
chemistry professor at Duke University, has analyzed the flame-
retardant chemicals added to couch cushions. Based on her
research, your couch falls into one of two groups based on its
age. If you bought the couch more than 10 years ago, it likely
contains Penta, one of the PBDE flame retardants. These
chemicals don't break down in the environment. Now, the House
bill retains TSCA's flawed, unreasonable risk standard and
includes the same onerous or similar onerous burdens in current
TSCA that prevented EPA from banning asbestos. Applied to Penta
10 years ago, EPA would not have been able to restrict this
flame-retardant chemical in couches for the same reason.
The House bill would also roll back existing authority to
regulate chemicals in consumer products like couches. It makes
it more difficult to regulate significant new uses of
chemicals. This is in direct response to EPA's proposed actions
on the chemical cousin of Penta known as Deca. It also would
prevent and take away EPA's authority to regulate the disposal
of old couches, even though they likely pose significant risks
of health.
The bill also violates states' rights from day one of
enactment of the law. More than 1,600 chemicals would be taken
off the table. States would be preempted immediately. It would
get worse over time. States would not be able to collect
information on flame retardants and chemicals.
Now, if you have one of the newer couches, it contains some
other chemicals that have not been adequately tested, including
a new chemical that EPA let into the market mistakenly called
TBB. Under the House draft, it would make it easier for
hazardous new chemicals to enter into the market, and it would
make it more difficult to require testing of those chemicals or
their effects over the environment and public health.
Similarly, it would maintain grandfathered confidential claims
without justification.
Now, I have spent over the last 4 years or so more than
1,000 hours sitting across the table with chemical
manufacturers, including Ms. Deford, including flame-retardant
manufacturers, including consumer product manufacturers,
including big box retailers, all discussing our common interest
in TSCA reform. Unfortunately, this draft bill does not reflect
that dialogue. It will not restore consumer confidence in the
safety of chemicals in everyday products. Just the opposite.
The bill in fact is far outside the mainstream of the chemical
management policies in place today in major U.S. corporations,
in many States, among our trading partners and internationally.
This unfortunately can't be considered a serious starting point
for meaningful TSCA reform.
The good news is that like other stakeholders, we are ready
to roll up our sleeves and develop a consensus approach that is
feasible that would protect public health and the environment,
and we look forward to the opportunity to work with you toward
that end. Thank you, Mr. Chairman.
[The prepared statement of Mr. Belliveau follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. And I thank you. Now, last but not least, Ms.
Jennifer Thomas, Director of Federal Government Affairs. She is
the lady in the box. We appreciate your patience, and you are
recognized for 5 minutes.
STATEMENT OF JENNIFER THOMAS
Ms. Thomas. Thank you, Chairman Shimkus, Ranking Member
Tonko and members of the subcommittee. I have a feeling that
when I return to Washington, my new nickname is going to be
Woman in the Box.
But my name is Jennifer Thomas, and I am the Director of
Government Affairs for the Alliance of Automobile Manufacturers
which is a trade association that represents 12 automakers that
make roughly three out of every four new vehicles sold in the
U.S. each year. Please accept my utmost apologies for not being
there in person this morning, but I, as you know by now, I am
currently in Brussels working on another four-letter acronym
that begins with a T, TTIP, which is the Transatlantic Trade
and Investment Partnership. And like TSCA, TTIP is a key
priority for auto makers, and specifically, we are advocating
for an agreement that aligns U.S. and E.U. automotive safety
standards. So our objective here in Brussels is consistent with
what auto makers hope to achieve through TSCA reform back home,
a clear and consistent set of rules for manufacturers that
protects the health and safety of all our customers. The
Alliance appreciates the thoughtful and thorough approach the
committee has taken on this important issue. We commend
Chairman Shimkus for releasing a discussion draft that is a
very good start to address the issues that were raised over the
last year. We understand that the chairman has asked for input
and that we are at an early stage in this process. We pledge to
be a constructive partner and look forward to working with the
subcommittee and other stakeholders as we move forward.
The draft Chemicals in Commerce Act recognizes the needs
for a single, national regulatory program for comprehensively
managing chemicals in commerce. We realize that inaction at the
Federal level has created a situation in which States feel
compelled to regulate chemicals on their own, creating a
patchwork of State standards. But in many cases, States simply
do not have the adequate resources to implement their own
chemical regulatory programs.
Additionally, conflicting and inconsistent State regulatory
programs present insurmountable obstacles to effective chemical
management for large industry sectors, in particular,
manufacturers of complex durable goods like automobiles. Auto
makers design and build vehicles to meet an array of customer
needs and demands and to comply with thousands of pages of
Federal emissions and safety standards.
As a practical matter, auto makers simply cannot
manufacture vehicle on a State-by-State basis. We believe the
approach taken in this draft is more in line with today's
manufacturing realities. The draft preserves the State's
ability to take action on a chemical if the State believes that
there is a risk present that has not yet been addressed by EPA,
and we believe that is entirely appropriate. But once EPA has
taken action on a chemical substance, this decision should be
viewed as the law of the land.
The Alliance also supports the manner in which this
discussion draft seeks to regulate chemicals and articles. This
discussion draft will allow EPA to target chemical substances
in articles where the risk to health and environment cannot be
addressed by placing restrictions on the chemical itself. This
approach recognizes the challenges of regulating chemical
substances and--products. The average automobile has 30,000
unique components, and each individual component is made up of
multiple chemicals and mixtures. Most automotive components are
obtained from suppliers of finished products and are integrated
into the vehicle. Regulating the construction and the assembly
of automobiles on a component-by-component basis is burdensome,
inefficient and most importantly unnecessary to effectively
manage chemical substances.
But we understand that there may be circumstances where EPA
must prevent significant risk of exposure by issuing
restrictions on chemicals in articles. In these instances, the
draft proposes a reasonable process for identifying suitable
alternatives and should allow sufficient lead time to implement
any substitutions.
Additionally, we strongly believe that automotive
replacement parts should be exempt from any TSCA requirements.
In this regard, we urge the subcommittee to consider a full
outright exemption for replacement parts rather than the narrow
exemption for those parts manufactured prior to the compliance
date which is proposed in this discussion draft. Such an
exemption would avoid creating unnecessary disruptions to the
supply of older model replacement parts, impacting the ability
to fulfill consumer warranties, recalls and repairs of the
existing fleet. This is a significant issue considering that
the average age of a vehicle on U.S. roads today is more than
11 years old.
We appreciate the opportunity to offer our views on the
draft Chemicals in Commerce Act. We stand ready to work with
the subcommittee as this draft moves through the legislative
process. Again, my apologies for not being there in person, and
I thank you and I would be happy to answer any of your
questions.
[The prepared statement of Ms. Thomas follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you very much, and we have done this a
couple times. And even though the time lag on the photo was a
little disturbing, we heard you loud and clear.
So I am going to start, recognize myself for 5 minutes and
start with you, Jennifer, because of the compelling testimony
on U.S. manufacturing, the automobile sector, which is always
credited as being one of our major manufacturing, showing sign
of growth. American-made cars compete here in the U.S. against
products made as far away as Asia and Europe. Isn't price a big
factor in that competition?
Ms. Thomas. Oh, absolutely, 100 percent.
Mr. Shimkus. And to compete on price, you have to be
efficient. Is that correct?
Ms. Thomas. Yes, sir.
Mr. Shimkus. And isn't inefficiency hampered if you can't
predict government regulations or if regulations change from
State to State?
Ms. Thomas. Absolutely, yes.
Mr. Shimkus. And that is all part of this debate of what we
are trying to raise. The first panel's testimony is very
compelling, and it is trying to strike that balance. And I
would just remind everyone, this is a draft. You would be
angrier if it was a bill.
Mr. Harris, are you saying you don't think you should ever
report use and exposure information or just not when a
downstream formulator is already reporting?
Mr. Harris. That is--no, I am not saying we should never
report, exactly what you said. We are a distributor for
middlemen. We buy from manufacturers, we repack them, we
resell. Our customers are varied and in many sorts of
industries. We have an idea as a part of our responsibility
under Responsible Distribution to understand what they are
making with those products that we sell them, that they are
being used responsibly. We don't always know and generally
don't know how they are using them. So it is more appropriate
for a downstream processor to be the one that actually reports
on the actual hazard and exposure information of each of the
chemicals that they are using.
Mr. Shimkus. Yes, I appreciate the testimony. I have been
trying to deal with this issue of when you report, when you
don't report.
Mr. Harris. Right.
Mr. Shimkus. When things are transported as a distinct
entity or when they are maybe mixed in before the
transportation. And it is a difficult challenge. I would
encourage you to keep working----
Mr. Harris. Yes, and we certainly are not opposed to
reporting if that information is not available anywhere else.
Mr. Shimkus. And Dr. Duran, you support the discussion
draft's tailored treatment of articles? And you mentioned that
in your opening statement. Another part of this debate is the
finished product or the articles that go on. Can you elaborate
a little bit more on the tailored treatment of articles?
Ms. Duran. So I think it goes in line with what you were
saying. When the finished product, in our case an integrated
circuit, when it itself is not exposed to the public or has no
risk of the chemicals used in that product getting into the
public use, we would like the restrictions to be in line with
that use, whereas in the description over here with the couch,
for example, where the exposure is quite obvious, then the
restrictions and regulations around that particular use of the
same chemical would be in line with that exposure.
Mr. Shimkus. And Ms. Deford, on your discussion on the net
benefits and alternatives and new and burdensome requirement
for the EPA, you know, the Obama administration has already
done executive orders in line with trying to say that there
should be an evaluation of, of our understanding, that they
should, you know, an evaluation of net benefits and
alternatives. Do you agree?
Ms. Deford. Absolutely. We see the Agency doing that today.
I mean, most recently is their implementation of their TSCA
work plan chemical approach. They really are focusing in on
those applications, those areas representing greatest potential
for exposure, setting aside areas where there is minimal and
less potential benefit and considering the economic aspects as
well.
Mr. Shimkus. And to follow up to you, Ms. Deford, how will
the discussion draft change the practices of your company when
it comes to assessing chemical risk?
Ms. Deford. As I noted in my testimony, Dow prides itself
on having a really strong program, but we think the greatest
opportunity is to have greater collaboration with the Agency,
so also to be able to be in a position to share more of what we
are doing with other stakeholders that are interested.
Questions are out there about information that is available,
and we see this discussion draft as an opportunity to share
more.
Mr. Shimkus. Can you also follow up on advances in science
and technology and how that would impact this debate?
Ms. Deford. You know, as noted by several of us today----
Mr. Shimkus. I think your mike----
Ms. Deford. Sorry. As noted by several of us today,
chemistry is at the building block of any innovative products.
And so it is critical that any policy allows that free flow of
innovation. Certainly it needs to be in a controlled manner,
and we support the need for management of that. But we
certainly need to be mindful of in order to get--we know much
more today than we did 20 years ago as we were developing
materials. And so we need to have the opportunity to get those
chemistries, those chemicals out there to support the
innovative products that are going to keep the United States
competitive.
Mr. Shimkus. Thank you very much. The Chair now recognizes
the ranking member, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. We need TSCA reform
because of the public's systematic exposures to industrial
chemicals without sufficient safeguards to protect public
health. With that in mind, Mr. Cik, your story drives this
concern home. I share your instincts to do everything as a
subcommittee and committee and Congress to protect our children
and grandchildren.
When you went to purchase a crib mattress and saw that the
available products contained phthalates, brominated flame
retardants and other chemicals, alarm bells went off. What were
some of the adverse health effects you were concerned about
that could be caused by exposure to those compounds?
Mr. Cik. I learned not to talk medicine. I once testified
in court and tried that, and they beat me up because I am not a
doctor. I am an environmental engineer. However, that said, the
information in the literature is pretty clear. As a matter of
fact, if you will allow me, I have something here that I will
quote. This is not from any tree-huggers or environmental
extremists. This is going to be from the American Academy of
Pediatrics, your regular, everyday pediatricians. I have a few
quotes for you if you permit me. The American Academy of
Pediatrics recommends that chemical management policy in the
United States be revised to protect children. It is widely
recognized to have been--this is from TSCA. It is widely
recognized to have been ineffective in protecting children. The
growing body of research indicates potential harm to child
health from a range of chemical substances. There is widespread
human exposure to many of these substances. These chemicals are
found throughout the tissues and body fluids of children.
Manufacturers of chemicals are not required to test chemicals
before they are marketed, and I am going to just add to it,
they are in baby products. They are everywhere.
Continuing, concerns about chemicals are permitted to be
kept from the public. Those who propose to market a chemical
must be mandated to provide evidence that the product has been
tested. OK? That is not me. That is the American Academy of
Pediatrics. They are everyday pediatricians. I agree with
everything here. The literature is full of information.
Mr. Tonko. OK. And might I ask if we could have that
admitted----
Mr. Cik. Absolutely.
Mr. Tonko [continuing]. Into the record. What role do State
regulations, including consumer product laws and labeling
requirements, have in informing consumers to choose safer
alternatives?
Mr. Cik. Look, the fact of the matter is we have to stop
using toxic chemicals in consumer products. If you are not
going to do it, the States are going to do it. You can't deny
the problem. And if you try to stop the States, you are just
going to have some serious public issues, all right? Do not try
this preemption thing. The States have the right to regulate
their land and their air and their water and the chemicals used
in whatever they need to regulate within their States. Please
do not try to stop that.
Mr. Tonko. Thank you. My home State of New York has taken
action to address several dangerous chemicals, and I would be
concerned about any proposal that wiped out those protections.
Mr. Belliveau, you have worked at the State level to get
consumer protections put in place, is that correct?
Mr. Belliveau. Yes.
Mr. Tonko. And can you describe some of the important State
protections that would be preempted by this draft?
Mr. Belliveau. Yes, and they are very complementary to
Federal actions. For example, two States require reporting of
chemicals in everyday products. This is information that EPA
does not have. Two other States require product manufacturers
to assess the availability of safer alternatives. This is also
information EPA does not have. The House bill would preempt
both of those information collection requirements. In fact,
tomorrow the State of California is going announce its first
product chemical priorities under its new State program which
would be preempted if EPA took action on chemicals under the
House draft.
Lastly, some States also require warnings of exposure. This
is authority that EPA also does not exercise. So State
regulation of chemicals is essential and complementary, and
like other environmental statutes, there should be a
partnership between the State and Federal Government.
Mr. Tonko. I think both of you gentlemen are highlighting
one of the problems with the draft legislation. Under this
proposal, a new chemical can be brought to market with no
accompanying health and safety information. If it is a new
chemical, is it likely that there would be studies available to
enable EPA to assess potential health and safety problems
within 90 days?
Mr. Belliveau. Well, today under TSCA, the new chemicals
program is touted as relatively more successful, even though
fewer than 15 percent of new chemicals have adequate health and
safety data when they are allowed to enter commerce. Yet, even
with that record, the House draft would roll back authority to
review new chemicals. It would raise the bar by making it
harder to require testing of new chemicals. It would take away
important authority that EPA has currently to require consent
orders that impose conditions on new chemicals, making it more
difficult to take those actions. So it goes backwards in the
wrong direction.
Mr. Tonko. Mr. Chair, I see my 5 minutes are exhausted so I
yield back.
Mr. Shimkus. The gentleman yields back his time. And the
Chair now recognizes the gentleman from West Virginia for 5
minutes, Mr. McKinley.
Mr. McKinley. Mr. Chairman, is Ms. Thomas still available?
Mr. Shimkus. I have no idea.
Mr. McKinley. There she is.
Mr. Shimkus. Oh, there she is.
Mr. McKinley. The lady in the box. Now we lost her again.
Mr. Shimkus. No, I think she can hear you.
Mr. McKinley. We know that they are using less and less
steel in our automobiles, and my area we have lost two major
steel manufacturers to foreign steel. So I am curious about how
much of the U.S. steel, American-made steel, not something that
we have rolled that has come from Brazil or Japan, but how much
is American steel in use in automobiles today? Do you have an
idea of that?
Ms. Thomas. Thank you for the question, Congressman. I
believe the estimate is at 25 to 30 percent of U.S. steel is
currently being used in automotive applications.
Mr. McKinley. And do you concur that we are using less and
less steel in our automobiles today?
Ms. Thomas. Yes, because of the stringent fuel economy
standards, we are having to light weight motor vehicles. So you
have seen a trend towards more aluminum being used.
Mr. McKinley. So what you are saying is, if I heard her
correctly, was only about--of the steel that is used, 75
percent of it is coming in from off-shore and only 25 percent
is American made, is that correct?
Ms. Thomas. No, I don't think that is the correct figure. I
believe that of the U.S. steel usage in the United States, 25
percent goes to automotive applications.
Mr. McKinley. OK. I was just wondering how much steel in an
automobile goes into it, but maybe I can take some percentages
from that. So there are approximately, what, 8 million steel
workers nationwide or 8 million workers dependent on the
automobile. What percent would that be, of steel workers would
be affected by this? Do you have an idea?
Ms. Thomas. I am not sure of the correct percentage, the
exact percentage, Congressman, but of the 8 million jobs that
are tied to the auto industry, there are certainly----
Mr. McKinley. Quite a few of them?
Ms. Thomas [continuing]. More than a handful that are steel
workers, yes. And I can work to get that exact figure for you.
Mr. McKinley. I would appreciate that. Are you there
promoting the global market accessibility for cars made in
America or just what--can you share what your goal is in Europe
today?
Ms. Thomas. I would be happy to. So we are advocating for a
strong regulatory convergence package in the transatlantic
agreement in order to streamline and harmonize the United
States' and E.U. safety regulations.
Mr. McKinley. As a result of that, are you hearing from
anyone there or what is the issue with chemical safety laws in
the United States? Does it affect at all the marketability of
our products overseas?
Ms. Thomas. You know, I haven't spoken to anyone here
directly on that issue, but I would say that the issue of
multiple inconsistent State laws would certainly impact--would
become a global issue because it diverts valuable resources
from research and development of advanced technologies and
safety technologies away from those technologies, more toward
regulatory compliance.
Mr. McKinley. There was testimony about replacement parts.
Do you have thoughts about--have you been able to hear all the
testimony?
Ms. Thomas. Yes, I have.
Mr. McKinley. Does the tracking system that has been
discussed, does that all include replacement parts as well?
Ms. Thomas. The tracking system that the auto industry has
worked with--auto makers have worked with our suppliers to
create that tracks all substances that go into our motor
vehicles.
Mr. McKinley. Do you agree with the testimony that has been
presented so far on this?
Ms. Thomas. Well, the replacement part issue is certainly
very important to our industry because of the very large
existing fleet on the roads. And we need to be able to continue
to service them. As I mentioned in my statement, the average
car on the road is more than 11 years old. So it is a real
issue, and just grandfathering in already manufactured
replacement parts as this discussion doesn't quite go far
enough. And we would like to see a total exemption for
automotive replacement parts.
Mr. McKinley. OK. Thank you very much. My time has run out.
But thank you for your testimony. Thank you.
Mr. Shimkus. The gentleman's time----
Ms. Thomas. Thank you.
Mr. Shimkus [continuing]. Expired. The Chair now recognizes
the gentleman from Texas, Mr. Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman, and as I said earlier,
I want to thank you for holding the hearing on the Chemicals in
Commerce Act discussion draft. And thank you and the witnesses
for being with us today.
We are likely today--the TSCA reform is a contentious
issue, and toxic chemicals and how they are regulated touches
millions of Americans from the industries who make the
chemicals to the workers in the plants and the retailers,
consumers and communities that live there. That speaks why TSCA
hasn't been reauthorized for 4 decades. Nevertheless, we have
had a number of hearings in our committee, and we are moving an
effort down the road to do something.
But let me first ask a question of every witness. Yes or
no, should TSCA safety standard be based solely on health? Ms.
Duran? Dr. Duran?
Mr. Shimkus. Microphones, please remember. And Gene, can
you pull yours a little bit closer to you, too?
Mr. Green. OK.
Ms. Duran. So I would say no, we would also need to look at
exposure, not----
Mr. Green. OK.
Ms. Duran [continuing]. An inherent hazard, but exposure as
well.
Mr. Green. I will amend my question then. Should it be
based solely on health and exposure?
Ms. Deford. Yes, a safety assessment should be.
Mr. Cik. According to the National Academy of Science and
the American Academy Pediatrics, the focus of TSCA needs to
change, needs to focus--instead of biological mechanisms of
effects, it needs to focus on the toxic effects. And it also
needs to provide for an aggregate assessment of all pathways of
chemical exposures that go along----
Mr. Green. I just need a yes or no. I only have 5 minutes.
I don't need to hear that if you----
Mr. Cik. Well, that was----
Mr. Green. Could it be based on----
Mr. Cik. That was my----
Mr. Green [continuing]. Health or should it be based on
health exposure, bottom line?
Mr. Cik. Based on--yes. Yes. The answer is yes.
Mr. Harris. Yes, sir, I would agree with that.
Mr. Belliveau. Yes, sir.
Mr. Green. OK. One of the questions I have, and I know
there is some concerns about access to the civil justice system
that complements I think chemical regulation. Is it imperative
that TSCA reform also ensure that an additional layer of
accountability and public safety is protected, people being
able to go to the civil justice system? Any or all can answer.
Mr. Belliveau. Yes, sir, those rights should be protected.
Mr. Green. OK. One of the questions I had, and I might ask
it of the next panel, because the draft raises the question if
a substance is designated as a low priority by EPA and then
several years later scientific study comes out that shows that
substance may be hazardous to human health, and again, based on
exposure, should the EPA have the authority to consider new
information and authority to go back and recategorize the
substance? Now again, we are talking about scientific data, not
in--you know, that is peer reviewed, not something that
somebody decides they want to have a result on. Should EPA be
able to go back and visit those, those low-priority chemicals?
Ms. Duran. I would say yes. If there is new information
that says the risk that was currently determined is incorrect,
then certainly they should be able to reopen the discussion.
Mr. Green. OK.
Ms. Deford. Absolutely. If there is new information, they
need to assess it.
Mr. Green. Mr. Cik?
Mr. Cik. My understanding is that the current draft had
some limitations on using new information. So my recommendation
would be that the new information should apply to all
chemicals, not just certain listed chemicals which as my
understanding would be restricted right now. So yes, of course
EPA has to be able to go back for everything.
Mr. Green. OK. Mr. Harris?
Mr. Harris. Yes, I would agree with that. I would think if
there is new information available that is scientific
information based on risk and exposure that it should be
allowed to be revisited.
Mr. Green. OK.
Mr. Belliveau. Yes. May I just say the EPA needs the
authority up front to make sure they have adequate data before
they designate a substance as low priority.
Mr. Green. Well, and one of our concerns is sometimes EPA
takes a long time to make a decision. And so I know we have to
do resources there to make sure those decisions can be made in
a reasonable amount of time.
Let me--I have a minute left I think. Ms. Deford, I am glad
to see Dow Chemical testifying today because a lot of my
constituents work at the Dow Chemical plant in Deer Park and a
great corporate citizen. For my question, is Dow Chemical
supportive of government incentives for investments in
sustainable chemistry?
Ms. Deford. Absolutely. We think it is key.
Mr. Green. Would Dow like to see TSCA to incentivize
industry to develop more sustainable chemicals?
Ms. Deford. Yes. I mean, we think the discussion draft goes
that direction with the attention around new chemicals. We
think there are other opportunities for inclusion.
Mr. Green. What information do you believe manufacturers
should provide the EPA in order to make an accurate
prioritization of the decision?
Ms. Deford. I think the manufacturers need to provide all
the information they have relative to hazards to human health
and the environment as well as how the applications that they
are used and what kind of exposure results from those
applications.
Mr. Green. Should EPA have the authority to consider all
information, scientific numeric studies by academia, government
industries regardless of the funding source?
Ms. Deford. They should look at all sources, but they need
to consider the weight of the evidence as they are doing their
evaluations.
Mr. Green. Because that is a balancing act. That is what we
get from a regulator, ultimately a court of law.
Ms. Deford. Absolutely.
Mr. Shimkus. Gentleman's time----
Mr. Green. Chairman, I know I am out of time.
Mr. Shimkus. You are.
Mr. Green. Thank you for your time.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Ohio, Mr. Johnson, for 5
minutes.
Mr. Johnson. Thank you, Mr. Chairman. I appreciate the
panel being here to speak with us today. Ms. Deford, continuing
with you, your written testimony comments that chemistry is
such an enabling science that a poorly designed policy can
impact the competitiveness of business through the entire chain
of commerce. Could you elaborate on that, tell us what you
mean?
Ms. Deford. Well, if you look at it first from a new
chemical standpoint, if the new chemical process is delayed,
then it is preventing our customers' customers. Sometimes we
are four or five steps removed from that product that our
consumers use. And so we need to get that new chemistry out
there that is based on the science understanding today. So that
is a key aspect.
For existing chemicals, the other part of it is there is
great confidence there is lots of information out there on
existing chemicals that people don't understand, and we see
treatment and certainty around existing chemicals to be
critical.
Mr. Johnson. In layman's terms, you know, we talk about a
resurgence of manufacturing. Am I understanding what you are
saying correctly, if we don't do this part of it right and if
we don't get new chemicals out there in a timely manner,
responsibly, then it really affects the entire commerce chain,
right? I mean, you have got manufacturers that are waiting on
those chemicals. They are waiting for that as a raw material,
perhaps in development in other innovations. Is that what you
are talking about?
Ms. Deford. Absolutely. Essentially everything that we
touch starts from a chemical building block.
Mr. Johnson. All right. Good. Ms. Deford, are the CBI
projections afforded under CICA an improvement over current
TSCA and if so, why?
Ms. Deford. We think they are because they provide greater
clarity than what is in existing TSCA. And I think it provides
more information. It gives stakeholders an increased confidence
that that those elements that we are protecting are deserving
of being protected.
Mr. Johnson. OK. All right. And you know, some people have
argued that making EPA look at the benefits and alternatives in
a new and burdensome requirement is a new and burdensome
requirement to the EPA, yet you state that these matters are
supposed to be routine for EPA under both Clinton and Obama
administration executive orders. So in your experience does the
EPA apply the intent and the requirement of those executive
orders when implementing current TSCA?
Ms. Deford. Yes, we believe they are. We think the
discussion draft will provide further opportunities for the
Agency to apply those executive orders.
Mr. Johnson. OK. All right. Mr. Chairman, those are all the
questions I have. I will be proud to relinquish my time.
Mr. Shimkus. The gentleman yields back his time. The Chair
will now recognize the gentleman from California, Mr. Waxman,
for 5 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman. When this
discussion draft was first released to the public, I indicated
I couldn't support it in its current form. But I am open to
working to improve it. Now 2 weeks later we haven't made much
progress, and the purpose as you indicated of this hearing is
to highlight some of the issues in this proposal that some of
us feel might be flaws that need to be corrected.
Mr. Belliveau, I would like to ask whether this draft is
stronger or weaker than current law on a number of points. Is
this draft stronger or weaker than current law in terms of
EPA's ability to require testing of chemicals?
Mr. Belliveau. It is weaker.
Mr. Waxman. In terms of EPA's ability to assess risk,
including risks from all uses of chemicals, stronger or weaker?
Mr. Belliveau. It is weaker than it needs to be. Existing
law is a little vague on that policy.
Mr. Waxman. So existing law needs to be clarified?
Mr. Belliveau. Correct.
Mr. Waxman. Is it stronger or weaker in terms of EPA's
ability to manage risk and actually regulate chemicals?
Mr. Belliveau. It is equivalently burdensome and onerous to
current law.
Mr. Waxman. And what would you change in that regard?
Mr. Belliveau. In that respect, the burden needs to shift
some to the industry. EPA needs to make a clear and clean
safety determination based strictly on health. If a chemical
fails to meet a safety standard, the burden needs to be in
significant part on the industry to demonstrate why a potential
solution may be too expensive or too technically difficult. The
current draft puts all the burden on EPA, which would delay
action.
Mr. Waxman. Is this draft stronger or weaker in terms of
requiring an adequate review of new chemicals?
Mr. Belliveau. It is weaker.
Mr. Waxman. How about on regulating articles?
Mr. Belliveau. It is weaker.
Mr. Waxman. How about in how it provides for the sharing of
information that ought to be in the public domain?
Mr. Belliveau. It is weaker.
Mr. Waxman. Weaker? Hearing that, it should be no surprise
to anyone that we have received so many letters of opposition
to this draft. Hundreds of businesses, public health groups,
unions and environmental groups have announced their opposition
to this proposal. But the industry is supportive of this draft,
and to some extent I think that support is because the proposal
would preempt State and local laws.
So in order to better understand that perspective, I would
like to turn to our industry witnesses. Mr. Harris, can you
identify for the record a specific State or local law that you
believe is important that Congress preempt?
Mr. Harris. Well, I guess first of all, I look at
preemption in this regard as similar to what the hazardous
materials regulations are under the Department of
Transportation. We ship product all over the country. If we had
different regulations in every State that we went into, it
would be impossible to operate. I see the same thing here. You
know, we don't sell into California----
Mr. Waxman. Well, that is theoretical. Are there any
specific laws that you think we ought to preempt because they
interfere with interstate commerce?
Mr. Harris. Not that I can think of right off the top of my
head, no, sir
Mr. Waxman. You can't think of a single one?
Mr. Harris. Not off the top of my head I cannot.
Mr. Waxman. Mr. Belliveau, what do you think about that? If
he is unable to identify a specific law, that is troublesome.
Why should we preempt?
Mr. Belliveau. We shouldn't, Mr. Waxman. There have been no
demonstrated impairment of interstate commerce, no undue
economic impact on industry that will justify overturning more
than 100 State laws that have been enacted in the last decade
to regulate toxic chemicals.
Mr. Waxman. Ms. Deford or Dr. Duran, do you have any--can
you identify a specific law that needs to be preempted?
Ms. Duran. It didn't say we are looking for specific laws
to be preempted but rather to drive consistency. So if the EPA
takes action that addresses the concern of the specific State,
applying nationally will then prevent minor modifications
across State lines and easier for us to comply. So we are
looking from a consistency perspective.
Mr. Waxman. So are you looking prospectively or is there
some law that you think ought to be preempted now?
Ms. Duran. More future looking.
Mr. Waxman. Uh-huh. Ms. Deford?
Ms. Deford. The laws out there today require reporting
and--I mean, they are focused a lot on reporting. They are
focused also on those materials that have been proven safe by
other regulatory agencies. So again, I would look at we are
looking forward to the potential for such laws to have an
impact on flow of interstate commerce compared to where we are
today.
Mr. Waxman. But the draft preempts all existing laws. So
what are the existing laws that are troublesome?
Ms. Deford. OK. Our understanding is that the preemption
would occur at a point when the Agency has made a determination
as to whether or not that material meets the safety standard.
So that is our understanding.
Mr. Waxman. Yes, well, I can see preempting future laws but
preempting existing laws that can't be identified as
troublesome as a problem.
TSCA reform represents an opportunity to strengthen
protections for human health and the environment. I fear this
bill would undermine what protections currently exist, and as
we undertake this effort, I hope we can focus on the real
problems with the law and not be sidetracked with hypothetical
problems. And Mr. Chairman, I hope we can work together to
improve this draft and make progress toward a bill that can
garner support from a wide range of stakeholders and members on
both sides of the aisle. My time has expired. Thank you.
Mr. Shimkus. I thank my colleague. The Chair now recognizes
the gentleman from Florida, Mr. Bilirakis, for 5 minutes.
Mr. Bilirakis. Thank you very much and thank you for your
testimony. First question for Dr. Duran, some people support a
regulatory system based largely upon hazards. If exposure were
not part of the regulatory determination, what would that mean
for Intel and its ability to produce cutting-edge components?
Thank you, for Dr. Duran.
Ms. Duran. In some cases it could mean that we wouldn't--
the pool of new chemicals and materials that we need to drive
innovation would simply not be available to us. They would be
restricted in any use and not allow for that innovation that we
need to develop it for our products and our technologies if
used in a safe and responsible manner. So exposure is critical
to us.
Mr. Bilirakis. Thank you. Second question for Dr. Duran,
CICA, the bill, provides that when EPA issues a new rule to
restrict a chemical--pardon me, I have laryngitis--that it
takes into account whether technically feasible alternatives
would be available. It also provides for a reasonable
transition timeline for implementation. Can you elaborate on
that? Does this provision discourage innovation in your
opinion?
Ms. Duran. In this case I would say no. We used the example
of PFOS in my oral and written testimony to say in some cases
that can actually drive further innovation as long as we are
given the capability and time to find that alternative. And in
that case we work with chemical manufacturers on those
innovations.
Mr. Bilirakis. What would be the typical lead time to
develop and deploy an alternative chemical if one's use is
restricted?
Ms. Duran. There are no generic timelines. As Ms. Deford
had said, many cases in the early development of a chemical we
do look at alternatives that are available and are picking the
one that meets technical needs with the lowest hazard profile.
So the opportunity for a drop in replacement to be readily
available is pretty much nil. So in the case of PFOS, it took
over 10 years. For another case where it might be a single
application and innovation has happened in parallel, it may be
much shorter than that. But PFOS was over 10 years.
Mr. Bilirakis. OK. Next question for Dr. Duran. Does the
draft TSCA provide the flexibility for manufacturers to
transition to alternatives when a chemical is banned? If not,
what improvements would you recommend to allow such
flexibility?
Ms. Duran. We believe the draft as written does provide for
that opportunity for us to pursue alternatives and then
transition them into our existing manufacturing processes.
Mr. Bilirakis. Thank you very much. I yield back----
Mr. Shimkus. Will the gentleman yield to me?
Mr. Bilirakis. Yes, I will.
Mr. Shimkus. A question for the panel. This is the Energy
and Commerce Committee. And historically, do you know how we
got our evolution as a committee? Dr. Duran?
Ms. Duran. I do not, no.
Mr. Shimkus. Ms. Deford? Mr. Cik?
Mr. Cik. Never been here. I have no clue.
Mr. Harris. No, sir, I do not.
Mr. Shimkus. All right.
Mr. Belliveau. No, sir.
Mr. Shimkus. OK. Well, as the new Constitution that we
passed, States were close to fighting States. Part of the new
Constitution that we are under today was the Interstate
Commerce Clause with the sole purpose of making sure that
States wouldn't block commerce flowing from State to State. So
I would pose that as part of this debate. If you understand the
history of this country and the union that we now are under and
the Federal system that we have, it is based upon the national
government incentivizing and supporting interstate commerce.
So I know my friends who will claim states' rights will
make a proclamation of the indignation, but I would say
historically, if you would look at the founding of this
country, that the Interstate Commerce Clause is really the
foundational principle that has unified these States, and I
think allowing this whole preemption debate is Constitutionally
pretty clear that we have the authority to do that.
And I thank my colleague for yielding his time, and I yield
back. And I would now recognize my colleague from New Jersey,
Mr. Pallone, for 5 minutes.
Mr. Pallone. Thank you, Mr. Chairman. I am pleased the
committee has convened this legislative hearing, and I wanted
to, you know, commend you for your efforts to address the
severe flaws in the underlying TSCA statute. We all share a
common goal, to ensure that the chemicals in everyday products
that Americans use are safe.
But let me first say that I have some serious concerns with
the Chemicals in Commerce Act discussion draft. I believe that
Sections 5 and 6 need changes to ensure the proper review of
new and existing chemicals. And I won't get into all my
concerns, but I also hope to see greater protections for
vulnerable populations and a refined preemption scheme.
But again, I don't see these concerns as insurmountable. I
remain confident that both sides of the aisle can come together
to craft a bipartisan bill that achieves our common goal of
protecting Americans from dangerous chemicals.
Now, let me ask--TSCA requires that when EPA needs to
regulate a chemical it must use the least burdensome option,
and this least burdensome requirement is widely recognized as
one of the biggest obstacles to effective implementation of
TSCA. Since EPA's failed attempt to regulate asbestos and the
Corrosion Proof Fittings decision, EPA has been saddled with
performing time and resource-intensive cost-benefit analysis on
every potential alternative, not just the final regulatory
control option selected. The draft removes the language least
burdensome but it replaces this with a number of troubling
similar terms like proportional to the risk, net benefits and
cost-effective compared to alternatives.
I wanted to ask Mr. Belliveau, in your assessment, do these
terms preserve the substance of the least burdensome
requirement?
Mr. Belliveau. Yes, they do. I believe they are equivalent
in their impact.
Mr. Pallone. And how will these changes affect EPA's
ability to protect the public from substances known to be
dangerous, like asbestos?
Mr. Belliveau. Well, they will perpetuate a deficiency in
which EPA was not able to ban asbestos, even though it kills
10,000 Americans per year. The same equivalent factors are
preserved in the new draft.
Mr. Pallone. Now, under the net benefits language, the
proposal says that EPA should not regulate unless the action
would result in net benefits. This appears to say that if
preventing exposure to a toxic chemical will cost a company $10
million and the reduced exposure would only prevent childhood
illnesses valued at $8 million, then EPA can't take the action.
Does that seem ethically--well, it seems ethically wrong to me.
What do you think about it?
Mr. Belliveau. Well, I think it is further troubling in
that there are not adequate data usually to quantify the health
benefits, and we need to be mindful of the burden that it
places on the Agency, burdens that should be placed on the
industry.
Mr. Pallone. The bill also creates a new requirement
barring EPA from restricting a chemical's use unless there is
an alternative currently available for that use without
additional cost. And without that requirement, EPA restrictions
on dangerous chemicals could provide market opportunities for
innovation and safer alternatives. But do you have concerns
about that requirement as well?
Mr. Belliveau. Yes, I have very strong concerns, I think,
as should any business person because what the act draft
requires is that we substitute EPA's judgment for a business
judgment as to what may constitute a safer alternative. Do we
really believe that the Environmental Protection Agency can
determine whether a particular substitute works for Intel or
not? No, Intel is equipped to determine that. That is an
impossible burden on EPA to achieve.
Mr. Pallone. All right. Let me move to Mr. Cik. How would
that provision affect companies like yours that innovate safer
alternatives?
Mr. Cik. It would level the playing field certainly for
small businesses, and leveling the playing field where
everybody has to work by the same rules drives innovation. That
is good for business if you level the playing field, and that
is what we need to do is level the playing field. Nobody can
put toxic chemicals in their products. Period. It will drive
innovation and is good for business.
Mr. Pallone. I appreciate that. Yes, I am just concerned,
Mr. Chairman, that these burdensome requirements have the
potential to create what Jim Jones called paralysis by analysis
and to protect the market position of dangerous chemicals and
articles, and I think they should be removed from the draft to
enable the EPA to act and to encourage innovation.
Again, I do appreciate, Mr. Chairman, your efforts to
draft--you know, to move forward. And I think that if we
continue to work, we can come up with a consensus on this bill.
But I do have some serious concerns about the draft right now.
Thank you.
Mr. Shimkus. I thank my colleague. The Chair now recognizes
the gentleman from Mississippi, Mr. Harper, for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman, and thank you for
holding this hearing, and we appreciate each witness being here
today to share your views and insight. I think that will be
very helpful as we go forward.
Mr. Shimkus. Would the gentleman yield for a second?
Mr. Harper. Yes.
Mr. Shimkus. Just a reminder because she is not up on the
screen, but we also have Jennifer Thomas from the Alliance for
Automobile Manufacturers. She is in Brussels. So there she is.
Mr. Harper. Great.
Mr. Shimkus. So if there is--sometimes people come and go,
and they forget that she is here and we appreciate her time.
Mr. Harper. Great. Thank you. Mr. Harris, if I may ask you
a couple of questions, first, can you talk for a moment about
why it makes more sense to keep the focus on chemicals instead
of mixtures?
Mr. Harris. Most of the mixtures that would--and there are
millions of mixtures, understand. There are not just a few
thousand. There are millions of mixtures. If the chemicals that
go into those, unless they in some way through reaction or some
other catalyst change the makeup of that chemical, if the
chemical has been evaluated, it seems duplicative to me to do
it again, extra effort on the part of the industry but extra
effort on the part of the EPA as well and integrate information
that I see as having little use.
Mr. Harper. Mr. Harris, the small processor is not defined
in TSCA. How do you define small business in your sector?
Mr. Harris. Employees of 100 or less is the typical
definition under the bill. Otherwise, anyone with sales over $4
million or sales of 100,000 pounds would not be included as a
small processor.
Mr. Harper. You state in your written testimony that
protection of proprietary information is the foundation of
innovation in our economy and that it is important to your
members and your customers. In your opinion, are the
confidential business information provisions in CICA an
improvement over existing TSCA and if so, why?
Mr. Harris. Yes, I believe so. I think it gives industry
the opportunity to keep information confidential that they need
to for competitive and innovative reasons, but I think it also
provides an opportunity for those emergency responders and
those in healthcare to be able to get the information they need
if necessary in event of an accident. I think it is an
improvement over current TSCA.
Mr. Harper. You make an important point in your written
testimony about the economic margins your industry operates on
and while you believe that your members should be subject to
regulation that it is important to be mindful of the costs
associated with regulatory burdens. Along those lines, isn't
cost-benefit analysis an essential part of most government
regulation?
Mr. Harris. I certainly think it should be. In our
industry, we are regulated by just about every agency that you
could name here in Washington, and I think it is essential that
when a regulation is created, you need to understand what it is
going to cost industry to comply to make sure that it makes any
sense, that there is a benefit not only to the industry but
certainly to the general public.
Mr. Harper. OK, and if there wasn't such a cost-benefit
requirement, couldn't the government impose regulations whose
costs far exceed the benefits they are purported to provide?
Mr. Harris. Absolutely. I think that happens today.
Mr. Harper. Specifically you mention reporting burdens that
may be especially burdensome for your members, and you
explained that you want to avoid duplicate reporting burdens.
How could EPA be sure it is getting the information it needs
and not more and not duplicate information?
Mr. Harris. Well, I think that we are, speaking as a
distributor, we are a middleman. We do not manufacture
products. The chemicals that we distribute are manufactured by
others. That information the EPA is getting from those
manufacturers. We sell products to manufacturers, companies
that are making a variety of products. They understand the
exposure. They understand the risk better than we would. If
that information can't be obtained anywhere else, we are
certainly willing to do what we can to provide it. But it seems
duplicative to me to provide information that someone else has
already provided and a burden on both industry and the
government.
Mr. Harper. Thank you, Mr. Harris. I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentlelady from Colorado, Ms. DeGette, for 5
minutes.
Ms. DeGette. Thank you. Thank you very much, Mr. Chairman.
I just want to reiterate that I am pleased that we are
continuing to have conversations, and there is some progress
that is made in this draft bill. But I am concerned like the
ranking member of the full committee that the discussion draft
might weaken some aspects of current law. And I want to talk
about a couple of those issues.
Right now, TSCA doesn't require new chemicals to be tested
before they are introduced into commerce, and it places
significant hurdles on the EPA to require testing of existing
chemicals. And so as a result of this, 85 percent of pre-
manufacture notices submitted for new chemicals under TSCA are
accompanied by no toxicity data. This bill, the draft bill,
doesn't require new chemical applications to be accompanied by
data, and it would not require testing of all existing
chemicals. While the draft does extend order authority of the
EPA for testing, it also puts new limits on the EPA's testing
authority, allowing testing in only a narrow set of
circumstances.
And so I want to start with you, Mr. Belliveau. Are you
concerned about the limitations the draft would put on the
EPA's authority to require testing?
Mr. Belliveau. Yes, I am very concerned for the reasons
that you stated and in addition, the changes in the draft to
current law would substantially shrink the universe of the
number of chemicals that would be candidates for testing.
Currently under existing law, any chemical could be subject to
a testing requirement. Under the draft, only those handful of
chemicals that were going through a safety determination or
determination for a new chemical could be tested. That really
shrinks the universe and the bar is raised, a higher--rather
than a chemical simply that may present an unreasonable risk
triggering testing, now EPA has to show that the chemical will
result or will likely result in an unreasonable risk before
testing can be required.
Ms. DeGette. Right, and that sort of hints at what my next
question is which is that EPA is not provided with the
requirement of--I am sorry, with the authority to require the
testing of chemicals before putting them into the high-priority
or low-priority categories. The chemicals that were put into
the low-priority category would be exempt from all regulation
at both the Federal and State levels. So that would have huge
consequences.
So I want to follow up and ask you are there any
requirements in the draft to ensure that the EPA has adequate
information about a chemical's risk before putting it into that
category?
Mr. Belliveau. No, because their authority has been
narrowed as we just discussed.
Ms. DeGette. Right.
Mr. Belliveau. And there is no threshold requirement that
there be robust data demonstrating that the chemical has no
intrinsic hazard in order to justify being designated a low
priority. The result would be thousands of chemicals that are
shielded from Federal and State----
Ms. DeGette. OK. Do you have----
Mr. Belliveau [continuing]. Scrutiny.
Ms. DeGette [continuing]. Some ideas of how we can fix this
part of the draft? You don't----
Mr. Belliveau. Yes.
Ms. DeGette [continuing]. Need to tell me right now, but if
you don't mind supplementing your testimony by providing a
written summary of how you would fix this as we move forward in
the committee?
Mr. Belliveau. I would be happy to do that.
Ms. DeGette. That would be great. Thank you. Mr. Chairman,
I would ask unanimous consent that he be allowed to supplement
with that information.
Mr. Shimkus. Without objection, so ordered.
Ms. DeGette. Thank you. I want to turn to you, Mr. Harris,
briefly. Why do you think that the bill should be changed to
give the EPA the authority to require from downstream
formulators, that are from downstream formulators? Sorry. That
was written in my handwriting which I couldn't read.
Mr. Harris. No problem. I have the same issue. Again, I
will repeat that, you know, we are a middleman. We are a
distributor. We typically know but under Responsible
Distribution and the product distributorship requirements that
we have under Responsible Distribution, we know what our
customers are using their products for.
Ms. DeGette. Right.
Mr. Harris. We do not always know exactly how they are
using them. Thus it would be difficult for us as a distributor
to determine what the exposures would be in their factors and
in their plants. In fact, many of our customers would not want
us in their factories, their plants. They have confidential
things that they do there. They don't want us to know how they
are formulating their paint or their ink or their cosmetics. So
I think it would be duplicative for us to try to do something
and provide information that in fact probably wouldn't say much
because we don't know what is going on every day in a
downstream processor's facility.
Ms. DeGette. And so really, if those folks gave the data to
the EPA, then the EPA could use that to inform the
prioritization, right?
Mr. Harris. Absolutely.
Ms. DeGette. Dr. Duran, you are nodding your head yes, too,
is that correct?
Ms. Duran. Yes. I mean, understanding where the exposure
is, that is a role we play as downstream users of chemicals
and----
Ms. DeGette. And in fact, high exposure is a valid reason
to designate a chemical as a high priority, isn't it, Dr.
Duran?
Ms. Duran. In conjunction with inherent hazard, of course.
Ms. DeGette. Right.
Ms. Duran. Yes.
Ms. DeGette. Thank you. Thank you very much, Mr. Chairman.
Mr. Shimkus. I thank my colleague. The Chair now recognizes
the gentleman from California, Mr. McNerney, for 5 minutes.
Mr. McNerney. Well, I thank the chairman for getting this
train moving down the tracks. I am just afraid that it will get
going too fast. It is really possible for the House to pass
something that wouldn't have a chance in the Senate. So let us
work together on that.
And I understand the industry's need for TSCA's reform to
establish a clear and consistent set of standards that would
not impact the industry's competitiveness clear enough.
However, there is a growing public concern and awareness of
unapproved exposure to chemicals that may cause cancer or cause
harm to other parts of our health. And a good reform package
would give the EPA the tools and the resources to carry out
regulations of public disclosures of chemicals to better ensure
public safety. If this committee produces legislation that
curtails the EPA from protecting the public safety from a
chemical exposure, then this legislation would be a failure and
ultimately counterproductive for the industry. So again, I urge
we work together. There is competitive interest, of course, but
in the end, I think we can find something that would be
beneficial.
I do have some questions. I am not just going to preach
here. The CICA continues to determine on a cost-benefit
analysis rather than a risk-based standard, and yet every
member of the panel agreed that the law should be risk-based.
So I suspect we should move more in that direction in our
legislative effort with the concurrence of the panel. The CICA
fails to create protections from aggregate exposures to
chemicals which is something that concerns me personally. Mr.
Belliveau, would you comment on that?
Mr. Belliveau. Yes, we need to consider real-world
conditions. The average person is exposed to a chemical from
multiple sources. Naturally EPA should aggregate the
information on those multiple exposures when determining the
safety of chemicals and a more explicit requirement to assess
aggregate exposure would certainly be appropriate.
Mr. McNerney. Should the EPA generate risk data on
chemicals?
Mr. Belliveau. The EPA needs greater authority to require
manufacturers and processes to test chemicals to provide data
and information on----
Mr. McNerney. So it should----
Mr. Belliveau [continuing]. The hazards. Yes.
Mr. McNerney [continuing]. Have a risk-based table or
database of chemicals of risks?
Mr. Belliveau. If you are asking do we need a strictly
risk-based system, yes, we do, and the draft does not provide
that.
Mr. McNerney. So that was my next question.
Mr. Belliveau. OK.
Mr. McNerney. Does the CICA do that?
Mr. Belliveau. No.
Mr. McNerney. Does it give the EPA authority to do that?
Mr. Belliveau. No, it mixes costs too up front in the
process which prohibited EPA from banning asbestos. There needs
to be--and I think stakeholders have agreed on this privately
that there needs to be a strictly health-based determination as
to whether a chemical is safe for the uses, all the uses that
are out there. And then if a chemical fails to meet that safety
standard, then we can look at solutions next. And then
naturally, as a common-sense matter in looking at solutions,
you look at what works, how affordable it is, and other
considerations. But to consider those things up front chills a
determination of safety.
Mr. McNerney. I am not sure if anyone on the panel would
like to answer this. It seems that the CICA creates new
opportunities for litigation before chemicals can be regulated.
Would anyone care to take that?
Mr. Belliveau. If I may, in several places the draft adds
new burdens of proof imposed on the Environmental Protection
Agency. Arguably that opens the door to industry lawsuits that
allege that the EPA has not met those burdens. There needs to
be more of a burden on the industry to make certain
demonstrations and less burden on EPA.
Mr. McNerney. Lastly, the TSCA reform proposals included in
this draft would create new duties and new requirements for the
agency, necessitating additional funds. Yet, this draft
provides no additional resources. For each to the panel, a yes
or a no, please. Do you support the collection of reasonable
user fees to ensure that the EPA has the resources to carry out
its functions? Dr. Duran?
Ms. Duran. I would say reasonable is key. Most likely, yes.
Ms. Deford. Reasonable in making sure that they come back
to TSCA to EPA, that office to----
Mr. McNerney. Very good.
Ms. Deford [continuing]. Have those resources.
Mr. Cik. Absolutely, of course.
Mr. McNerney. OK.
Mr. Cik. We submitted some data with our package that
demonstrates that most small businesses in the country support
very strong measures to control toxic chemicals. This position
is not a minority position. This is a majority position.
Mr. McNerney. OK. Mr. Harris?
Mr. Harris. Yes, I would agree also if it is reasonable, if
the fees are reasonable, and if the funds are used for the
purpose intended.
Mr. McNerney. OK.
Mr. Belliveau. Yes.
Mr. McNerney. Well, I want to underscore this before I
yield. No matter what we put in the bill, if the EPA doesn't
have the resources to carry out its functions, it won't be a
functional law. I yield back.
Mr. Shimkus. The gentleman yields back. At this time the
Chair now recognizes the gentlelady from California, Ms. Capps,
for 5 minutes.
Mrs. Capps. Thank you, Mr. Chairman, for holding the
hearing, and thank you to our witnesses for your testimony. And
if it is any comfort to you, I think I am the last member to
ask questions.
You know, under current law, TSCA uses a ``unreasonable
risk'' standard to evaluate the safety of a chemical. This is
understood to be a cost-benefit standard. In effect, a cost-
benefit approach requires the Agency to balance the economic
value of a chemical against the adverse health impacts, whether
they be cancer, autism or any of the other serious threats.
Besides posing a serious ethical problem, this approach has
also proven, and I think you might agree, to be unworkable. And
that is what the subcommittee has repeatedly received
testimony, that TSCA's safety standard is failing to protect
the general public and vulnerable populations.
Since 2009, there has been widespread agreement that this
cost-benefit standard needs to be abandoned. We have heard from
many stakeholders, including EPA, the American Chemistry
Council and even the oil refineries, everybody seems to be on
the same page on this one. They have all stated that costs
should not be part of safety determinations under TSCA.
Despite the broad consensus on this matter, the discussion
draft we have before us maintains the status quo on the safety
standard. It makes no changes to the language of unreasonable
risk or the consideration of cost during EPA's assessment of a
chemical's safety. I think that is a disappointment. I am also
very concerned that the safety standard in the draft will fail
to protect the vulnerable populations. That is what I want to
talk about for a minute.
Vulnerable populations include children, infants, the
elderly, the disabled workers and those living near chemical
facilities. The National Academy of Science in their 2009
report, Science and Decisions, recommended that all vulnerable
populations should receive special attention in all stages of
the risk-assessment process.
Mr. Belliveau, do you believe the draft as written would
adequately protect vulnerable populations from dangerous
chemicals?
Mr. Belliveau. No, I don't. It really needs to be changed
so that a chemical has to be found to be safe for the
vulnerable populations explicitly.
Mrs. Capps. I was going to ask you what changes you would
recommend. Do you want to be more specific than that?
Mr. Belliveau. Sure. I mean, to be fair, the drafters
include a definition, potentially exposed population, that
addresses some of who the vulnerable population is. It is a
definition. It says that some exposures need to be considered,
but you need to finish the job unless you require that you
actually apply a health-based standard to the protection of
vulnerable populations. It is an option. It is not a mandate.
And we need to be concerned about those who are most
vulnerable.
Mrs. Capps. And you may have already answered this, too,
but just for the record, should the placement of chemicals--
well, first of all, should decisions then on new chemicals
protect vulnerable populations?
Mr. Belliveau. Yes, absolutely.
Mrs. Capps. Yes? And should the placement of chemicals into
either low- or high-priority categories protect vulnerable
populations?
Mr. Belliveau. Especially for the low-priority category. We
need to ensure that there is adequate data to determine whether
vulnerable populations may be at risk. The danger that is
invited by the current draft is that literally thousands of
chemicals will be set aside as low priority with poorly
understood hazards. That would not provide the protection that
we are seeking for vulnerable populations.
Mrs. Capps. Thank you. Mr. Chairman, there is about a
minute and a half left or a quarter left. This is really what I
wanted to drill in on here in my question time. So would any of
the other of you like to respond to this matter of protecting
our vulnerable populations?
Ms. Deford. Yes----
Mr. Shimkus. Your mike is not on. I am sorry.
Ms. Deford. Sorry. What I was saying is we see the
discussion draft as actually is including--there is a
definition for potentially exposed populations. So we do see
the discussion draft taking account----
Mrs. Capps. Adequately?
Ms. Deford [continuing]. Of that.
Mrs. Capps. Adequately?
Ms. Deford. And I mean, we believe it is critical for that
protection to be in place, both for new chemicals and existing
chemicals.
Mrs. Capps. Anything else?
Mr. Cik. I will add something. The low-priority issue could
be a trap for products that serve at-risk populations like
babies and children, pregnant women, the at-risk population.
These chemicals can be shielded from further review. I mean,
that could be a serious problem. And then you make it worse by
shielding these chemicals from States to review them. It is a
serious problem. We can't allow that.
Mrs. Capps. OK.
Ms. Deford. Maybe one point I would make on low priority
is, I mean, if the Agency doesn't have sufficient information
in order to make a determination, they can actually identify
such as a high priority and then go ahead and collect
additional information. So you know, the question, the issue
around insufficient information is the Agency can realize that
and make a determination about need for both exposure and
additional hazard information.
Mrs. Capps. Thank you. I have overstayed my time but I just
at least want to really acknowledge the chairman for your
pledge to work with members on this side of the aisle in a real
bipartisan way to improve this draft. I think that there is
agreement that it may be a starting point but it needs a heck
of a lot of work before it sees its final form. At least that
is how I feel. Thank you very much.
Mr. Shimkus. I would thank my colleague and friend from
California. I would just, on a side note, I would say TSCA
currently has no category for vulnerable populations.
Mrs. Capps. Right.
Mr. Shimkus. Period. Nothing.
Mrs. Capps. Yes.
Mr. Shimkus. We at least start addressing it. And I think
that is a step in the right direction showing some movement.
Mrs. Capps. One step.
Mr. Shimkus. That is better than no step. But I do want to
thank--I want to make sure we thank Ms. Thomas for being with
us in Brussels. She is going to be allowed to go to bed. And we
also want to thank the first panel for your diligence. Members
were very active. This is a very important issue. We do
appreciate those offers of assistance. We want to get to
obviously a compromise that can move in a bipartisan manner.
That is the only one that will really get appropriately on the
Senate side. As was stated, we could move a Republican bill
adequately and through the house, but the question is, to what
end? So we are all going to have to move somewhere, and I hope
we all move together.
With that, I want to dismiss the first panel and ask the
second panel to come join us.
I am going to get started and welcome the second panel. I
will do the same as I did the first one. I will kind of
announce you all right up front, and then we will just go with
the 5 minutes. You all sat through the last panel. I think
there will be a lot of good questions. I may not go as long as
the first, but we are happy to have you here.
Joining us will be Mr. Mark Duvall who is a Principal at
Beveridge & Diamond. Next to him is Dr. Bosley?
Ms. Bosley. Bosley.
Mr. Shimkus. Bosley. Thank you. President of Boron
Specialties on behalf of the Society of Chemical Manufacturers
and Affiliates. Mr. James Stem is National Legislative Director
of the Transportation Division of the Sheet Metal, Air, Rail
and Transportation Union. Dr. Philip Landrigan, Professor of
Pediatrics, Director of Children's Environmental Healthcare
Center, Ichann School of Medicine at Mt. Sinai. Welcome, sir.
And Ms. Anna Fendley with the United Steel Workers.
With that, Mr. Duvall, you are recognized for 5 minutes.
STATEMENTS OF MARK N. DUVALL, PRINCIPAL, BEVERIDGE & DIAMOND,
P.C.; BETH D. BOSLEY, PRESIDENT, BORON SPECIALTIES, LLC, ON
BEHALF OF THE SOCIETY OF CHEMICAL MANUFACTURERS AND AFFILIATES;
JAMES A. STEM, JR., NATIONAL LEGISLATIVE DIRECTOR,
TRANSPORTATION DIVISION, SHEET METAL, AIR, RAIL AND
TRANSPORTATION UNION; PHILIP J. LANDRIGAN, DEAN FOR GLOBAL
HEALTH, ETHEL H. WISE PROFESSOR AND CHAIRMAN, DEPARTMENT OF
PREVENTIVE MEDICINE, PROFESSOR OF PEDIATRICS, ICHANN SCHOOL OF
MEDICINE AT MOUNT SINAI; AND ANNA FENDLEY, UNITED STEELWORKERS
STATEMENT OF MARK N. DUVALL
Mr. Duvall. Chairman Shimkus and Ranking Member Tonko,
thank you for inviting me to testify. My name is Mark Duvall. I
am a principal at the law firm of Beveridge & Diamond. Although
I represent a variety of clients on TSCA issues, I am appearing
here today solely in my personal capacity. The views I express
today are my own, and I am not representing my law firm or any
client of my law firm.
My comments focus on the core provisions of the discussion
draft which would amend Sections 4, 5 and 6 of TSCA relating to
testing, new chemicals and existing chemicals. In my view,
these provisions would strengthen TSCA in important ways.
Starting with Section 4, the draft would delete today's
requirement that EPA establish both that testing is needed and
that a chemical substance may present an unreasonable risk or
other finding. It would only require EPA to conclude that
testing is needed. Where appropriate, EPA would be able to
impose testing requirements by order rather than by rule. This
should streamline its ability to require testing.
The draft would also facilitate transition to the more
sustainable toxicology testing of the future. It would
encourage the use of innovative technologies while leaving EPA
with the discretion to require animal testing where
alternatives are not yet available or sufficiently reliable.
With respect to Section 5 of TSCA, for the first time EPA
would have to decide whether a new chemical substance would or
would not be likely to result in an unreasonable risk of harm
under the intended conditions of use. The draft bill would
authorize EPA to require testing to develop the information it
needs in order to make that determination if the information
was not provided by the submitter.
The draft bill would also clarify and strengthen EPA's
ability where appropriate to restrict new chemical substances
as they enter the market.
Turning now to Section 6, one of the most important changes
to TSCA would be the prioritization provision. Current law has
no driver that requires EPA to prioritize chemical substances
for review and then review them systematically. As a result,
EPA has faced challenges in obtaining necessary funding from
Congress or clearances from OMB. The draft bill would provide
that driver.
The prioritization provision would direct EPA to establish
a risk-based process for designating chemical substances as
either high or a low priority for a safety determination. Those
designated as high would proceed to a safety determination.
Those designated as low would not. At any time, EPA could
revisit a designation and change it if the available
information supported a change in EPA's discretion.
Safety determinations are the second step in addressing
chemical safety systematically. EPA would be required to make
safety determinations for high priority substances. The safety
determination would conclude either that a chemical substance
will or that it will not result in an unreasonable risk of harm
to human health or the environment under the intended
conditions of use. EPA could require testing if needed in order
to make a safety determination.
This unreasonable risk standard which has been discussed
already this morning would be very different from the similarly
worded standard of current TSCA and certain other statutes and
would have a different effect. Unlike those other statutes, the
draft would separate out the determination of risk which is
primarily a scientific conclusion from decisions about risk
management. The safety determination itself would be based on
scientific factors, considerations of risk and so on. It would
be risk-based. It would consider information on potentially
exposed subpopulations that EPA would take into account in
making a determination of unreasonable risk. But there is no
provision in the bill for the weighing of costs and benefits in
making a safety determination. If that is not clear, then
legislative history or additional drafting should make it
clear.
The bill's risk management provision would delete the least
burdensome alternative requirement of TSCA and delete many of
the procedural requirements that EPA has found to make rule
making difficult. Instead, it would require EPA to make certain
findings before imposing risk management controls. For example,
EPA would have to determine that the controls will result in
net benefits and would be cost effective. These requirements
have been in place for over 20 years because they were part of
the executive order issued by President Clinton and reaffirmed
by President Obama. EPA has not found these executive orders to
be obstructing it from completing its work. And where risk
management measures would amount to a ban, EPA would have to
ensure that feasible alternatives are available that would
reduce the risk. This provision would address the concern
reflected in California's green chemistry regulations about
regrettable substitution.
In conclusion, the draft bill would strengthen TSCA's core
provisions. It would delete requirements that have hampered
EPA's ability to regulate chemical risks. It would provide EPA
with new flexibility in exercising its authority, and it would
require EPA to act in ways that promote good governmental
decision-making.
Thank you for considering this testimony.
[The prepared statement of Mr. Duvall follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you. The Chair now recognizes Dr. Beth
Bosley. You are recognized for 5 minutes.
STATEMENT OF BETH D. BOSLEY
Ms. Bosley. Thanks very much, Chairman Shimkus, Ranking
Member Tonko and other members of the subcommittee. My company,
Boron Specialties, is a specialty chemical manufacturer and a
woman-owned small business. We are located in Pittsburgh,
Pennsylvania. We are also members of the Society of Chemical
Manufacturers and Affiliates, known as SOCMA.
As an entrepreneur and a business owner, I offer a unique
perspective that I hope you will find helpful as you consider
this draft legislation which is a clear improvement over the
status quo. I would like to discuss some important areas of the
draft.
First, a robust new chemicals program is essential to
America's ability to innovate and to create jobs. I cannot
overstress the importance of market access to start-ups and
small businesses. In general, the new chemicals provision in
the draft bill preserves the delicate balance in existing law
between the opportunity to innovate and protecting human health
and the environment. The draft retains current statutory
exemptions and the authorization for other exemptions such as
for research and development.
As a clarification, when I speak of exemptions, I do not
mean exempt from TSCA or any other compliance obligations. All
I am talking about is exempt from premanufacture notification
requirements or that they are eligible for expedited review so
long as they meet certain criteria.
Chemicals making use of these exemptions are actually
inherently restricted since they are bound by rigorous
criteria. The draft also maintains the 90-day review period for
PMNs. EPA currently completes review of many new chemicals in
far less time than 90 days while still being protective. So
this is reasonable. The draft would require EPA to determine
during that review period whether a new chemical is likely to
meet or not likely to meet a safety standard. This is a
significant step forward.
As the subcommittee considers the bill further, I offer
some suggestions regarding the treatment in Section 5. Current
law authorizes EPA to extend the 90-day review period by rule
which is usually procedurally too demanding. So EPA uses 15-day
extensions with consent of the submitter. I would urge this
aspect of the current bill be adopted rather than allowing an
automatic 90-day extension.
I believe some drafting corrections might be warranted also
to clarify EPA's ability to use significant new-use rules that
are applicable to everyone and to authorize commencement of
manufacture upon the establishment of Section 6 restrictions.
We would be happy to discuss these with subcommittee staff off-
line.
The draft bill also strengthens Section 14, confidential
business information provision, and represents a balanced
approach to increased transparency while preserving trade
secret protection. The bill imposes reasonable limitations on
CBI. Companies would have to determine how long they believe
their CBI protection is necessary, and they would have to
resubstantiate over time. This fixes one of the core problems
under the current law, the open-ended protection of CBI.
The draft would break the inventory of existing chemicals
into active and inactive lists. This will help EPA focus its
resources on prioritizing a much smaller list of active
chemicals which will expedite review.
As I have mentioned in prior testimony, the bill should
also expand TSCA Section 8(e) to authorize submission of non-
adverse data and to require EPA to take this data into account.
Presently Section (e) is bias toward adverse data.
I am pleased to see that the EPA would be able to obtain
information from downstream processors who are in a much better
position to report on market applications and exposure patterns
for the chemicals they use. I am somewhat concerned that the
bill does not require some degree of processor reporting,
however.
After prioritization, should EPA determine that more data
is needed to affirm safety, it would be given enhanced
mechanisms for this data collection.
TSCA Section 4 would also be strengthened by expanding EPA
authority to request data either by rule, by consent agreement
or by order, and it is this order authority that will speed
action. As a caveat, however, before ordering testing, EPA
should first consider all the available information that it
has. It should have sound scientific and risk basis for the
request, and testing should be tiered.
The risk management provision under the current statute has
received criticism for the unreasonable risk standard being too
cumbersome for EPA to implement. It requires EPA to determine
the least burdensome regulatory measures for chemicals that
present a risk.
In the draft, cost and benefits are separated from what is
now a purely health- and environment-based safety standard, and
the least burdensome requirement is removed. EPA would instead
have to look at risk management measures that are proportional
to the risk that provide net benefits and are cost effective.
These are all positive steps.
Perhaps the bill's greatest improvement over the Senate
bill is its clarification that low-priority determinations
would be judicially reviewable. This solves the problem of
State requirements being preempted by actions that are not
subject to judicial review.
I have covered the major ways in which this bill is an
improvement over the status quo. The bill provides a vehicle
for balanced TSCA reform and discussion crucial, unaddressed
issues. I hope this hearing marks the first step in a
constructive bipartisan process to facilitate this advancement.
Thanks very much for the opportunity to share my perspective.
[The prepared statement of Ms. Bosley follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you. The Chair now recognizes Mr. James
Stem. Sir, you are recognized for 5 minutes.
STATEMENT OF JAMES A. STEM, JR.
Mr. Stem. Mr. Chairman and Ranking Member Tonko, thank you
for the opportunity to offer our input. My name is James Stem,
and I serve here in Washington as the National Legislative
Director for our largest railroad union, formerly known as the
United Transportation Union. I am speaking to you today on
behalf of the tens of thousands of men and women that are
working today, operating our railroad system and who as a part
of their daily responsibilities of safely moving the thousands
of tons of chemical products around our country that have been
requested by local businesses and local government bodies
throughout.
I wish to commend the subcommittee for returning to regular
order and for its work on this draft. All of us in this room
are hoping to reform TSCA during 2014.
There were five unions that have been participating and
expressing our optimism of the bipartisan nature of the Senate
deliberations on this subject, and we will continue to work
with the House committee in order to achieve that bipartisan
result here. We congratulate you for that.
Modernizing TSCA takes on a new urgency as our American
chemical industry prepares to make major investments in U.S.
production facilities in the wake of the natural gas boom. The
industry has announced over $100 billion in planned U.S.
investments that will not only use domestic natural gas to make
products but also put our American people back to work. The
U.S. chemical industry will generate tens of thousands of new
American jobs in manufacturing, construction, energy
infrastructure, technology, transportation and additional
research and development. The industry already provides
800,000-plus well-paid U.S. jobs and indirectly supports
millions more. The substantial tonnage of chemical shipments on
our Nation's freight railroads helps to support good railroad
jobs. Exporting thousands of tons of chemical products
manufactured in this country by American workers is not a
dream. That is the reality that is on the on the table today.
Transporting the needed chemical products that our U.S.
manufacturing sector requires from the chemical production
facilities to the final destination by rail is the safest form
of transportation. Railroads have the capacity and the
experienced workforce to move these products safely and
efficiently without putting thousands of tanker trucks on our
overburdened highways.
We support a reform that will achieve the following goals:
number one, strengthen our chemical safety law to protect human
health and the environment. Two, restore public confidence
about the safety of chemicals in commerce, and three, help the
U.S. chemical industry innovate and grow, so it can provide
good jobs. Directly and indirectly, TSCA impacts chemical
safety, our economy, and the health and well-being of many
workers and their families.
Americans in every State need to be confident in their
homes, workplaces and communities that our Nation's chemical
regulations are robust and working to protect them.
This draft will fix significant problems that have been
encountered and identified with TSCA. For the first time, EPA
will be required to systematically evaluate all chemicals in
commerce, including TSCA's grandfathered chemicals, and label
them as either high- or low-priority based on potential health
and environmental risks. Chemicals requiring the most immediate
attention from regulators should be successfully identified for
action by this process. This ranking system must be carefully
crafted as the proposals move forward so that confidence in its
dependability is high.
High-priority chemicals will require EPA to perform a
safety-based risk assessment. EPA must determine whether a
high-priority substance will result in unreasonable risk of
harm to human health or the environment under its intended
condition of use. Low-priority chemicals can be reclassified as
high priority when necessary.
EPA will be able to demand more health and safety
information from chemical producers. EPA will also delineate
which chemicals are in active use and which are not, ending
confusion about the actual number in use.
These improvements will make TSCA more effective. However,
we recognize that the drafting process must address additional
significant issues.
All of us here today are aware of the State preemption
controversy with regard to reforming TSCA. As a practical
matter, we agree that effective national regulation of
chemicals in commerce is generally preferable to State-by-State
regulation. At the same time, States must be able to
successfully address local issues and concerns. A strong,
uniform, robust and workable national law is preferable to 50
States regulating independently. Using rigorous scientific
testing before a chemical is made available in any State is the
recommendation. The need to improve the protection of
vulnerable populations provide more definitive timelines for
action by EPA and finally as a separate but related matter, EPA
must be given the resources needed to carry out the reform and
these new responsibilities.
I thank you for the opportunity to speak.
[The prepared statement of Mr. Stem follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. I thank you. The Chair now recognizes Dr.
Philip Landrigan for 5 minutes, sir. Welcome.
STATEMENT OF PHILIP J. LANDRIGAN
Mr. Landrigan. Thank you, Mr. Chairman, Ranking Minority
Member Tonko from----
Mr. Shimkus. Can you pull that a little bit closer?
Mr. Landrigan. Yes, sir.
Mr. Shimkus. Much better. Thank you.
Mr. Landrigan. I am Philip Landrigan. As you said when you
introduced me, I am a pediatrician, and I am here today to talk
about the discussion draft, and I want to really focus on the
inner section between Chemical Safety Legislation and
Children's Health because this bill is not merely a chemical
bill. It is a public health bill, and the public health issues
in my opinion have to be front and center in the debate.
So let me start by pointing out to you that rates of a
whole series of chronic diseases are on the rise in American
children. Asthma has tripled. Childhood cancer incidence has
gone up by 40 percent over the past 40 years. Autism now
affects one child in 88. Attention Deficit Hyperactivity
Disorder affects about one child in seven according to data
from the CDC. These chronic diseases of children are highly
prevalent in today's world. They are on the increase. They
affect children of every social stratum, children whose parents
might be of any political persuasion. This really ought to be a
non-partisan bill because it is about the health of all
Americans.
There is a strong body of scientific evidence that toxic
chemicals have contributed to diseases in children. Going back
100 years ago, lead was show to cause mental deficiency,
learning problems, loss of IQ. Seventy-five years ago,
methylmercury. More recent, clinical and epidemiologic studies
have linked organophosphate pesticides, arsenic, manganese,
brominated flame retardants, phthalates, bisphenol A to
learning disabilities, loss of IQ, problems of behavior in
children. All of these chemicals that I have listed have been
studied in investigations supported by the National Institutes
of Health, published in peer-reviewed journals, reports that
have withstood extensive scrutiny. And this body of evidence is
growing by the year.
Now experience has taught us that when we know the risk
factors to disease, we can intervene against those risk
factors. The first great teaching in this regard came from the
Framingham Heart Study launched in 1948 in Framingham,
Massachusetts. It was the Framingham Heart Study that taught us
all about the big risk factors for heart disease: hypertension,
smoking, cholesterol, diabetes, sedentary lifestyle, obesity.
And because doctors and nurses and health professionals and
citizens across America have become aware of these risk
factors, they have intervened against them, and one of the best
kept secrets in American medicine is that the death rate from
heart disease has gone down by 50 percent in this country over
the past 40 years. Yes, heart disease is still the leading
killer, but it is half the killer it was.
The same logic applies to preventing disease and
dysfunction caused by toxic chemicals. In 1976, based on data
showing that lead was toxic to children, even at low levels,
EPA made the courageous decision to remove lead from gasoline.
What happened was astounding. Blood lead levels plummeted, and
they have come down 95 percent since 1976 in this country. The
average IQ of American children has increased by somewhere by
somewhere two and five points as a consequence of the decline
in blood lead levels, and because IQ points are worth money, if
you do the math, we have 4 million babies in this country each
year, four or five IQ point increase per child, $10,000 per IQ
point over the lifetime of a child. Researchers at Harvard have
done that arithmetic and have calculated that the economic
benefit to the United States of America of the single action of
getting lead getting lead out of gasoline is $200 billion in
each crop of babies born since 1980 since blood lead levels
came down.
So a big problem today in this country is that our children
are surrounded by thousands of untested chemicals. How many
more leads? How many more PCBs? How many more organophosphate
pesticides are out there today that might be entering the
bodies of pregnant women, damaging the brains of unborn
children in the womb, damaging nursing infants, damaging little
kids? Nobody knows. We don't know because we haven't done the
testing. We are flying blind.
A pediatric colleague, Dr. Herbert Needleman of the
University of Pittsburgh who has done much work on childhood
lead poisoning, has described the situation as follows.
Needleman says, ``What we are doing in this country is we are
conducting a vast toxicological experiment, and we are using
our children and our children's children as the unwitting,
unconsenting subjects.'' This is a situation that needs to be
fixed. It is not sustainable, it is not wise. I would argue
that it is not even moral to permit exposure of babies in the
womb, infants and young children and other vulnerable
populations such as workers and the elderly to untested
chemicals of unknown hazard.
So it is clear that we need to move forward to fix TSCA.
Mr. Chairman, I salute you and your colleagues for having
started the process. I salute my dear, beloved departed friend,
Frank Lautenberg, who was a pioneer for so many years, Senator
Lautenberg of New Jersey, in advancing chemical safety
legislation. We need to test both existing as well as new
chemicals for safety.
And as I close, there are a couple of architectural
requirements that I think are essential to be included in any
law that you draft going forward. First and foremost----
Mr. Shimkus. You are getting close to a minute over so----
Mr. Landrigan. All right.
Mr. Shimkus. Is it in your written--you got this finally in
your written statement also?
Mr. Landrigan. Yes, sir. Protect kids, set timelines,
safety standards, and adequately fund EPA. Thank you very much.
[The prepared statement of Mr. Landrigan follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you. The Chair now recognizes Ms.
Fendley for 5 minutes.
STATEMENT OF ANNA FENDLEY
Ms. Fendley. Great. Chairman Shimkus, Ranking Member Tonko
and members of the committee, thank you for the opportunity to
testify. I am here on behalf of the United Steelworkers. We are
the largest industrial union in North America and represent the
majority of unionized chemical workers.
As witnesses in this and past hearings have stated, TSCA is
woefully out of date and ineffective. Governments around the
world have enacted chemical laws that are more protective than
TSCA. Members of our union rely on the jobs in the chemical
industry, and we support reform because know that it will make
American manufacturing more competitive. However, while
industry competitiveness and consumer confidence are important
considerations for reform, protecting public health must be the
primary goal.
We appreciate that this subcommittee has held so many
hearings on TSCA reform. However, we are disappointed in the
CICA. This draft would merely amend, not reform, TSCA and would
result in a less protective, less functional Federal system for
assessing and restricting industrial chemicals. The remainder
of this testimony will highlight some of the shortcomings.
First, the safety standard. One often-cited example of the
ineffectiveness of the law is EPA's attempted ban of asbestos
using the unreasonable risk safety standard and the least
burdensome requirement for restrictions. CICA retains the
highly problematic safety standard by neglecting to include a
definition that specifies health-only considerations. And
although the draft does not retain the language of the least
burdensome requirement, it functionally recreates the
requirement in Section 6(f)(4). These provisions place an
impossibly high burden on EPA and do not fix the problems in
existing TSCA that have prevented the Agency from acting on
chemicals.
Second, prioritization. The scheme laid out in Section 6(a)
of the draft would result in chemicals falling through the
cracks due to considerations of cost versus benefits and
chemicals being prioritized without adequate information.
Specifically, a chemical must be listed as high priority if it
has the potential for high hazard and high exposure, but it
only may be high priority if it is either highly hazardous or
there are high exposures. And a low-priority chemical will not
be further evaluated or have a safety determination even though
EPA may not have sufficient information for an informed
determination of the chemical's safety.
Third, new chemicals. The draft would weaken existing
provisions for new chemicals. Real reform would prove safety
before market access. But Section 5 of the draft makes it
nearly impossible for EPA to get safety information for new
chemicals, and the Agency must make a safety determination
using the unreasonable risk standard within 90 days or the
chemical can go on the market and States are preempted from
acting.
The draft also eliminates Section 5(e) from existing TSCA
which includes worker protections and limits environmental
releases.
Fourth, vulnerable populations. As has been discussed
already, the draft does not adequately protect these groups. In
fact, there is only one mention of them aside from the
definition, and that clause requires EPA to analyze the
exposures of vulnerable populations that are significant to the
risk of harm. There is no requirement to protect or consider
them during prioritization.
Fifth, confidential business information or CBI. Provisions
in TSCA that protect CBI are important to competition and
innovation, but they also have the potential for abuse. The
draft expands the information that can be claimed as CBI and
has a problematic clause that grandfathers previous claims.
Real reform would make more, not less, information about the
safety and use of chemicals available.
Finally, deadlines and resources. Ultimately TSCA reform
will never work if the Agency is not provided with clear,
enforceable deadlines and adequate resources to move the
program forward. The draft does not incorporate either of
those. Even those stakeholders have underscored their
importance. My written testimony also details the draft's
problems related to testing authority and overreaching
preemption.
In closing, the USW strongly supports working on TSCA
reform during the 113th Congress with the goal of developing
meaningful legislation that qualifies as actual reform.
However, this draft would set us back from the status quo and
from other parts of the world. TSCA reform must give EPA the
necessary authority and resources to get the information the
Agency needs, make safety assessments and determinations and
restrict the use of chemicals that do not meet a health-only
safety standard. We look forward to working with the
subcommittee and any other stakeholders in developing
legislation that would protect worker and public health. Thank
you.
[The prepared statement of Ms. Fendley follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. Thank you very much, and I know the folks out
there observed me--this is causing me to drink. So I have got
my chemically induced Diet Coke and my chemically induced
Hershey candy bar which does bring up a point. One part of the
problem with TSCA is that TSCA makes the assumption every
chemical is toxic. And that whole prioritization issue is part
of that debate. Not every chemical is toxic. Otherwise, we
would have huge problems.
So I just thought of that. I recognize myself for 5 minutes
for my first round or the opening round of questions to this
panel. Mr. Landrigan, I just want to ask, you said in the first
panel current TSCA does not mention vulnerable populations. Is
that correct?
Mr. Landrigan. That was said at the first panel, yes.
Mr. Shimkus. Yes.
Mr. Landrigan. I believe that----
Mr. Shimkus. And you understand that? I mean, there is no
mention. Current law does nothing to that vulnerable population
that you are concerned about?
Mr. Landrigan. That is right.
Mr. Shimkus. OK. And at least we are starting the debate on
how to address vulnerable populations. Would you agree with
that?
Mr. Landrigan. That is correct. Yes, sir.
Mr. Shimkus. Thank you. Mr. Duvall and Dr. Bosley, I am
giving you a chance to respond to some of the statements made
in either this panel or the other panel to maybe something that
caught you that it is, you know, this is very intense and there
are opinions on both sides. So the opportunity to respond to
something you may have heard and would like to at least give
your side of that story.
Mr. Duvall. Thank you. There are several points I would
like to make. One of the first is a widespread perception that
the unreasonable risk standard of the draft bill would be no
different from the unreasonable risk standard of current TSCA.
My understanding from reading the bill is that that is not what
is intended and that would not be the effect and that the key
provision on unreasonable risk is the safety determination
provision which identifies the basis on which a safety
determination would be made. The draft bill reads, ``The
Administrator shall make a safety determination based on the
best available science related to health and environmental
considerations and in accordance with the weight of the
scientific evidence.'' That is not a cost-benefit exercise.
Another point I would make would be related to preemption.
It is important to recognize that there is no preemption except
where EPA would take preemptive actions. So it is not the case
that entire statutes would be preempted at the State level or
local level. Instead, only where there is a Federal action
which, under the statute, would there be preemption. There is a
suggestion that past EPA actions will preempt entire statutes.
I would disagree. It seems to me that the purpose of that
reference to preemption prior to the effective date is simply
an effort to preserve preemption that has occurred. An example
would be State or local PCB restrictions which the courts have
determined were preempted years ago. Presumably PCBs would not
go through a safety determination, at least soon in the
process, because EPA has already comprehensively addressed
PCBs. And yet, if preemption is tied solely to the safety
determination process, then you would lose the preemption of
State PCB laws without a savings clause.
Mr. Shimkus. Let me give Dr. Bosley a chance with the
remaining time I have.
Ms. Bosley. Sure. I would like to reiterate that cost-
benefit analysis, the initial analysis is done without regard
to cost at all. The safety determination is made really whether
a chemical will or will not meet the safety determination. No
cost is anticipated there.
During the risk assessment portion, EPA can take costs into
account. For instance, if a chemical cannot be tested
economically, the chemical may go away all together, and if
there is no other chemical waiting to take its place, then
certain critical uses, very low-exposure critical uses, could
be at risk.
The other point is under Section 5. We hear a lot about
data not being available under Section 5 and that the CICA
doesn't take steps to address that. And it is not so surprising
that manufacturers have to back up a long time before they go
to market with a chemical, and you don't want to test when you
don't have things like final specification and you don't have
final physical form. You don't know if there is going to be a
large market or a small market. So you don't usually test that
far before something goes to market. But it doesn't mean that
testing stops. So under Section 8(e), we give EPA after--post-
haste. After the testing is done, we give them that
information. But that information is available eventually.
Mr. Shimkus. Yes, in the first panel, and I will end up
with this. And he is still in the audience. Mr. Belliveau
mentioned being overly burdened to the EPA. And it is my
understanding that that overly burdensome aspect is them asking
for information.
Ms. Bosley. Yes. That is part of it. Yes.
Mr. Shimkus. All right. So thank you. I yield to the
ranking member, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. TSCA reform is about
protecting human health and the environment from dangerous
chemicals by systematically assessing and managing chemical
risks in this country. Effective regulation will depend on
strong science. Yes, this draft limits EPA's access to existing
information and the Agency's ability to require testing.
With that being said, Dr. Landrigan, should TSCA reform
expand the scientific information available to EPA and the
public about chemical risks?
Mr. Landrigan. Yes, sir. I would absolutely say that EPA
should have access to all of the best science in assessing
risk.
Mr. Tonko. Thank you. And to use your words, you said we
are flying blind. Do you have suggestions for how this draft
might be changed to achieve that goal?
Mr. Landrigan. I am neither a lawyer nor a legislator. So I
will speak in terms of principles rather than amending specific
clauses. But I think there needs to be strong, very specific
language about protecting vulnerable populations. There have to
be clear deadlines. There has to be--the emphasis on safety has
to far outweigh the emphasis on cost. Safety should come first.
And there should be adequate funding for the Agency.
Mr. Tonko. Thank you. Ms. Fendley, do you agree that TSCA
reform should provide more scientific information about
chemicals to the Agency, the public and those who are exposed
to chemicals in their workplace?
Ms. Fendley. Yes, I do.
Mr. Tonko. And do you have suggestions for this panel for
how this draft might be changed to achieve that goal?
Ms. Fendley. Yes, specifically not grandfathering all of
previous CBI claims which is included in the draft and also
expanding the amount of information about safety and uses that
the EPA can obtain and then share with the public and workers.
Mr. Tonko. Thank you. We have heard from GAO and other
stakeholders throughout this process that EPA needs more
information and stronger testing authority. But this draft
would restrict what science EPA can use to only studies that
meet statutory criteria for best available science and
information quality. By including these provisions, the draft
puts courts in the position of determining what the science EPA
should use, and they also allow for advances in technology.
Ms. Fendley, do you have concerns about the good science
provisions in this particular draft?
Ms. Fendley. I do, yes.
Mr. Tonko. And Dr. Landrigan, what mechanisms are in place
within the scientific community to ensure that EPA uses good
science in assessing chemicals?
Mr. Landrigan. Scientists are constantly developing new
techniques importing technologies from one branch of science to
another to dig deeper into toxicology, and what scientists do
to get that information out into the marketplace where it is
available to EPA is that they put their results through peer
review and publish them in widely read journals which are
certainly accessible to EPA.
Mr. Tonko. Should we be concerned about putting courts in
the position of determining what science should be relied upon
and what science should not be relied upon?
Mr. Landrigan. Scientists are better able than the courts
to judge the validity of science. I have always thought that.
Mr. Tonko. Thank you. Well, I agree, and I am concerned
about the costs and the delays that go along with litigation.
It doesn't solve a problem. Perhaps it expands upon that
problem. We need to expand the scientific information available
to EPA and the public and not restrict the Agency's ability to
consider relevant science and create new reasons for
litigation.
Mr. Chair, I think we have our work cut out for us to
strengthen this bill. But I look forward to continuing to work
with the subcommittee and the committee at large to address
these issues. And with that I yield back.
Mr. Shimkus. The gentleman yields back his time. And again,
the Chair thanks him for his comments. The Chair now recognizes
the gentleman from Florida, Mr. Bilirakis, for 5 minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it
very much, and thank you for your testimony. This question is
actually for Mr. Duvall. We frequently hear that 80,000
chemicals in commerce number--the number is overstated. Was the
inventory reset provisions under the current draft improve our
understanding what is in commerce? If so, if that is the case,
would the current draft improve the current situation under
TSCA today?
Mr. Duvall. Yes. The inventory reset would certainly
provide valuable information for EPA, for the public and for
the Congress to understand what the numbers are that are
realistically in play. There are approximately 84,000 chemicals
listed on the TSCA inventory but only about 7,800 chemicals
were reported in the 2012 Chemical Data Reporting Rule.
Presumably since not all chemicals in commerce are reported per
CDR, there are some number higher than 7,800. But it is helpful
to understand that the universe of chemicals that EPA should
focus its scarce resources on is of limited number and not
something like 84,000.
Mr. Bilirakis. Thank you. Next question again for Mr.
Duvall. The current draft provides for the reentry of inactive
chemicals to active status on the inventory. Again, I apologize
for my laryngitis. Would you describe that process as one that
can be accomplished by chemical manufacturer or processor
without an undue amount of bureaucratic red tape?
Mr. Duvall. Yes. My understanding is that the process is
mostly a notification requirement. Simply send a notice into
EPA saying that you have met the criteria for an active
substance, and EPA would then add it to the active substance
list.
Mr. Bilirakis. Why is it important to the free flow of
commerce and the economy in the United States?
Mr. Duvall. I am--why is what?
Mr. Bilirakis. Why is it important to the free flow of
commerce and the economy in the United States?
Mr. Duvall. I see the inventory reset provision as
primarily a tool to help EPA focus its resources. It is
important for EPA to protect the people of the United States,
protect its environment, including vulnerable subpopulations.
But in doing so, it can't do everything at once. It must focus
on its resources in a rational, reasoned way and then follow
through. And the inventory reset is one tool among others that
the draft bill would provide to EPA to help it do a better job
than it has been able to do so far under current TSCA.
Mr. Bilirakis. Very good. Thank you, Mr. Chairman. I yield
back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from California, Mr. McNerney, for
5 minutes.
Mr. McNerney. Thank you, Mr. Chairman. I want to reiterate
a statement that I made that public concern about chemical
safety is a significant issue, and unless we address that, then
we are not going to get anywhere by passing laws that don't
achieve that goal.
One of the questions I have is about--I mean, when we hear
testimony that is sort of contradictory, I always get confused.
Mr. Duvall, you seem to be saying that you think that the CICA
will reduce the legal burden on the EPA to move forward with
the regulations. Is that your opinion?
Mr. Duvall. Yes, it is. EPA tried for 10 years to regulate
asbestos and failed, in part because it did not do what the
statute told it to do. One of the things that the statute told
it to do was to identify the least burdensome alternative. And
the draft bill would delete that requirement. There are also a
number of burdensome procedural processes that EPA must go
through to regulate under current Section 6. Those procedures
would also be dropped. What would be left would be a broad
authority for EPA to select appropriate risk management in the
case where it had determined that there was an unreasonable
risk that needed to be redressed, and only consider in doing so
key considerations that are in the nature of good governmental
decision-making, such as are there net benefits? The net
benefits requirement to be considered should not be a
straightjacket. The----
Mr. McNerney. Well, let me stop you there if you don't
mind. One of the questions that was asked earlier I thought a
lot of by my colleague from Texas, whether or not the priority
should be given in decision-making to risk--the cost benefit or
health and safety risks. Would you just give a yes or no answer
to whether----
Mr. Duvall. Risk. Clearly risk-based.
Mr. McNerney. Ms. Bosley?
Mr. Duvall. And for prioritization, clearly it should be a
risk-based process.
Ms. Bosley. I agree. Risk-based is the best scenario.
Mr. McNerney. Mr. Stem?
Mr. Stem. Health and safety.
Mr. McNerney. OK. Dr. Landrigan?
Mr. Landrigan. Health and safety.
Mr. McNerney. Ms. Fendley?
Ms. Fendley. Health and safety.
Mr. McNerney. So that was unanimous. I mean, both panels,
every person agreed that health and safety should be the
priority. The CICA creates new prerequisites for limiting
approved use of chemicals blocking the EPA from taking action
unless there is a cheaper substitute available. But as every
member of both panels agreed, health risks should be the
primary purpose or should be the primary deciding factor of the
law.
Dr. Landrigan?
Mr. Landrigan. I absolutely agree with that, that health
should be the primary driver.
Mr. McNerney. So having a cheaper substitute, requiring the
determination of a cheaper substitute should not be a
determining factor?
Mr. Landrigan. In my opinion, not.
Mr. McNerney. OK. Ms. Fendley?
Ms. Fendley. I would agree.
Mr. McNerney. OK. With that, I am going to yield back, Mr.
Chairman.
Mr. Shimkus. The gentleman yields back. At this time, I
want to really pose a question to the panel. We have got two
hearings going on at the same time, and votes are going to be
called in about 20 minutes. There is a desire to let my
colleagues get back from this other hearing walking back and
forth. One might be coming in now. One is coming in now. So I
think I have got an agreement with my colleague that once votes
are called we will stop and then we will adjourn the hearing,
but we would like to keep going on until that time. And it may
require in essence a second, if I have to bounce back and forth
now and then. And you are agreeable to that? Great. And now I
would like to recognize my colleague, Mr. Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman. I apologize. As our
witnesses know, Wednesday has got to be the worst day on the
Hill.
Mr. Shimkus. Your apology is noted into the record.
Mr. Green. First of all, I have some questions, but I
represent an area that has a whole lot of United Steelworkers.
In fact, four of our five refineries and a lot of chemical
plants. So obviously steelworkers have an impact on this and
their members do because they are my constituents.
My first question, Ms. Fendley, as a representative of an
organization whose members regularly work in close contact with
chemicals, do you believe that the Chemicals in Commerce Act
establishes a working, appropriately protective safety standard
that allow the EPA to ban dangerous chemicals that your members
come in contact with on a regular basis?
Ms. Fendley. No, I do not. It does not sufficiently amend
TSCA.
Mr. Green. OK. Do you believe the Chemicals in Commerce Act
would offer any improvement to the health and safety of the
chemical workers under current law?
Ms. Fendley. No, I do not.
Mr. Green. OK. You mentioned in your testimony that draft
removes the least burdensome language found in current TSCA but
recreates later in Section 6. Can you elaborate on that claim?
Ms. Fendley. Sure. So it recreates the least burdensome
requirement using different language that requires that
considerations about net benefits and cost effectiveness are
used when regulating a chemical.
Mr. Green. OK. The other thing I noticed in the draft, do
you believe that the Federal statute should explicitly
guarantee whistle-blower protections and the right to know for
people who work on the plant site?
Ms. Fendley. I do, absolutely. That is very important.
Mr. Green. OK. Mr. Chairman, I know this is a work in
progress, and I think these hearings are what we are trying to
do is lay a groundwork on how we need to look at the draft. But
I appreciate your effort to get us there.
Dr. Landrigan, why should EPA be required to consider
vulnerable populations such as children and pregnant women in
safety determinations?
Mr. Landrigan. The rationale for that goes back 20 years.
In 1993 I chaired a report from the National Academy of
Sciences that systematically examine differences between
children and adults and their vulnerability to toxic chemicals.
And we found overwhelmingly that children are more sensitive to
chemicals than adults. And we concluded further that children
require higher levels of protection in law than adults. And
that logic was actually incorporated by the Congress into the
Food Quality Protection Act, the Federal pesticide law.
I would argue that the same logic ought to apply to all
chemicals, whether they are pesticides or commercial chemicals.
Mr. Green. One of the questions I asked to the first panel
is if a substance is designated as a low priority under the
draft by EPA and then several years later, scientific study
comes out that shows that substance may be hazardous to human
health, I don't think the draft has it in there, but should EPA
have the authority to consider the new information in order to
go back and recategorize that substance as a high priority?
Mr. Landrigan. Yes, sir. I think it is essential that they
should have access to that new information, and it is also--
picking up on a conversation a moment or two ago, it is
important to recognize that new information is very frequently
going to come out from epidemiologic studies or non-standard
toxicologic studies using novel techniques that don't fit the
science definition that is in the bill as it now stands. And
the EPA has to be given the power to broadly consume new
science in the marketplace.
Mr. Green. Well, you know, if a study is done this year and
the designation is a low priority--we also know that chemistry
changes, everything changes over the years. And I know the
manufacturers want some certainty on what they are doing. But
we also know that at any given time something is going to
change, whether it is whether we find out from studies or that
there is a problem with it and that is what concerns me. I want
to give EPA the authority, but I want to make it, you know,
science-based enough that we just don't have these continual
lawsuits on something that, you know, really is not going after
the issue.
So our goal is to protect folks but also to make sure that
there is some certainty there. And so that is why this is a
working draft, and I hope we will address some of that in
future drafts.
Mr. Landrigan. Yes. You know, there may be a parallel here
in food and drug law or in the--chemicals intended to be
pharmaceuticals were extensively tested before they come to
market, and certain criteria are met and then FDA lets the
chemical come to market. But once it is out there, the process
doesn't end and post-marketing surveillance continues. And we
ought to have that same kind of provision here in the universe
of consumer and industrial chemicals.
Mr. Green. OK. One of the things that--I am out of time but
not only before a chemical is approved or it is set as a low
priority or high priority, if there is something later on that
the manufacturer discovers in their product, shouldn't they be
required to come back to EPA in this case, just like a drug
manufacturer should go back to FDA?
Mr. Landrigan. I think it should be mandatory and I think
further that there should be penalties attached to failure to
report.
Mr. Shimkus. I thank my colleague. Mr. Green, Mr. Duvall is
trying to get your attention on responding to one of those
questions. I wanted to give him--well, I am taking my time now
in the second panel so but since he was trying to respond, I
will use my time to let him do that.
Mr. Duvall. Thank you. I wanted to call Mr. Green's
attention to a provision that reads, ``The Administrator may
revise the priority designation of a chemical substance based
on consideration of new information.'' So there is a provision
there that allows reprioritization at any time. If the language
isn't right, then it should be fixed. But I think the idea is
there.
Mr. Green. Thank you.
Mr. Duvall. And I might mention also that current TSCA has
a provision requiring manufacturers and others who obtain
significant information about chemical hazards to report it to
EPA immediately, and there are stringent penalties for not
doing so.
Mr. Shimkus. Great. I appreciate that. Using my time in the
second round now, I am also joined by Mr. Harper, and we are
waiting for my friends on the other side to show also.
Let me go back to Mr. Duvall. In your testimony you say
that Section 5 would codify and strengthen EPA's current
practices. You know, when you have a Congressional hearing, you
hear--I mean, I am like Mr. McNerney. I mean, you hear, hell,
this is the worst thing we have ever seen written and no, this
thing is working pretty good. So we are trying to figure out
where the truth is. In your testimony you do say that. So what
is your basis for that statement?
Mr. Duvall. Section 5 of TSCA today is short on procedure.
But EPA in its regulations in Part 720 has identified a number
of critical procedures such as filing a notice of commencement
of manufacture at the end of the process, which is not
mentioned in the statute. What the draft bill does is to
incorporate into law many of the procedural provisions that EPA
has adopted by regulation and included them as a way of
ensuring that since they have worked well, that EPA should
continue to use them.
The bill improves the Section 5 primarily through changing
the situation today where EPA can conclude that it would just
let the review period expire without reaching a decision as to
whether there is a problem with the chemical or not. The draft
bill would require EPA to make a determination, and if EPA were
to find that it doesn't have sufficient information, it is
given a powerful tool for requiring the submitter to develop
that information. The EPA can hold up the resolution of the
review period until the information becomes available or it can
allow the chemical to enter the marketplace but still require
the manufacturer to submit the information so that it can be
considered later in the prioritization process.
Mr. Shimkus. Speaking of the same section, why is the
exemption based on, and I quote, ``likelihood of risk''? Why is
that unprecedented authority?
Mr. Duvall. Well, it recognized that Section 5(e) of TSCA
today is based on it is likely to pose an unreasonable risk
provision. So that Section 5(e) authorizes EPA to take
regulatory action on a new chemical. When that finding is made,
this bill would do essentially the same thing. It would----
Mr. Shimkus. So it is not unprecedented that we have this
language----
Mr. Duvall. It is not unprecedented. It actually
strengthens EPA's ability to regulate new chemicals where
appropriate.
Mr. Shimkus. And Dr. Bosley, some call for more extensive
testing on chemicals than the Chemicals in Commerce mandates.
You have spoken before on minimum data sets and base set
requirements like those in Europe. Could you please tell us
again whether public health is any better protected by those
kinds of mandatory requirements?
Ms. Bosley. They are not. Most industrial chemicals are not
intended to be released to the environment or exposed to any
population, whether vulnerable or not. Those sorts of testing
requirements that are blanket might drive those chemical
manufacturing from the United States. We simply--you know, we
operate in a market economy, and we simply can't afford to----
Mr. Shimkus. Where would they go?
Ms. Bosley. To China, to India, to Malaysia.
Mr. Shimkus. And what is their safety regime?
Ms. Bosley. Most of those countries have much less
stringent safety regimes that change depending on the political
nature of the environment there as well. So it is much harder
for U.S. manufacturers to import into those countries, given
the same chemical that might be produced in those countries.
They would much favor those.
Mr. Shimkus. And I take obviously the saving grace right
now for this country is our natural gas exploration and really
holding those jobs. But I think your point is well stated that
the public should not be deceived that if we move to a regime
that is costly, ineffective by the manufacturers, they could
move overseas with less stringent.
Ms. Bosley. Yes, in some cases we couldn't afford to
manufacture the chemical here in the United States any longer.
Mr. Shimkus. And my friends from California are
experiencing what? They are experiencing----
Ms. Bosley. I can tell you I have no customers in
California.
Mr. Shimkus. California is also experiencing a 10-day lag
from the air pollution from China reaching----
Ms. Bosley. Right.
Mr. Shimkus [continuing]. The West Coast.
Ms. Bosley. The coast. That is right.
Mr. Shimkus. So that has to be part of this debate, jobs
and the economy. So with that I will yield back my time and
yield to Mr. Tonko for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. This draft legislation
suggests that EPA could very quickly sort the universe of
chemicals into two categories. The first category would be
known as high priority and chemicals in this category would be
further assessed to ensure their safety. The second category
would be known as a low priority, but this is a bit of a
misnomer because these chemicals would be dismissed of any
further examination. The idea is that thousands of chemicals
would fall into this low-priority category.
So Dr. Landrigan, in your view, do we have the information
we need to complete such an undertaking with confidence that we
are protecting public health?
Mr. Landrigan. So we don't have full information, but there
are some guidelines that we can use to help EPA to move
forward. One guideline would be to assign highest priority to
the chemicals that are most widely found in the American
population in the rolling surveys that the CDC now does every
year. I am sure you are aware that CDC, in their National
Biomonitoring Program, is picking up measurable levels of
several hundred chemicals in the bodies of most Americans,
synthetic chemicals, most of which did not exist in 1960. So to
be sure, many chemicals stay inside the four walls of the
chemical factories. Maybe they could be given lower priority.
But the chemicals that are getting out that are widely
distributed in people and the environment need to be assigned
higher priority. Two more criteria for judging priority is
evidence of toxicity as has already appeared in toxicological
laboratories published in the peer-reviewed literature, and
finally persistence in humans in the biosphere.
Mr. Tonko. Thank you. And does EPA know enough to quickly
go through the TSCA inventory and rule out thousands of
chemicals as potential risks?
Mr. Landrigan. No, they don't. And the problem is it is a
Catch-22 given that so little toxicologic testing has been done
on so many chemicals in commerce. EPA is flying blind. There
are some chemicals that we know a lot about that have been
studied extensively but many, many more that are in wide use
that have been little studied.
The biomonitoring survey from CDC offers some protection.
It is not foolproof because they can only measure what they
have the technology to measure.
Mr. Tonko. And what kind of information or testing will the
EPA need in order to assess which chemicals in commerce are
causing health effects or----
Mr. Landrigan. The principles for selecting chemicals would
be the ones I just mentioned, widespread use, some evidence of
toxicity, persistence. Beyond that there is a lot of expert
judgment here. They would clearly have to consult with their
colleagues at the National Institute of Environmental Health
Sciences of the NIH or developing new paradigms for high
through-put toxicologic testing.
Mr. Tonko. And every witness on both panels today agreed
that we should abandon the cost-benefit standard in current
law. Unfortunately, the discussion draft continues to use the
unreasonable risk standard. Mr. Duvall, you have assured the
subcommittee that the term unreasonable risk in the discussion
draft needs something completely different than the term
unreasonable risk under current law. A lot of experts have
expressed grave concerns that that is an incorrect statement or
it is wrong in substance in order to address this concern and
to address the stakeholders' concerns together. Would you agree
that it would be simpler to no longer use unreasonable risk and
instead choose a new term that perhaps is clearly defined as
not utilizing a cost-benefit approach? Is there clarification
needed there?
Mr. Duvall. If there is another verbal formula that will
achieve what is intended to be achieved, then that would be
fine. During the TSCA legislative discussions for several
years, there is really only one other verbal formula that has
been offered and that is reasonable certainty of no harm. And
that formulation has its own problems. If there could be a
different, a third one, I think it would be worthy of
discussion.
The unreasonable risk language has been interpreted
primarily by courts as requiring a cost-benefit analysis. Since
the safety determination itself is a science-oriented, risk-
based analysis, cost doesn't seem to make sense in that
context. Cost considerations make sense in the context of
making risk management decisions. One suggestion I would make
would be to ensure that legislative history clarifies the
intent of Congress that costs and benefits not be waived in
making a safety determination. The kind of legislative history
together with the statutory text would go a long way to keeping
the courts from going in the direction of finding cost benefit
required in the safety determination.
Mr. Tonko. Thank you. And I believe my time is more than
expired. I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes Mr. Harper from Mississippi for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman. Mr. Stem, if I may ask
you a few questions, in your written testimony you note the
importance of EPA being required to systematically evaluate all
chemicals in commerce including TSCA's grandfathered chemicals.
Why is that important?
Mr. Stem. Because science changes. We develop new
information. Chemicals that have been grandfathered that might
be new information on that. If there is no new information,
there is no science change in the chemicals and it is a process
that would benefit the people.
Mr. Harper. CICA requires prioritization of chemicals in
order for EPA to make safety determinations. Why is this
important in a reformed TSCA and how does the CICA address it?
Mr. Stem. Well, it doesn't adequately address it. The
concept, in answer to your question, is that the EPA should be
given the authority to require the company that is
manufacturing the chemical to do most of the initial testing to
present that when they present the product and ask for
commercial use. CICA does not adequately do that.
Mr. Harper. All right. So what would be your recommendation
then?
Mr. Stem. That EPA require that, that the EPA not have to
start testing the product.
Mr. Harper. OK.
Mr. Stem. The manufacturer of the product should conduct
valid scientific testing and produce that testing when they
present the product to EPA asking for commercial use.
Mr. Harper. You note in your written testimony that if
necessary, CICA allows EPA to reclassify a low-priority
chemical as high priority. Why is this important?
Mr. Stem. Basically because of reevaluation of the science
involved and the potential use or mixture of the original
chemical that was classified at one time as a low priority.
Mr. Harper. Mr. Chairman, I yield back.
Mr. Tonko. Just one item of business, Mr. Chair. Would you
entertain a request for a unanimous consent?
Mr. Shimkus. I would.
Mr. Tonko. I request unanimous consent to enter 38 letters
into the hearing record. These letters have come in from across
the country and represent the views of groups in the public
health, environmental, labor, scientific and small business
communities. All express the need for TSCA reform and concerns
with this current draft. Letters have been shared with your
staff.
[The letters are available at http://docs.house.gov/
Committee/Calendar/ByEvent.aspx?EventID=101890.]
Mr. Tonko. I also request unanimous consent to enter into
the record the statement of our fellow Energy and Commerce
member, Representative Bobby Rush.
Mr. Shimkus. Without objection, so ordered.
[The prepared statement of Mr. Rush follows:]
Prepared statement of Hon. Bobby L. Rush
Chairman Shimkus, Ranking Member Tonko, and members of the
subcommittee: thank you for allowing me to participate in
today's hearing on the Chemicals in Commerce Act. Though I am
not a member of this subcommittee this issue is one that I care
about deeply and I appreciate your consideration of that.
Mr. Chairman, let me say that I am excited to see movement
on this important issue. I am, however, discouraged by the
discussion draft presented. The bill we have been shown
presents some dangerous changes that will affect our
communities, and I would like to take a moment to discuss
those:
First, this bill discontinues use of the Centers for
Disease Control and Prevention's standard of ``vulnerable
populations'' in favor of a newly created standard of
``potentially exposed subpopulation''. While the CDC clearly
defines vulnerable populations based on quantifiable standards
such as race/ethnicity, socio-economic status, geography,
gender, age, disability status, and/or risk status related to
sex and gender this bill creates a vague definition.
Specifically, the bill defines this subpopulation as ``a group
or groups of individuals within the general population who may
be differentially exposed to a chemical substance under the
intended conditions of use or who may be susceptible to more
serious health consequences from chemical substance exposures
than the general population, which where appropriate may
include infants, children, pregnant women, workers, and the
elderly.''
Mr. Chairman, it is very likely that the standard presented
in this bill would not have protected my constituents in the
Village of Crestwood, Illinois. When it was found that their
drinking water was contaminated with perchloroethylene--an
industrial solvent used primarily in dry cleaning--it was the
entire town that was impacted; they were vulnerable because of
their geography. Furthermore, this chemical was clearly being
used outside its scope of ``intended conditions of use''. In
this scenario, what protection would the people of Crestwood
have had?
This brings me to my second point of concern: ``intended
conditions of use''. I think all of my colleagues would agree
with me in saying that chemicals should be used as intended: in
a safe manner. Unfortunately, as my example above has
demonstrated, this is not always the case. In instances of
malfeasance how do we keep our constituents safe?
Lastly, Mr. Chairman, I would like to discuss this bill's
preemption of State and local laws. Time and time again, my
friends on the other side of the aisle have discussed the need
for preserving the States' ability to protect their citizens.
We have heard how the States know best what their communities
need. And now, for an inexplicable reason, all of that thinking
has been done away with. Not only does this bill prohibit
States and local governments from passing new laws, it prevents
them from enforcing already existing laws. The very laws that,
in many communities, have been the principle safety measure.
The States and local communities know better than we do the
biggest threats they face. Why prevent them from protecting
their residents?
In short, Mr. Chairman, while I am encouraged by the
discussion that we are about to witness I strongly urge this
committee to go back to the drawing board and bring forward a
bipartisan bill that protects our communities.
Thank you, I yield back the balance of my time.
Mr. Shimkus. It was asked during the hearing by Mr. Cik and
you asked if we could submit that pediatrician document. We
would like to see it first, and having seen it, then we will
accept it. But that is a follow-up just from the hearing, if we
can do that. I guess I have a unanimous consent request also
for this letter with a bazillion people in support of the
legislation.
Mr. Tonko. How many zeroes in bazillion?
Mr. Shimkus. I hope it has been shared with your staff.
They couldn't carry it in, there were so many. But without
objection, so ordered.
[The information follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Shimkus. We want to thank you all for coming. We know
we have a long way to go. So we are going to continue to work.
We believe there will be another legislative hearing on the
draft. It may be an adjusted draft based upon the consultations
we are having. We do want to encourage all stakeholders to
continue to work with us. Because of the diversity of opinion,
we are not going to get everybody 100 percent on board. Even
those who will despise the legislation, we want them to despise
it with a smile that we made a good effort and attempt to move
forward.
So with that, I appreciate your patience, and the hearing
is now adjourned.
[Whereupon, at 1:04 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHIC] [TIFF OMITTED]