[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE 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
__________
APRIL 29, 2014
__________
Serial No. 113-141
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
90-983 PDF WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
_____
Subcommittee on Environment and the Economy
JOHN SHIMKUS, Illinois
Chairman
PHIL GINGREY, Georgia PAUL TONKO, New York
Vice Chairman Ranking Member
RALPH M. HALL, Texas FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
ROBERT E. LATTA, Ohio JERRY McNERNEY, California
GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida DORIS O. MATSUI, California
BILL JOHNSON, Ohio HENRY A. WAXMAN, California (ex
JOE BARTON, Texas officio)
FRED UPTON, Michigan (ex officio)
(ii)
C O N T E N T S
----------
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 1
Prepared statement........................................... 3
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 3
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 5
Prepared statement........................................... 6
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 6
Witnesses
James Jones, Assistant Administrator, Office of Chemical Safety
and Pollution Prevention, Environmental Protection Agency...... 8
Prepared statement........................................... 10
Answers to submitted questions............................... 174
Calvin Dooley, President and Chief Executive Officer, American
Chemistry Council.............................................. 48
Prepared statement........................................... 50
Beth Bosley, President, Boron Specialties, LLC, On Behalf of the
Society of Chemical Manufacturers and Affiliates............... 64
Prepared statement........................................... 66
Mark Greenwood, Principal, Greenwood Environmental Counsel, PLLC. 70
Prepared statement........................................... 72
Len Sauers, Vice President, Global Sustainability, Product Safety
and Regulatory Affairs, the Proctor & Gamble Company........... 94
Prepared statement........................................... 96
Steven J. Goldberg, Vice President and Associate General Counsel,
Regulatory and Government Affairs, BASF Corporation............ 103
Prepared statement........................................... 105
Michael Moore, a State Senator from the Commonwealth of
Massachusetts, On Behalf of the National Conference of State
Legislatures................................................... 111
Prepared statement........................................... 114
Andy Igrejas, Director, Safer Chemicals, Healthy Families........ 153
Prepared statement........................................... 155
Submitted Material
Discussion Draft of H.R. ------, the Chemicals in Commerce Act,
submitted by Mr. Shimkus \1\
Discussion Draft of H.R. ------, the Chemicals in Commerce Act,
with amendments, submitted by Mr. Shimkus \2\
----------
\1\ The draft bill is available at http://cradmin.clerk.house.gov/
repository/IF/IF18/20140429/102160/BILLS-113pih-
TheChemicalsinCommerceAct.pdf.
\2\ The draft bill with amendments is available at http://
cradmin.clerk.house.gov/repository/IF/IF18/20140429/102160/BILLS-
113pih-DraftsComparisonofTheChemicalsinCommerceAct.pdf.
Letter of April 28, 2014, from Kevin H. Rhodes, President and
Chief Intellectual Property Counsel, 3M Innovative Properties
Company, to Mr. Shimkus and Mr. Tonko, submitted by Mr. Shimkus
\3\
Letter of April 17, 2014, from Eric T. Schneiderman, New York
State Attorney General, et al., to Mr. Shimkus and Mr. Tonko,
submitted by Mr. Shimkus \3\
Letter of April 29, 2014, from Linda Lipsen, Chief Executive
Officer, American Association of Justice, to Mr. Shimkus and
Mr. Tonko, submitted by Mr. Shimkus \3\
Letter of April 3, 2014, from Dominique Browning, Co-Founder and
Senior Director, Moms Clean Air Force, to Mr. Shimkus, et al.,
submitted by Mr. Shimkus \3\
Letter of April 16, 2014, from Elena Rios, President and CEO,
National Hispanic Medical Association, to Mr. Shimkus and Mr.
Tonko, submitted by Mr. Shimkus \3\
Letter of April 1, 2014, from Michael A. Lenoir, President,
National Medical Association, to Mr. Shimkus, et al., submitted
by Mr. Shimkus \3\
Letter of March 28, 2014, from Georges Benjamin, Executive
Director, American Public Health Association, to Mr. Shimkus
and Mr. Tonko, submitted by Mr. Shimkus \3\
Letter of April 28, 2014, from Advocate Health Care, et al., to
Mr. Shimkus and Mr. Tonko, submitted by Mr. Shimkus \3\
Letter of April 28, 2014, from Pamela Miller, Executive Director,
Alaska Community Action on Toxics, et al., to Mr. Shimkus,
submitted by Mr. Shimkus \3\
Letter of April 28, 2014, from Mr. Waxman and Mr. Tonko to Mr.
Shimkus, submitted by Mr. Shimkus \3\
Statement of April 27, 2014, by NORA, An Association of
Responsible Recyclers, submitted by Mr. Shimkus \3\
----------
\3\ The letters and the NORA statement are available at http://
docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=102160.
THE CHEMICALS IN COMMERCE ACT
----------
TUESDAY, APRIL 29, 2014
House of Representatives,
Subcommittee on Environment and Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:17 a.m., in
room 2123 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Gingrey, Pitts,
Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, Barton,
Upton (ex officio), Tonko, Pallone, Green, DeGette, Capps,
McNerney, Dingell, Barrow, and Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Charlotte
Baker, Deputy Communications Director; Jerry Couri, Senior
Environmental Policy Advisor; David McCarthy, Chief Counsel,
Environment and the Economy; Tina Richards, Counsel,
Environment; Chris Sarley, Policy Coordinator, Environment and
the Economy; Tom Wilbur, Digital Media Advisor; Phil Barnett,
Democratic Staff Director; Alison Cassady, Democratic Senior
Professional Staff Member; Greg Dotson, Democratic Staff
Director, Energy and the Environment; Caitlin Haberman;
Democratic Policy Analyst; Ryan Schmit, Democratic EPA
Detailee; and Alexandra Teitz, Democratic Senior Counsel,
Energy and the Environment.
Mr. Shimkus. I would like to call the hearing to order and
recognize myself for 5 minutes for my opening statement.
Since our March 12 hearing on the original discussion draft
of the Chemicals in Commerce Act, we have been working on a
bipartisan basis to find common--oh, my apologies. My
apologies. My ranking member is not here. I was just busy. If
Jerry would shut off my time? Again, my apologies to my
colleagues. I was anxious to get started. So I will now open--
start again my opening statement for this hearing.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Since our March 12 hearing on the original discussion draft
of the Chemicals in Commerce Act, we have been working on a
bipartisan basis to find common ground. The revised discussion
draft before you today contains several significant changes
from the earlier version. I won't itemize them now, but I will
mention a few highlights.
In Section 4, we have added new authority for EPA to
require the development of new hazard and exposure information
for priority designation purposes. In Section 5, instead of
requiring EPA to grant exemptions for byproducts from Section 5
notice requirements, the new draft gives the EPA discretion to
decide whether to grant such an exemption. Section 6 includes
several important changes. The draft now requires EPA to
evaluate the risk of harm that a chemical substance poses to
human health or the environment based upon four specific
factors. One is the nature and magnitude of risk. Two is
important--the impact on potentially exposed subpopulations.
Three is whether harms has occurred. And, four, the probability
that harm will occur from use of a chemical substance.
The new draft also makes it explicit that in making such
risk evaluations, EPA is not to consider economic costs or
benefits. Section 6 also now includes a new alternative risk
evaluation option for EPA to determine, at any time, that a
chemical not designated as a high priority will not present a
risk of harm in the absence of Section 6 restrictions on it.
The section also now adds deadlines for EPA to make action on
existing individual chemicals. EPA must complete a risk
evaluation within 4 years after designating a chemical as high
priority, and must promulgate any restrictive rule on an
existing chemical within 3 years after finishing the risk
evaluation. The revised draft would allow for extensions to
factor in additional information, but the total of all
extensions could not exceed 3 years.
With respect to preemption, we changed the effect of an EPA
designation of a chemical substance as low priority. In the
previous draft, a low-priority designation would have preempted
any State regulation of a chemical substance. The revised draft
limits the preemptive effect of a low-priority designation to
State regulations established after the low priority
designation, leaving in place State regulations in effect when
the low-priority designation is made.
We also want to ensure we are using a strong scientific
process, which is why the revised draft streamlines the science
and information quality provisions of the bill. Specifically,
details about science, including a definition of ``best
available science'' and some details on information, quality
requirements are replaced by codification of five science
assessment factors currently used administratively by the EPA.
The revised draft also clarifies which decisions under TSCA
must be made based on the weight of such scientific evidence.
Today, we will get the reaction of the administration, and we
welcome back our friend, Jim Jones, Assistant Administrator of
the EPA, just for that purpose. We will also hear from a
variety of stakeholders, many of whom will have to live with
the Chemicals in Commerce Act once it becomes law.
I appreciate all of our committee colleagues who have put
so much time and effort into this legislative effort. TSCA
reform is neither easy nor simple, and there is still no
guarantee that we will succeed in forging a consensus bill this
year. All I can promise is my best effort, working directly
with my colleagues on both sides of the aisle to get there.
And with that, I would--I have a couple--a minute left. No
one seeking recognition on my side? I yield back my time and
recognize Ranking Member Mr. Tonko from New York.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
Since our March 12 hearing on the original discussion draft
of the Chemicals in Commerce Act we've been working on a
bipartisan basis to find common ground. The revised discussion
draft before you today contains several significant changes
from the earlier version. I won't itemize them now, but I will
mention a few highlights.
In Section 4 we added new authority for EPA to require the
development of new hazard and exposure information for priority
designation purposes.
In Section 5, instead of requiring EPA to grant exemptions
for byproducts from section 5 notice requirements, the new
draft gives EPA discretion to decide whether to grant such an
exemption.
Section 6 includes several important changes. The draft now
requires EPA to evaluate the risk of harm a chemical substance
poses to human health or the environment based upon four
specific factors:
Nature and magnitude of the risk;
Impact on potentially exposed subpopulations;
Whether harm has occurred; and
Probability that harm will occur from use of a
chemical substance.
The new draft also makes it explicit that in making such
risk evaluations EPA is not to consider economic costs or
benefits.
Section 6 also now includes a new Alternative Risk
Evaluation option for EPA to determine, at any time, that a
chemical not designated as a high priority will not present a
risk of harm in the absence of section 6 restrictions on it.
The Section also now adds deadlines for EPA to take action
on existing individual chemicals. EPA must complete a risk
evaluation within 4 years after designating a chemical as high
priority, and must promulgate any restrictive rule on an
existing chemical within 3 years after finishing the risk
evaluation. The revised draft would allow for extensions to
factor in additional information but the total of all
extensions could not exceed 3 years.
With respect to preemption, we changed the effect of an EPA
designation of a chemical substance as low priority. In the
previous draft a low-priority designation would have pre-empted
any State regulation of a chemical substance. The revised draft
limits the preemptive effect of a low-priority designation to
State regulations established after the low-priority
designation, leaving in State regulations in effect when the
low priority designation is made.
We also want to ensure we are using a strong scientific
process, which is why the revised draft streamlines the science
and information quality provisions of the bill. Specific
details about science, including a definition of ``best
available science'' and some details on information quality
requirements, are replaced by codification of five science
assessment factors currently used administratively by EPA.
The revised draft also clarifies which decisions under TSCA
must be made based on the weight of such scientific evidence.
Today we'll get the reaction of the administration, and we
welcome back our friend, Jim Jones, Assistant Administrator of
EPA, for just that purpose. We'll also hear from a variety of
stakeholders, many of whom will have to live with the Chemicals
in Commerce Act once it becomes law.
I appreciate all of our committee colleagues who have put
so much time and effort into this legislative effort. TSCA
reform is neither easy nor simple, and there is still no
guarantee that we will succeed in forging a consensus bill this
year. All I can promise is my best effort working directly with
my colleagues on both sides of the aisle to get there.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair, for holding this hearing
on the discussion draft for TSCA reform that was released last
week.
At the last hearing, we heard from witnesses from industry
and the public health community on the initial proposal for
revising TSCA. Initial reviews from industry witnesses were
mixed but mostly favorable. The views of the public health,
labor and environmental community were very critical. We have
had a lot of helpful testimony from our earlier hearings. Our
staffs have been meeting for several months now. And of course,
we have 40 years of experience with the existing law.
While this new discussion draft incorporates some new
language based on the ongoing discussions, it reflects very
little progress on the core issues and problems with the
Federal chemicals management program under TSCA. It does not
incorporate changes to address the major areas of concern that
Democrats have raised. In short, it is disappointing.
I am willing to keep working on this. And I know the other
Democratic members who are engaged in this process are also
willing to continue. But time is short. We have little time
left in this Congress, and we are going to have to engage in a
more productive process if the goal is to produce a bill with
real potential to become law.
This discussion draft falls far short of providing the
Environmental Protection Agency with the authorities they need
to evaluate the potential risks associated with chemicals
currently in commerce or those that are entering the market for
the first time.
At our last hearing, all the witnesses indicated that the
safety standard in the bill should be determined on the basis
of health and environmental information alone. Determining how
you meet the standard, risk management should incorporate
information about cost and benefits associated with alternate
ways to reduce a chemical's risks. This draft does not achieve
that necessary distinction. What happened to the safety
determination? The public does not have confidence in this
program. A revision of TSCA must restore public confidence in
the safety of chemical products. Public confidence is indeed
good for business, essential for business.
The stated purpose of the bill is to provide for the safe
and efficient flow of chemicals in interstate and foreign
commerce. But once you read beyond the findings, the word
safety is not mentioned again until the section of the draft
dealing with confidential business information. In that
context, there is more emphasis on protecting intellectual
property than ensuring that adequate health and safety
information are available to risks or respond to an emergency.
Mr. Chair, I hoped for more progress by this points. And I
am sure we all did. But this proposal does more to maintain the
status quo than it does to move us forward. In some respects,
it weakens current law. The draft does not reflect compromise
or balance the desires of all stakeholders. A balanced approach
is needed to garner broad-based support. Of course, as the
majority, you can find the votes to move a bill forward. But a
partisan bill that does not incorporate even the most modest
recommendations of the public health and environmental
communities will not become law. A bill that does not provide
EPA with the authorities needed to ensure that chemicals in
commerce are safe, authorities that independent analyses by the
Government Accountability Office has recommended, will not
become law. A bill that broadly preempts State's authorities to
protect their citizens will not become law. There is still time
to produce a good bill.
As I said earlier, I am willing to continue working on this
with you. I believe the reform of TSCA is a worthy effort that
we can craft legislation that would be supported by a majority
of our committee's membership. I know the Democratic members
want to keep working toward a compromised bill that we can
support, that will be supported by this administration and the
public interest community and industry, and that has a chance
to become law. Let us get back to work on this.
We have been very fortunate in having excellent witnesses
on this topic. I look forward to today's testimony, and I hope
that today's witnesses will provide us with additional
suggestions on how to achieve a bill that will serve the public
and serve this--the industry. Thank you all for participating
in the important hearing. Again, Mr. Chair, thank you for
hosting this hearing.
Mr. Shimkus. I thank my colleague. I now turn to 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.
You know, our work to reform TSCA indeed has come a long,
long way. Member interest, direct involvement on a bipartisan
basis has been encouraging and helpful. And I understand that
we are not quite there yet. But today, we are going to get some
constructive input from the administration, which is vital on
any issue as important and as complex as TSCA reform.
While we made changes from our earlier draft to the
legislation, our overarching objectives remain the same. We
want to reinforce public confidence in the safety of chemical
substances contained in a wide variety of products that we
encounter every single day. And we want to ensure the free flow
of commerce among States and with our trading partners.
The key focus of the legislation is on so called existing
chemicals. These include the thousands of chemicals that have
been on the market for decades, which have not gone through the
TSCA new chemical review process. Some of these are
particularly high priority, especially given human exposure to
them. The draft legislation before us today is aimed at
initiating a systematic process to review these chemicals and
determine which uses of them are safe, and whether or not we
need any requirements or restrictions.
The workload requires both a high level of expertise and
effective program management at the EPA. That is why we are
especially glad to have Assistant Administrator Jim Jones today
with us. We appreciate this technical assistance that you have
provided thus far, and want to continue working closely with
your agency as we complete work on this legislation.
We also welcome our stakeholder panel. We need to hear from
them how some of our ideas for structuring a legislation will
play out in the real world. Does it reinforce public confidence
in chemical safety? Does it encourage innovation and economic
growth? We welcome constructive suggestions.
I particularly want to thank Mr. Shimkus for his leadership
on this issue and efforts to find bipartisan common ground. The
law has not been updated in nearly 40 years. It has been a very
challenging task. But this draft bill gets us closer towards
our objective of a commonsense law that indeed does protect the
public health and further encourages our manufacturing
renaissance.
Yield back.
[The prepared statement of Mr. Upton follows:]
Prepared statement of Hon. Fred Upton
Our work to reform TSCA has come a long way. Member
interest and direct involvement, on a bipartisan basis, has
been encouraging and helpful. Today we will get some
constructive input from the administration, which is vital on
any issue as important and complex as TSCA reform.
While we have made changes from our earlier drafts of the
legislation, our overarching objectives remain the same: we
want to reinforce public confidence in the safety of chemical
substances contained in a wide variety of products we encounter
every day, and we want to ensure the free flow of commerce
among States and with our trading partners.
A key focus of the legislation is on so-called ``existing
chemicals.'' These include the thousands of chemicals that have
been on the market for decades, which have not gone through the
TSCA newchemical review process. Some of these chemicals are
particularly high priority, especially given human exposure to
them. The draft legislation before us today is aimed at
initiating a systematic process to review those chemicals and
determine which uses of them are safe and whether we need any
requirements or restrictions.
That workload requires both a high level of expertise and
effective program management at the Environmental Protection
Agency. That's why we are especially glad to have Assistant
Administrator Jim Jones with us today. We appreciate the
technical assistance EPA has provided thus far, and we want to
continue working closely with the Agency as we complete work on
this legislation.
We also welcome our stakeholder panel. We need to hear from
them how some of our ideas forstructuring the legislation will
play out in the real world. Does it reinforce public confidence
in chemical safety? Does it encourage innovation and economic
growth? We welcome constructive suggestions.
I thank Mr. Shimkus for his leadership on this issue and
efforts to find bipartisan common ground. This law has not been
updated in nearly 40 years. It has been a challenging task, but
this draft bill gets us even closer toward our objective of a
commonsense law that protects the public health and further
encourages our manufacturing renaissance.
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.
When the subcommittee convened in March to examine the
chairman's proposal to reform the Toxic Substances Control Act,
I said I wanted to work with the majority to see if we could
reach a bipartisan agreement. My Democratic colleagues and I
have been willing to be creative and bridge differences to make
progress on this issue. We know that the Nation's chemical
safety net is broken and inadequate.
Unfortunately, if the goal is a broadly supported
bipartisan bill, this process is currently failing. To reach
agreement, we need to acknowledge that industry cannot get its
wish list. No one can. Environmental groups, public health
organizations, labor unions and many others all have important
interests at stake. And if we want a law, we will have to work
together to address those concerns.
Over the last few months, our staffs have met periodically
to discuss TSCA reform. But these discussions have never turned
into negotiations. The majority has wanted to write the bill
unilaterally. And there has never been an attempt to work out
bill language together. It is the chairman's prerogative to
handle the subcommittee's business in this way, but I think it
is a mistake.
Let us look at where the stakeholders are. Since our last
hearing, six additional industry trade associations have
announced their support for this process, though not
necessarily for the draft itself. If the goal is building
industry support, well, we are making progress. But the public
health groups remain in strong opposition to the draft. They
say the draft won't protect public health and the environment,
and in fact remains weaker than even the status quo of chemical
regulation. Key unions and environmental groups share their
concerns. And State governments are raising serious objections
as well.
A key premise of TSCA reform, which has been supported by
almost all the stakeholders, is that the ``cost-benefit''
standard for regulating dangerous chemicals under current law
is unworkable and should be replaced by a risk-based approach.
But this draft retains the cost-benefit standard, leaving
American families, and especially children, without adequate
protection from the adverse effects of toxic chemicals.
The draft contains sweeping preemption provisions that will
preempt popular State and local laws throughout the country,
including recently enacted laws relating to hydraulic
fracturing. Although it has been requested a number of times,
the majority still hasn't explained which State and local laws
they intend to target for preemption. The bill would even
overturn recent reforms made by EPA to enhance transparency.
Under these provisions, EPA would be prohibited from revealing
the identity of chemicals that cause serious health and
environmental harm. This will harm companies that are marketing
safer consumer products and make it difficult, if not
impossible, for consumers to protect themselves from toxic
exposures.
I want TSCA legislation to pass. The President's Cancer
Panel found that reform of the Toxic Substances Control Act is
critically needed to reduce the incidence and burden of cancer
in this country. Chemical exposures are ubiquitous in our
society. According to the Centers for Disease Control, their
most recent data says that 75 percent of people tested have the
commonly used chemical triclosan in their bodies. That chemical
has been shown to interfere with hormone levels in animals.
Seventy-five percent of people tested have this chemical in
their body. The CDC also found five different PBDEs in more
than 60 percent of 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.
We need a law to protect the public from these exposures.
But this process isn't working. We need to bridge our
differences, not accentuate them. I am not ready to give up,
but I do have a suggestion. I think we should consider scaling
back the ambition of this effort. Let us focus on where we can
find agreement. Let us see if we can return to the drawing
board and come up with a streamlined proposal that can truly be
bipartisan.
I know I am echoing the sentiments expressed by the Ranking
Member of the subcommittee. And, Mr. Chairman, I hope you will
take them to heart. Yield back my time.
Mr. Shimkus. The gentleman yields back his time, thanks you
for your comments. The Chair now recognizes the Honorable Jim
Jones, Assistant Administrator, Office of Chemical Safety and
Pollution Prevention of the United States Environmental
Protection Agency. Your full statement's in the record. You
have 5 minutes. And welcome.
STATEMENT OF JAMES JONES, ASSISTANT ADMINISTRATOR, OFFICE OF
CHEMICAL SAFETY AND POLLUTION PREVENTION, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Jones. Good morning, Chairman Shimkus, Ranking Member
Tonko, and other members of the subcommittee. Thank you for the
opportunity to discuss reform of chemicals management in the
United States.
It is clear that there is wide agreement on the importance
of ensuring chemical safety and restoring the public's
confidence that chemicals used in the products they and their
families use are safe. This administration also believes it is
crucial to modernize and strengthen the Toxic Substances
Control Act to provide the EPA with the tools necessary to
achieve these goals and ensure global leadership in chemicals
management.
We continue to be encouraged by the interest in TSCA reform
indicated by the introduction of several bills in recent years,
the hearings on TSCA-related issues such as this one that are
being held, and the bipartisan discussions that are taking
place. Key stakeholders share common principles on how best to
improve our chemicals management programs.
We at EPA remain committed to working with this committee
and others in both the House and the Senate, members of the
public, the environmental community and the chemical industry,
the States, and other stakeholders to improve and update TSCA.
Chemicals are found in almost everything we buy and use.
They can be essential for our health, our wellbeing and our
prosperity. However, we believe it is equally essential that
chemicals are safe. While we have a better understanding of the
environmental impacts, exposure pathways and health effects
that some chemicals can have than we did when TSCA was passed,
under the existing law it is challenging to act on that
knowledge.
TSCA gives the EPA jurisdiction over chemicals produced and
used in the United States. However, unlike the laws applicable
to drugs and pesticides, TSCA does not have a mandatory program
where the EPA must conduct a review to determine the safety of
existing chemicals. In addition, TSCA places burdensome legal
and procedural requirements on the EPA before the Agency can
request the generation and submission of health and
environmental effects data on existing chemicals. It is also
proven challenging to take action to limit or ban chemicals
that the EPA has determined to pose significant health
concerns.
The EPA believes it is critical that any update to TSCA
includes certain components. In September of 2009, the
administration announced principles to update and strengthen
TSCA. These include the need to provide the Agency with tools
to quickly and efficiently obtain information from
manufacturers that is relevant to determining the safety of
chemicals. The EPA should also have clear authority to assess
chemicals against the risk-based safety standard and to take
risk management actions when chemicals do not meet the safety
standard, with flexibility to consider children's health,
economic costs, social benefits and equity concerns.
The principles further state that both chemical
manufacturers and EPA should assess and act on priority
chemicals, both existing and new, in a timely manner. This
means that the EPA should have authority to set priorities for
conducting safety reviews on existing chemicals based on
relevant risk and exposure considerations. Clear and enforcable
and practicable deadlines applicable to the Agency and industry
should be set for completion of chemical reviews, in particular
those that might impact sensitive subpopulations. Legislation
should also provide the EPA with tools to ensure the
protections put in place are carried out and provide a level
playing field for the companies that comply.
On April 22, 2014, the revised version of the Chemicals in
Commerce Act discussion draft was released by Chairman Shimkus.
While the administration has not yet developed a formal
position on the discussion draft, there are several important
observations that I would like to offer. As stated in the
principles above, we feel strongly that updated legislation
should include improvements that will provide the EPA with the
ability to make timely decisions if the chemical poses a risk
and the ability to take actions appropriate to address that
risk. The current discussion draft does not include a mechanism
that would provide for the timely review of the existing
chemicals that may pose a concern, which we believe is vitally
important to assuring the American public that chemicals they
find in the products they buy are safe.
As stated earlier, the use of Section 6 of TSCA to limit or
ban a chemical that poses a significant risk has been a major
challenge. By including a standard very similar to the current
TSCA Section 6 authorities, the bill fails to address another
key element of meaningful chemical safety reform. In the
administration's third principle, which states that when
addressing chemicals that do not meet the safety standard, risk
management decisions should take into account cost and
availability of substitutes, as well as sensitive
subpopulations and other factors. The draft bill's unreasonable
risk standard does not align with the approach delineated in
the principles.
The new chemicals provision in Section 5 of the current
discussion draft also does not align with the principles in
that they do not require that the EPA conclude that new
chemicals are safe and do not endanger public health and the
environment, elements of principle two and another keystone of
credible chemicals management.
Mr. Chairman, thank you again for your leadership on TSCA
reform. I would be happy to answer any questions that you or
members of the subcommittee have.
[The prepared statement of Mr. Jones follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much, Mr. Jones. And, before I
start, we gave your staff a head's up. And I think they have a
copy of the draft bill. And I would ask that they give that to
you, as I will probably refer to some pages in my opening
questions. And I would like to recognize myself for the first 5
minutes.
Your written testimony suggests the discussion draft does
not have a risk-based standard for review of chemicals that
does not consider cost or benefits, and suggests that the
standard in the discussion draft is very similar to current
Section 6.
Let us take a look at Section 6(b) in the discussion draft.
That is page 35, lines 15 to 22. And again, we gave your folks
a heads up that we would be doing this.
[The discussion drafts are available at http://
docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=102160.]
So, in the old draft, that was a ``safety determination.''
The new draft puts focus on risk by calling it more
appropriately a ``risk evaluation.'' Do you agree that the new
draft takes the phrase of--and I quote--``unreasonable risk''
out of Section 6(b), don't you?
Mr. Jones. Out of Section 6(b), I believe that that is
accurate.
Mr. Shimkus. So that is a yes?
Mr. Jones. Yes.
Mr. Shimkus. Instead, Section 6(b) of the discussion draft
requires the EPA to evaluate a chemical for significant risk of
harm to human health or the environment, isn't that correct?
That is page 35, line 15 to 22 also.
Mr. Jones. That is correct for Section 6(b). Yes.
Mr. Shimkus. Thank you. And it lays out explicit factors to
weigh in making the risk evaluation, is that correct?
Mr. Jones. That is correct.
Mr. Shimkus. And that on page 37, line 16, and page 38,
line 10, EPA is directed not to consider costs and benefits at
this stage, isn't that correct?
Mr. Jones. That is correct.
Mr. Shimkus. And that on page 38, line 11 through 23,
Section 6(b) includes requirements that EPA consider the likely
impact of the chemical to potentially expose subpopulations,
isn't that correct?
Mr. Jones. That is correct.
Mr. Shimkus. So there are some things that you like about
this revised draft?
Mr. Jones. Yes. Absolutely, there are things that I like
about----
Mr. Shimkus. Thank you. I think the surprising thing was in
your opening statement, there was no acknowledgment and some of
my colleagues on the other side make no acknowledgment of some
significant movements that have been made in some of these
areas. Your written statement suggests that the discussion
draft version of Section 5 is weaker than existing Section 5.
And we hear that from my friends on the other side. So isn't
the ``may present determination'' in Section 5(c)(3) of the
discussion draft--that is page 22--the exact same as what is
contained in current Section 5(e)?
Mr. Jones. Well, that may well be the case. I don't have
existing TSCA in front of me. But if you would like, I could
talk about why I think that----
Mr. Shimkus. Well, is ``may present'' in this draft, and is
``may present'' in current law in Section 5?
Mr. Jones. It is.
Mr. Shimkus. OK.
Mr. Jones. But the subsequent findings that the EPA needs
to make----
Mr. Shimkus. Well, that is what we will follow-up on in
these questions. Isn't the Section 5 rulemaking authority
substantially similar to what EPA currently has available to it
under Section 5(e) or 5(f) on page 23?
Mr. Jones. I think the existing TSCA Section 5(e) standard
allows the Agency much more flexibility to prevent a chemical
from getting on the market----
Mr. Shimkus. So your testimony is that this is where it
might be weaker, because you do not think that this language
that we have is substantially similar to current Section 5?
Mr. Jones. That is correct.
Mr. Shimkus. OK. And we would then ask for you what kind of
language would the EPA propose to clean that up?
Mr. Jones. Yes. Sure.
Mr. Shimkus. Because with all due respect to my friends on
the minority side, we have been asking for months for language
and never received any language from anyone on the minority
side. So it is tough to negotiate when we propose language and
we don't receive any in return.
Let me go to--please state whether you support or oppose
the following policy choices in the discussion draft, expanding
EPA's existing TSCA authority to require new testing by
manufacturers and processors via rule, order or consent
agreement. Does this draft do that?
Mr. Jones. Yes, it does.
Mr. Shimkus. And isn't order the ability to do an order--a
significant improvement over current law and--
Mr. Jones. Yes.
Mr. Shimkus [continuing]. And previous drafts?
Mr. Jones. Yes, it is.
Mr. Shimkus. So that is a good thing?
Mr. Jones. Yes, it is.
Mr. Shimkus. All right. Thank you. And you are smiling. I
like that. Providing this testing authority for prioritization
if existing information is not sufficient, does this draft do
that?
Mr. Jones. It does.
Mr. Shimkus. Another good thing?
Mr. Jones. That is a good thing. Yes.
Mr. Shimkus. Providing this testing authority for
performing a risk evaluation on high-priority chemicals, does
this draft do that?
Mr. Jones. Yes, it does that.
Mr. Shimkus. Providing this testing authority to ensure
compliance with control measures for new and existing
chemicals, does this draft do that?
Mr. Jones. You know, Chairman Shimkus, I can't remember
specifically whether it does that, as I don't recall that.
Mr. Shimkus. OK. But you can see my line of----
Mr. Jones. Yes.
Mr. Shimkus. The answer is, we believe it does. My time has
expired. I would like to know--I have two more questions. But I
do not have time--I will let Mr. Tonko now ask questions for 5
minutes.
Mr. Tonko. Assistant Administrator Jones, there are many
serious issues with this bill, but I would like to focus on the
expansive preemption provisions. Later today, State Senator
Michael Moore from the National Conference of State Legislators
will testify that, and I quote, ``States have enjoyed a long
history of co-regulation with the Federal Government in
environmental protection and have made sound policy decisions
benefiting the American public.'' He goes on to say that the
discussion draft will, and I quote, ``strip State's residents
of protections enacted by their elected officials.'' And again
quote, ``leave everyone more susceptible to increased harm from
toxic chemicals.'' Mr. Jones, do you agree that the States play
an important role in protecting human health and the
environment from exposure to toxic chemicals?
Mr. Jones. I do agree with that.
Mr. Tonko. The preemption language in the discussion draft
is sweeping in scope. We looked at the type of State or local
laws and regulations that could be affected. The list is
staggering. So, Mr. Jones, would you agree that the preemption
language in this discussion draft is very broad?
Mr. Jones. I would agree it is very broad.
Mr. Tonko. In fact, this language is drafted so broadly
that State and local regulations of hydraulic fracturing and
the chemicals used in hydraulic fracturing could be preempted.
Section 17 preempts State and local governments from
establishing or implementing a law or regulation requiring the
development or submission of information relating to a chemical
substance. This could have serious consequences for State
requirements for well operators to disclose the chemicals used
in hydraulic fracturing fluids. So, Mr. Jones, do you agree
that the preemption language could jeopardize State laws
requiring the oil and gas industry to disclose the chemicals
used in their hydraulic fracturing?
Mr. Jones. Yes, Congressman Tonko, I believe that
17(a)(1)(4) right off the bat will preempt some existing
disclosure requirements. And then other elements of the
provision would do it prospectively. So I think there will be
some right off the bat that are preempted for some number of
chemicals, and then prospectively there will be continuing
additional chemicals preempted.
Mr. Tonko. Thank you. And what other--what about other
States or local laws that are simply notices or disclosures
about chemicals? It seems to me they would also be in question.
Would you agree?
Mr. Jones. Yes.
Mr. Tonko. With respect to the identified problems with
TSCA, lack of public confidence, lack of public information
about chemicals, timely action to address chemical risks, would
you say this sweeping preemption provision is likely to do more
or do less to address these issues?
Mr. Jones. I think that it will--over time, the role of
States will be diminished. And I think that that will decrease
the pressure on the Agency to move forward as aggressively as I
think the drafters were hoping.
Mr. Tonko. And Section 17 preempts any State or local
requirement that prohibits or restricts the use of a chemical
substance for so called intended conditions of use. The bill
includes disposal of a chemical as an intended use. As a
result, this language could even override State or local laws
that limit how drillers dispose of chemical laid and waste
water from hydraulic fracturing operations. In New York, for
example, numerous counties have passed laws prohibiting out-of-
State well operators from disposing of hydraulic fracturing
waste water in county municipal water treatment plants, or
using the waste water to treat local roadways in winter. Mr.
Jones, are these the type of restrictions that could be
preempted by this measure?
Mr. Jones. As I was saying earlier on some of the issues
like notification, I think 17(a)(1)(B)(4) actually will do that
for a number of chemicals. And then other provisions would--
could do that prospectively, depending on decisions made at the
EPA after the law was passed.
Mr. Tonko. Thank you. And since we have not received any
specific examples of State and local regulations that are
hampering the $770 billion United States chemical business, I
find this debate quite confusing. States have moved to regulate
chemicals in response to public concern because the Federal
program is not functioning properly. Instead of blocking the
States from responding to public concerns about chemicals, I
believe we should address the real problem of inadequate
authorities from your Agency. Do you agree with that
assessment?
Mr. Jones. I would agree with that.
Mr. Tonko. Frankly, with a stronger Federal program, I
believe there would be less public pressure to enact State and
local laws for chemical regulation. Public health, labor and
environmental groups have stated that this draft would, and I
quote, ``curtail functioning State programs in exchange for a
Federal program that will continue to be dysfunctional.'' And I
don't think we ought to let that happen.
With that, Mr. Chair, I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Ohio, Mr. Latta, for 5
minutes.
Mr. Latta. Well, thank you very much, Mr. Chairman. And,
Mr. Jones, thank very much for being with us today. I
appreciate your testimony.
In your November 13 testimony, you testified that current
TSCA places challenges--legal and procedural requirements--on
the Agency before it can require industry to generate and
submit the health and environmental effects information and
data on existing chemicals. Does the Section 4 of the April
discussion draft improve the Agency's ability to require the
submission of hazard and exposure data and information by
authorizing the EPA to obtain it by rule, consent, agreement or
issuing an order?
Mr. Jones. Yes, it does.
Mr. Latta. You say it does. Thank you. Does the April
discussion draft eliminate the need for EPA to find a substance
poses an ``unreasonable risk'' before requiring new data to be
developed?
Mr. Jones. That is correct. Yes.
Mr. Latta. OK. And also in your testimony, you discuss how
there are 84,000 chemicals listed on the TSCA inventory. And
EPA's most recent snapshot of chemicals actually in commerce
from the 2012 chemical data reporting, the CDR roll, captured
7,674 chemicals from 2011. Do you believe that the 7,674 number
is accurate of the current TSCA inventory, or where do you
believe that number would be today?
Mr. Jones. Thanks. The 7,000 number are chemicals that are
produced greater than 25,000 pounds per year at any given
facility. The 84,000 number are those chemicals that have ever
been on the inventory. So the actual number of chemicals in
commerce would fall between those two. I think that the 7,000
number captures those that are produced at relatively large
quantities. There are clearly going to be some number of
compounds that are manufactured at less than 25,000 pounds or
at a single facility that are just not required to report under
the CDR.
Mr. Latta. OK. And then when we talk about that 84,000
number, is that correct or is that misleading?
Mr. Jones. It depends on how one uses it. We don't think it
reflects the number of chemicals in commerce. It reflects the
number of chemicals that ever have been placed on the TSCA
inventory. So we think it doesn't reflect the number of
chemicals in commerce.
Mr. Latta. OK. And then you also mentioned in your
testimony on page 2, I saw that the 60,000 or so chemicals that
were grandfathered in 1976. How long would you estimate it
would take to evaluate those 60,000 chemicals?
Mr. Jones. Well, yes. That sort of goes back to your
earlier observation about the 7,400 number.
Mr. Latta. Um-hum.
Mr. Jones. I think that that represents the universe of
chemicals we would want to keep our sights on first, because
they are the ones that are being produced at relatively large
quantities. And for that universe, I think it would take some
time for the Agency to get through all that----
Mr. Latta. Well, on an estimate, just--not just on the
60,000, but on that 7,674 number, how long--just say, you know,
ballpark estimate would that take?
Mr. Jones. It would take several decades to get through a
number of that size.
Mr. Latta. OK. Like 30 years then, when you say several?
Mr. Jones. That's not an----
Mr. Latta. OK. Any idea--what would the cost be to do that
evaluation on those--not on the 60,000. Now, we're just going
back to the 7,600.
Mr. Jones. So in the early years, because we are required
to set priorities, we would be doing the harder things first.
And so we would be doing fewer of them in early years. I think
after we got through the first thousand or so, I think you
would see the number we would complete in a given year could
potentially increase very dramatically so that you would see in
the latter years a much higher number of chemicals being
assessed than you would see in early years, even though you
might have the same number of dollars being spent in any given
year. We have not costed out what it would take to get through
all of the chemicals. The discussion draft actually doesn't
require us to operate at any pace. And so it would be hard to
estimate what it would take to get through when you don't have
a pace that you are mandated to work through.
Mr. Latta. And also doesn't the State preemption under the
discussion draft only kick in if EPA hasn't taken action on a
particular chemical?
Mr. Jones. Well, that is the--and it may have been a
drafting issue. I just don't--I don't know. But I have referred
to it a number of times. And I am sorry if I am misstating it.
But the provision in 17(a)(1)(B), and I believe it is (4),
actually preempts a State if the Agency, before passage of the
law, has issued an order, a consent agreement, or a rule under
Sections 5 or 6. And that is a rather large universe of
chemicals that is particular under Section 5. So again, I am
not really sure what that provision was designed to do. But the
way we are reading it, it preempts things from the date that
the law passed for anything that already has a significant new
use rule, anything that already has a consent agreement. Other
than that provision, what you said, Congressman, is accurate.
It is prospective action on the part of the EPA.
Mr. Latta. Thank you very much. And, Mr. Chairman, my time
has expired, and I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the ranking member of the full committee, Mr.
Waxman, for 5 minutes.
Mr. Waxman. Thank you, Mr. Chairman. For decades, the Toxic
Substances Control Act has operated under an unreasonable risk
standard, which requires EPA to perform a cost-benefit analysis
to determine whether or not a chemical is to be regulated. This
approach has proven unworkable. Only five chemicals have been
regulated under Section 6 of TSCA since 1976.
Mr. Jones, you testified in November that EPA needs to have
clear authority to assess chemicals against a risk-based safety
standard and to take risk management actions when the chemicals
do not meet that standard. Costs would still come into play in
figuring out how best to regulate a chemical, but we shouldn't
use cost to determine whether the public should be protected
from a chemical exposure. Not only has EPA endorsed this risk-
based approach, so have a broad range of stakeholders.
At our last hearing in March, there was unanimous agreement
among the witnesses that chemicals should be held to a risk-
based safety standard. Mr. Jones, does the revised draft use a
risk-based safety standard, or does it maintain a cost-based
approach to risk?
Mr. Jones. It, Congressman, takes a risk/cost balancing,
which is pretty much the standard in TSCA right now.
Mr. Waxman. So if this language were enacted, EPA would
have to balance the economic cost of regulating against the
adverse health and environmental effects of a chemical before
establishing any protections, is that right?
Mr. Jones. That is correct.
Mr. Waxman. I would like to explore how this would work in
the real world. Let us say that this language is enacted and
EPA evaluates a toxic chemical. Let us say that EPA determines
that the chemical causes cancer. Before EPA would be able to
take any action at all to limit the chemical's use in
children's products, for example, EPA would need to weigh the
cost to the industry of such action, is that right?
Mr. Jones. That is correct.
Mr. Waxman. So this proposal would require EPA to look at
the cost to industry in determining whether to protect our kids
from chemicals that cause cancer, is that accurate?
Mr. Jones. We would have to take into consideration the
cost to industry and any broader societal costs as well.
Mr. Waxman. OK. I think many in the public would listen to
this discussion and find this proposal morally questionable. I
share those concerns, and we don't need to take this approach.
Time and again, we have shown that when there is a clear goal
for protecting health, industry has the creativity and know how
to get the job done. I am also concerned whether the approach
in this draft is even workable. Is EPA good at projecting
industry innovation? Will EPA give the proper weight to
industry costs?
Mr. Jones. That is a great question, Congressman. We tend
to have a very difficult time predicting where innovation is
going. So we often, almost always, will predict the cost in the
absence of innovation, and then just straight line it out. Our
experience, however, has shown that industry is incredibly
innovative, and rarely do those costs hold over time. They
typically drop off quite dramatically as industry innovates,
and those costs go away.
Mr. Waxman. So as a result, when you look at the costs, you
end up overstating those costs because you really can't predict
whether they are going to be innovative enough to hold down the
costs?
Mr. Jones. That is correct.
Mr. Waxman. Do you think that we can protect our kids and
keep industry's costs manageable if we use a risk-based
standard that sets a clear goal of protecting health and the
environment?
Mr. Jones. I believe we can. Just to be clear, the
administration principle thinks there should be risk-based
standards, that cost should be a factor in how we achieve the
standard. But it has a role, as opposed to having a balancing
of trying to numerically quantify the monetary value of the
benefits with the monetary value of the costs.
Mr. Waxman. But not in setting the standard itself?
Mr. Jones. In setting the standard, we think we need to
have the flexibility to consider costs in the setting of the
standard.
Mr. Waxman. But you would set the standard with the
expectation that the standard would be met, and you are not
looking at just what the industry says the cost will be because
you can take into account if you have the flexibility that
almost always in the environmental area that costs are less
than what is predicted in the beginning?
Mr. Jones. The goal would always be to achieve the safety
standard. We would want to be able to consider if the scenario
where there is a very high cost for very marginal changes in
safety that we may have a little lower bar in that kind of a
context. We would want--we would not want to be precluded from
having a cost consideration.
Mr. Waxman. OK. Let me just say in closing, Mr. Chairman,
that I think there is a consensus outside this room that the
safety standard in TSCA should be risk-based. I am disappointed
the draft doesn't reflect that consensus. I understand there
will be a markup of this bill later in the month, and I hope we
will be able to focus on areas of agreement and abandon these
controversial proposals. Yield back my time. Thanks.
Mr. Shimkus. The gentleman yields back the time. The Chair
now recognizes Chairman Emeritus Mr. Barton, for 5 minutes.
Mr. Barton. Thank you, Mr. Chairman. We just heard from the
chairman emeritus on the Democratic side, or the former
chairman and the current ranking member. I am the former
chairman, the chairman emeritus on the majority side. So you
kind of get the good, the bad and the ugly here, I guess. Mr.
Waxman seems to think that this discussion draft is too strong.
And he talked about the risk-based standard approach that he
would prefer. I think quite frankly Mr. Shimkus and Mr. Upton
and their staffs are trying very hard to find the middle of the
road approach. And I have some unease that maybe they are going
too far to the left, quite frankly. But I understand what they
are attempting to do. So you get both sides of it in these two
rounds of questioning.
My first question to you as an Assistant Administrator of
the Office of Chemical Safety, is that a Senate confirmation
position, or is that a political appointee but not Senate
confirmed?
Mr. Jones. It is a Senate confirmed position.
Mr. Barton. It is Senate confirmed. And what did you do
before you assumed this position?
Mr. Jones. I have been a career employee at the EPA until
Administrator Jackson asked me if I would be interested in the
Senate confirmed position----
Mr. Barton. So you have a--I would assume you have a
technical background in this field in----
Mr. Jones. I actually have a policy and economics
background.
Mr. Barton. OK. OK. I didn't--I wasn't here when you gave
your opening statement. I would assume that EPA either has no
position or is moderately opposed to this, is that fair?
Mr. Jones. We have identified a number of areas that we
think are not in alignment with the administration principles
that we have pointed out.
Mr. Shimkus. If the gentleman would yield just for a
second? But--and being fair, you also identified a lot of
``yes'' answers to my questions on positive movements of this
bill, would that be correct, Mr. Jones?
Mr. Jones. That is correct. Yes.
Mr. Shimkus. Thank you.
Mr. Barton. Well, I would hope so. Well, given how hard you
are working to make it acceptable, I think that is a good
thing. If this--if what the chairman has suggested in this--
these proposed changes stick, what would the recommendation be
in terms of passage if we get it out of committee and to the
floor?
Mr. Jones. Well----
Mr. Barton. Do you think the administration would be----
Mr. Jones. And I think the administration would like to see
a bill that aligns with its principles. And I think that the
areas where I have pointed out that are not in alignment are a
big enough deal that there would be--the administration would
have some problems with the ones----
Mr. Barton. What is the biggest problem in the discussion
draft?
Mr. Jones. I think the safety standard is probably the
biggest one. The new chemicals issue I pointed out is probably
second. And then the pace of the Agency working on existing
chemicals, are probably the biggest areas.
Mr. Barton. If you go out into the real world, I think that
the industry that TSCA regulates have really, really tried to
do the right thing. Where do you see the biggest problem? Is it
noncompliance with the existing regulations, or is it new--just
is it the new chemicals coming online that are the biggest
problem, or are existing chemicals not--the industry not
properly evaluating under current law?
Mr. Jones. That is a great question, Congressman Barton. I
couldn't agree with you more. As a matter of fact, until this
hearing was called, I was supposed to be in Bentonville,
Arkansas, today at Walmart, who I think has been a real leader
in this space in trying to get ahead on safer chemicals. I
think some of the companies coming behind me in the next panel
have been real leaders. New chemicals, I don't believe, is
where the challenge has been. I think it has been with existing
chemicals. And there, I think it is a subset of existing
chemicals. We looked at about 1,000 chemicals of that entire
universe that Congressman Latta pointed out as chemicals that
have expressed some hazard that we think it is really important
for the Agency to evaluate for safety assessment purposes. But
because we never have done that, unless a retailer who is
telling you they won't accept it, I don't know why a company
wouldn't continue to manufacture those. So I think it is
existing chemicals. And there, I think it is actually a
relatively--relatively narrow subset. I am talking about 1,000
and not, you know, 40,000 or 20,000.
Mr. Barton. Right.
Mr. Jones. It is still a big number. But I agree that I
think many consumer facing companies and retailers have been
way out front on this issue, much further out front than we
have.
Mr. Barton. My time has expired. But, Mr. Chairman, I want
to commend you and the ranking subcommittee member, Mr. Tonko.
It sure looks to me like you all are trying to find a middle
approach. And I am supportive of that. But I do, from the
right, want to say let us don't throw the baby out with the
bath water, because we still want to--if we are going to get a
revision, it needs to be something that will work in the real
world. And I am leery of continuing to give EPA too much
discretion, because I think the more explicit we can be with
what they should do, the greater the probability is that they
will do their regulatory function in a fair manner. And with
that, I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Michigan, Mr. Dingell, for 5
minutes.
Mr. Dingell. Mr. Chairman, I thank you for your courtesy. I
commend you for the hearing. And I am very pleased to see you
working on this legislation.
Back in 1976, I submitted report language in regard to
weaknesses that exist in the current Toxic Substances Control
Act. I stated it was essential for the protection of public
health and the environment that EPA have a firm mandate for a
comprehensive approach to protection from hazards due to
chemical substances, and that such success would only lead to
legislative directives and adequate funding support.
Mr. Jones, you stated in your testimony that in order to be
successful, EPA must have the resources it needs to protect the
American people from exposure to harmful chemicals. I am
satisfied that that has been a lack that you have confronted
down there. Now, under CICA, does EPA have appropriate
resources to quickly and efficiently implement the various
framework, process, criteria and guidance provision which must
be in place prior to EPA beginning action on specific
chemicals, yes or no?
Mr. Jones. I think it is more a question, Congressman
Dingell, of the years which were provided is probably a little
bit too short.
Mr. Dingell. OK. So you are telling me ``no'' on this. And
I am asking you to submit to us additional information----
Mr. Jones. Sure.
Mr. Dingell [continuing]. So that we will have a clear
picture of what the needs are. And I ask unanimous consent that
that, Mr. Chairman, and other matters be inserted into the
record in the appropriate fashion and place.
Mr. Shimkus. Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Dingell. Now again, Mr. Jones, once EPA is able to take
action on specific chemicals under CICA, does the EPA have the
resources needed to quickly and efficiently determine
prioritizations, assessments, determination and risk
managements, yes or no?
Mr. Jones. I am sorry, Congressman. Those are a little more
than yes or no questions. But the bill doesn't require----
Mr. Dingell. Just yes or no.
Mr. Jones. Well, the bill doesn't require----
Mr. Dingell. And I am asking you to submit in greater
detail, because we don't have a lot of time to toe dance around
on this.
Mr. Jones. I would say yes, but the number we would do
would be I think disappointingly small.
Mr. Dingell. Well, that is almost a comical answer here.
Now, EPA has over 84,000 chemicals listed in its TSCA
inventory, and a little over 200 have been acted on in 37
years. It doesn't make it look like you have authority here, or
that you have resources. EPA has identified an initial work
plan of chemicals for assessment which includes 83 substances
in addition to identifying several hundred chemicals on the
safer chemical ingredients list. Is that true, yes or no?
Mr. Jones. Yes.
Mr. Dingell. All right. Under current TSCA, does EPA have
the appropriate resources to complete more than 20 risk
assessments per year on existing chemicals?
Mr. Jones. No.
Mr. Dingell. Please answer yes or no.
Mr. Jones. No.
Mr. Dingell. Would you respond in addition for the record
on that matter?
Mr. Jones. Yes.
Mr. Dingell. Now, what kind of resources would EPA need in
order to perform the 20 or more additional risk assessments per
year, please submit that for the record.
Mr. Jones. Sure.
Mr. Dingell. So we have a decent appreciation of our needs
here. Now, as you know, I have had the privilege to live in the
Great Lakes region, home for 20 percent of the world's fresh
water supply, as well as tremendous hunting and fishing and
recreational areas. Many of my constituents have voiced
concerns that CICA does not ensure adequate public health and
safety standards needed for high-risk toxic chemical
contamination found in this region. Would EPA be better able to
regulate new and existing chemicals if they were granted
authority to set priorities for conducting safety reviews based
on relevant risks and exposure conditions, yes or no?
Mr. Jones. Yes.
Mr. Dingell. Would you please submit amplification for the
record on that?
Mr. Jones. Sure.
Mr. Dingell. Now, if both chemical manufacturers and EPA
had the ability to assess and act on priority chemicals like
those potentially found in the Great Lakes, would EPA be better
able to regulate these chemicals in timely manner, yes or no?
Mr. Jones. Yes.
Mr. Dingell. Now, would you please submit amplification on
that for the purposes of the record?
Mr. Jones. Yes.
Mr. Dingell. Now, it is my concern that if Congress fails
to provide necessary funding to a new TSCA program, public
health protections will be left without legs to stand on. As I
mentioned in a number of previous hearings, any overhaul of
this law must be a broad bipartisan one. It is my hope that
this subcommittee will find a process to ensure that all
stakeholders have the opportunity to see their concerns
reflected in a final bill. I continue to be committed to
fulfilling this need, and I intend to work with my colleagues
in creating reform that industry, consumers, environmental and
public health groups desperately want and need. And you, Mr.
Chairman, I commend you for your legislation and for the
hearings. I thank you. These are questions that have got to be
answered if we are proceeding in the proper way on this. This
is a piece of legislation that has sat around, and I think will
probably sit around until hell freezes over if something is not
done about it. So thank you for your leadership.
Mr. Shimkus. I thank my colleague. And the Chair now
recognizes the gentleman from West Virginia, Mr. McKinley, for
5 minutes.
Mr. McKinley. Thank you, Mr. Chairman. Let me just begin by
applauding you. Your line of questioning at the beginning of
this hearing was--they were right on. You were able to
demonstrate that there has been progress made with it. And I
appreciate that. I think they were very good questions with
that.
I am just curious, Mr. Jones, Mr. Tonko has said that this
current draft weakens current law. I heard Mr. Waxman say that
it doesn't protect public health. I heard him them go on to say
that it may even be--chemicals may be contributing to the rate
of autism in this country. Do you agree with all those three
statements?
Mr. Jones. We have been trying to evaluate----
Mr. McKinley. Let us take it--yes or no?
Mr. Jones. We have been trying to evaluate this and other
forms of legislation----
Mr. McKinley. Yes or no, please. Do you agree with it that
it is--it weakens current law?
Mr. Jones. I don't think I would take an opinion on that.
Mr. McKinley. OK. Does it--has it weakened public safety,
public health?
Mr. Jones. It does not advance public health in the way
that we think it----
Mr. McKinley. Does it have a link to autism?
Mr. Jones. One of the problems that we have in the chemical
space is that because there's not been enough data generated,
it is hard to make statements with respect to issues like that.
Mr. McKinley. I have heard--and I am just curious. If it
does any of those three, who is responsible for that? Is it the
industry? Is--are we developing a profile across America? Is
that what is trying to come out of this Congress is the
chemical industry is trying to weaken existing law? It wants to
increase autism? It wants to increase--decrease public health?
Is that what you see in an overview of 30,000 feet what this
bill does?
Mr. Jones. I see an honest effort on the part of a lot of
people to make improvements, and I see disagreements amongst
stakeholders as to whether or not it is----
Mr. McKinley. But if the threat continues to be that it is
doing these and other things, you are saying about safety and
new chemicals, if it has--are we--I want to make sure I
understand your testimony and those from the other side of the
aisle. That this is the chemical industry itself is causing
these problems? Because if it is not the chemical industry,
then it is our staff is writing these things to decrease public
safety and public health and weaken the current law? Who has
got the--who wrote the words to make it negative?
Mr. Jones. You know, I am on the outside here. And I am not
holding the pen. And I can't speak to the motivations, nor do I
choose to try to understand really the motivations.
Mr. McKinley. Do you really think the chemical industry is
trying to hurt the public health?
Mr. Jones. No, I don't.
Mr. McKinley. OK. Do you think it is trying to weaken
current law?
Mr. Jones. You know, I think those are questions for the
chemical industry who are coming up right behind me. I----
Mr. McKinley. No. I know it is your opinion. I--maybe we
will ask them later. But do you really think they want to
weaken current law?
Mr. Jones. Again, I don't----
Mr. McKinley. Yes or no?
Mr. Jones. I have been in this game for quite a long time,
and I don't attempt to understand all of the motivations behind
all of the players. I try to evaluate what the facts are in
front of me and make informed decisions based on that.
Mr. McKinley. Do you really think that the rate of autism
is going to be affected by this TSCA reform legislation?
Mr. Jones. I think that if we had better health and safety
data we would be making more informed and protective decisions
around chemical safety in the United States.
Mr. McKinley. I would be curious to see--my grandson's
autistic. And in a number of meetings and discussions we have
had with doctors about this, they have never talked about the
chemical industry being behind this. I just wonder perhaps if
this is just one more scare tactic to try to cause
consternation and confusion in our economy right now, because
we have not heard that. So this was the first time I have heard
that today. And shame on people if they are using a scare
tactic to try to get something, because I think this committee
has done a yeoman's job in trying to correct the problems. And
I don't think it is the chemical industry that is trying to
weaken any of these provisions. I think there is another agenda
out there. And I would sure like to understand. I hope that you
will be able to submit something to explain why people think
the chemical industry wants to put the health of this Nation at
risk.
Mr. Jones. I could only speak to what the administration's
attempting to achieve, which is to strengthen the chemical
safety laws in the United States.
Mr. McKinley. Thank you. I yield back my time.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from New Jersey, Mr. Pallone, for
5 minutes.
Mr. Pallone. Thank you, Mr. Chairman. Over the last few
months, my staff has been at the table with your staff to
discuss the draft Chemicals in Commerce Act and work towards
the compromise bill. Changes have been made since the initial
draft. But, unfortunately, the version before us today does not
reflect sufficient input from Democratic members, including
myself.
At the last TSCA hearing on March 12, every witness in
attendance stated the chemicals in commerce should be held to a
risk-based standard without consideration of cost. But,
unfortunately, the draft before us does not meet that standard.
Further, vulnerable populations are not sufficiently protected
under the risk management standard in the draft.
So, Mr. Chairman, obviously reforming TSCA is crucial to
protecting Americans from unsafe chemicals, and I am
disappointed in the current draft before us today. And I would
simply ask that before the subcommittee moves to markup this
bill that you work to address the concerns raised by myself and
other Democratic members.
I had----
Mr. Shimkus. Would the gentleman yield for one second?
Mr. Pallone. Oh, certainly. Sure.
Mr. Shimkus. And I would ask that my friends on the other
side start sharing some language with us, which we have been
asking for for probably six weeks.
Mr. Pallone. OK. Thank you. Let me ask some questions of
Mr. Jones.
The Toxic Substances Control Act 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 in the corrosion proof fittings decision, EPA has been
saddled with performing time and resource intensive cost-
benefit analysis on every potential alternative, not just as on
a regulatory control option selected. So, Mr. Jones, you
referred to this problem as paralysis by analysis in the past.
Is this a problem that should be addressed in TSCA reform?
Mr. Jones. It absolutely is a problem that should be
addressed in TSCA reform.
Mr. Pallone. Now, the draft removes the language least
burdensome, but replaces it with a new requirement for cost
effectiveness. So in your assessment, does this draft risk
recreating the problems of the least burdensome requirement
with this new cost effectiveness requirement?
Mr. Jones. Thanks, Congressman. I think it would be
important in legislation to be clear about how expansive the
cost effective analysis would need to be. What we would be
worried about is that a court would decide that all 12 or so
options of risk management had to be evaluated for us to be
able to say that the one we selected was cost effective.
Another reading would be as long as we have looked at a couple
of options that that bound the options that we would have
achieved the cost effective. Cost effective is a relative term
inherently. So I think it would be useful to have clarity on
that point so that we don't have the same kind of paralysis by
analysis that least burdensome created.
Mr. Pallone. Well, would the EPA be able to act move
effectively, but still adequately, considering the effects of
its actions if this cost effective requirement were to be
deleted?
Mr. Jones. That would be a way to achieve that objective.
Mr. Pallone. All right. The bill also establishes a new
requirement that when EPA decides to limit the use of a
chemical for a specific use, the Agency has to determine that
alternatives are technically and economically feasible. And
this puts EPA in the position of having to project market
innovation, rather than relying on the market to develop safer
alternatives as necessary. So do you have concerns about that
requirement?
Mr. Jones. I think that you are right that that has--there
is an anti-innovation aspect of that that we have seen over and
over again in many, many different contexts, the ability of the
American industry to innovate things that may not have been
available at any given time. And our ability to predict that is
very limited.
Mr. Pallone. So, Mr. Jones, when you look at the provisions
we just discussed, are you concerned that they could have the
effect of protecting the market position of dangerous chemicals
and articles, rather than spurring innovation?
Mr. Jones. Yes.
Mr. Pallone. Yes. OK. Well, as I had previously mentioned,
I think they should be removed from the draft to enable the EPA
to act and to encourage innovation. Those are my questions.
Thank you, Mr. Chairman.
Mr. Shimkus. I thank my colleague. The Chair now recognizes
the gentleman from Pennsylvania, Mr. Pitts, for 5 minutes.
Mr. Pitts. Thank you, Mr. Chairman. Mr. Jones, are you
familiar with Canada's approach when it prioritized 23,000
chemicals on its domestic substances list several years ago?
Mr. Jones. I have some familiarity with the Canadian
approach. Yes.
Mr. Pitts. Well, after Canada completed its prioritization,
it set aside approximately 19,000 chemicals as essentially low
priority. Canada does not intend to conduct risk assessment on
those substances, unless new information indicated a need to
reevaluate that approach. Does the April draft provide the
Agency authority to similarly review chemical substances in
U.S. commerce and identify substances that may not warrant a
reevaluation?
Mr. Jones. It does. I would not be able to speak to the
standard that Canada used to call something a lower priority
versus the standard that has been in the discussion draft,
because we have just not--we have not thought about it in that
context.
Mr. Pitts. Well----
Mr. Jones. But we would be able to set priorities.
Mr. Pitts. Well, in the proposed assessment of
grandfathered chemicals, do you believe some form of
prioritization would be key?
Mr. Jones. I think it is very important.
Mr. Pitts. Yes. Now, your prepared statement seems to
suggest that you want a registration and licensing program
under TSCA for new chemicals, do I understand you correctly?
Mr. Jones. No, I don't. I just think it is important for
the Agency, before a chemical moves to the market, to speak to
its safety.
Mr. Pitts. Do you believe that EPA will be able to make
screening level priority determinations for most existing
chemicals based on information that is currently available to
the Agency?
Mr. Jones. I believe that there are enough existing
chemicals that, for the first probably dozen years, we will be
able to focus our work on those chemicals for which we can make
such determinations. And then I think we will need to be in the
mode of data gathering for chemicals that are not well
characterized.
Mr. Pitts. Do you think the Agency would have any
difficulty showing why available information on a chemical is
insufficient for priority setting or risk evaluations? And,
hence, why new information might be needed by the Agency for
one of the regulatory purposes outlined in Sections 4--Section
4(a)(1)?
Mr. Jones. I think we would be able to do that. Yes.
Mr. Pitts. In your testimony on November 13 before this
subcommittee, you testified that a necessary improvement to
TSCA is a mandatory program that gives the EPA the authority to
review the safety of existing chemicals. Does the April
discussion draft include such a program?
Mr. Jones. It moves in that direction. What I think it is
lacking is a requirement the Agency set a certain number of
high priorities every year. Once a chemical is determined a
high priority, we are then on a pace. We have 4 years to do a
safety assessment, and then 3 years after that to do risk
management. But the Agency could choose to have a very, very
low number of chemicals set as high priority. And thinking--
creating something that creates that constant forward motion
with some robust number I think would be important.
Mr. Pitts. Is a 4-year deadline to complete risk
evaluations, established in Section 6, sufficient time for the
Agency?
Mr. Jones. Yes, it is.
Mr. Pitts. Does the April draft provide flexibility--enough
flexibility to take into account a range of considerations when
chemicals do not meet a safety standard, including children's
health, economic costs, social benefits, equity concerns? Does
that draft provide the flexibility to the Agency that you
desire in Section 6?
Mr. Jones. I think it requires a determination that this
cost-benefit balancing we think will make it hard to be
effective and is not as health-protective as we would like it
to be.
Mr. Pitts. And does the discussion draft prohibit EPA from
considering cost and benefits when making a risk evaluation on
a chemical substance?
Mr. Jones. It prohibits us in the risk evaluation phase,
yes.
Mr. Pitts. In the risk--yes. My time is up. Thank you, Mr.
Chairman.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from California, Mr. McNerney, for
5 minutes.
Mr. McNerney. Well, I thank the chairman. Mr. Jones, in
your testimony, you mentioned that the TSCA does not require
the EPA to conduct a review and determine the safety of
existing chemicals? You mentioned that the EPA--that the TSCA
places burdensome legal and procedural requirements on the EPA
before the Agency can request health and environmental effects
on existing chemicals?
Mr. Jones. Correct.
Mr. McNerney. So my question is, the Chemicals in Commerce
Act gives the EPA 90 days to develop a profile of a particular
chemical substance and a potential for exposure to humans and
the environment. As of today, could the EPA meet this 90 day
timeframe?
Mr. Jones. For new chemicals, we currently meet that
timeframe in the vast majority of chemicals we are looking at.
New chemicals.
Mr. McNerney. OK. Thank you. Would asking companies to
provide the EPA with a minimum data set assist the Agency in
making timely, informed determinations on these chemicals?
Mr. Jones. We don't believe a standardized minimum data set
is warranted for new chemicals. And--or for existing chemicals,
for that matter.
Mr. McNerney. Do you believe it would be beneficial for the
United States to use the European model as a template?
Mr. Jones. No, but I believe it would be beneficial to use
the data generated for purposes of the European model.
Mr. McNerney. Oh.
Mr. Jones. That would be very beneficial to chemical safety
in the United States.
Mr. McNerney. Is that permitted in the Chemicals in
Commerce Act?
Mr. Jones. It is not prohibited. The--some of the problems
that we are dealing with relate to the way in which the
European model was created. And some of the agreements
manufacturers who joined consortia have with respect to when
they can provide data. But the U.S. law, I don't believe can
require another government to give us something, or a company
who doesn't operate here to give us something. So I think these
are some issues that just need to get worked through.
Mr. McNerney. Is there an opportunity in the Chemicals in
Commerce Act to do that?
Mr. Jones. I think it is worth exploring.
Mr. McNerney. Thank you. We have heard from the GAO and
other stakeholders throughout this process that the EPA needs
more information and testing. But these so called scientific
standards in the new draft simultaneously restrict the EPA's
testing authority while establishing a mandatory duty to the
EPA to consider a prescriptive list of elements when evaluating
studies and tests. Mr. Jones, if enacted, would the scientific
standards language provide additional opportunities for
litigation, in your opinion?
Mr. Jones. I think it would. I think it deserves some
looking at to make sure there aren't--that I would expect--
unintended consequence.
Mr. McNerney. Increased litigation could result in
scientific issues being resolved in the courtroom.
Mr. Jones. That is correct.
Mr. McNerney. Are judges well-equipped to make decisions
about scientific issues?
Mr. Jones. I am not--I would prefer not to--I think in
general, they would prefer that they are made in agencies like
the EPA.
Mr. McNerney. Right. So we should be concerned about
putting courts in the position of rendering judgments on
scientific matters?
Mr. Jones. Yes.
Mr. McNerney. Thank you. Mr. Chairman, I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Georgia, Mr. Gingrey, for 5
minutes.
Mr. Gingrey. Mr. Chairman, thank you. And, Administrator
Jones, I wanted to ask you a series of questions about fees and
fee structures. So all of these will be quick questions. And
first of all, how does the Agency--how does the EPA--currently
collect user fees under TSCA?
Mr. Jones. We right now have authority to collect them only
for the pre-manufacture notices, the new chemicals. And it is a
relatively small amount of money, partly because that money
goes directly to the Treasury. EPA does not get those fees
right now, and it is only for pre-manufacture notices.
Mr. Gingrey. Well, that leads to the second question. Does
the EPA anticipate that user fees would be additive or
replacement for some of your existing funds, as appropriated?
Mr. Jones. I believe if the Congress' intent was that we
move quickly and do many chemicals that they would need to be
additive to our existing resources.
Mr. Gingrey. What is your budget breakdown by category for
the individual sections of TSCA?
Mr. Jones. Funny you should ask that.
Mr. Gingrey. If that is going to take too long, I will just
skip down to the next----
Mr. Jones. I got it right here. Yes. So we spend about 16--
just under $17 million for new chemicals, about $28 million for
existing chemicals, and $12 million or thereabouts on the
information systems that service both those.
Mr. Gingrey. So what is the EPA budget in both funding and
full-time equivalent for the chemical review under Section 5?
Mr. Jones. Ballpark, about $16.7 million.
Mr. Gingrey. I am sorry. How much?
Mr. Jones. Sixteen--just under 17 million, $16.7 million
for Section 5.
Mr. Gingrey. And what would the Agency expect the outlays
to be under the new TSCA Section 4 authority?
Mr. Jones. I am sorry. Could you ask that again?
Mr. Gingrey. What would the Agency expect the outlays to be
under the new TSCA Section 4 authority?
Mr. Jones. You know, we spend about $12 million now in data
gathering, but we have not costed out under the--you know, the
discussion draft what we would spend under that authority.
Interestingly, we would probably be getting more data. But it
would be cheaper to get it, because the orders are much cheaper
to do than rulemakings are.
Mr. Gingrey. How about Sections 6, 8 and 14?
Mr. Jones. So--and I have costs for what we are spending
now on Section 6 and the other existing chemicals programs. But
we have not costed out what it would be under the discussion
draft. But I--it does allow me to make some general ballpark
estimates of what a chemical under the provision would cost us.
Mr. Gingrey. Let me try this one, too. Evaluate, let us
say, 20 chemicals per year. How much money and staff would
you--do you think you would need?
Mr. Jones. I think early days where we are trying to work
on the more difficult ones first, because the higher priority
ones would be the more difficult ones----
Mr. Gingrey. Sure.
Mr. Jones. I think about a million dollars per chemical, so
$20 million. Over time, $20 million will go a lot farther than
that as the chemicals get easier to do. But at the beginning, I
would say 20 chemicals----
Mr. Gingrey. Yes, that sort of leads to the rest of that
question. What would you need to evaluate 50 chemicals, 100
chemicals? And is there an economy of scale?
Mr. Jones. There definitely would be--partly it would be
more efficient as we learned. And then there would be this
other phenomenon whereby the farther down we got with
chemicals, they would get easier to do. And so it would become
cheaper per chemical. That would take a little while to get to
that point, but that would certainly happen.
Mr. Gingrey. And my final question for you, if the Agency
got new fee authority provided in the discussion draft, how
would you implement it?
Mr. Jones. That is an interesting question. In the other
part of my operation, which is the pesticides program, we have
fee authority. And the way it actually came about--and actually
you have some panelists on the next panel who participated in
it--is the stakeholders, the NGOs, and the industry actually
came up with the construct. It gets into very great detail, but
that is what they wanted. They wanted a lot of detail with
respect to it. Whether the--you had a scenario where
stakeholders developed the fee structure, or you gave EPA the
authority--if we had the authority, we would get together with
the stakeholders to figure out how to do something that was
fair and equitable.
Mr. Gingrey. Mr. Jones, thank you. Mr. Chairman, I yield
back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Texas, Mr. Green, for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. And we have other
committee hearings going on, so you are going to see us jumping
around and--but I want to thank both Chairman Shimkus and
Ranking Member Tonko for holding the hearing today on the
updated Chemicals in Commerce Act discussion draft. And I
particularly want to thank the Chair, and appreciate your
patience and leadership in working with us on the drafts.
Ultimately, we want to get to a bill. And, hopefully, we will
get there. But I also want to thank Assistant Administrator
Jones and the witnesses on the second panel for joining us.
Mr. Jones, I need just--some of these are yes or no. If
enacted, would the discussion draft--the latest one, as
written--increase EPA's authority to protect human health and
the environment from harmful chemicals over current law? Would
the second draft be better than current law?
Mr. Jones. It has--there are marginal areas of improvement,
as particular data gathering authority.
Mr. Green. OK.
Mr. Shimkus. So, that is a ``yes''?
Mr. Jones. I would----
Mr. Shimkus. This is important. It is a ``yes'' or ``no''?
Mr. Green. What it means if it is a ``yes,'' we are going
in the right direction.
Mr. Jones. You are moving in the right direction.
Mr. Green. OK. Does the discussion draft provide EPA with
full and complete authority to obligate companies to provide
toxicity data?
Mr. Jones. Yes.
Mr. Green. OK. The discussion draft actually does that?
Mr. Jones. Yes.
Mr. Green. OK. Does the discussion draft provide the
necessary authorities to protect vulnerable populations such as
children, pregnant women and workers from harmful exposure to
toxic chemicals?
Mr. Jones. It requires us to include them in our safety
evaluations.
Mr. Green. OK. Does the EPA currently look at the aggregate
exposure of chemicals today in meeting the current safety
standard? If not, do you believe that the Agency should have
that authority to do so?
Mr. Jones. In the toxics program, we have just started
doing chemical assessments and have so far not aggregated all
sources of exposure. I think that that is the direction that we
need to move in though.
Mr. Green. OK. Do you know if the discussion draft has--
addresses that?
Mr. Jones. I don't believe it mandates that we aggregate
all exposures. But I will need to confirm that.
Mr. Green. OK. In the discussion draft, would information
claimed as confidential business information be allowed as
evidence in a court of law?
Mr. Jones. I can't answer that question. Sorry,
Congressman.
Mr. Green. OK. Would amending TSCA so it would have
judicial standard review found in the Administrative Procedures
Act enhance the law's protection of human health?
Mr. Jones. The substantial evidence I believe is the
judicial standard in the discussion draft.
Mr. Green. That is in the discussion draft. But if it was
changed to be similar to what the Administrative Procedures
Act, would that enhance the law's or the discussion draft's
protection of human health?
Mr. Jones. And I am not able to answer that question.
Mr. Green. OK. Has the Agency ever reconsidered exemptions
for chemicals regulated under Section 5 of current TSCA? And if
so, what chemicals, and would a status reconsideration--has the
Agency reconsidered exemptions for chemicals under Section 5?
Mr. Jones. We have added the number of exemptions under
Section 5.
Mr. Green. OK. So if chemicals--can you name those
chemicals, or give us a status of that reconsideration----
Mr. Jones. There would be categories of chemical--
categories that included exemptions over time.
Mr. Green. OK.
Mr. Jones. And we can describe what those categories are.
Mr. Green. In your testimony, you state that EPA should
have the flexibility to consider, among other things, equity
concerns, which--when making a risk management action. Could
you explain what you mean by equity concerns, and why are they
important to the administration--to the Agency?
Mr. Jones. So the benefits of decisions don't always--
aren't always enjoyed equally across society. And just
understanding where those--where the benefits fall and where
the costs fall so that we have our eyes wide open when we are
making decisions.
Mr. Green. OK. Well, Mr. Chairman, this is the first time I
think in a long time I have any time left. Does anybody on our
side need another half a minute or so? I yield back my 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. Mr. Jones, I
understand that printed circuit board manufacturers recently
met with EPA officials to discuss TSCA reporting obligations on
byproducts sent for recycling.
Mr. Jones. Yes.
Mr. Johnson. Now, the good news is this meeting has been
characterized to me by those manufacturers as a constructive
step in addressing industry's concerns that TSCA reporting on
byproducts is unnecessarily burdensome and complex. So I would
simply like to ask today for your commitment to continue
working closely with industry over the next month to determine
how reporting on byproducts sent for recycling can be reduced
or eliminated.
Mr. Jones. I think we are going to--I know we are going to
continue to have some discussions, both inside and with the
manufacturers to get this to a better place. I don't think it
will be a place that has absolutely no reporting, but the
reporting may fall in a completely different group than where
it is at.
Mr. Johnson. Well, we are looking for commonsense. And I
appreciate it.
Mr. Jones. I agree with that.
Mr. Johnson. That is what I heard from the industry. So I
appreciate that. I fear that if EPA continues to seek
information through TSCA which duplicates reporting under other
statutes and therefore is of minimal regulatory value,
byproducts manufacturers who currently recycle may choose to
landfill that waste in order to avoid the regulatory burden and
enforcement liability. You know, we should do all that we can
do encourage recycling of those secondary materials----
Mr. Jones. Yes.
Mr. Johnson [continuing]. Which are often rich in metals
and other valuable materials, by establishing sensible and non-
overlapping reporting regimens that minimize the burden on
industry. It ought to be a business friendly environment.
Mr. Jones. I think we can figure out a----
Mr. Johnson. I would very much like to work with you in
concert with manufacturers to more closely align TSCA reporting
with the goal of supporting byproducts recycling. While I
believe this committee is prepared to legislatively remedy this
issue, I hope we can all agree then that an administrative
remedy is the preferred short-term solution. So can I have your
commitment to work with the industry and our committee today to
determine how this can be resolved as quickly as possible?
Mr. Jones. Yes, you can.
Mr. Johnson. Well, those were easy questions, weren't they?
Mr. Jones. They were.
Mr. Johnson. Good deal. All right. Thank you. Mr. Chairman,
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 very much, Mr. Chairman. And thank
you, Administrator Jones, for coming. You know, I have to say
that I--that there are members on both sides of the aisle, as
you know, who have been working together on trying to find
consensus on this bill. And we have been meeting for quite some
time, Mr. Green and me and Mr. Tonko and the chairman and
others. And we have made a big investment of our time and
effort into trying to untie this very complicated knot. But I
would agree that time is running short. And I would also agree
with what you said, Mr. Administrator, that this latest
discussion draft is moving the ball forward a little bit. But I
still think we need to have some substantive changes before we
get to that sweet spot. And I also agree with the chairman that
I think at this point, the--this side of the aisle, my side of
the aisle needs to put some specific language forward. So, Mr.
Chairman and Mr. Tonko, I look forward to working with both of
you so that we can get some language that will help address the
concerns that we still have.
The one issue--I always try to not repeat what everybody
else said. And I think there is--but I do have concerns with
some of the other issues other members have raised. But
something we haven't talked a lot about yet today is Section 14
of the discussion draft, confidential information. Under the
current law, if a company designates certain information as
confidential business information, the EPA has to shield that
information from the public. And because company's claims don't
have to require justification and there is no penalty for over
claiming, virtually everybody agrees there has been a lot of
misuse of this provision.
Now, in the proposed draft, this trend continues. There is
no upfront substantiation required for confidential business
information, except in this specific identity of a chemical. So
this is what I want to ask you about.
There is also a new restriction in the latest draft that
places on EPA's ability to share the most critical piece of
chemical information, health and safety studies. While current
law provides that health and safety studies can never be
claimed as CBI, the new draft would allow companies to keep
secret the identity of chemicals implicated in a health and
safety study. So that is what I want to ask you about, Mr.
Jones. Isn't it true that the Agency has been tightening its
policies on CBI in an effort to increase transparency?
Mr. Jones. That is correct.
Ms. DeGette. And in 2010, didn't the Agency issue a policy
that it would generally deny confidentiality claims for the
chemical identities and health and safety studies?
Mr. Jones. That is correct.
Ms. DeGette. And so the proposal we are examining today
would essentially overturn these 2010 reform efforts, is that
correct?
Mr. Jones. Yes.
Ms. DeGette. Now, would that be consistent with the
administration's principles on TSCA reform?
Mr. Jones. No, it wouldn't.
Ms. DeGette. Now, what is the problem with in allowing
companies to keep chemical identities secret in health and
safety studies?
Mr. Jones. So although the public would have access to a
toxicological study, let us say a study on developmental
effects or cancer reproductive effects, they wouldn't be able
to discern what chemical was associated with the effect.
Ms. DeGette. So they wouldn't know what chemicals to avoid,
is that right?
Mr. Jones. They wouldn't know what chemicals to avoid.
Ms. DeGette. Right. Now, we heard from others that a
generic name for a chemical is sufficient. Now, in your review,
has that been the case?
Mr. Jones. It can be, but it really is a function of how
much information is conveyed in the generic name.
Ms. DeGette. OK. Now, the latest draft attempts to resolve
the problems with generic names by introducing a new term,
unique identifier, so that the administrator may disclose the
maximum amount of information about the chemical structure.
Will this get at the problem?
Mr. Jones. Well, a unique identifier is important, but it
may--you can have a unique identifier that actually doesn't
really tell the public or anyone else about the key element of
the structure that they might be concerned about.
Ms. DeGette. OK. Now, are there cases where the only
appropriate unique identifier would be the actual identity of
the chemical?
Mr. Jones. Well, you could just make up a name, and that
would be a unique identifier.
Ms. DeGette. I guess so. OK. So, Mr. Chairman, I think this
is one issue we can really continue to work on, because I think
you are trying to make some effort. But I think we need some
more work. And I look forward to continuing to participate in
this effort. And I yield back.
Mr. Shimkus. The gentlelady yields back her time. I thank
her for her questions. The Chair now recognizes the gentleman
from Louisiana, Dr. Cassidy.
Mr. Cassidy. Hey, sir. Whenever I go to a TSCA hearing, my
head always ends up being turned around, because it seems as if
people are disagreeing on things which should be common ground.
So let me kind of see if you can get my head turned on right.
And I don't mean this to challenge, I just mean this to
whatever. I read on page 36 that--or beginning perhaps page
35--that you are supposed to--the EPA would do a high-priority
risk evaluation. And among other things, determine the hazard.
Hazard being, if you will by definition, or risk--determine the
risk, which is by definition hazard times exposure.
Mr. Jones. Um-hum.
Mr. Cassidy. OK. And then once determining that, going over
to maybe the next subsection, subsection C, there is a method
by almost a graduated scale. You can say listen, it is a high
risk, but there is--so it is never--you are never going to be
exposed under these circumstances, so don't worry about it. And
you keep on kind of working your way all the way to where there
is a total ban. Now, that seems the way it should work.
Mr. Jones. Um-hum.
Mr. Cassidy. Would you agree with that?
Mr. Jones. That we should be making risk-based
determinations, yes.
Mr. Cassidy. And that there should be some latitude for EPA
to make a determination as to what is the potential exposure.
If the potential exposure is nil, it sure may be a great
hazard, but exposure if nil so therefore we are OK with it.
Mr. Jones. Anything times zero is zero.
Mr. Cassidy. All the way up until oh, my gosh, we just need
to totally eradicate this from society?
Mr. Jones. Correct.
Mr. Cassidy. Now, that seems that mechanism is laid out
here. And it seems like that is what we should--that is the
paradigm we should be employing. Would you agree with that?
Mr. Jones. I think that the risk evaluation side is laid
out that way. When it gets to actually what EPA should do as it
relates to regulating, it no longer follows that paradigm but
says the Agency should look at the risks, compare them to the
benefits, and only if the benefits outweigh the risks should
the Agency regulate. And then there are some other things----
Mr. Cassidy. If the benefit of regulation outweighs the
risk?
Mr. Jones. The health benefits needs to outweigh the cost.
Mr. Cassidy. So we had something that came up last year,
and it is the Safe Drinking Water Act bill. But it comes to
mind where apparently in a previous Congress, lead was not
allowed in drinking water except when it involved a bidet,
toilet, or some other device, because the brass fittings there
have a little bit of lead and they have your bidet apparently
really sealed tightly. But it didn't allow fire hydrants. And
EPA put out a rule that they were not going to allow the use or
I guess the sale or manufacturing of fire hydrants. Now, that
is kind of like one of those death of commonsense----
Mr. Jones. Um-hum.
Mr. Cassidy [continuing]. But EPA rightly said this is the
statute. It doesn't give us wiggle room. Now, in that case,
wouldn't it have been nice to have a risk benefit analysis that
would have said really your exposure of drinking water from a
fire hydrant or so minimal, et cetera, we can waive this and
not require literally an act of Congress in order to preserve
it. Is that a fair----
Mr. Jones. Well, that is why the administration's
articulated a view that the standard ought to be risk-based,
but we should be able to consider costs. Which in the scenario
you described would have allowed you that wiggle room to do
something that, on the face of it, it sound like it wasn't the
smart thing to do, which is very different from actually being
able to say I have monetized the benefits and they numerically
outweigh the monetization of the costs. Which in a perfect
world would make sense, but we rarely have the kind of
information that really can lead to accurate decisionmaking in
that context.
Mr. Cassidy. But how else then do you do it?
Mr. Jones. If you are able to consider costs in your risk
management, you can make choices as to whether or not you
think, as the costs of achieving the ideal level of safety may
be such that you may not want to get to that level of safety
but a little bit below that----
Mr. Shimkus. Would the gentleman yield?
Mr. Cassidy. Yes.
Mr. Shimkus. Doesn't the Presidential Executive Order
require you to do that anyway?
Mr. Jones. The Executive Order requires us to do cost-
benefit analysis, but--and we do that even in statutes that
are--have risk only standards----
Mr. Shimkus. So it is not like a crisis of monumental
proportions that you do a cost-benefit analysis in evaluating
risk?
Mr. Jones. No, but it matters in terms of ultimately the
judicial review that occurs, which the OMB requirement is
irrelevant to the judicial review. It is the statute that
governs that.
Mr. Shimkus. I would yield back to my colleague. Thank you.
Mr. Cassidy. And I am sorry. I got all my pages--my staple
came off, and it is--and my staples are apart. But it did seem
as if there is a graduated way in which the EPA would be able
to do some sort of cost-benefit analysis and ultimately--and
concluding with the total banning of the substance. But I am
hearing from you that you either don't want that authority or
that you think you should have the authority. What am I
hearing?
Mr. Jones. We don't think that the decision framework
should be that you have to show that the benefits outweigh the
costs, as we don't think that the information that we will
generally have available allows that balancing to be as
accurate as people would hope it would be.
Mr. Cassidy. I don't think people are talking about
scientific precision. I think they are talking about some sort
of weighing of commonsense.
Mr. Jones. Courts have generally found that if you can't
show that the actual dollar value of the human health benefits
aren't literally bigger than the dollar value of the cost----
Mr. Cassidy. Can I have a little bit--one extra question?
So my frustration is obviously this leads to where we are going
to ban something even though it costs a million dollars to ban
it, and there is only a buck of--if you totally discharge the
responsibility for coming up with such a thing--don't want the
authority, then you actually come into a situation where there
is the death of commonsense, where you really need to no longer
sell fire hydrants because we can't quantitate the relative
exposure. Now, we can't have it both ways. We can't say give
you a little bit of wiggle room so that we are not banning fire
hydrants, and on the other hand saying oh, my gosh, we don't
want that authority because we don't have the ability to pull
off the analysis.
Mr. Shimkus. Gentleman----
Mr. Jones. Well, it is very different from saying I would
like to be able to consider costs, so I don't do something like
you just described, versus I have to literally calculate the
human health benefits, which are nearly impossible to do most
of the time. And I have to show that that number is bigger than
the cost, which is usually easily able to calculate but often
overestimated.
Mr. Shimkus. The gentleman's time has far exceeded. And I
know--I hope you will come back for the second panel, which I
think we'll have a further discussion on this. The Chair now
recognizes the gentlelady from California for 5 minutes.
Mrs. Capps. Thank you, Mr. Chairman. And thank you, Mr.
Jones, for your testimony today, for being with us. Many
stakeholders have raised concerns about the need to protect
vulnerable populations in any modernized TSCA. It has been a
point I have made in our previous hearings on this topic. I
think it is absolutely essential.
If we reform TSCA but fail to adequately protect children,
pregnant women or seniors, we have really failed. As you know,
vulnerable populations include infants and children, the
elderly, the disabled, the workers and those living near
chemical facilities. In their 2009 report, Science and
Decisions, the National Academies of Science recommended that
all vulnerable populations should receive special attentions at
all stages of the risk assessment process.
In its current form, the discussion draft only examines
potentially exposed subpopulations when evaluating the risk of
existing chemicals. But the draft does not direct the EPA to
protect any of these risks when they are identified. It strikes
me as a glaring oversight.
Mr. Jones, you previously testified that a chemical should
not be able to pass the safety standard under reformed TSCA if
it is dangerous to a vulnerable population. But my
understanding is that this revised draft does not provide this
guarantee. Instead, it uses a cost-benefit standard to direct
EPA to balance the health risks to vulnerable subpopulations
against the cost to the industry to take protective action. Is
it your opinion that this is an accurate statement? Or if not,
would you correct me?
Mr. Jones. The only modification I would make is that it is
not just the cost to the industry but any costs to society.
Mrs. Capps. OK.
Mr. Jones. Otherwise, I think your characterization is
accurate.
Mrs. Capps. OK. So that means if we enact this proposal, we
couldn't tell parents that the law always puts the health of
their children first, right?
Mr. Jones. That is correct.
Mrs. Capps. Does the administration support this approach,
or does it think the law should require that children and
vulnerable populations are protected from toxic chemicals?
Mr. Jones. We prefer the latter.
Mrs. Capps. Mr. Chairman, this proposal doesn't make sense
to me. For the last 40 years, we have had a law that does not
adequately protect children, seniors, and other vulnerable
populations. Why would we want to pass another law that simply
continues that failed approach? And I yield back.
Mr. Shimkus. The gentlelady yields back her time. Seeing no
other members present, we want to thank you--oh, no. I am
sorry. Mr. Bilirakis is now recognized from the State of
Florida for 5 minutes.
Mr. Bilirakis. Thank you. Thank you, Mr. Chairman. The
first question, does this section of the April discussion draft
improve the Agency's ability to require the submission of
hazard and exposure data and information by authorizing EPA to
obtain it by rule, consent agreement or issuing an Order?
Mr. Jones. Section 4 does that, yes.
Mr. Bilirakis. Say that again.
Mr. Jones. Section 4 does that, yes.
Mr. Bilirakis. Very good. Does the expansion of testing
authority to cover the chemical prioritization process provide
the Agency sufficient flexibility to obtain additional
information necessary to take--to make decisions in priorities?
Mr. Jones. Yes, it does.
Mr. Bilirakis. OK. Thank you very much. I appreciate--thank
you. I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back.
Mr. Tonko. Mr. Chair?
Mr. Shimkus. The gentleman--for what purpose does the
gentleman ask recognition?
Mr. Tonko. Right. If I might, you have mentioned a number
of times that you would like to see language from our side of
the aisle. There seems to be an implication that somehow we
have refused to engage in the process. I just want to clarify
the record. After you released your discussion draft in March,
our staff sat down on a bipartisan basis to discuss it. Our
staff identified 12 areas where we needed to have further
discussion in order to reach a bipartisan agreement. Staff
discussed these issues. With many of the issues, your staff
informed our staff that changes would not be possible. In other
cases, I am told your staff expressed some receptivity, but
they did not want to work out language with us. Our staff
offered to go to legislative counsel with your staff to work
together on the text, but that offer was refused. So if this is
a misunderstanding and you would like our staff to work out
language together, I would suggest we direct them to do so. We
are happy to engage, and I hope there is sufficient flexibility
to address the stakeholders' concerns.
Mr. Shimkus. If the gentleman would yield?
Mr. Tonko. I will yield.
Mr. Shimkus. Yes, this has been an interesting process for
me in that we have worked diligently with members, with staff,
with full committee staff, sometimes with individual staffs at
other times. We continue to have asked for language. We have
not received language. We can go through this process of junior
high, he said what to who and who is talking to who, and why
aren't they doing this to the other person? I am telling you,
it is a tad frustrating. All we are trying to do is drop a
draft of a bill. We have accepted language. We have moved the
process forward. We want to continue to do that. We hope that
you will work with us in that process. But there is a time when
members need to talk to members. And with all due respect to
our staff who are very, very smart, if there is a problem with
this process, then you can walk down the hall. You can pick up
the phone. We can meet with our staff together, which we have
done with some members. So we are moving forward. We appreciate
the help and support. And if there has been frustration, it is
just this is a very difficult process. Many of us are not
lawyers. And this thing has not been revised since I was in
high school. We can do better, and that is all we are trying to
do.
Mr. Tonko. Right. And all I am asking is that if there is a
request to have us sit down and work out language, let us come
to the table together and get that done. This is much more
serious than junior high. And if the request for language is
made, let us come to the common table. They did not--as I am
told, there was not a receptivity to work out language with us.
And I am just asking that we come to the table, get that done,
because time is fleeting.
Mr. Shimkus. All I have said, I have asked for language for
two months from the minority staff and have not received any
language.
Mr. Tonko. OK.
Mr. Shimkus. So----
Mr. Tonko. I was told that that was not the case. So let us
meet at the table and produce the language.
Mr. Shimkus. That is the case. And I want to again thank
Mr. Jones for his time. This is a difficult process. We
appreciate your testimony, long. And you can see the members
were well prepared by directed comments, directly to the draft
bill. We appreciate your forthright answers. We know it is not
done. It is not perfect. We encourage you and ask you to
continue to be involved and engaged in this process, because we
can get to a better product by working together. So with that,
we would like to dismiss you and we would like to ask for the
second panel to sit down.
I think we are going to hire Mr. Dooley to be a good
staffer. He knows the ropes. If we can get the door closed?
Again, we want to thank you. Hopefully you have found the first
panel interesting, educational, enlightening. And we do
appreciate you coming for this second panel. In the sake of
time, we want to continue to go forward.
I will introduce everybody first and then call you
individually for your opening statements. I think that is, for
me, the most expeditious way of--from my left to right, we are
joined by the Honorable Cal Dooley, President and CEO of
American Chemistry Counsel, former colleague, great friend. And
we appreciate you being here.
Dr. Beth Bosley, President, Boron Specialties, on behalf of
the Society of Chemical Manufacturers and Affiliates. Again,
thank you for being here.
Mr. Mark Greenwood, Principal of Greenwood Environmental
Counsel. Sir, welcome. You have testified before. So we--good
to see you again.
Dr. Len Sauers, Vice President of Global Sustainability for
Proctor & Gamble Company. Again, another familiar face.
Mr. Steven Goldberg, Vice President and Associate General
Counsel, Regulatory & Government Affairs for BASF. You have
also been here before.
Mr. Andy Igrejas----
Mr. Igrejas. Igrejas.
Mr. Shimkus. Igrejas. Oh, you are over there? OK. We have
got our things mixed up--National Campaign Director of Safer
Chemicals, Healthy Families. Another familiar face.
And the Honorable Michael Moore on behalf of the National
Conference of State Legislators. Sir, welcome. So we will start
with Mr. Dooley. Your full statement is in the record. You are
recognized for 5 minutes. And thank you for coming.
STATEMENTS OF CALVIN DOOLEY, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, AMERICAN CHEMISTRY COUNCIL; BETH BOSLEY, PRESIDENT,
BORON SPECIALTIES, LLC, ON BEHALF OF THE SOCIETY OF CHEMICAL
MANUFACTURERS AND AFFILIATES; MARK GREENWOOD, PRINCIPAL,
GREENWOOD ENVIRONMENTAL COUNSEL, PLLC; LEN SAUERS, VICE
PRESIDENT, GLOBAL SUSTAINABILITY, PRODUCT SAFETY AND REGULATORY
AFFAIRS, THE PROCTOR & GAMBLE COMPANY; STEVEN J. GOLDBERG, VICE
PRESIDENT AND ASSOCIATE GENERAL COUNSEL, REGULATORY AND
GOVERNMENT AFFAIRS, BASF CORPORATION; MICHAEL MOORE, ON BEHALF
OF THE NATIONAL CONFERENCE OF STATE LEGISLATURES; AND ANDY
IGREJAS, DIRECTOR, SAFER CHEMICALS, HEALTHY FAMILIES
STATEMENT OF CALVIN DOOLEY
Mr. Dooley. Thank you, Chairman Shimkus and Ranking Member
Tonko. Thank you for the opportunity to testify about the
latest draft of the Chemicals in Commerce Act. The ACC greatly
appreciates the time and effort that you and your staff have
devoted to his critical issue. And we believe this draft
addresses key issues and questions that have been raised by a
variety of stakeholders, and questions that have been raised by
a number of members of this committee at the February 27
hearing on the previous draft.
You know, I think if you look at some of the modifications
in this draft, they responded to some of the concerns that
Member Tonko offered about the preemption of State laws. This
draft provides for a robust national chemical regulatory
program, while also maintaining abilities of States to protect
their citizens when EPA has not acted.
Unlike the earlier draft, a low priority designation of a
chemical by EPA will no longer preempt existing State laws.
Only a final EPA decision after a risk evaluation of a high-
priority chemical will preempt a State regulation or law.
And, Congressman DeGette, you asked about EPA's testing
authority. This draft greatly strengthens the EPA's ability to
demand more data by allowing EPA the demand further testing for
purposes of prioritization. And this is also a major change
from the earlier version.
Our colleague, Congressman Green, asked about TSCA's safety
standards should be based solely on health and exposure. And
this draft clarifies that only hazard use and exposure
considerations may be applied to determine the risk associated
with an intended use of chemical. Cost benefit considerations
are only considered in the risk management phase of the
regulation.
And, Congressman Capps, who has a great concern about
vulnerable subpopulations, this draft explicitly requires EPA
to consider exposures to infants, children, pregnant women,
workers and the elderly during the prioritization process and
throughout the risk evaluations.
And Congressman Pallone has asked about TSCA's current
requirement to apply the least burdensome option. He mentioned
that in his questions earlier today. This draft eliminates the
least burdensome requirements, enhancing EPA's ability to
efficiently and effectively impose regulations on chemicals.
This legislation--or draft legislation provides a national
approach to ensure the safety of chemicals in commerce. It
empowers EPA to evaluate the risks associated with the exposure
to a chemical, to determine if the cost--or the risk of
exposure can be safely managed, and to also assess whether the
cost and benefits of the restrictions on the use of a chemical
are in the interest of consumers.
I think it is instructed to see how the CICA could apply to
the use of this fluorescent--CFL fluorescent light bulb. This
light bulb uses about a quarter of the energy and lasts about
10 times as long as a traditional light bulb. But, you know,
widespread adoption of CFL's are helping to reduce energy
demand, reduce carbon emissions and are reducing energy costs
for consumers. But there is a small amount of mercury that is
required to make these highly efficient bulbs effective. Under
CICA, EPA would certainly find mercury to be a high-priority
chemical based on hazard. EPA then would conduct a risk
evaluation as to determine whether mercury used in this CFL
posed a significant risk. Finding that EPA would next consider
whether the exposure to mercury in this bulb could be managed
to protect against an unreasonable risk of harm to human health
and the environment. In EPA's development of regulations on the
use of mercury in this bulb, they would consider the cost and
benefits of allowing mercury to be used, and whether there were
alternatives. This approach is a compelling from a public
policy perspective as EPA would be ensuring the risk of
exposure to mercury was acceptable in this bulb, while
encouraging the development of a product that has significant
societal and environmental benefits. This example of the CFL
bulb also demonstrates why preemption provisions of CICA are
sound public policy.
Unfortunately, many State regulatory programs are based
solely on whether a chemical can cause harm in any
circumstance. This means that if a State--my home State of
California decided to impose a blanket ban on the use of
mercury, CFLs could not be sold there. This would have a
significant negative consequences, and innovators and companies
throughout the country would be reluctant to invest in the
development and manufactured of advanced products such as this
bulb if it was banned in what is the fifth largest economy in
the world.
The current draft of the Chemicals in Commerce Act is a
positive contribution to reforming TSCA, and we believe it
provides a roadmap to legislation that the American Chemistry
Counsel can strongly support.
[The prepared statement of Mr. Dooley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you. Time has expired. The Chair now
recognizes Dr. Bosley for 5 minutes.
STATEMENT OF BETH D. BOSLEY
Mr. Bosley. Thank you, Chairman Shimkus, Ranking Member
Tonko and members of the subcommittee. I am pleased to be back
in Washington to share my perspective as a small business owner
and on behalf of the Society of Chemical Manufacturers and
Affiliates regarding the April 18 discussion draft of the
Chemicals in Commerce Act.
You and your staffs have been doing great work on TSCA
reform, and TSCA very much appreciates it. I would particularly
like to thank you for recognizing that TSCA is as much about
products as it is about health and the environment. It is an
important interrelationship we need to protect against
unreasonable risks, but we also need to be able to make--keep
making the products that make every other aspect of our society
useful.
As we work towards strengthening EPA's authority to
regulate industrial chemicals, we must be careful that it does
not come at the expense of innovation. This is how we create
and sustain jobs. It is also how we can develop greener
chemicals and bolster public confidence.
You have obtained positive approaches from the February 27
draft on issues that matter most to SCMA. You have also made
additional improvements in several other areas. There are some
aspects of the current draft that concern us, and we would like
some clarification on those.
Regarding new chemicals and CBI, timely approval of new
chemicals and reliable protection of trade secrets are SCMA's
two top priorities, because they are critical to facilitating
innovation. And the draft makes some changes to new chemicals
in commerce--provisions of the bill, but these two sections
continue to be very, very workable.
As you continue to deliberate these sections, consider that
new chemicals do tend to be greener. Note also that if a
manufacturer does not have test data, EPA will continue to use
precautionary approaches involving potential exposures,
modeling tools and data on analog chemicals before a chemical
ever reaches commerce. If the Agency then still feels like it
needs measured data, it can request it and often does.
Finally, companies regularly continue to test chemicals,
even after EPA approves them.
Regarding existing chemicals, the new draft contains an
additional requirement for EPA to review available information
on a chemical, including any screening level information,
before requiring testing. We support this change. It only makes
sense that EPA leverage all the available data and information
before pursuing potentially burdensome testing regimens.
Prioritization, repeatedly--or relatedly, the
prioritization process in the bill now allows EPA to require
development of additional data to determine whether a substance
falls into a high-priority bucket in cases where existing
information is insufficient. This is a great improvement.
We also believe that enhanced process of reporting is an
important aspect of any new bill. In the same way EPA can see
additional toxicity data to prioritize a chemical, we would
like to see language specifically authorizing the EPA to
require processors to report use and exposure data for
particular product categories, especially where commercial or
consumer uses can be significant. We understand this is a
challenging issue, but is essential to well informed risk
evaluations.
As I have mentioned in prior testimony, the bill should
also expand TSCA's Section 8(e) to authorize submission of non-
adverse data and to require EPA to take that data into account
when prioritizing and evaluating chemicals. Presently, Section
E is biased toward only adverse data, because that is all that
we can submit. Such an enhancement would greatly increase the
amount of data submitted under this authority, which can only
improve the EPA's understanding of chemical hazards.
Regarding deadlines, SCMA has called for a mandate for EPA
to remove a minimum number of chemicals, or some percentage of
chemicals, over time in order to assure that it will act more
expeditiously on existing chemicals. And it has thus far. While
the bill does not yet do that, it does include deadlines for
reviewing existing chemicals. I think the deadlines may be too
generous in aggregate. It would give EPA a total of up to 10
years from release of a high-priority determination to issue a
final rule and posing risk management requirements or
restriction. I think 4 years for the risk evaluation is
probably too long. Something like 18 to 24 months should be
workable.
We noticed that the phrase in Section 6 and 9 is
significant risk, and we look forward to understanding your
intent here. I think it is probably improvement over
unreasonable risk.
Risk management now, this bill clearly separates the risk
evaluation and risk management steps, and it makes even clearer
the former is purely a health-based standard. We think this is
good and still leaves the bill with fewer steps than in the
Senate bill.
As for the risk management process, we support the bill's
requirement that restrictions of chemicals be cost effective.
However, we are concerned that the bill would allow EPA to ban
a chemical even when it concludes there was no technically or
economically feasible safer alternative. The draft drops the
definition of best available science and the concept contains
there, and they don't appear elsewhere in the bill. We are
disappointed by this, because the credibility of EPA risk
evaluations will depend on the strength of the science
supporting them.
We are pleased to see that the bill did retain language on
good science and the requirement that EPA evaluate chemicals by
weight of that evidence. I would think both sides of the aisle
would agree that the only--would only defeat our common goal of
enhancing public confidence if EPA could be accused of cherry-
picking data or methods.
In conclusion, the bill represents an improvement over the
status quo and shows continued promise for a bipartisan
solution. We appreciate your intense focus on TSCA
reauthorization and remain committed to helping in any way we
can.
[The prepared statement of Ms. Bosley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much. Mr. Greenwood, you are
recognized for 5 minutes.
STATEMENT OF MARK GREENWOOD
Mr. Greenwood. Chairman Shimkus, Ranking Member Tonko,
members of the committee, thank you for the opportunity to
testify today. I am Mark Greenwood. I am an environmental
lawyer. I have been working on TSCA for over 25 years. As part
of that, I was the chief lawyer for the TSCA program from 1988
to 1990. I was director of the Office of Pollution Prevention
Toxics from 1994, and advised clients on these issues for over
20 years.
What I would like to do is offer some comments of the
strengths of this bill in the context of some of the historical
issues that have occurred in the TSCA program. And I really
would like to respond to something that I think is a fairly
puzzling characterization I have heard that somehow this
discussion draft is worse than the current law. And just as
kind of a reality check and--I thought I would reflect back on
1990 when I started as an office director at EPA. And if they
could have given me a choice between the law that was there on
the books, which by the way is the law we have today, and this
discussion draft, which would I have preferred to do the best
job I could to protect the American people from chemical risk?
I found it very easy. I would select the discussion draft.
It has in it key elements that will increase the
protection, the ability of EPA to act in ways that I think are
extremely important. I have documented those in my written
testimony. I will highlight just a couple of points in the
interest of brevity.
For Section 6, which we know is the centerpiece of the
existing chemical program, as others have mentioned, your draft
removes the least burdensome requirement provision. That was
the most difficult problem that came out of the asbestos
corrosion proof fitting decision. You have removed it. It
removes the specter of that decision from the program.
A second one that is very important is prioritization. One
of the curses that TSCA is that is has always been the statute,
particularly in Section 6, that can do anything but has a
mandate to do nothing. And that has been a problem
institutionally. EPA and the TSCA program has always had
problem getting more resources for the program. It has had a
problem getting its regulations through the review process. We
often saw the phenomenon which I experience several times when
new political leaders would come into EPA, they look at this
wonderful new tool and say this can be used for this special
project. And that special project then disappeared when they
left. And the career people at EPA were left with another
failed project.
I think what happens with this prioritization system is it
creates a system that legitimizes the establishment of a long-
term agenda for this program, which it desperately needs, and
allows the program to have a sustained effort to implement that
agenda.
The third thing which I think you have added, which is an
improvement over other drafts, is this distinction in the
safety standard/now risk evaluation and risk management
provisions to distinguish what you call a significant risk and
an unreasonable risk. And what is important there is probably
less the specific words of the standard than the fact that you
articulate the considerations that go into that decision. And
they are very distinct. So you do have a significant risk
decision that looks solely at health and environmental factors,
and explicitly says that costs and benefits are not part of
that decision. And I thank you for Jim Jones recognized that
that is an important change.
Similarly, in the risk management area, you have tried to
clarify what factors should be considered. Previously, there
was some overlapping factors that you have taken out. I think
it is a big improvement.
The second area I want to address is actually confidential
business information, which has often been identified as a
systematic problem with TSCA. Now, this perception I think
unfortunately can be traced back to some events that occurred
during my tenure at EPA. Back in 1990, we decided to create a
new strategy for the program in which we tried to, as we said,
go public with the information that we had about health and
environmental risks of chemicals. It was very much aligned
with--at that time with the public right to know programs. We
were in charge of the toxic release inventory. And we thought
that was a good thing to do. Now, in going on and doing this, I
am afraid we kind of stirred a rather serious debate. And we
have had a debate on CBI reforms and CBI changes, which have
gone on for many years. It was not productive. It was very
polarized. The debate was not very well explained. However, a
group of people working on this bill, in the Senate and in the
House, have come together. NGO groups are involved. Industry
was involved, to come up with some commonsense reforms which I
think, as a package, have really advanced this debate, and I
think can resolve a lot of the issues that have plagued the
program for over 20 years. So in a sense, you had a guerilla
war for the last 20 years on this topic. And you have the
ability in enacting this to perhaps ratify the TSCA CBI treaty
of 2014 and resolve this war. And that has got to be a success
story in any case.
Thank you for your time.
[The prepared statement Mr. Greenwood follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. I thank you. And now, I would like to
recognize Dr. Sauers for 5 minutes.
STATEMENT OF LEN SAUERS
Mr. Sauers. Um-hum. Chairman Shimkus, Ranking Member Tonko,
members of the subcommittee, thank you for inviting me to
testify today. My name is Len Sauers. I am Vice President of
Global Sustainability, Product Safety and Regulatory Affairs at
the Proctor & Gamble Company. P&G is the largest consumer
products company in the world. And our products are used by
more than 4.8 billion people worldwide. Ninety-nine percent of
American households contain at least one P&G product.
Since our founding in 1837, innovation has been integral to
everything we do and critical to our success. At P&G, we
believe innovation is our lifeblood. I congratulate and thank
the subcommittee for continued bipartisan collaboration to
further refine and improve the draft legislation. We firmly
believe that any legislative effort to modernize TSCA must have
a strong foundation built on common ground from a broad range
of stakeholder interests.
The time for action is now. A strong and effective Federal
chemical management program will lessen pressure on States or
markets to independently take action to regulate chemicals.
Enhancing consumer confidence is P&G's single most important
objective for modernizing TSCA. We recognize and hear from our
consumers that they are concerned about chemicals used in
everyday products. We believe a modernized TSCA will strengthen
public confidence in EPA's oversight of the safety of chemicals
used in the everyday products that consumers bring into their
homes and use around their families.
The latest discussion draft makes some very important
improvements over the current statute. For example, CICA
requires EPA to identify and account for active chemicals in
U.S. commerce, and then apply transparent criteria to
prioritize them. CICA instructs EPA to conduct a risk
evaluation of high-priority chemicals to examine their probable
or demonstrated harm to humans or the environment, with
attention given to the most vulnerable subpopulations
potentially exposed by these priority chemicals. CICA
expressively prohibits EPA from considering economic costs and
benefits in their risk evaluation for priority chemicals, which
is a noted improvement over the earlier discussion draft and
acknowledges the common ground reached by industry and NGO
stakeholders that a new safety standard in a modernized TSCA
should be health-based only.
EPA subsequent regulatory actions must impose requirements
or restrictions that sufficiently and effectively manage the
risk, while carefully evaluating practical consideration to
assure market benefit and continuity. And importantly, CICA
offers new authority for EPA to collect additional information
on chemicals in commerce when such information is most useful
to the Agency in decisionmaking.
Another important element of the proposed CICA act is
support for innovation through protection of confidential
business information. Proctor & Gamble invests $2 billion
annually in research and development. It is 60 percent more
than our next closes competitor, and more than most of our
competitors combined. Once we bring new products to market, we
have significant interest in protecting our confidential
business information from public disclosure to our competitors.
Appropriate protections for confidential information allow
innovative companies to succeed, and for P&G to earn our
consumers trust and loyalty. We rely heavily on the protection
of confidential business information afforded by Section 14 of
TSCA to remain competitive.
We recognize that EPA has to carefully balance the
protection of confidential business information under TSCA,
with providing public access to health and safety information.
P&G fully supports transparency with health and safety
information, and the disclosure of confidential information to
States and medical professionals to assist with the diagnosis
and treatment of illnesses. The discussion draft appropriately
authorizes EPA to disclose such information.
We also strongly support provisions to the discussion draft
that provide adequate protection for confidential chemical
identities, even when associated with a health and safety
study. A specific confidential chemical identity is not needed
to conduct a health and safety study, interpret its results, or
communicate the study's observed health effects and conclusion.
Structurally descriptive, generic chemical names are sufficient
to provide the public with information about the structure of
the chemical and its hazard profile, which in turn provides a
linkage and access to publicly available scientific and
toxicological literature on structurally related materials.
In our industry, confidential chemical entities are often
the most valuable type of intellectual property. Disclosure of
a specific confidential chemical entity can provide watchful
competitors with clues needed to replicate our product
formulations. P&G agrees with other industry stakeholders that
CBI protection must be properly substantiated at the time of
the initial claim, and upon EPA request to renew or extend the
duration of protection. We support the CICA provisions that
address the need for upfront substantiation of CBI claims for
confidential chemical identities and encourage the authors to
consider broadening the requirement.
Mr. Chairman, Ranking Member Tonko, thank you again for the
invitation to testify this morning. We believe the time to
modernize TSCA is now.
[The prepared statement of Mr. Sauers follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you. Now, the Chair now recognizes Mr.
Goldberg for 5 minutes.
STATEMENT OF STEVEN J. GOLDBERG
Mr. Goldberg. Thank you. Chairman Shimkus, Ranking----
Mr. Shimkus. I think there should be a button for that.
Mr. Goldberg. Chairman Shimkus, Ranking Member Tonko,
members of the subcommittee, thank you for this opportunity. I
am Steve Goldberg, Vice President and Associate General Counsel
for Regulatory & Government Affairs at BASF Corporation. BASF
Corporation is the North American arm of BSF Group, which is
the world's largest chemical company.
BASF Corporation supports modernization of TSCA. We believe
substantial progress has been made towards that goal by the
most recent draft of the Chemicals in Commerce Act. And we
appreciate the subcommittee's focus on this important matter,
and are grateful for the opportunity here before you--appear
before you today.
A number of key principles and concepts for TSCA
modernization are the subject of agreement among a wide variety
of stakeholders, including the fact that TSCA should provide
for additional authority for EPA to review and manage risks
from existing chemicals on the market as it has successfully
done for new chemicals since TSCA's inception. A prioritization
process is an appropriate way for EPA to commence reviewing
existing chemicals in order to ensure its resources are spent
in the most efficient way.
EPA requires additional authority to call for testing of
chemicals where existing data is insufficient to permit
reasoned conclusions either as to priority status or to make
risk assessments. And the appropriate approach for a safety
assessment of chemicals is a risk-based standard that is one
that takes into account not just hazards but also exposure and
use in order to leave to safety conclusions.
And while I am not testifying on their behalf today, while
I participate in the chemical management teams at American
Chemistry Counsel, I also do so at the leading downstream
associations, the American Cleaning Institute, Consumer
Specialty Products Association. And those associations are
committed to participating in this process to provide
appropriate use data so that the standard can be risk-based,
not just hazard-based.
The benefit and cost considerations are not appropriate
when making a safety assessment, but are critical in deciding
the appropriateness of risk management measures. As discussed,
there should be appropriate protections for CBI. And, finally,
EPA will require sufficient resources to be able to fulfill its
mandate in a timely manner under a modernized TSCA.
While provisions in the proposed bill on use exposure data
and resource needs require some fleshing out, overall we are
pleased that the updated CICA is directed towards meeting these
principles and is a substantial improvement over current law.
While all these subjects are important, I want to focus on the
subject raised by Mr. Dingell, and that is the issue of
resources.
Ultimately, one key to success of a modernized TSCA is
ensuring that EPA has the resources to do its job. And there
was extensive discussion about how many chemicals it could
review and what sort of time period. Ultimately, a program that
provides EPA the authority but not the resources to do that job
is a losing proposition for the chemical industry, our
customers and the public. And so the program posited by the
CICA clearly will require additional resources in EPA's Office
of Pollution Prevention and Toxics to allow this program to
work.
Having been extensively involved in development and
implementation of a pesticide fee system under the Pesticide
Registration Improvement Act, which has been in place at EPA
for about 10 years, I can provide some perspective on the
possible application of a fees approach as part of increasing
the resources for EPA to meet the needs of the program. And
those feed provisions generally revolve around a number of,
again, commonly held principles. That is fees charged must be
dedicated to the program itself, not to the general treasury or
other programs within EPA. And those fees generally should go
for adding FTEs within EPA. Fees need to supplement not replace
appropriations for the functions of chemical safety review.
They need to be reasonable in amount and such that will not
stifle innovation, which is critical to our industry. A fee
should be focused on activities that provide a direct benefit
to the person being charged. A fee system needs to take into
account small business considerations. And, lastly, the Agency
needs to be accountable and transparent about how those fees
are being used.
Ultimately, while PRIA provides some direction for possible
approaches towards meeting resource needs in the chemicals
area, it is a somewhat imperfect model. It is a different type
of statute. It is a product registration statute instead of a
substance statute, as more fully noted in my written testimony.
However, there are some models I think that will help.
So while there are things to be learned from the experience
with PRIA, ultimately a fee program for chemicals needs to be
based on any processes called for in TSCA and under the CICA,
and requirements of a chemical management system.
Industry is prepared to discuss the need for additional
fees in this particular context, if it meets those principles I
enunciated. And BASF stands ready to help inform Congress'
consideration of the resource needs of the Agency, including
appropriate fee approaches.
And we thank you very much for your consideration.
[The prepared statement of Mr. Goldberg follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. All right. Thank you for attending. And the
business community obviously represents their customers. It is
great to have a State senator here who has constituents. I
think there is obviously members, who are legislators also,
have great respect for anyone who puts their hat in the ring
and runs for political office. So I would like to recognize
Senator Michael Moore from the Commonwealth of Massachusetts.
And you are recognized for 5 minutes.
STATEMENT OF MICHAEL MOORE
Mr. Moore. Thank you very much. And it is an honor to be
here today. Chairman Shimkus and Ranking Member Tonko and
distinguished members of the subcommittee, as a member of the
Massachusetts State Senate and a member of the National
Conference of State Legislators, I speak today on behalf of the
NCSL, a bipartisan organization representing 50 State
legislators and the legislators of our Nation's commonwealths,
territories and the District of Columbia. I thank you for the
opportunity to testify today.
Mr. Chairman, while the NCSL encourages Congress to reform
and modernize TSCA, we must insist that any changes do not
eliminate States' abilities to protect the health and safety of
their citizens through sweeping Federal preemption. CICA
preempts nearly 40 years of State policy in an attempt to
provide a one-size fits all approach to toxic chemicals
regulation. To strip States' residents of protections enacted
by their elected officials would be a serious breach of State
sovereignty and will leave everyone more susceptible to
increased harm from toxic chemicals.
CICA would essentially eliminate the ability of State
policymakers to regulate toxic chemicals at the State level by
divesting all authority away from States and localities and
placing this authority solely with the EPA administrator. This
approach may have adverse effects on State regulatory
structures, which I detailed in my written testimony.
CICA may also have unintended and adverse consequences that
extend into the other areas of State environmental regulation.
Air and water quality in States like New York may suffer
because of current language does not explicitly exempt State
pollution laws. In the absence of Federal action to address
issues related to TSCA, lack of--TSCA's lack of revision, half
of the States, including the Commonwealth of Massachusetts,
have enacted legislation to regulate individual chemicals.
Nearly one-third of States, including Massachusetts, have
developed comprehensive State chemical regulations. The CICA
would preempt all of these laws. I have attached a chart
detailing the laws adversely impacted by CICA with my written
testimony.
Throughout my career in public service, I have seen the
benefits of State and Federal chemical policy firsthand. As a
State environmental police officer, I worked under the office
of the State attorney general's environmental strike force to
investigate crimes associated with illegal chemical practices.
The State plays a vital enforcement role in chemical incidents
as the primary investigatory authority in these matters, often
coordinating with several Federal and State organizations to
ensure a safe and efficient response. For 18 years, I
investigated serious violations of State law that had
significant impacts on local communities.
In 1993, I was involved with a case in which a metal
manufacturing plant failed to use standard procedures when
disposing of residual sodium, resulting in an explosion. Beyond
these basic failures, fire fighters responding to the blaze
were significantly injured due to inexcusable mistakes. This
included a failure to warn responding officers about the
current state of the involved chemical, which explodes upon
contact with water. When firefighters began routine containment
procedures, a larger explosion occurred and several were
critically burned through their protective gear by the reacting
chemical. Through the Attorney General's strike force,
Massachusetts was able to hold the responsible party
accountable and bring justice to those injured in the incident.
Without State participation, enforcement of a chemical
policy would be nearly impossible. But current CICA language
would drastically hinder State enforcement. By eliminating
State ability to enforce laws that are comparable to the
Federal standards, the responsibility of holding violators
responsible would fall primarily on the Federal Government.
States embrace the opportunity to provide an improved safety
for their residents and the environment and accept this burden.
But preemption language in CICA significantly endangers the--
that enforcement ability.
When I became a State legislator, it became more apparent
how intricately States must be involved in chemical policy.
The--TSCA has not been updated for nearly 40 years, and States
have acted to pass laws that complement the Federal policy. All
of these State laws would pass with the welfare of the public
in mind. Beyond the host of Massachusetts' law that provides
increased protection from toxic chemicals, several communities
in my district are currently experiencing difficulties in costs
associated with Federal preemption of railroad operations. That
really adds--I commend the subcommittee for their commitment to
business and interstate commerce in this draft, and understand
the motivations for a uniform Federal chemical policy to
promote these goals. However, the advancements of these ideas
cannot come at the expense of public and environmental safety.
I share the residents' belief that approximately--I share the
residents' belief that live on the other side to the potential
spills--to the potential problems of spills entitles them to a
measure of involvement in ensuring chemical safety. When 100
gallons of a chemical called Styrene, used in the manufacturing
of Styrofoam, was spilled in one of these preempted yards, a
cooperated effort of rail yard employees and workers from State
municipal agencies were responsible for the cleanup. The
incident was handled safely and professionally by all involved
parties with only minor complaints of irritated eyes and
lingering smells. However, if a rail yard is federally
preempted from State law, and chemicals being transported are
preempted, the citizens of these communities have no recourse
to protect their homes and families from future spills. There
must be a balance struck between the benefits of interstate
commerce and the need for public safety. State legislators have
and must continue to play a role in chemical policy in order to
reach that balance.
The NCSL encourages Congress to reform and modernize TSCA,
but does not believe that the CICA adequately accomplishes this
goal. At a minimum, the NCSL believes proposes TSCA reform
legislation should embody the elements outlined in the NCSL's
Federal Chemical Policy Reform directive, which is attached to
my written testimony. Most notably, any reform of TSCA should
preserve State rights to manage chemicals and resources, and
should be provided for the State level implementation.
And I thank you for this opportunity and look forward to
any questions.
[The prepared statement of Mr. Moore follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you. And now, I would like to recognize
Mr. Igrejas for 5 minutes.
STATEMENT OF ANDY IGREJAS
Mr. Igrejas. Thank you very much, Mr. Chairman. Safer
Chemicals, Healthy Families is a nonpartisan coalition of
health, environmental labor organizations and businesses. We
came together to do TSCA reform in a meaningful way, and we
remain committed to that. I appreciate the opportunity to
testify. And I especially appreciate the process you followed
of having discussion drafts before going forward with a formal
bill. And I want to use the opportunity to encourage a
different course before you do that.
We took this very seriously. We had a team of experts
review the new draft. And we did note improvements. So I want
to point them out so you don't have to do it for me. The
testing authority is an improvement. The getting rid of the
best available science definitions, the definitions of adequate
information, et cetera. But we were still unanimous in our
analysis that the improvements don't alter the bottom line,
which is that when you take the ambitious preemption in the
bill--the sweeping preemption, with the things that have rolled
back pieces of Federal law, and then the fact that the things
that I believe you intend as improvements in the bill, are
still not there in our analysis. The net effect is to go
backward. That is what we--that is our analysis of the bill
still.
The first question we asked our self, will the EPA be able
to impose restrictions on unsafe chemicals under the bill? And
we came to the same conclusion that Jim did, that even though
you have separated the assessment from the decision on risk
management, the bottom line there is still that EPA has to
prove something, too much like what it has to prove now, which
has been shown to be unworkable, in order to impose the
restrictions needed to ensure safety. And I hope you will agree
that is a threshold issue that we have to solve, and I think we
want people outside of the chemical industry concurring that it
has been solved before we go forward.
The second questions is does the bill establish a clear
idea of safety that we can all be sure will protect pregnant
women and children? And I think our answer again was no. I did
want to credit that the assessment is now clearly health-based,
and there is a foothold for some key concepts like vulnerable
populations, aggregate exposure, et cetera. But they are not
lined up in a way that assures the protection for pregnant
women and children. And this term significant risk, which may
turn out to be an improvement or something that we can work
with, it is still unclear what that means. And we want to make
sure it is clear.
The third question was does it improve or diminish the
oversight of new chemicals? And this is where we are still
perplexed over all that--our position, and I think most
people's sense, is that new chemicals should be made to be
safe--shown to be safe before they get on the market. That is
the administration's principles. It is how a lot of people when
they first get into this issue, they think chemicals work like
drugs, and they are surprised that it doesn't work that way,
and they think it should work that way. But we were--and the
chemical industry has always said the new chemicals program, as
it is, works fine. But we do see some rollbacks in that
authority here.
They have limited authority to--and criteria whereby they
can order development information and pose some risk
management. And the new draft restores one of those, but still
takes back a couple of those pieces of authority. We would like
to see that removed.
We also asked will this increase the transparency and
public confidence, which is a goal that has been even unstated,
the industry is has enunciated. And our answer was no, again. I
think the draft adds a layer of murkiness. And this has come
up. For the first time, you explicitly allow the delinking--or
require really the delinking of a chemical from the health and
safety study--the chemical identity from a health and safety
study that might implicate it as having health concerns. And
that really does mean you could have a secret carcinogen on the
inventory. That would be very hard for the public to track, is
this being managed well? And I think the idea of public
confidence is that when chemicals do have problems, we can see
how they are being managed. And so that is going to be
something that will undermine transparency.
The low priority designation, if it worked the way it was
reference by one of the members, I forget if it was Mr. Latta,
that it was just in ordering, what EPA is going to get to
later. But because of the remaining links preemption here that
it is not just EPA saying we are not going to look at this now,
but we are going to prohibit States from looking at it in the
future. All on the basis of this likely to be safe, as opposed
to that they found it to be safe, I think that that would be
interpreted by many in the industry as basically a hall pass
that people will want that. This is sort of a promise this
chemical will never get looked at. And the first time something
bad ends up somewhere that we don't want it, we are going to
have a scandal. And the credibility of the whole program I
think, and what the safety means, will come down. The
preemption has been discussed in some detail. We agree with the
comments that it is sweeping and overly ambitious. And so we
would urge a different approach in the bill.
I have engaged in a lot of dialog with people in industry
on a lot of these issues. Part of our reaction is that we don't
see a lot of what I had seen as ideas that have come out with--
for more common ground approaches reflected in these drafts.
And perhaps it is time to focus in on some key issues. And I
think those would be is there a definition of safety that we
can all understand and get behind, and not just my coalition
but the folks in the medical community, the pediatricians,
others that have weighed in on that subject. Is there clear
authority that everyone agrees the EPA would have to impose
conditions needed to ensure safety? Is there a schedule and
resources that we know are making meaningful progress at the
Federal level? And maybe that would be, you know, good for
government work right there. Some real progress, but nothing
that goes backwards. That is what we would be looking for.
So I would encourage that approach, Mr. Chairman. And thank
you very much.
[The prepared statement of Mr. Igrejas follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Appreciate your testimony. And, again, we
welcome all our panelists. And I recognize myself for the first
5 minutes for questions.
I guess I would like to start with this cost-benefit
analysis that Mr. Jones had testified briefly on, and that
whole discussion near the end of the first panel, and offer
anyone a chance to make a comment on it.
Mr. Greenwood, you look like you are ready to do that.
Mr. Greenwood. Well, one of the things actually I mentioned
in my testimony was when you talk about cost-benefit analysis
and this unreasonable risk standard and what it means, I think
it is useful to consider the fact that just a month ago, EPA
proposed a new rule. This is under the FIFRA Statute for
pesticides, but it is under an unreasonable adverse effects in
the environment standard, very similar to unreasonable risk
standard--proposed a set of very protective new standards for
farmworkers, and explicitly indicated that this is to deal with
some very serious effects on farmworkers, their families, on--
to address the issues in environmental justice, and articulated
this as part of the unreasonable risk standard. These are
legitimate qualitative factors to consider. There was a cost-
benefit analysis done.
Interestingly enough, the cost-benefit analysis showed that
if you purely look at the monetized costs and benefits,
actually the regulation--the cost exceeded the monetized
benefits. However, the government decided that because of the
qualitative benefits, which can be considered in cost-benefit
analysis, this was a justified rule, and it was a rule that met
the unreasonable risk standard. So I think we have to be very
careful, assuming that the mere existence of a cost-benefit
analysis or unreasonable risk necessary leads to a less
protective set of standards.
Mr. Shimkus. Mr. Dooley?
Mr. Dooley. If I can just add on to that? And that is--I
use the example of the mercury in the light bulb. You know, if
you didn't have a cost-benefit analysis that considered, you
know, the societal benefits, the environmental benefits, you
could well have this product never brought to market. And I,
you know, find it a little bit frustrating with Mr. Jones'
testimony is that when he cited the EPA's principles, and even
in his written testimony, he makes a very clear statement that
they--for when chemicals do not meet the safety standard, they
need to have the flexibility to consider children's health,
economic costs, social benefits and equity concerns. They are
saying that you need a cost-benefit analysis. That is
consistent with President Clinton's Executive Order. It is
consistent with President Obama's Executive Order. And it is
consistent with the language in your discussion draft on page
45, which states ``determine whether technically and
economically feasible alternatives that benefit human health or
the environment, compared to the use proposed to be prohibited
or substantially prevented, will be reasonably available.''
This comment that Mr. Jones had that you have to weigh one
alternative to another is not embodied in the draft legislation
that you have presented to this committee.
Mr. Shimkus. Thank you. Let me move on. I will never get
through all the questions. But for the Senator, does this
bill--and CERCLA is our Superfund Federal legislation, CERCLA
and Superfund are two Federal pieces of legislation--does this
bill exempt any of CERCLA and Superfund from regulation?
Because--why I say that is, in your comments about spills, that
is all under CERCLA. And that is all under Superfund and
remediation and the like. So my point is, those things aren't
going to be exempted under this piece of legislation. And it is
an apples and oranges comparison. And I just wanted to----
Mr. Moore. That comparison may be--I would have to go back
and research whether the Superfund and CERCLA is. But,
actually, as my panelists--fellow panelist up here just
presented the fluorescent light. Massachusetts actually just
passed a recent mercury ban. So the question is in
Massachusetts, would this----
Mr. Shimkus. Yes. So no fluorescent light bulbs in
Massachusetts?
Mr. Moore. Oh, no. We have fluorescent light bulbs.
Mr. Shimkus. But there is mercury in there?
Mr. Moore. Right. But there is a mercury ban that has been
in place. And the Massachusetts law regarding the mercury ban
would actually be preempted. So that is a law that
Massachusetts actually passed that you preempted.
Mr. Shimkus. OK. Well, thanks. Now, I have lost all control
over the direction I was going to go. Let me move to Mr.
Greenwood. Some of the people involved in this debate have
strong feelings about Federal preemption. We just started
talking about that. Why is it important to address preemption,
and do you think the discussion draft takes the right task?
Mr. Greenwood. Well, I think it is very important to
address preemption. And I--but I would say it in the following
way. It is important because that I think it is an increasingly
important issue that needs to be teed up, actually for
international purposes. And here is the context. Obviously, the
United States, we get nervous about anything that goes to
preemption, because it goes to key principles of the history of
our country. But in the world of chemical management across the
world today, we are facing a series of different kinds of
controls from other parts of the world. There is a--we want to
have at some point some kind of consistency of standards across
borders. Obviously, within the country. But more and more the
threat of making that very hard to do is the fact that we have
countries around the world with their own chemical programs.
In the case of Europe, we have got a set of standards in
reach that cover a continent. And if you are going to try to
advance the interest of the United States and engage with the
other parts of the world as your trading partners, you have to
have a consistent position. The ticket for entry in that
discussion is one country, one voice. You have to be able to
say we are here as the United States with our position in
dealing with other countries and with European community. And
our trading partners don't not want to negotiate with the
individual States in the United States. They are expecting the
Federal Government to speak for the country.
So at some point, one of the things that needs to be
considered here is how preemption or other mechanisms that try
to get people, the State regulators and the Federal regulators,
on the same page for purposes of these discussions will factor
into how TSCA is designed.
Mr. Shimkus. Yes. And I appreciate. My time is far expired.
And I would like to now turn to Mr. Tonko, the ranking member,
for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair.
Earlier, EPA told us that the discussion draft fails to
address some key elements of meaningful chemical safety reform,
and in some way weakens current--in some ways, weakens current
Federal law. That alone should give us pause. But the bill also
includes sweeping preemption of State and local laws.
Essentially, the bill completely ties the hands of State
and local regulators to protect human health and the
environment from toxic chemicals in commerce.
Senator Moore, I would like to explore the potential
impacts of this preemption language with you. In your
testimony, you mentioned that the State of Massachusetts--the
Commonwealth of Massachusetts has passed several toxics use
reduction laws, including a comprehensive chemicals management
program requiring companies to develop a plan for pollution
prevention. Why did Massachusetts develop this program, and
were the Federal programs inadequate?
Mr. Moore. Well, obviously in Massachusetts, we are looking
at the needs of our--we determine to be the needs of our
commonwealth, and what we determined are going to protect the
welfare and the safety of our citizens, and protect the
environment. So we are looking at our State and how we think we
should move forward in a comprehensive process of addressing
chemical use.
Mr. Tonko. So does that suggest the Federal programs were
inadequate?
Mr. Moore. I don't want to say inadequate, but I think
everyone can admit that the EPA is--with the amount of work
that they have to do, they are overtasked. There is a lot of
responsibility put upon them. And from previous testimony,
what, there is 80--84,000 chemicals that right now have not
been analyzed or looked at by the EPA.
Mr. Tonko. Has this program helped reduce toxic chemical
use in your home State?
Mr. Moore. Yes. Yes, I don't have the exact figures. But I
can tell you it has reduced toxic chemical use.
Mr. Tonko. And Section 17 of the discussion draft contains
extremely broad language that preempts States from implementing
laws and regulations that require the collection of information
about chemical substances, or that restrict or prohibit the use
and manufacture of those chemical substances. Senator Moore,
how could this language affect your ability as a State
legislator to serve your constituents?
Mr. Moore. Well, I think if we are going to be looking at
State laws to protect the welfare of our citizens and the
environment, and looking for our State regulatory agencies,
Department of Environment Protection, I think having access to
information is going to help up develop policies or State laws
and regulations that are going to adequately support that need.
Mr. Tonko. In addition to preempting existing State law,
Section 17 of the discussion draft preempts State and local
governments from passing new laws in the future to protect
human health and the environment from toxic chemicals in
commerce. That is putting a lot of faith in success of our
Federal program. Senator Moore, are you confident that the
Federal program envisioned by this bill would be sufficient to
protect human health and the environment from toxic chemicals?
Mr. Moore. From what I know of the legislation, at this
point, I wouldn't not say so. Again, I--the concerns I have is
that there are a lot of responsibilities put upon the
Environmental Protection Agency from reviewing new chemicals to
reviewing existing chemicals. I don't know what the resources
that they would have to actually adequately perform this
function.
Mr. Tonko. So then how do you see this as best working?
What role should the State play, and what role should the
Federal Government play?
Mr. Moore. I think they should work hand in hand. As
discussed, I think government and business should work hand in
hand in the promoting of interstate commerce, the promoting of
business. I think the Federal Government and State government
should work hand in hand, working off each other's best
practices and moving those initiatives forward. I don't think
any one entity can do it alone. This is--I know the panel has
said that, you know, when you are dealing on international
trade issues that they want to know what the policies of the
Federal Government. Well, State government also has--when we go
abroad on trade issues, they want to know what State issues are
being put forth. And we--in conjunction, we have to work with
our Federal partners. But we are not always putting--States are
not always putting forward the initiatives being sought by the
Federal Government. So there is different initiatives that each
State are going to be looking at.
Mr. Tonko. Well, I appreciate your testimony and that of
the panelists. I agree that the best model is one that sets a
strong Federal minimum standards, but allows our States to
enact standards that respond to local needs and go above and
beyond Federal law to protect human health and the environment.
And with that, Mr. Chair, I yield back.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the gentleman from Ohio, Mr. Latta, for 5
minutes.
Mr. Latta. Thank you very much, Mr. Chairman. And thanks
very much to our panelists for being here today. We really
appreciate your time and your presentations.
Dr. Sauers, if I could start with a question to you. With
TSCA regulating chemicals and of course, in the U.S. commerce,
many of which become ingredients in consumer products, are
there other departments and agencies out there that have
authority over the safety of those packaged consumer products
that are used in the home? And if so, would you explain the
role of those other U.S. departments and agencies, and how that
regulatory jurisdiction compares to what we are discussing for
the EPA under TSCA?
Mr. Sauers. Um-hum. Yes, Congressman, thank you. The
Proctor & Gamble Company makes a whole host of consumer
products. We make drugs, food products, beauty care products,
laundry detergents, things like that. And different agencies
regulate different products. So if I think of our food
products, beauty care products, cosmetics, drugs, those are
regulated by the FDA. So chemicals that go into those products
that are solely used in those products would not be regulated
by TSCA. They are regulated by the FDA.
Now, for those chemicals that go into say laundry
detergents where the EPA would have a jurisdiction and would
regulate those chemicals, the use of the chemical in the
finished product is regulated by the Consumer Products Safety
Commission. And they are the ones that regulate the use of
hazardous chemicals in those products. So if something were to
be declared say toxic, you know, by EPA, it would probably fall
within the definition of hazardous within the Federal Hazardous
Substances Act, which the CPSC administers. And then the CPSC
would then have a jurisdiction for labeling on the product,
banning the use of the material. You know, if the felt that
labeling could not ensure safe use of it for a consumer, they
could ban the use of it there.
So there is a whole host of regulatory agencies overseeing
these things.
Mr. Latta. Well, let me follow-up. Suppose if the EPA
determines a chemical as a low priority. And as set aside under
TSCA based on the EPA's knowledge of the chemical's limited use
in the industrial environment, and that chemical may have
significant hazardous properties, but the EPA understands there
is a limited exposure to the chemical and the exposure is well
managed by occupational controls, would prevent a consumer
product manager, like yours, from using that low priority
chemical in an everyday product used by families in the home?
Mr. Sauers. Um-hum. If it was a chemical that was regulated
by TSCA, then the Consumer Products Safety Commission would
come into effect with its use in a finished product. And if it
indeed was say a low priority chemical for which there was
toxicity associated with--you know, a toxic--a potential--it
would then be declared as hazardous by CPSC, and then there is
a whole host of criteria on how hazardous materials are then
handled in finished consumer products. There is a whole host of
labeling requirements that would be on something like that. And
the Agency could also ban the use of a product if they felt
that the labeling would not protect the consumer.
Mr. Latta. Mr. Goldberg, some people have been arguing that
the United States needs a TSCA that mirrors REACH. Your
company's a global company. So would you argue that having the
same system would be in your interest?
Mr. Goldberg. Since we deal with so many different regions,
I think we realize that we have to live in and adapt to
regional differences in the context of chemical management
programs that fit the levels of both of protection, which
hopefully from the BASF standpoint are consistent along all
those regions, but also the individual regional differences
that exist. And so while certainly from some degree we would
all love, in the abstract world, harmonization that made it
easier to live with. The fact of the matter is there are
differences. And the schemes among these various regions can be
very different. REACH is a very, very different scheme, even
down to its basic nature, than TSCA is. And so while there are
learnings--and as Mr. Jones said, there are some benefits that
we can take moving from region to region, for example sharing
of data, at the end of the day, we realize the need to adapt
and be responsive to individual chemical management regimes.
Mr. Latta. So you agree that it would be important for the
U.S. to have a system that is unique just to the United States?
Mr. Goldberg. Yes. I mean, in the context of the European
system, for example, it is not a chemical management system the
way we think of it here. It is really largely an--at least it
started information gathering system that is registrant- or
company-based, as opposed to a substance-based system that we
have here. Changing that would require a rather dramatic
overhaul. And as I have discussed with some of my colleagues,
even in the environmental community, it is not a system I think
that adapts itself well necessarily here.
Mr. Latta. OK. So you think the lessons of REACH that the
United States should avoid in TSCA would be this adapting well?
Mr. Goldberg. Well, I think there are a number of lessons
we have learned about REACH, including the bureaucracy that has
revolved around it, the costs--ongoing costs involved, which
have not necessarily established themselves with measured
levels of protection, because to date it has been about
information gathering and not about risk management. And the
goals of modernizing TSCA, as I said as one of my principles,
is to provide EPA with additional authority to adequately
manage risks.
Mr. Shimkus. Gentleman's time has well expired.
Mr. Latta. Thank you very much, Mr. Chairman. My time has
expired, and I yield back. Thank you for your indulgence.
Mr. Shimkus. The Chair now recognizes the gentleman from
California, Mr. McNerney, for 5 minutes.
Mr. McNerney. I thank the chairman. I also want to make
sure the chairman understands that we appreciate your
bipartisan effort. I don't think we are there yet, Mr.
Chairman. But if we keep working together, we will get there.
One of the things--I mean, there is a lot of reasons to
want to change and improve TSCA. One of them I think is that
there is a lack of confidence in the public in chemical safety
in this country. And I think that is a problem that the
companies, the businesses would want to address firmly. And it
is one of my concerns with the Chemicals in Commerce Act is
that it may actually go in the wrong direction, reducing
public's confidence in our chemical safety in this country.
Mr. Igrejas, would you respond to that?
Mr. Igrejas. I think that is the concern. And it is why we
counseled that we really focus in on the idea of safety--a
definition of it, and the standards that the public health
community, and not just the ones I represent but other folks,
the American Public Health Association, the pediatricians,
others all agree it is something that would protect people.
Legal authority to then implement what is needed to protect
people after review against that safety standard, and funding
and direction for EPA to make progress in making those
decisions. And that is what we still don't see in this bill
because of the issues that have--that came up in Mr. Jones'
testimony. And so we are concerned about that.
And then there is also--there are areas where some of the
tools that EPA uses right now to provide protection for people
are rolled back. We have highlighted the new chemicals program.
And these tools are not ones that we think do the jobs to
protect people from new chemicals, but they are at least there.
EPA has sort of stitched together the ability to order testing
and impose restrictions at different times. But some of that is
rolled back.
And then you have the increase in secrecy on chemicals in
the bill with the explicit requirement that identity is hidden,
even when it is linked to a health and safety study. And so I
think that those things--well, we need to beef up the first
thing and pull back on the other things I mentioned where the
existing program is pulled back.
Mr. McNerney. Thank you. Mr. Moore--or, Senator Moore, the
right to know laws are often used by States to protect their
citizens. If this provision is stripped, how do you think it
will affect the NCSL's work in ensuring public safety?
Mr. Moore. We would have to look at the implications of the
State involved. I guess we couldn't look at it on a State by
State basis, because this would then preempt the States having
a right to implement the Right to Know law. So it is not even
an issue that you could go back to each State legislator or
administrator and--how do we get around this? If this
preemption applies to the Right to Know law, there is nothing
that the States could actually do to protect the public safety
employees or workers who are being exposed to these types of
chemicals.
Mr. McNerney. OK. Thank you. Mr. Sauers, my understanding
is that Proctor & Gamble is working to reduce animal use in
testings. Do you--how do you feel that fits in with chemicals
and safety--Chemicals in Commerce Act?
Mr. Sauers. Um-hum. Yes. Thank you, Congressman. Yes, we
are very sensitive about the use of animals in safety testing.
As a company, we invest about $350 million on the development
of alternatives. We appreciate very much the provisions that
are stated in here that promote the use of animal alternatives,
using structure activity relationship and things like that. So
it is well represented and appreciated.
Mr. McNerney. OK. Thank you----
Mr. Shimkus. Would the gentleman yield for a preemption
question?
Mr. McNerney. Sure.
Mr. Shimkus. Because I think this--there is a lot of
confusion. And so for Mr. Greenwood, how does--how do you think
the preemption works? Does it, as we have heard, completely tie
the hands or does it just preempt as the EPA acts on individual
chemical--on an individual chemical?
Mr. Greenwood. That has been my--the latter point is what
I--my understanding. When EPA acts, then there is the
indication of the preemption. But it has to be the action of
the Agency, which then accomplishes----
Mr. Shimkus. So if there is no action, there is no
preemption?
Mr. Greenwood. No. That is my understanding. That is how I
have read the bill.
Mr. Shimkus. OK. And thank you. Thank you, Mike. And----
Mr. McNerney. I am going to yield back.
Mr. Shimkus. The gentleman yields back. The Chair now
recognizes the gentlelady from California, Ms. Capps, for 5
minutes.
Mrs. Capps. Thank you, Mr. Chairman. And I thank this panel
here for being here today with us. And I particularly want to
welcome a former colleague, Cal Dooley, with whom I was
privileged to serve in the House of Representatives in
representing a lovely district not very far from my own home.
And it is a pleasure to have you be a part of this panel.
As we heard from the first panel, the bill before us fails
to require protection of vulnerable populations in managing
identified risks of existing chemicals. This fundamental flaw,
in my opinion, could put women, children, the elderly, the
disabled, workers and residents of hotspot communities at
serious risk. Any TSCA reform bill this committee considers
should really ensure the protection of vulnerable populations.
And I would like to begin by discussing the specifics of
how we could ensure that protection. I have asked some
questions of our EPA witness about specific requirements. I
want to follow-up on that with you, Mr. Igrejas. Mr. Igrejas,
do you think that a chemical that is dangerous to a vulnerable
population should be able to pass the safety standard under a
reformed TSCA?
Mr. Igrejas. No.
Mrs. Capps. Can you explain whether the current draft
offers that protection?
Mr. Igrejas. We think it doesn't provide the protection.
Mrs. Capps. Does your coalition, Mr. Igrejas, believe that
risk management decisions must ensure that significant risks to
vulnerable populations are addressed?
Mr. Igrejas. Yes, we do.
Mrs. Capps. And does the current draft ensure that
vulnerable populations are protected from the risks identified
when evaluating existing chemicals?
Mr. Igrejas. We believe that it does not. I could get into
the details, but it does not.
Mrs. Capps. Well, I will give you a chance to do that. Are
there some specific changes that you would recommend that we
need to include in such legislation as reforming TSCA to ensure
strong protections for vulnerable populations?
Mr. Igrejas. Well, one of the key ones is the--right now,
the assessment does specify that they look at vulnerable
populations, but against the standard that we still don't know
exactly what it means in the bill. And I think we have
identified that. It doesn't require that you aggregate the
exposure to the vulnerable populations. And that is the key
issue, because there might be multiple vulnerable populations
for the same chemical. If you look at flame retardants, you
have firefighters who now have a cancer prevention project that
is about their disproportionate exposure to these chemicals
when they go into fires. That is higher exposure for an adult.
Then you might have children where there is the smaller amount
of exposure could cause harm when the chemicals are used as
directed in the home. And you want to make sure that the EPA is
mapping the exposures--all the exposures that either of those
groups has against them, and then devising the restrictions to
make sure that they can only be used in a safe way and that the
harm isn't occurring. And I think the absence of aggregate
exposure in the assessment--and then the key thing that was
talked about a lot in the discussion by Mr. Jones is if EPA
ultimately can't impose the restrictions needed to ensure the
safety, then a lot of that is academic. You don't want to have
all this risk identified and then not be able to actually go
ahead and impose the restrictions.
Mrs. Capps. Um-hum.
Mr. Igrejas. So for those reasons, we think that it does
not. Even though vulnerable populations and a decent definition
of it are in the bill, they are not actually protected by all
the provisions.
Mrs. Capps. So it looks like there is some technology or a
capability of identifying the risks and of actually, at least
better than we are now, mitigating them. Would that be your
assessment? Is that----
Mr. Igrejas. That definitely is. I think the--I cite the
model of the pesticide program. And we can't import all the
details of it here. But the basic idea of that you look at
vulnerable populations. You add up the exposures. You impose
the needed restrictions. That is the model that we have had in
effect. There have been measurable public health improvements
from it. So we know it can be done. It is just that is there
the will to do it?
Mrs. Capps. Right. But there is a pathway, or there is some
precedent for doing this. Finally, could you speak to the
public's opinion, because you work a lot with the public
opinion on this topic as well? I would think that properly
protecting children and seniors and the other vulnerable
populations would--from the effects of dangerous chemicals
should be fairly widespread, the enthusiasm for it might be a
popular topic. What is your idea here?
Mr. Igrejas. Yes. It is--the support for protecting
pregnant women and children from toxic chemicals in the sense
of that there is a concern about chemicals now that they could
be having an effect on a lot of the chronic disease that we see
in the country. It is widespread. And so you would be on solid
ground in taking action to do all those things with public
opinion. And I can provide the details on that.
Mrs. Capps. I appreciate that. So in order to effectively
reform TSCA, the bill before us needs significant revisions
regarding the protection of vulnerable populations. And there
is a will in the country to do--or there is a desire to do
this. So I urge my colleagues and the stakeholders on this
panel to refuse to support any--at least that is my opinion--
that we shouldn't support any TSCA reform bill that creates the
illusion of progress while still leaving these vulnerable
populations unprotected.
Thank you, Mr. Chairman. And I yield back my time.
Mr. Shimkus. The gentlelady yields back her time. We want
to--seeing no other members, I have a unanimous consent request
to place some letters into the record, a letter from 3M
Corporation, a letter from 13 attorneys general, the American
Association for Justice, Texas Campaign for the Environment,
Moms Clean Air Force, National Hispanic Medical Association and
National Medical Association, the American Public Health
Association, a number of healthcare organizations, a letter
from 72 health professional, public health and environment and
public interest groups. And that is it. Not this letter. OK.
Mr. Voice. Oh, yes. Sorry.
Mr. Shimkus. Yes. I am sorry. See, I was right. Staff was
wrong. We will note that down for the first time. And also a
letter I received from Ranking Member Waxman and Ranking Member
Tonko on this legislation and hydraulic fracturing.
Without objection, so ordered.
[The information is available at http://docs.house.gov/
Committee/Calendar/ByEvent.aspx?EventID=102160.]
We want to thank you. This is a tough issue. You guys are
all the experts. We do want to continue open discussions and
comments, language, anything. You can come in and see me. An
important piece of legislation, and we learned a lot today, and
we appreciate your participation.
With that, I will adjourn the hearing.
[Whereupon, at 1:12 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]