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REVISITING THE TOXIC SUBSTANCES CONTROL 

ACT OF 1976 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMERCE, TRADE, 

AND CONSUMER PROTECTION 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

FEBRUARY 26, 2009 

Serial No. 111–7 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 


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COMMITTEE ON ENERGY AND COMMERCE 

HENRY A. WAXMAN, California, Chairman 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

BETTY SUTTON, Ohio 

BRUCE BRALEY, Iowa 

PETER WELCH, Vermont 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOHN B. SHADEGG, Arizona 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

PARKER GRIFFITH, Alabama 

ROBERT E. LATTA, Ohio 

(II) 


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(III) 

SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION

BOBBY L. RUSH, Illinois 

Chairman 

JANICE D. SCHAKOWSKY, Illinois 

Vice Chair 

JOHN SARBANES, Maryland 

BETTY SUTTON, Ohio 

FRANK PALLONE, New Jersey 

BART GORDON, Tennessee 

BART STUPAK, Michigan 

GENE GREEN, Texas 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

ZACHARY T. SPACE, Ohio 

BRUCE BRALEY, Iowa 

DIANA DEGETTE, Colorado 

JOHN D. DINGELL, Michigan (ex officio) 

CLIFF STEARNS, Florida 

Ranking Member 

RALPH M. HALL, Texas 

DENNIS HASTERT, Illinois 

ED WHITFIELD, Kentucky 

CHARLES W. ‘‘CHIP’’ PICKERING, 

Mississippi 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

MICHAEL C. BURGESS, Texas 


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C O N T E N T S 

Page 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Hon. George Radanovich, a Representative in Congress from the State of 

California, opening statement ............................................................................. 2 

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 4 

Hon. Lee Terry, a Representative in Congress from the State of Nebraska, 

opening statement ................................................................................................ 5 

Hon. John Sarbanes, a Representative in Congress from the State of Maryland, opening statement ...................................................................................... 6 

Hon. Tim Murphy, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 6 

Hon. Phil Gingrey, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 7 

Hon. Zachary T. Space, a Representative in Congress from the State of 

Ohio, opening statement ...................................................................................... 7 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 8 

Hon. Bruce L. Braley, a Representative in Congress from the State of Iowa, 

opening statement ................................................................................................ 9 

Hon. Cliff Stearns, a Representative in Congress from the State of Florida, 

opening statement ................................................................................................ 9 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 11 

WITNESSES

John Stephenson, Director, Natural Resources and Environment, Government 

Accountability Office ............................................................................................ 13 

Prepared statement .......................................................................................... 16 

Answers to submitted questions ...................................................................... 180 

J. Clarence (Terry) Davies, Senior Fellow, Resources for the Future, and 

Former EPA Assistant Administrator For Policy, Administration of President George H.W. Bush; ...................................................................................... 36 

Prepared statement .......................................................................................... 38 

Answers to submitted questions ...................................................................... 193 

Maureen Swanson, Healthy Children Project Coordinator, Learning Disabilities Association of America; ............................................................................... 44 

Prepared statement .......................................................................................... 46 

Answers to submitted questions ...................................................................... 197 

Cecil Corbin-Mark, Deputy Director/Director for Policy Initiatives, We Act 

for Environmental Justice (West Harlem Environmental Action) ................... 52 

Prepared statement .......................................................................................... 54 

Answers to submitted questions 1

Michael Wright, Director of Health and Safety, United Steelworkers ................ 59 

Prepared statement .......................................................................................... 61 

Answers to submitted questions 2

Richard Denison, Senior Scientist, Environmental Defense Fund ...................... 73 

Prepared statement .......................................................................................... 75 

Answers to submitted questions ...................................................................... 203 

Kathy Gerwig, Vice President, Workplace Safety and Environmental Stewardship Officer, Kaiser Permanente ......................................................................... 90 

Prepared statement .......................................................................................... 92 

Answers to submitted questions ...................................................................... 217 

Cal Dooley, President and CEO, American Chemistry Council ........................... 95 


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VI 

Cal Dooley, President and CEO, American Chemistry Council—Continued 

Prepared statement .......................................................................................... 97 

Answers to submitted questions ...................................................................... 218 

V.M. (Jim) Delisi, President, Fanwood Chemical Inc., and Chairman, International Affairs Committee, Synthetic Organic Chemical Manufacturers Association ................................................................................................................ 99 

Prepared statement .......................................................................................... 101 

Answers to submitted questions ...................................................................... 224 

Charles T. Drevna, President, National Petrochemical & Refiners Association 105 

Prepared statement .......................................................................................... 107 

Answers to submitted questions ...................................................................... 234 

SUBMITTED MATERIAL

Testimony of David Littell ...................................................................................... 138 

Executive Summary, Maine Governor John E. Baldacci ...................................... 142 

Public Law, Chapter 643 ......................................................................................... 144 

Testimony of Stuart Eizenstat ................................................................................ 152 

Testimony of PCRM and PETA 2/26/09 ................................................................. 155 

Table, Summary Comparison of Existing Chemical Policy Laws ........................ 165 

Letter of 2/25/09 from CSPA, GMA and SDA ....................................................... 167 

Article 6/30/09, New York Times, ‘‘Need Press? Repeat: ‘Green,’ ‘Sex,’ ‘Cancer,’ 

‘Secret,’ ‘Fat’ ’’ ....................................................................................................... 169 

Letter of 2/25/09 from Safer States ........................................................................ 173 

Letter of 2/25/09 from Washington State Department of Ecology ....................... 177 

1Mr. Corbin-Mark did not respond to submitted questions for the record. 

2Mr. Wright did not respond to submitted questions for the record. 


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REVISITING THE TOXIC SUBSTANCES 

CONTROL ACT OF 1976 

THURSDAY, FEBRUARY 26, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:15 a.m., in Room 

2123 of the Rayburn House Office Building, Hon. Bobby L. Rush 

(Chairman) presiding. 

Members present: Representatives Rush, Schakowsky, Sarbanes, 

Sutton, Gordon, Stupak, Butterfield, Barrow, Castor, Space, 

Braley, Waxman (ex officio), Radanovich, Stearns, Terry, Murphy, 

Gingrey and Scalise. 

Staff present: Robin Appleberry, Counsel; Dick Frandsen, Counsel; and Jerry Couri, Minority Counsel. 

OPENING STATEMENT OF HON. BOBBY L. RUSH 

Mr. RUSH. The committee will now come to order. 

First of all, I want to welcome the members of the subcommittee 

to our first hearing on the 111th Congress. I am honored to chair 

this distinguished subcommittee and I will strive to serve all its 

members in an honorable way. I truly look forward to working with 

everybody on a productive legislative and oversight agenda. 

In this regard, our first hearing of the 111th Congress is an ambitious one and represents a new addition to the subcommittee’s 

vast jurisdiction. Today’s hearing will explore the major issues surrounding the Toxic Substances Control Act, also known as TSCA. 

TSCA was enacted in 1976 and originally consisted of one title, 

which today remains at the heart of the statute. While Congress 

over the years has added additional titles to TSCA addressing individual chemicals and substances, Congress has done very little 

with regard to Title I. TSCA and Title I have never been reauthorized nor has it been reformed, and very little oversight has been 

conducted on the statute’s effectiveness. Today I hope to start a deliberative process that reverses this Congressional inaction of the 

past. 

By most accounts, TSCA is badly in need of reform. While opinions may vary on the degree and nature of the reforms needed, 

there is a broad consensus among a diversity of stakeholders that 

TSCA needs to be reexamined. The scope of TSCA is very broad 

and its intent is indeed very ambitious. TSCA is meant to provide 

adequate data on potential health and environmental risk of all 


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chemical substances and mixtures in the United States. Furthermore, the statute is supposed to provide EPA with adequate regulatory tools to protect the public from unreasonable risk of injury 

to health or the environment. It is unfortunate that the statute has 

seemingly been a failure on both of these basic policy goals and objectives. Critics contend that TSCA has failed to generate data on 

the health risks of approximately 80,000 chemicals currently in use 

and the approximately 700 new chemicals that are introduced into 

commerce each and every year. 

Even though sections 4 and 5 authorize EPA to force companies 

to test their chemical products and generate data, the hoops that 

the EPA must jump through in order to exercise this authority 

have been much too burdensome. Rulemaking takes years to finalize, costs hundreds of thousands of dollars and is subject to constant legal action by companies who do not want to comply. As the 

former EPA assistant administrator once said, it almost that we 

have to first prove that the chemicals are risky before we have the 

testing done to show whether the same chemicals are indeed risky. 

Furthermore, once EPA has made a determination that a chemical poses a health and environmental hazard, they have been unable to act on this determination. Section 6 of TSCA provides EPA 

with broad authority to regulate and ban chemicals but the burden 

of proof for action has been so high that banning a chemical is virtually impossible, and I think most Americans would be very surprised to learn that asbestos, a known carcinogen that kills 8,000 

Americans each and every year, has not been banned by the EPA 

under TSCA because the courts have ruled that EPA did not meet 

its evidentiary burden of proving that asbestos is an ‘‘unreasonable 

risk to the public.’’ If TSCA is incapable of providing EPA with the 

regulatory tools to ban asbestos, then the statutes seem to be in 

dire need of serious repair, and I want to make it clear that reexamining TSCA is not only good for the public health but it is also 

good for business. 

I do not believe that this hearing should reflect public health 

versus business or environment versus business, and I appreciate 

the innovative spirit of the American businesses and further recognize the importance of fostering that innovative spirit, especially 

during these perilous times. The public’s faith in the safety of its 

product and chemicals that make up those products has been shaken and I believe that reforming TSCA and reestablishing that faith 

will ultimately be a boon for American businesses of every stripe, 

and today’s hearing is only the first in a series on TSCA. Today we 

will kick off the process in a deliberative manner and I sincerely 

hope that we all can work together in a bipartisan manner. 

I yield back the balance of my time 

Mr. RUSH. And now I recognize the ranking member, my friend, 

the gentleman from California, Mr. Radanovich, for an opening 

statement. 

OPENING STATEMENT OF HON. GEORGE RADANOVICH 

Mr. RADANOVICH. Thank you, Mr. Chairman, and I appreciate 

the fact that you called this hearing today and would like to thank 

all of our witnesses for taking the time out of your busy schedules 

to appear before this subcommittee. This is my first hearing as 


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ranking member of the subcommittee and I am very excited to 

work with you, Mr. Chairman, and the rest of the members of the 

subcommittee on the broad range of issues that falls under this 

committee’s jurisdiction. 

One of those issues is the regulation of industrial chemical manufacturing in what I understand will be the first in a series of discussions of the Toxic Substances Control Act, TSCA, which was 

signed into law in 1976. It was revolutionary at the time of its passage because it bestowed sweeping authority on the Environmental 

Protection Agency, just 6 years old at the time, to regulate interstate commerce and the lifecycle of chemicals manufacturing. Congress has barely touched the core of TSCA Title I since it was enacted. Obviously we all want to make sure that the chemicals produced, imported and used in this country are safe. I think it is reasonable for us to take a look at TSCA but I would urge extreme 

caution about any efforts to touch what is in the law since TSCA 

authorities are quite sweeping. It could be that the law is fine and 

that more funding and enforcement would cure various criticisms. 

If that is the case, let us be surgical. We should not seek out perfectly functioning laws in an effort to improve or modernize them 

when neither is needed. Conversely, if something more is needed, 

we should not use an elephant gun to kill a mosquito. 

A timely example of legislative overkill is the recently enacted 

Consumer Product Safety Improvement Act. Members of Congress 

like myself who supported the underlying reason behind the legislation are now left scratching our heads in frustration as small 

businesses, thrift stores and boutique shops in our districts are 

being forced out of business by the unintended consequence of this 

otherwise well-intentioned law, a terrible situation in any economy, 

but particularly during this recession. Unintended consequences 

are difficult to avoid but when the potential for unintended consequences is foreseen, Congress should move cautiously. 

That being the case, a major revision of TSCA, as some of our 

panelists might suggest today, does pose the potential for a significant threat to small- and medium-sized chemical manufacturers. 

We should be careful to ensure that all of the regulated entities 

will be able to reasonably comply with whatever changes we might 

make. In retrospect, neglecting the ability of all entities to reasonably comply with new regulations was a major mistake of the toy 

bill and is something that this committee should look at rectifying. 

Some folks want to point to States that have already acted to 

regulate chemicals. It is well known that my home State of California often brags of leading the Nation in a variety of progressive 

environmental and consumer protection laws and regulations. 

Those same folks forget to tell the flipside of the story, because as 

California desperately tries to claw their way out of a $42 billion 

budget deficit, which was resolved the other day but in May will 

be back into deficit spending, Congress should think twice before 

using any of California’s progressive models as a national standard. 

My experience has been that California’s environmental regulations have increasingly been a hindrance to the success of small 

businesses and family farms which have had a detrimental impact 

on the State’s overall economy. Unfortunately, the European model 


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of toxic substance regulation is far worse, which is exactly what 

some of us would like to see in this Congress adopt. 

Currently TSCA operates as a risk-based statute and tries to 

mitigate potential problems based on a number of relative factors. 

The European model operates under assumed hazard or precautionary principle which assumes every chemical is harmful until 

proven otherwise. To me, this is backwards, bureaucratic and a 

time-consuming way to regulate anything. Appropriately 

prioritizing chemicals based on risk is a vital component to effective and efficient EPA regulation. In addition to the correct context 

and risk prioritization, we must be sure that sound, safe and reliable science is guiding regulatory decisions at the EPA. 

There are some who want to regulate industrial chemicals similar to how we regulate pesticides under the Federal Insecticide, 

Fungicide and Rodenticide Act, or FIFRA. My Congressional district is one of the largest agriculture-producing districts in the Nation, and because of this distinction I am well aware of the increasing difficulty farmers face when trying to obtain specialty pesticides. Certain specialty pesticides have a greater risk placed on 

them because they are applied directly to food that we will eventually touch and put in our mouths and digest. However, it is important that we appreciate the context and the exposure under which 

industrial chemicals are regulated. Under normal use, and unlike 

FIFRA-regulated chemicals, the general public will rarely ever be 

in a position to ingest the vast majority of industrial chemicals. 

Otherwise Congress is mixing apples with oranges. 

Mr. Chairman, there is quite a bit more I would like to add as 

this has been 3 decades since this Congress has seriously reviewed 

this law. I think this hearing is going to be very useful and I am 

looking forward to hearing suggestions on how we can improve 

TSCA’s performance while doing so in the least burdensome fashion. And with that, I yield back and want to thank you, Mr. Chairman. 

Mr. RUSH. I want to thank the ranking member and I want to 

thank him for agreeing with me right at the start. 

Our next speaker is my friend, the gentlewoman from Illinois, 

Ms. Schakowsky, for 2 minutes of opening statements. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman, for holding this 

very important hearing. 

When President Ford signed the Toxic Substances Control Act 

into law in 1976, it was a major victory for environmental protection. For the first time in our Nation’s history, tens of thousands 

of chemicals in commerce would be tested to determine their longterm effects on human health and the environment. However, as 

we review this law 33 years after enactment, it is clear that TSCA 

needs to be updated and strengthened. In fact, the law presents so 

many problems that since 1991 the EPA has not attempted to ban 

a single chemical under the TSCA statute. In a report published 

last month, the GAO reported that without significant reforms to 

TSCA, ‘‘the nation lacks assurance that human health and the environment are adequately protected.’’ 


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Perhaps more troubling about TSCA is the strict burden of proof 

the law requires the Environmental Protection Agency to satisfy in 

order to ban toxic substances. As interpreted by the courts, the 

lengths the EPA must undertaken to meet the burden of proof are 

so onerous that chemicals known to be extremely hazardous to public health for decades remain outside the scope of TSCA. The perfect example is asbestos. Eight thousand Americans die each year 

from complications associated with exposure to asbestos. In 1989, 

EPA attempted to use TSCA to issue a rule to ban the use of asbestos, citing the strong evidence of hundreds of studies that conclusively found that asbestos was extremely hazardous to workers and 

the public as a whole. Despite the overwhelming evidence, the U.S. 

Court of Appeals reversed the decision, saying the EPA had not fulfilled the necessary burden of proof under TSCA. The fact that EPA 

cannot use the law to ban a substance as clearly hazardous as asbestos underscores the need for reform. I look forward to hearing 

from both panels today, who will share their research and direct 

experience in dealing with TSCA. 

Mr. Chairman, thank you for holding this hearing. I yield back. 

Mr. RUSH. Thank you. 

Our next opening statement will be from the gentleman from Nebraska, Mr. Terry. 

OPENING STATEMENT OF HON. LEE TERRY 

Mr. TERRY. Thank you, Mr. Chairman. I appreciate this opportunity. I think as we progress to see what reforms are necessary, 

the philosophical differences will be lightest touch versus heaviest 

touch. 

I want to relay an experience I had over the district work period 

when I met with a small business owner, a couple, a married couple that employed his brother, and it was truly one of those familyowned business called Wes and Willie’s. I don’t know if any of you 

know of this company but they are a kids’ apparel maker. They 

have the coolest tee shirt designs and they are very popular in a 

lot of the catalogs that some of us may get. This is an example of 

when we go too fast and don’t think through our legislation 

enough, but as a result of the lead-based toys we included other 

chemicals or additives that also have to be tested before they are 

allowed to come back in. Unfortunately, this company had to make 

a decision in order to survive that they have offshored some of 

their apparel making and silk screening of the paint design on the 

tee shirts. Under the new rules, every different design is treated 

as a different product and has to be tested at hundreds of dollars 

per shirt. But amazingly, while that is a financial hardship to do 

that on every different design and every different size, there is one 

of the chemicals that is inherent into the paint that is used and 

it is such a light level that it barely reads when tested. So the 

tester said because it is so light, what you have to do is produce 

10 tee shirts and we will add them up to see if they accumulate 

to a level that would be banned. Now, the silliness of that is, how 

many of us as parents buy 10 of the same tee shirts for our kids 

and that that child wears all 10 at the same time, but that is what 

we cause when we rush into something. 


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So Mr. Chairman, you are on the right path, it is the right idea. 

Let us make sure that we don’t make the mistakes that we did in 

the toy bill. 

Mr. RUSH. I want to thank the gentleman. 

Our next speaker is the gentleman from Maryland, Mr. Sarbanes, for 2 minutes of opening statement. 

OPENING STATEMENT OF HON. JOHN P. SARBANES 

Mr. SARBANES. Thank you very much, Mr. Chairman. Thanks for 

holding this hearing. I am looking forward to serving on the subcommittee. 

I think obviously there is a need for this review of the Toxic Substances Control Act, as we have heard in the testimony already. 

There is a staggering number of chemicals in the EPA inventory, 

80,000, but of course the data that we have on those chemicals and 

others that are introduced each year, some 700 additional introduced each year, does not match the degree of hazard that is posed 

by the chemicals. So just getting the basic data collected and made 

available is going to be critical, and of course we have heard about 

the burden of proof issues that need to be addressed. All those are 

going to come to light, I think, in these hearings. I appreciate your 

conducting them and I look forward to it. 

Thank you, and I yield back. 

Mr. RUSH. The chair thanks the gentleman. 

Our next member of the committee is Mr. Murphy of Pennsylvania for 2 minutes of opening statement. 

OPENING STATEMENT OF HON. TIM MURPHY 

Mr. MURPHY. Thank you, Mr. Chairman, for holding this hearing 

on the Toxic Substances Control Act. I look forward to hearing testimony from the witnesses on this issue. 

But before I begin, I would like to personally welcome two witnesses from the greater Pittsburgh area, Maureen Swanson from 

the Learning Disabilities Association of America, whose headquarters are in my district, and Michael Wright of the United 

Steelworkers from Pittsburgh too. Thank you for taking the time 

to come up here. I am looking forward to hearing your testimony 

and your thoughts on protecting children and workers, which are 

two of my top priorities and I am sure the priorities shared by all 

my colleagues but these are not mutually exclusively concepts as 

proper regulation can do both. 

My district is home to many chemical companies that directly 

employ about 8,300 people. These are high-paying jobs with the average employee making a family-supporting wage of over $73,000 

a year. As America continues in this recession, these are the kinds 

of jobs America needs now more than over, high-tech, high-paying 

jobs for the future, and we should deal with new legislation that 

deals with chemicals but we should also be careful that we are 

doing this in a way that keeps these jobs here in this country and 

not drives them overseas where there are no regulations to deal 

with these issues. 

Just about everything we come into contact with throughout the 

day can be traced to chemical companies that help improve our 

lives and make them better. However, we know there are some 


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harmful chemicals that are harmful to people, animals and the environment and proper controls must be in place. We must understand that effects may not always be immediately visible and that 

all necessary precautions must be practiced at all times. So I look 

forward to hearing more about the specifics of what we need to do 

with the Toxic Substances Control Act and your thoughts on what 

we can do to make this environment safer for all. 

With that, I yield back, Mr. Chairman. 

Mr. RUSH. The chair thanks the gentleman. 

The next member recognized is my friend, the gentleman from 

Michigan, Mr. Stupak, the chairman of the Oversight Subcommittee, for 2 minutes of opening statements. 

Mr. STUPAK. Thank you, Mr. Chairman, and congratulations on 

your chairmanship, and I will waive my opening statement and ask 

for extra time for questions. 

Mr. RUSH. Thank you very much. 

Our next speaker is the gentleman from my birth State, Mr. 

Gingrey, recognized for 2 minutes of opening statement. 

OPENING STATEMENT OF HON. PHIL GINGREY 

Mr. GINGREY. Mr. Chairman, thank you and thank you for holding this hearing, and I also thank Ranking Member Radanovich. 

Obviously these are important issues that come before the subcommittee. I have some prepared written remarks. It probably 

would take a little more than 2 minutes and I think I will skip 

those and just speak off the cuff. 

Mr. Chairman, I have a bachelor of science in chemistry from 

Georgia Tech and I am a medical doctor, as my colleagues know. 

I can remember as a youngster seeing Dupont ads on television. I 

think their slogan was ‘‘Better Living through Chemistry.’’ I believe 

it was Dupont. But I think what I have heard so far in the opening 

statements of my colleagues is that there are concerns and that 

this is a 30-year-old law and it needs to be looked at very carefully 

and possibly updated. From my side of the rostrum, I think what 

you are hearing is, we don’t want to overshoot, and I can think of 

so many things since I have been here in my three terms like this 

Community Reinvestment Act back in the late 1970s and the unintended consequences of that in light of our current economic situation. 

Mr. Chairman, I am very happy as a new member of the subcommittee and the committee to be here at this type of hearing. I 

want to hear very carefully from both panels and try to learn, but 

again, I think I agree with my colleagues on this side that we really want to make sure that we keep in mind the unintended consequences, and if we make some changes that we do it in the right 

way and make sure we strike a proper balance. 

With that, Mr. Chairman, I will yield back. 

Mr. RUSH. The next speaker will be the gentleman from Ohio, 

Mr. Space, recognized for 2 minutes of opening statement. 

OPENING STATEMENT OF HON. ZACHARY T. SPACE 

Mr. SPACE. Thank you, Mr. Chairman. 

I represent a district of small towns and villages in a very rural 

part of Ohio, the hills of Appalachia, in fact, and perhaps the best 


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phrase to describe those folks that I represent is decent and hardworking, and they I think have a right and we have an obligation 

to ensure that their workplaces are safe, their children are not exposed to hazardous chemicals, and at the same time that we encourage and promote a business environment that will allow some 

degree of profitability. The statement has been made by I believe 

the ranking member that we should not use an elephant gun to kill 

a mosquito, and I certainly couldn’t agree more, but at the same 

time we should not use a bug light to kill an elephant, and I appreciate the opportunity to hear from our witnesses today on TSCA because doing so allows this subcommittee to move forward in improving what is at best an outdated law and at worst a risk to public health, environmental safety and business innovation. I look forward to exposing exactly what is needed to bring our toxic substance regulatory policy into the 21st century and I am also looking 

forward to being a part of this committee in a proactive approach 

to this issue. 

Thank you, Mr. Chairman. 

Mr. RUSH. The chair thanks the gentleman. 

The chair now recognizes the chairman of the full committee, my 

friend, the gentleman from California, Chairman Waxman. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN 

Mr. WAXMAN. Thank you very much, Mr. Chairman. I want to 

commend you for holding the subcommittee’s first hearing in the 

111th Congress on the incredibly important issue of reforming the 

Toxic Substances Control Act of 1976, or TSCA. 

This is an important day for consumers, businesses, workers and 

especially for kids who are most vulnerable to the effects of toxic 

chemicals. Today marks the beginning of a much-needed national 

conversation on the use of chemicals in our communities. This conversation is long overdue. For years it has been clear that TSCA 

is not living up to its intent. For example, in 1991 the Environmental Protection Agency tried to ban the use of asbestos, a known 

human carcinogen, but EPA’s efforts were struck down on the 

grounds they didn’t satisfy the statute’s requirements. The Government Accountability Office first recommended changes to make 

TSCA more effective in 1994. Now 13 years later, GAO has added 

EPA’s assessment and control of toxic chemicals to its high-risk series list of the government programs most at risk for failure. GAO 

added only three issues to its high-risk list this year. The other two 

were the entire financial regulatory system and the safety of medical devices and drugs, so that gives you a sense of just how urgent 

GAO believe this problem is. 

This hearing is a good beginning to address the challenge of 

TSCA reform. In the coming months we will look closely at the specific provisions of the statute and their implementation. We will 

learn from what has been done in the States and in other countries 

to create a more effective system of protecting against the dangers 

of toxic chemicals. In order to be successful, however, we will have 

to work cooperatively to ensure that a reformed TSCA achieves its 

essential goals to protect human health and the environment, to 

make decisions based on sound science and to encourage American 

innovation and leadership. 


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We need to get this right. We owe it to our children and our 

grandchildren to protect them from the dangers of toxic chemicals, 

and I look forward to meeting this challenge with Chairman Rush, 

Ranking Member Radanovich, Ranking Member Barton and all the 

members of the committee. 

And finally, let me just say, I know this subcommittee will tackle 

many other important issues this Congress as well, and I want to 

commend Chairman Rush for his leadership on all these issues. 

Thank you, Mr. Chairman. 

Mr. RUSH. Thank you, Mr. Chairman. 

The chair now recognizes the gentleman from Iowa, Mr. Braley, 

for 2 minutes. 

OPENING STATEMENT OF HON. BRUCE L. BRALEY 

Mr. BRALEY. Thank you, Mr. Chairman, and thank you for holding this important hearing. It is an honor to serve on this subcommittee, and I think it bears mentioning that the title of this 

subcommittee includes the words ‘‘consumer protection.’’ That is 

the most important responsibility we have when it comes to issues 

of safety, and I can think of no greater indictment than what we 

included on page 3 of the memorandum prepared for every member 

of the committee where it says that in the entire period of time 

that this Act has been in effect, EPA has not attempted to ban a 

single chemical under this bill. And then when you see the reference in here to first President Bush’s former director of EPA general counsel, if after thousands of deaths from asbestos exposure it 

is virtually impossible for EPA to regulate any chemical under section 6, what does that say about the impact of this legislation. 

It is important for us to have balance, it is important for us to 

rely upon scientific-based regulation, but it is also important for us 

to understand the basic purpose of this subcommittee. That is to 

protect consumers. It is long overdue that we take another look at 

this Act and provide meaningful opportunities to protect consumers 

despite the fact that thousands of people have died from exposure 

to toxic substances since 1991, and I yield back. 

Mr. RUSH. The chair now recognizes my friend, the chairman of 

the Committee on Science, Mr. Gordon, for the purpose of 2 minutes of opening. 

Mr. GORDON. Thank you, Mr. Chairman. I will waive my statement so that we can start hearing from our witnesses. 

Mr. RUSH. Thank you. Now the chair recognizes the gentleman 

from Florida for the purposes of 2 minutes of opening statements, 

Mr. Stearns. 

OPENING STATEMENT OF HON. CLIFF STEARNS 

Mr. STEARNS. Thank you, Mr. Chairman, and I look forward to 

the next 2 years and the hearings we are going to have, and I appreciate you bringing up this topic, a somewhat controversial issue 

of industrial chemicals and the way they are currently regulated in 

the United States under the Toxic Substances Control Act. I know 

when you look through this, it is going to be pros and cons on both 

sides of this but I think it is important we have these witnesses 

and I appreciate them being here. 


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The long and short of it is, we probably have to look at other 

models to see if they are working. If we move towards a purely European approach to regulate chemicals such as what the Europeans 

are doing with their REACH program, regulation, evaluation, authorization and restriction of chemical substances, we will have to 

carefully consider that. 

I serve as the lead Republican on the transatlantic dialog with 

the European Union. Ms. Shelley Berkley from Las Vegas is the 

chairwoman and I am co-chair and we have been actively involved 

with this issue and have to impress upon our European counterparts to ensure that the United States cosmetic industry, which is 

a $2 billion industry, was not taken off the shelves in Europe due 

to their new overly burdensome REACH requirements and so I put 

that into perspective, Mr. Chairman, because a lot of U.S. industry 

would be hurt by this REACH program that the European Union 

has implemented. 

So I think we have an opportunity to have a constructive discussion today on this very important issue and I thank the chairman 

for this hearing. I yield back. 

Mr. RUSH. The chair thanks the gentleman. At this time the 

chair would like an unanimous consent request to enter the opening statement of the chairman emeritus, John Dingell, for the 

record. Not hearing any objections, so approved. 

[The prepared statement of Mr. Dingell follows:] 


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Mr. RUSH. Now we are privileged to have a fine array of panelists to appear before this subcommittee, and we want to thank 

them beforehand for taking the time out from their busy schedules 

to make this first appearance before the 111th Congress on this 

particular issue. 

I want to introduce the witnesses first and then we will ask them 

to have opening statements for 5 minutes of opening statements. 

To my left, to your right, Mr. John Stephenson is the director of 

Natural Resources and Environment of the Government Accountability Office, GAO. Mr. Stephenson has been the director of the 

environmental protection issues within GAO’s natural resources 

and environment team since October 2000. Seated next to him is 

Mr. J. Clarence (Terry) Davies, senior fellow, Resources for the Future. Mr. Davies was an EPA assistant administrator for policy in 

the Administration of President George H.W. Bush. Seated next to 

Mr. Davies is Ms. Maureen Swanson of the Healthy Children 

Project, and she is coordinator of Learning Disabilities Association 

of America. Seated next to Ms. Swanson is Cecil Corbin-Mark, who 

is the deputy director and the director of policy initiatives for WE 

ACT for Environment Justice, and that stands for the West Harlem 

Environmental Action Group, and Mr. Cecil Corbin-Mark is a lifelong resident of Hamilton Heights in Harlem, New York, where his 

family has lived for the last 6 decades. Seated next to him is Mr. 

Michael Wright, who is the director of health and safety for United 

Steelworkers. 

With those introductions, I would ask the panel to begin now 

with their opening statements, and please limit your opening statements to 5 minutes and please pull the microphone directly in front 

of you as you speak. The chair recognizes Mr. Stephenson. 

TESTIMONY OF JOHN STEPHENSON, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE; J. CLARENCE (TERRY) DAVIES, SENIOR 

FELLOW, RESOURCES FOR THE FUTURE, AND FORMER EPA 

ASSISTANT ADMINISTRATOR FOR POLICY, ADMINISTRATION 

OF PRESIDENT GEORGE H.W. BUSH; MAUREEN SWANSON, 

HEALTHY CHILDREN PROJECT COORDINATOR, LEARNING 

DISABILITIES ASSOCIATION OF AMERICA; CECIL CORBINMARK, DEPUTY DIRECTOR/DIRECTOR FOR POLICY INITIATIVES, WE ACT FOR ENVIRONMENTAL JUSTICE (WEST HARLEM ENVIRONMENTAL ACTION); AND MICHAEL WRIGHT, DIRECTOR OF HEALTH AND SAFETY, UNITED STEELWORKERS 

TESTIMONY OF JOHN STEPHENSON 

Mr. STEPHENSON. Thank you, Mr. Chairman and other members 

of the subcommittee. I am pleased to be here today to discuss our 

work supporting the need to improve the Toxic Substances Control 

Act. 

Congress passed TSCA, as many of you have mentioned, in 1976 

to enable EPA to obtain more information on the risk of commercially used chemicals and to control those that EPA determines 

may pose unreasonable risk. However, TSCA’s cumbersome regulatory structure and its high legal evidentiary standards have proven difficult for EPA to use to obtain the information it needs to efVerDate Mar 15 2010 05:59 Feb 04, 2012 Jkt 067095 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 E:\HR\OC\A095.XXX A095

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fectively assess and control toxic chemicals. While TSCA authorizes 

EPA to review existing chemicals, it generally provides no specific 

requirement, timeframe or methodology for doing so. 

Significantly, chemical companies are not required to develop 

and submit toxicity information to EPA on existing chemicals unless the agency finds that a chemical may present an unreasonable 

risk of injury to human health or the environment. This structure 

places the burden primarily on EPA to demonstrate that a chemical poses a risk rather than on the company that produces it to 

demonstrate that it is safe. The procedures EPA must follow to obtain test data from companies can take from 2 to 10 years and hundreds of thousands of taxpayer dollars to complete. As a result, in 

30 years of TSCA has used its authorities for only about 200 of the 

roughly 80,000 existing chemicals to require testing. Moreover, 

TSCA does not require chemical companies to do toxicity tests for 

the approximate 700 new chemicals introduced into commerce annually and companies generally do not voluntarily provide such 

testing. In contrast, the European Union’s control legislation called 

REACH generally places the burden on companies to provide 

health effects data on the chemicals they produce. 

Our reports include recommendations that the Congress consider 

giving EPA more authority to obtain data from the companies producing chemicals and that remains one of the most viable options 

for improving the effectiveness of TSCA, in our opinion. While 

TSCA authorizes EPA to issue regulations that may, among other 

things, limit the production or use of toxic chemicals or ban their 

use, the statutory requirements EPA must meet to do this presents 

a legal threshold that has proven difficult for EPA and discourages 

the agency from using these authorities. For example, EPA must 

demonstrate unreasonable risk, which requires it to conduct extensive cost-benefit analysis to ban or limit chemical production. Since 

1976, EPA has issued regulations to control only five existing 

chemicals, and one of these, a 1989 regulation phasing out most 

uses of asbestos, was vacated by the federal courts in 1991 because 

it did not meet the test of substantial evidence. In contrast, the European Union and a number of other countries have banned asbestos, a known human carcinogen that can cause lung cancer and 

other diseases. 

GAO has previously recommended and continues to believe that 

Congress should consider amending TSCA to reduce the evidentiary burden EPA must meet to regulate toxic substances. EPA 

has also limited ability to provide the public with information on 

chemical production and risk because of TSCA’s prohibitions on the 

disclosure of confidential business information. About 95 percent of 

the required notices companies have provided to EPA on new 

chemicals contain some information claimed as confidential. Evaluating the appropriateness of confidentiality claims is time consuming and resource intensive, and as a result EPA does not challenge most claims. State environmental agencies and others have 

told us that information claimed as confidential would help them 

in such activities as better preparing emergency response personnel 

to deal with high-toxic substances at manufacturing facilities and 

their localities. 


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The European Union’s chemical control law generally provides 

greater public access to chemical information it receives. GAO has 

previously recommended that Congress consider providing EPA additional authorities to make more chemical information publicly 

available. 

In numerous reports over the past several years, we have recommended both statutory and regulatory changes to, among other 

things, strengthening EPA’s authority to obtain additional information from the chemical industry, shift more of the burden to chemical companies for demonstrating the safety of their chemicals and 

enhance the public’s understanding of the risk of chemicals to 

which they may be exposed but little has changed. As a result, in 

January 2009 we added EPA’s processes for assessing and controlling toxic chemicals to GAO’s list of high-risk programs in need of 

broad-based transformation. This list is updated every 2 years and 

released at the start of each new Congress to help in setting oversight agendas. 

Mr. Chairman, we applaud you for holding this hearing and hope 

it is a first step toward bringing much-needed changes to the way 

we control toxic chemicals in this country. That concludes my summary, and I will be happy to take questions at the appropriate 

time. 

[The prepared statement of Mr. Stephenson follows:] 


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Mr. RUSH. Thank you very much. 

The chair now recognizes Mr. Davies for the purpose of 5 minutes of opening statements. 

TESTIMONY OF J. CLARENCE DAVIES 

Mr. DAVIES. Thank you, Mr. Chairman. My name is J. Clarence 

Davies. I am a senior advisor to the Project on Emerging Nanotechnologies at the Woodrow Wilson International Center for Scholars 

and a senior fellow at Resources for the Future. The opinions expressed here are my personal opinions and do not represent the 

views of those organizations or their funders. 

I commend the subcommittee for holding this hearing. The committee’s focus on TSCA is timely because of changes taking place 

both at the State level and internationally. States are increasingly 

taking the initiative to deal with toxics. Internationally, the European Union’s launch of the REACH directive has radically changed 

the requirements for marketing chemicals in Europe. The huge impact of technologies that were unknown when TSCA was enacted 

adds to the importance of reviewing TSCA now. 

I have followed TSCA from its inception. In 1969 I wrote a book 

which called for a law regulating new chemicals and in 1970 I 

wrote the original version of what became TSCA. In the past several years I have written three reports on oversight of nanotechnology. Each of them is relevant to the subject of this hearing and I 

would like permission to submit them for the record. 

Mr. RUSH. So granted. 

Mr. DAVIES. Thank you. 

Before dealing with TSCA’s weaknesses, let me note some of its 

strengths. First is the broadness and potential flexibility of the law. 

Its coverage is not limited to any one part of the environment, a 

definite asset, because most chemicals are not limited to air or 

water or land. TSCA also allows EPA to choose among a broad 

range of measures to control chemical risks. Another strength is 

TSCA’s reporting mechanism. Section 8(e), which requires manufacturers to immediately notify EPA of new risk information, is 

particularly important. I believe that the general cost-benefit 

framework of TSCA needs to be preserved. The law deals with 

products, not with pollutants. Commercial products by definition 

have benefits so limiting their use or banning them to prevent adverse effects almost always has costs. This fact makes an absolute 

safety standard unwise because the government would be forced to 

ban chemicals that do more good than harm. 

Many of the good things in TSCA are undermined by the procedural landmines in the Act. The Act contains difficult, perhaps impossible requirements that must be met before a chemical can be 

regulated. For example, EPA must show that the regulation is less 

burdensome than any alternative. All the requirements must be 

supported by substantial evidence in the rulemaking record, an extraordinarily high legal criterion. These provisions make it practically impossible for EPA to regulate existing chemicals. Equally 

damaging is TSCA’s implicit assumption that no knowledge or no 

data is equivalent to no risk. Most of the new chemical notices contain no testing information. However, as the chairman mentioned, 

if EPA lacks the information to evaluate the risk of the chemical, 


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the agency cannot get the information without showing that the 

chemical may present an unreasonable risk. It is a classic catch22 and badly needs to be changed. 

Confidential business information is a third problem area. A very 

large portion of information submitted under the Act is classified 

as confidential. The Act prohibits sharing of confidential information with States or with foreign governments. The result is that 

TSCA is less conducive to State, federal and international cooperation than any other environmental statute. 

EPA estimates that it received notice of about 50 nanomaterials 

under TSCA’s new chemical provisions because TSCA defines a 

chemical only by its molecular structure and does not consider size. 

Many, perhaps most, nanomaterials are considered existing chemicals, not new ones. This is important because the TSCA provisions 

relating to existing chemicals have mostly been rendered inoperative. Also, because size is a defining factor for nanomaterials, EPA 

cannot be sure which new chemicals are nonmaterials, even though 

the risks of nanomaterials may be quite distinct from both materials. There is a general issue of the capability of the existing regulatory systems to deal with the new technologies that are emerging 

at an accelerating pace. Nanotechnology is one example. Another is 

synthetic biology, which TSCA also has jurisdiction over in part. A 

particular challenge for EPA will be its ability to assess the risks 

of future complex synthetic organisms that have no counterpart in 

nature and TSCA does not provide adequate authority or tools to 

address those kinds of risks. 

I urge this committee to devote some time and effort to consider 

what new oversight and regulatory approaches are needed to deal 

with 21st century science and technology. Considering TSCA’s effectiveness is a step in the right direction but over the long run we 

are going to need whole new approaches to deal with the new technologies. Thank you. 

[The prepared statement of Mr. Davies follows:] 


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Mr. RUSH. The chair thanks the gentleman. And now I have been 

told by the subcommittee staff of a new procedure especially at it 

relates to the oversight aspects of these hearings, and that is I am 

supposed to swear in all the witnesses, so I am going to ask the 

witnesses to please stand to be sworn in, and I am going to ask 

those that testified whether or not you want to keep your testimony consistent pre-swearing in the same as post swearing in, so 

if you didn’t like before, then—excuse me for saying that. I 

shouldn’t have said that. We just want you to be consistent in your 

testimony both prior to the swearing in and after the swearing in. 

[Witnesses sworn.] 

Mr. RUSH. Please let the record reflect that all the witnesses 

have answered in the affirmative, and now our next witness will 

be Ms. Swanson for the purposes of opening statement. 

TESTIMONY OF MAUREEN SWANSON 

Ms. SWANSON. Thank you, Mr. Chairman and Ranking Member 

Radanovich. My name is Maureen Swanson and I direct the 

Healthy Children Project for the Learning Disabilities Association 

of America. I also am here on behalf of the organizations of the 

Learning and Developmental Disabilities Initiative, which I have 

described my written testimony. 

I would like to explain the connection between 

neurodevelopmental disabilities and the need to reform TSCA. Certain diseases and disorders including neurodevelopmental disorders 

are increasing among American children. This is particularly true 

of autism and attention deficit hyperactivity disorder, or ADHD. 

On average it costs twice as much to educate a child with a 

neurodevelopmental disability as it does to educate a child who 

does not have these disabilities. A growing body of scientific evidence shows that some of this increase is due to exposure to toxic 

chemicals. Most recently, a study by researchers at the University 

of California found that a large portion of the increase in the 

State’s autism cases is most likely due to toxic chemical exposures. 

Children are especially vulnerable to toxic chemicals. Relative to 

adults, children eat more, drink more and breathe more. They 

spend a lot of time on the ground and they put things in their 

mouths. From conception to early childhood is a time of rapid brain 

development, a time when even a tiny dose of a toxic chemical can 

cause neurological problems that last a lifetime. Of the 80,000 

chemicals registered under TSCA, about 3,000 are produced at 

more than 1 million pounds a year. Of these 3,000 chemicals, we 

know for certain that 10 are neurotoxins. They affect brain development. We have good evidence that another 200 are neurotoxins 

but we don’t have better information or more information because 

there is no requirement under TSCA to test chemicals for effects 

on brain development. Isn’t it right for parents to assume that the 

government will protect their children from toxic chemical exposures? 

When I talk to people and they find out that the vast majority 

of chemicals used in products are not tested for health effects, first 

they are dumbfounded and then they are outraged. I share that 

outrage. As the mother of a 2-year-old and a 4-year-old, I know 

how hard it is to figure out which shampoos and sippy cups and 


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toys are safest for my kids. No parent should have to stand in front 

of a store shelf full of toys and guess which ones have toxic constituents and none of us should have to pay a premium for a specially made nontoxic product. No one should have to buy their way 

out of health risks to their children. 

LDA began its focus on neurotoxins decades ago by supporting 

efforts to get lead out of gasoline. Once lead was removed from gasoline, blood lead levels in American children dropped dramatically. 

At the same time, IQ levels increased. Another LDA concern is 

chemicals that are endocrine disruptors, particularly those that affect the thyroid gland, which is essential for healthy brain development. These chemicals are often found in plastics and include 

phthalates, Bisphenol A, dioxins and brominated flame retardants. 

I would like to thank Congress for its bipartisan support of the 

Consumer Products Safety Improvement Act, which will keep lead 

and phthalates out of children’s products. This is a crucial step toward preventing toxic chemical exposures. TSCA, on the other 

hand, demands that the government prove beyond all reasonable 

doubt that a chemical is toxic after it has been put on the market, 

after it has infiltrated our homes and our bodies. We need legislation that requires manufacturers to prove that a chemical is safe 

before it can be used in products and before it can put our children 

at risk. We know that a preventive policy works. Lead is just one 

example. Chlorpyrifos is another. Chlorpyrifos is a widely used pesticide and a neurotoxin. Since EPA banned its residential use in 

2001, a study in New York City showed that levels of chlorpyrifos 

in maternal and umbilical cord blood have decreased by a factor of 

10 and the newborns in the study showed an increase in birth 

weight and length, which are measures of healthy development. 

To stem the rising incidence of childhood diseases such as asthma, autism and cancer, we need a preventive approach to toxic 

chemical policy that requires manufacturers to test chemicals for 

health effects including neurodevelopmental effects and prohibits 

the use of toxic chemicals that can harm the developing fetus, infants and children. For more than 30 years, TSCA has enabled the 

chemical industry to take risks with our children’s health that no 

parent would ever knowingly permit. 

We urge Congress to reform TSCA without further delay and 

provide all our children the opportunity to lead healthier and fuller 

lives. Thank you. 

[The prepared statement of Ms. Swanson follows:] 


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Mr. RUSH. Thank you. 

Our next witness is Mr. Cecil Corbin-Mark. Mr. Mark, you are 

recognized for 5 minutes. 

TESTIMONY OF CECIL CORBIN-MARK 

Mr. CORBIN-MARK. Good morning. I want to thank Chairman 

Rush for his leadership on this committee and in bringing this 

issue to the forefront. I also want to recognize and thank Mr. 

Radanovich and likewise to all the other distinguished members 

who are present and here today. And lastly, I want to thank the 

committee staff for their dedication and professionalism. 

So why is a guy from Harlem here to talk to you about Toxic 

Substances Control Act? Quite simply because I have been impacted by chemicals and my family has and some of my neighbors 

have. Two quick stories. I can remember a long time ago when my 

mother brought home a chemical curtain, that I later found out 

was a chemical curtain, but a curtain filled with superheroes imprinted on it, and I couldn’t wait to actually take a shower with 

that chemical curtain. I wanted to be in that shower because I 

thought the superheroes would transfer their powers to me and I 

could join their ranks. Instead, what happened was, I came out 

dizzy, unsure of what was happening and filled with a really piercing headache. 

The next story is about my son, the pride and joy of my life. I 

am a doting dad, and my son is in school in New York City and 

is playing on a basketball team. I am across the country at a conference in San Francisco and his mom calls to say that they have 

had to rush him to the hospital for an asthma attack at a visiting 

school. In talking to him later that day, I asked him what do you 

remember, what happened, how did this happen, and after pressing 

him he realized one thing that he did remember was the smell of 

pesticides in the visiting locker room of his team’s locker room. 

I want to share with you that I think that in places like the community that I live and work in Harlem, New York, many people are 

exposed to toxics. I live in, as I said, Harlem and it is a community 

of 7.4 square miles and is home to more than 650,000 mostly lowand middle-income African-Americans and Latinos. It is known for 

its richly diverse population and cultural history but the area also 

bears disproportionate rates of disease, air pollution and toxic exposures. Northern Manhattan leads the Nation in asthma hospitalizations, low birth weight and lead poisoning, to name a few, 

and diabetes and obesity are also raging epidemics in our communities. High levels of public assistance in our neighborhoods are a 

part of the fabric and residents often don’t have health insurance. 

And while downtown Manhattan may be known for Broadway, the 

Empire State Building, the Statue of Liberty and other iconic landmarks, uptown our neighborhoods have auto body shops, dry cleaners co-located with residential apartments, diesel bus depots across 

the street from parks and bedroom windows, and likewise nail salons and dollar stores with many products that contain ingredients 

capable of disrupting a woman’s or a man’s reproductive system 

abound in northern Manhattan. 

While I am describing my hometown, I could be talking about 

any place in Texas, Michigan, Louisiana, Ohio, Georgia, you name 


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the State, and you might conclude that because these facilities or 

stores are located in our neighborhoods, that doesn’t necessarily 

mean that we might be impacted by chemicals, but I assure you, 

you could be wrong. 

I want to just point out a couple of studies, one of them from the 

New York Research Public Interest Group done a couple of years 

ago that documented while upstate is the major agricultural production area for New York State, it is in New York City that the 

greatest tons of poundage of pesticides are actually used and they 

are applied to public buildings like schools or hospitals. Another 

one, the New York State Department of Health conducted a study 

in East Harlem and found high levels of PERC in apartments 

where dry cleaners were collated. PERC is a volatile organic compound with many health effects that moves easily through walls 

and easily enters the bloodstream. The Columbia Mailman School 

of Children’s Environmental Health Center that we co-partner with 

conducted studies that looked at 700 mother-children pairs and examined dust samples in their homes and found high levels of pesticides like chlorpyrifos and diazinon, which transfer readily to the 

fetus, and these were found to reduce birth weight by an average 

of 6.6 ounces. Furthermore, high prenatal exposure to pesticides 

like chlorpyrifos was found to be associated with psychomotor cognitive delay and attentional disorders at age 3. Early findings from 

another study projected that the same cohort is indicating dibutyl 

phthalate, which is commonly found in perfumes, is staying in 

mothers’ bodies longer than thought. 

Toxic chemicals don’t belong in people, and while researchers 

don’t have all the answers to what the health effects are, environmental justice advocates are mobilizing to fix what we see as a 

flawed chemical system. 

What are the problems in this system? I mean, there are many 

and I have submitted them in my testimony. I urge you to read 

them, but we need a comprehensive regulatory reform for toxic 

chemicals and I ask you to help us in making that possible. Thank 

you. 

[The prepared statement of Mr. Corbin-Mark follows:] 


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Mr. RUSH. Thank you very much. 

Our final witness for purposes of opening statements is Mr. 

Wright. Mr. Wright, you are recognized for 5 minutes. 

TESTIMONY OF MICHAEL J. WRIGHT 

Mr. WRIGHT. Thank you, Chairman Rush, and thank you, Ranking Member Radanovich, for the opportunity to testify before you 

this morning. 

My name is Mike Wright. I am the director of health, safety and 

the environment for the United Steel, Paper and Forestry, Rubber, 

Manufacturing, Energy, Allied Industrial and Service Workers 

International Union, and I promise not to use the full name again. 

We are the USW for short. We represent 850,000 workers in the 

sectors I just mentioned and many others including a majority of 

unionized workers in the chemical industry and hundreds of thousands of workers who use industrial chemicals on the job. 

My written statement details my background. Let me just say I 

have been dealing with chemical issues for more than 30 years, 

both within my union and internationally, primarily through several United Nations organizations. 

I will talk this morning about one mission that affected me the 

most and it still haunts me to this day. I was a member of an international team which traveled to Bhopal, India, to investigate the 

December 1984 methyl isocyanate release from a Union Carbide 

plant that took several thousand lives, nobody knows how many, 

in the first few hours, and many more in subsequent weeks and 

continues to claim victims at a rate of one or two a week even a 

quarter century later. In my sleep I still see the faces of parents 

whose children died. I still see children left without parents. I can 

still hear the constant coughing of victims who survived but with 

most of their lungs burned away. Two members of that team were 

from the United States, and one thing we quickly realized was, had 

the Bhopal plant existed in the United States, none of the underlying causes of the accident, none of them, would have violated any 

OSHA or EPA or any other regulation and that includes the Toxic 

Substances Control Act, even though TSCA was then in force. 

Think about that for a minute. The Toxic Substances Control Act 

wouldn’t have controlled the causes, much less prevented, the 

worst toxic substance accident in human history. Much has 

changed since then. We have a lot of laws and regulations which 

chip at the edges but the basic chemical safety law in this country, 

TSCA, the cornerstone on which everything else rests, remains unchanged. 

Let me turn to the impact of TSCA or rather the lack of impact 

in the workplace. I am wearing a little lapel pin this morning. It 

is a tiny birdcage with a canary. Thousands of our members and 

many of our supporters wear them. It symbolizes what workers 

have become in relation to toxic chemicals. Before the invention of 

modern testing equipment, miners used to bring canaries underground. If the bird died, you knew something in the air was toxic 

and you got out. Today we are the canaries in those cages. Others 

might testify as time goes on in these activities about things like 

Bisphenol A, phthalates, carbon nanotubes. All of them may pose 

serious risk to consumers and communities but we are the first to 


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be exposed and we are usually the highest exposed. Most epidemiology regarding toxic substances uses cohorts of workers. In other 

words, it is our bodies that get counted in these retrospective 

human experiments. 

My colleagues and I in the USW’s health, safety and environment department visit several hundred workplaces a year in all 

manner of industries. Collectively, we have a lot of experience with 

chemicals and chemical hazards so our members depend on us to 

say whether what they are working with is safe. Too often we don’t 

have a clue. OSHA requires labels and written information sheets 

for workplace chemicals but they frequently contain almost no useful information beyond acute toxicity because the chemicals have 

never been tested for any other effects. Too often we learn the consequences of that ignorance only by chance and only too late. My 

written testimony includes several examples of chemicals found to 

be dangerous only because the men and women using them on the 

job died or became critically ill and they are only the very small 

tip of a very large iceberg. The dangers of these chemicals were discovered only through unusual circumstances like rare medical conditions, an overwhelming number of deaths or a chance discussion 

by workers. We have no idea how many more untested chemicals 

are causing unrecognized illness among workers and consumers. In 

short, the way we now evaluate many potentially toxic chemicals 

is by counting bodies and measuring human misery long after 

those chemicals have been introduced. That has to change. 

Let me turn for a minute to economics. Of course, the main reason for reforming TSCA is for human health but there are also 

good economic reasons. There will be many who say that we can’t 

afford to reform chemical policy, especially not in the current economic climate. In truth, we can’t afford not to. First, there is the 

economic burden of occupational disease and environment disease, 

which I discuss in my written statement. It saps our productivity, 

destroys the earning potential of our families, increases healthcare 

costs. Then there is the issue of competitiveness. Europe has adopted a strong new system called REACH and it has been mentioned 

earlier this morning, designed to ensure that chemicals and products made with chemicals are safe to manufacture and use. Unless 

the United States follows suit, consumers will ultimately come to 

trust European products more than they trust American products. 

I believe it was the great consumer advocate Esther Peterson who 

said, ‘‘Made in USA should be a guarantee, not a warning.’’ 

I have great faith in the chemical industry. Our members work 

in the chemical industry. I actually believe all those Sunday morning commercials about the human element and the innovative potential of American chemistry. I believe we can produce chemical 

products that are safe to manufacture and safe to use. Thousands 

of our members work in the industry. They want to make things 

that are safe for them, safe for their kids, safe for the planet. They 

know that in the long run their jobs depend on that as well. The 

critical first step is the reform of our basic chemical safety law, 

TSCA. 

Mr. Chairman, you, your committee and this Congress can make 

that happen. We urge you to do so, and I want to thank you again 

for the opportunity to testify this morning. 

[The prepared statement of Mr. Wright follows:] 


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Mr. RUSH. Thank you very much, and we thank all the witnesses. I have been informed by staff that around 11:20 there will 

be three votes on the Floor, and these will be the only votes of the 

day. However, the chair would like to proceed with its questions 

and we will get as far as we can before we have to go for a vote, 

but I would also like to ask the witnesses if they can possibly remain until we come back from the Floor where we will be voting. 

The chairman recognizes himself for 5 minutes. I would like to 

get each of you on the record on a very basic question. Do you believe that TSCA needs to be reformed? And please answer with a 

yes or no, starting with my guest and my friend, Mr. Stephenson. 

Mr. STEPHENSON. Yes. 

Mr. RUSH. Mr. Davies. 

Mr. DAVIES. Yes. 

Mr. RUSH. Ms. Swanson. 

Ms. SWANSON. Yes, Mr. Chairman. 

Mr. RUSH. Mr. Corbin-Mark. 

Mr. CORBIN-MARK. Yes. 

Mr. RUSH. Mr. Wright. 

Mr. WRIGHT. Yes. 

Mr. RUSH. All right. I have heard some suggestion the problem 

here is not really the statute, but the problem is EPA’s interpretation of the statute. It seems to me that after 30 years of failed efforts to carry out the law through many different Administrations 

of different political stripes, it is fair to say that there are some serious problems with the statute itself. Do you agree with this conclusion? 

Mr. STEPHENSON. That it is EPA’s interpretation and not the law 

itself? Was that the question? 

Mr. RUSH. No, that we have some serious problems with the statute itself. 

Mr. STEPHENSON. Yes. 

Mr. RUSH. Mr. Davies. 

Mr. DAVIES. Yes, I do agree. 

Mr. RUSH. Ms. Swanson. 

Ms. SWANSON. Yes, I agree. 

Mr. RUSH. Mr. Corbin-Mark. 

Mr. CORBIN-MARK. Absolutely, I agree. 

Mr. RUSH. Mr. Wright. 

Mr. WRIGHT. Yes. 

Mr. RUSH. Let me ask you another question and answer as briefly as you possibly can. What are the top two or three areas of 

TSCA that you think are in most need of reform? Please follow 

with your reasoning and be as brief as you possibly can. Did you 

hear my question? 

Mr. STEPHENSON. I think the evidentiary standard that we 

talked about is too high and I think there is room for better hearing of information to the public and I think that the burden of 

proof for safe chemicals is tipped entirely on the government right 

now and should be moved more to industry. We are not here to endorse REACH. We are only using that as an example where the 

chemical industry is required to provide information to show that 

the chemicals are safe. We think it can be risk based. We think it 

can be production volume based but nevertheless the way TSCA 


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works right now, in 30 years it has just proven so burdensome that 

it doesn’t serve its purpose. 

Mr. RUSH. Mr. Davies, would you care to respond? 

Mr. DAVIES. I agree with Mr. Stephenson. Let me make two 

quick comments. One, in terms of the evidentiary burden, it is different from what it is in almost all of the other environmental statutes. I mean, arbitrary and capricious is the standard used in almost all the environmental statutes, and in TSCA it is substantial 

evidence on the record, which is an incredibly high burden, and 

when you combine that with the other requirements in the Act, 

that is enough to undermine everything. The other thing is, again 

I would just urge the committee to pay some attention to things 

like nanotechnology and synthetic biology, which are coming down 

the track very fast. The regulatory system is not equipped to address those kinds of problems and we have to try to think through 

what changes are needed to address those things. 

Mr. RUSH. Thank you very much. 

Ms. Swanson? 

Ms. SWANSON. I would agree that a major area for reform is to 

shift the burden of proof from government and proving that a 

chemical is toxic after it is on the market, shift that to industry 

proving that a chemical is safe before it goes on the market. That 

is just a key element that needs to be reformed. Also, we would like 

to see neurodevelopmental testing specifically included as part of 

the toxicity testing that is required by the statute. 

Mr. CORBIN-MARK. I think that the one-by-one review approach 

of chemicals that is under TSCA sorely needs to be reformed. Many 

low-income communities and communities of color are not impacted 

by chemicals on a one-by-one basis but through their multiple and 

synergistic effects. I also think that the fragmentation that TSCA 

provides for chemical policy is really bad. The fact that some 

chemicals are regulated in the workplace and some chemicals are 

regulated in food and some chemicals are regulated in cosmetics 

and they are all regulated differently is a problem. A chemical is 

a chemical is a chemical. And then lastly, the whole notion of sort 

of the risk-based approach with which our chemicals are dealt with 

under TSCA is a problem. From our standpoint, risk models do not 

often include people of color, they don’t include women and they 

often don’t include children, some of the most vulnerable populations, given some of the things that I have talked about in terms 

of the communities that I work and organize in. 

Mr. RUSH. Thank you very much. 

Mr. Wright? 

Mr. WRIGHT. Well, I agree with all of the above, but let me add 

to the list the great trade secrecy burdens that really prevent people from getting much information about the chemicals to which 

they are exposed. I also think that a new statute should require a 

lot more testing. Most chemicals are tested really only for their 

acute toxicity and not for chronic, long-term effects, and I think we 

need a combination of a risk-based and a hazard-based approach. 

That is to say the reporting should be the reporting by a company 

of the intrinsic hazards of a chemical that they produce whether it 

is acutely toxic, whether it is a neurotoxin, whether it causes cancer, and after that is done, after we have that information which 


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we need to evaluate the risk, that is when you look at risk and that 

is when you look at how you actually deal with that chemical. 

Mr. RUSH. Thank you very much. 

The chair now recognizes for 5 minutes the ranking member. 

Mr. RADANOVICH. Thank you, Mr. Chairman, and again I appreciate the testimony of the panel. Let me start off by saying I know 

firsthand on the issue of chronic disease and diseases for which you 

cannot take a pill to get an immediate cure. I deal with that in my 

family as we speak, so I understand fully, Ms. Swanson and Mr. 

Corbin-Mark. I am empathetic with your issues and I care about 

the same things that you care about. However, I just want to make 

sure that whatever is done in something like this has to be based 

on good science and it has to be done in such a way that doesn’t 

cripple a good industry, and I think those are the points that I 

think I would like to leave you with to make sure that whatever 

is done in a law that is generally accepted the fact that it needs 

to be updated and reformed, that we don’t do it in such a way that 

we cripple an entire industry that is legitimate out there. 

So I guess, Mr. Stephenson, if I could ask you a question. There 

were either 80,000 or 82,000 chemicals registered— 

Mr. STEPHENSON. Eighty thousand on the existing chemical— 

Mr. RADANOVICH. It is 80,000? 

Mr. STEPHENSON. Yes. 

Mr. RADANOVICH. In your view, do you think that the industry, 

the chemical industry should be on the hook to prove that every 

one of those by good science is a safe material? Do you believe that 

under the law that the industry should take on every one of them 

and then come back with— 

Mr. STEPHENSON. I don’t think you can apply a one size fits all 

to everything. That has been the complaints of the European approach under REACH, that they require too much information on 

some chemicals that are known to be safe. I am not a chemistry 

expert but I think there are ways to segment that family of chemicals into those where the chemical industry should be required to 

provide information and those that should not. I think EPA has 

even offered to scrub the list in some way. They haven’t done that 

but they could do that. 

Mr. RADANOVICH. And also in your testimony, was it the number 

200 that were—200 chemicals that were— 

Mr. STEPHENSON. Where they actually required additional information from industry, and there is a burden of proof on EPA and 

a case that it has to go through and years that it takes even to get 

that. So in 30 years of TSCA, there has been 200 times where the 

law has worked to require additional information. 

Mr. RADANOVICH. In your view, knowing what you know about 

the industry, can you give me a sense of—you know, because we 

are looking at 200 to 80,000, somewhere in between there a sense 

of the chemicals that are out there that need to be looked at further? 

Mr. STEPHENSON. The catch-22 that Mr. Davies pointed to is the 

biggest problem. EPA is required to prove the chemical is dangerous and it needs information to do that. Well, who has the information? The person who produced it does so they can’t meet that 

burden without information from the industry so there has to be 


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more of a collaboration here for EPA to get the information that 

it needs to do its job more easily than it can right now. 

Mr. RADANOVICH. Thank you. 

Ms. Swanson, you mentioned a list of chemicals, the same 80,000 

that are registered, of course, that is common, 3,000, and then 10 

that were proven. Can you go over that list and give me an idea 

of what you are talking about in the overall chemical world of all 

those registered on TSCA how many things we are looking at here? 

Ms. SWANSON. Yes, I mentioned of the 80,000 that are registered, 

about 3,000 are produced at more than 1 million pounds annually 

so these high-volume chemicals, there are 3,000 of those which 

might be one good starting point for requiring information, and of 

those 3,000 we know that 10 are neurotoxins and there is good evidence to suggest that another 200 are neurotoxins. 

Mr. RADANOVICH. Are those 10 neurotoxins that you know of for 

sure backed by good science and still in products today, being manufactured into products today? 

Ms. SWANSON. It is backed by a very good body of science that 

in many cases stretches over decades. Some of them are not—well, 

lead is one of the main and most potent neurotoxins that we know 

about and so lead has been gotten out of a lot of products certainly, 

but then some of the others are still being used in products today 

such as the chemicals that come from combustion. Those are used 

in products today. A lot of the solvents are known neurotoxins so 

compounds that are used in products like lighter fluid and oils and 

paint strippers and thinners, a lot of those chemicals are known 

neurotoxins and are still being used. So it varies. PCBs are a 

known neurotoxin that has been banned so some of them we have 

gotten rid of and some of them are still being used. 

Mr. RADANOVICH. My time is expiring but I look forward to further questioning after we get done here, but I would like to go into 

a little bit more about a good idea, that the devil usually comes in 

the detail and when you do these regulations how they can have 

an unintended consequence on an industry that drives up the cost 

of purchased goods and such. So there is another side of this thing 

that I would like to continue discussing when we get back. 

Thank you, Mr. Chairman. 

Mr. RUSH. The chair now recognizes Mr. Sarbanes for 5 minutes 

of questioning. 

Mr. SARBANES. Thank you, Mr. Chair. 

Ms. Swanson, you said in your testimony that many people, particularly parents, would be, I think you said, dumbfounded and 

then outraged to learn that there isn’t more oversight and data 

available with respect to these chemicals, and I am frankly becoming dumbfounded as I learn more about what hasn’t happened as 

a result of what the expectations were of TSCA, and I would be 

very interested to hear from anyone that wants to comment on it 

briefly, because TSCA was hailed in the day when it was passed 

as this huge step. What happened? In other words, what expectations for what it was going to do were not met and how different 

is the oversight environment now as a result of the passage of 

TSCA, given the interpretations of it compared to the way things 

were before it was passed? 


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Mr. STEPHENSON. I will take a stab at part of it, the evidentiary 

standard we talked about. Just the use of the term ‘‘unreasonable 

risk’’ in a legal sense bears a high evidentiary burden, one that 

EPA can seldom meet, and that is why the asbestos case is important. They finally spent the 2 to 10 years that it took to make the 

case that it needed more information only to have it thrown out by 

the courts by not meeting that high evidentiary standard that is 

spelled out in the rule. That is why as a minimum we think that 

kind of language needs to be modified. 

Mr. DAVIES. Just in terms of the history of the Act, basically the 

sort of fundamental tradeoff made when the Act was formulated 

under the Nixon Administration was a set of very broad and 

sweeping authorities in exchange for a bunch of very high procedural hurdles, and the court decisions since then, particularly corrosion-proof fittings, which is the 1991 decisions, made it very clear 

that in effect those broad and fairly sweeping authorities to take 

action were undetermined and negated by the procedural hurdles. 

Mr. SARBANES. So basically it sounds like a lot of it has to do 

with judicial interpretation subsequent to the passage of the Act, 

which is not an unusual thing to happen. You have expectations of 

what will be changed, and then once it gets into the court system, 

things get more nuanced. 

Let me move on real quick because I got 2 minutes here. I was 

curious, what other—are there analogies on this issue of the burden of proof, which now resides heavily on EPA to prove that something is unsafe, versus on the manufacturers and so forth to prove 

that it is? Are there analogies to other statutes administered by the 

EPA where you see that sort of what I would call imbalance at 

work or is this one of the more egregious instances of where you 

have got the burdens flipped in the wrong direction? That is my 

view of it. 

Mr. DAVIES. The two more egregious examples in my mind in addition to TSCA are cosmetics and dietary supplements. In both 

cases, the burden of proof is entirely on the agency, in that case 

Food and Drug Administration, and furthermore, the statute in effect prohibits any kind of adequate oversight, which is even further 

than TSCA goes, but TSCA is definitely if not the most important 

definitely one of the most important examples where the burden of 

proof problems interfere with the effectiveness of the statute. 

Mr. SARBANES. Thank you. I yield back. 

Mr. RUSH. The chair thanks the gentleman. 

I think that we will stand in recess until we return from the 

votes, and we again ask the witness if they will remain for the conclusion of this first panel. Thank you. The committee is in recess. 

[Recess.] 

Mr. RUSH. The committee is called to order. I want to thank the 

panelists and our guests for their patience. I think that right now 

we will recognize Ms. Castor, the gentlelady from Florida, for 5 

minutes of questioning to the panel. 

Ms. CASTOR. Thank you very much, Mr. Chairman. 

Thank you to the panel very much for attending today. The evidentiary standard obviously is very problematic and you made your 

points very well on that. I would like to move on and have a better 

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formation that it obtains, the sharing of scientific data that it obtains with the public. Could you all comment on that, please? 

Mr. STEPHENSON. I will take the first shot at it. When a new 

chemical is introduced, the industry has to submit what is called 

a pre-manufacturer notice, and as part of that there is actually a 

box on the form that you check that claims competitive business information and we have been told often that that is the default and 

we think if there was more guidance or definition as to when that 

claim could legitimately be made or if there was a certification that 

the industry would make to certify the fact that is indeed CBI 

would be better than the way it works now. 

Mr. DAVIES. That is a key part of the problem but also it is made 

worse because unlike most of the other environmental statutes, 

TSCA doesn’t allow EPA to share confidential business information 

with either States or with other national governments. In most of 

the statutes, it says if the State or the other national government 

can provide equivalent protection for that trade secret information, 

then you can share it with them. TSCA doesn’t have any provision 

like that. It has a flat prohibition on sharing any confidential business information. So that combined with the ease with which you 

can classifying something as confidential, that is what contributes 

to the problem. 

Mr. WRIGHT. If I can add kind of another model, the OSHA hazard communication standard also has a provision for trade secrecy 

but it has two important provisions. One is that if chemical in 

question, the chemical mixture usually is obtainable on the open 

market and can be essentially, it is called reverse engineered, analyzed in a lab to figure out what it is, then it is really not much 

of a trade secret because any competitor can do that. So the standard excludes things that can be reverse engineered. And second, it 

provides a provision that people with a legitimate need to know 

that information, for example, in our case, a worker representative, 

a worker himself or herself, somebody providing medical treatment 

can also get what would otherwise be confidential business information. And those would be good things to include. 

Ms. CASTOR. Yes, I think it is fairly obvious that we can modernize the statute to better serve the public, especially when it 

comes to information that families need to understand. It is true 

that since TSCA was adopted in 1976 that it has only led to one 

group of chemicals that have been subjected to a ban because of its 

properties? 

Mr. STEPHENSON. The example we use, there has only been five 

in total, and I don’t know what chemical classes those were in but 

even of those, the corrosion fitting case that dealt with asbestos, 

the courts threw that out because it couldn’t meet the high evidentiary standard within the law. The courts didn’t address whether the asbestos was safe or not. Like courts often do, they just 

showed that it didn’t meet the standards in TSCA. 

Ms. CASTOR. Mr. Stephenson, in your written testimony, you 

gave an example of formaldehyde, and I think it would be very 

helpful to take just a minute and explain that circumstance of the 

formaldehyde in wood coming from China that now cannot go to 

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Mr. STEPHENSON. Well, you are getting even beyond TSCA into 

assessing the toxicity of chemicals as well and there are many 

ways you can do that. It doesn’t fall under TSCA. That process is 

also broken at EPA, the integrated risk information system process, and formaldehyde is a case where the research is compelling 

but not compelling enough for EPA to regulate, so that is sort of 

related but a little bit different issue. 

Ms. CASTOR. My time is running out. I recommend that you all 

review this case of the wood now that other countries are able to 

regulate and keep out of their countries because of the toxic chemicals contained therein but it is still coming to the United States including some of the trailers that were provided to Katrina victims. 

Mr. STEPHENSON. Absolutely. That is true of asbestos too. Nearly 

every other country in the world has banned it. We have not. 

Ms. CASTOR. Thank you, Mr. Chairman. 

Mr. RUSH. Seeing that there are no more members, I want just 

to thank this panel. This will conclude your testimony, and I want 

you to understand that all witnesses should be prepared to respond 

to written follow-up questions submitted by members of the subcommittee. I again want to thank you so much for your patience 

and you really helped us along. You provide a real service to the 

American people by your presence here today. Thank you, and may 

God bless you in your travels. 

As the first panel departs, I would ask that the second panel be 

prepared now to come and join us at the witness table. I want to 

advise the second panel that they will be testifying under oath, and 

as a result of that, would you please rise to be sworn in? 

[Witnesses sworn.] 

Mr. RUSH. Please let the record reflect that all witnesses have responded in the affirmative. Please take your seats. 

I want to introduce the witnesses beginning at my left, your 

right. Mr. Richard Denison is the senior scientist for the Environmental Defense Fund. Ms. Kathy Gerwig is the vice president of 

Workplace Safety and Environment. She is the stewardship officer 

at Kaiser Permanente. An ex-Member of the House is with us here, 

Mr. Cal Dooley. Mr. Dooley is now the president and CEO of the 

American Chemistry Council. He served in the House from 1991 to 

2005, representing the 17th and 20th districts of California. He 

didn’t represent them all at the time. Mr. V.M., Jim, DeLisi is the 

president of Fanwood Chemical Incorporated. He is the chairman 

of the International Affairs Committee for the Synthetic Organic 

Chemical Manufacturers Association. Mr. Charles T. Drevna is the 

president of the National Petrochemical & Refiners Association. 

I would ask that the panelists now provide a maximum of 5 minutes of opening statements beginning with Mr. Denison. 


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TESTIMONY OF RICHARD DENISON, SENIOR SCIENTIST, ENVIRONMENTAL DEFENSE FUND; KATHY GERWIG, VICE PRESIDENT, WORKPLACE SAFETY AND ENVIRONMENTAL STEWARDSHIP OFFICER, KAISER PERMANENTE; CAL DOOLEY, 

PRESIDENT AND CEO, AMERICAN CHEMISTRY COUNCIL; V.M. 

(JIM) DELISI, PRESIDENT, FANWOOD CHEMICAL INC., AND 

CHAIRMAN, INTERNATIONAL AFFAIRS COMMITTEE, SYNTHETIC ORGANIC CHEMICAL MANUFACTURERS ASSOCIATION; AND CHARLES T. DREVNA, PRESIDENT, NATIONAL 

PETROCHEMICAL& REFINERS ASSOCIATION 

TESTIMONY OF RICHARD DENISON 

Mr. DENISON. Thank you, Chairman Rush and Ranking Member 

Radanovich for holding this hearing today. 

I would like to do three brief things in my testimony today. I 

want to start with a story about one chemical. In fact, it is the 

chemical that Congresswoman Castor was just speaking about that 

illustrates why reform of TSCA is so urgent. I then want to briefly 

describe several structural problems with TSCA that help to explain why EPA has been unable to act effectively to ensure chemical safety. And finally I want to describe how U.S. policies are falling behind those of the rest of the world, putting U.S. companies 

at risk of losing access to global markets and putting all of us at 

risk of becoming a dumping ground for unsafe products made elsewhere in the world. 

That brings me to the story about that one chemical. The United 

States imports vast amounts of plywood from China that is made 

using formaldehyde-based adhesives, a chemical known to cause 

cancer, to exacerbate asthma and to cause numerous other respiratory ailments. Some of that plywood ended up in the infamous 

FEMA trailers to which so many people were forced to flee in the 

wake of Hurricane Katrina. That toxic exposure turned what was 

already a national scandal into a true debacle. The plywood China 

sells to the United States cannot legally be sold to Japan or the 

European Union nor can it be sold even for domestic use in China, 

and that is because all of those countries have enacted strong regulations that restrict the release of formaldehyde. As of January of 

this year, California also enacted such regulations. 

Now, China exports a low-formaldehyde version of this plywood 

to Japan and the European Union but it continues to enjoy a market for its more toxic product here in the United States. Domestic 

makers of low- or even formaldehyde-free plywood can’t compete 

with those cheap imports from China so we are hurting American 

businesses that have found safer alternatives to this use. Last year 

EPA was petitioned by 5,000 citizens to take the California regulations and adopt them nationally. EPA promptly denied that petition. It said that the information available on formaldehyde, one of 

the best-studied chemicals in all of commerce, was insufficient. As 

bad as that sounds, what is worse is that EPA is likely right. EPA 

must show that a chemical presents an unreasonable risk as defined under TSCA and interpreted by the courts, and I think many 

other witnesses have already alluded to the fact that that burden 

is so high that it essentially is impossible to meet. Over the history 

of TSCA, EPA has banned only one group of chemicals, PCBs, and 


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that was because Congress legislated the ban. It has partially restricted four other sets of chemicals in the 33-year history. In the 

1980s EPA tried to ban asbestos, as we have heard, and it was immediately challenged by industry and the courts overturned that 

decision. 

A lot has been said about that already but I want to add two 

other things. First, EPA took over 10 years to develop that regulation and they amassed a 45,000-page documentary record of the 

risks of asbestos. Despite that, the courts found EPA had not met 

its burden under TSCA. Now, it has become fashionable in some 

circles to argue that the problem with TSCA is that EPA hasn’t 

been trying hard enough or hasn’t been doing a good enough job. 

I ask you, if 45,000 pages of documentation and 10 years of regulatory development is not enough to ban a chemical like asbestos, 

what is? Something is badly broken. TSCA has never been significantly amended in the 33-year life it has lived despite enormous 

changes in our chemicals economy and our state of knowledge 

about chemicals. One example. We now know that all Americans 

including newborn infants carry hundreds of synthetic chemicals in 

their bodies, some at levels that we already know are high enough 

to cause harm in laboratory animals. The more chemicals we look 

for in people, the more we find, and yet government nor industry 

can tell us how those chemicals got there nor can they adequately 

explain what their impact will be on our health. TSCA fails to provide EPA with the authority it needs to develop information to 

identify not only unsafe chemicals but safe chemicals that could be 

substitutes for the risky ones and TSCA forbids EPA from sharing 

that information even with other levels of government, as we have 

already heard. Companies are largely free to claim the information 

that they deem confidential. Those claims are rarely, if ever, reviewed or even required to be justified up front, and even the name 

and identity of a chemical that is being submitted because of a 

study that shows high risk, the identity of that chemical can be 

hidden from the public. 

EPA had to resort to voluntary programs, given these constraints 

that it has to operate under. The most notable of these is the High 

Production Volume Challenge program. Now, we supported that 

when it was launched a decade ago. 

Mr. RUSH. Will you please bring your testimony to a close? You 

are over the 5 minutes. Please bring it to a close. 

Mr. DENISON. But that program—I will wrap up very quickly 

here. That program has failed to deliver the data because it is a 

voluntary program. I want to just end by saying that lest you think 

that what we are looking for with TSCA reform is a heavier hand 

of government, the largest failing of TSCA is the dysfunctional 

market it perpetuates, one that is ill informed and does not allow 

anyone who needs to make good decisions about chemicals access 

to the information to make those good decisions. Thank you very 

much. 

[The prepared statement of Mr. Denison follows:] 


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Mr. RUSH. Thank you very much. 

Ms. Gerwig, please, 5 minutes. 

TESTIMONY OF KATHY GERWIG 

Ms. GERWIG. Mr. Chairman and distinguished members of the 

subcommittee, thank you very much for inviting me to testify 

today. I am Kathy Gerwig. I am vice president and environmental 

stewardship officer for Kaiser Permanente. That is the Nation’s 

largest integrated healthcare delivery system. We provide comprehensive health services to 8.7 million people in nine States and 

the District of Columbia. 

At Kaiser Permanente, we recognize that a healthy environment 

is critical to the health and wellness of every person. We are dedicated to environmental sustainability as we believe it has direct 

positive effects on individual and community health. We lead and 

support innovative efforts to decrease pollutants and enhance the 

environment. This year we will spend about $13 billion on purchased products and services. We lease or own more than 65 million square feet of real estate. We have a 10-year capital plan of 

more than $30 billion. 

Despite this leverage, we have experienced limitations in achieving our goal of using products and materials that are environmentally sustainable. We have developed our own chemicals disclosure document that is required for all of our large purchasing contracts. This disclosure asks suppliers for information on the categories of persistent bioaccumulative toxic compounds, carcinogens, 

mutagens, reproductive toxins and specific chemicals of concern 

such as mercury, polyvinyl chloride, phthalates, Bisphenol A and 

halogenated flame retardants. When the information is provided by 

suppliers, there are many times that it is not meaningful due to 

the vendor’s lack of knowledge, trade secret caveats or the absence 

of safety information for thousands of chemicals in commerce 

today. 

We are also challenged by suppliers’ claims that a product is 

green when it doesn’t meet our environmental criteria. For example, a product that saves energy, which is good, might be made of 

vinyl, which creates dioxin pollution. Starting in 1997, Kaiser 

Permanente spent 10 years virtually eliminating mercury, a 

neurotoxin, from our operations. We now use digital thermometers 

and blood pressure devices. The mercury in esophageal dilators was 

replaced with tungsten by that industry. Now there is emerging 

evidence that tungsten is related to leukemia in towns near tungsten mining operations. This is an example of a large effort across 

the healthcare sector to replace a known hazardous material which 

may be resulting in the unintentional use of potentially hazardous 

material. 

Another example includes the replacement of products containing 

di(2-ethylhexyl) phthalate, or DEHP, which is used as a plasticizer 

in flexible medical devices such as intravenous tubing and bags. 

DEHP can leach from the plastic, posing health risks. Our project 

began in 2001 when evidence was available to show that DEHP is 

a potential reproductive toxicant to neonatal males. We identified 

alternatives, conducted clinical trials before we were able to begin 

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For more than 10 years, Kaiser Permanente has been working to 

reduce our use of vinyl products because vinyl creates dioxin pollution when it is manufactured or incinerated. In 2004 we were instrumental in driving the creation of a vinyl-free carpet suitable for 

healthcare settings. It was a multi-year effort that took considerable time and resources on our part. We now contract exclusively 

with a vendor that created that product and we have installed approximately 10 million square feet of this carpet in our facilities. 

When we were testing alternatives to hard surface flooring made 

from vinyl, we had to actually invent our own testing protocol and 

use in-house certified industrial hygienists to perform tests to understand the health impacts of the alternatives. As we strive to use 

products that are not harmful, we invest significant time and resources. That degree of investment is simply not feasible for most 

products and materials we buy nor is it possible for smaller organizations that don’t have the resources and skills that Kaiser 

Permanente has developed over the decades. Mechanisms are needed to support downstream users such as us in procuring safer products and materials for our needs. 

Mr. Chairman and members of the committee, thank you for this 

opportunity and I look forward to answering any questions. 

[The prepared statement of Ms. Gerwig follows:] 


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Ms. SUTTON [presiding]. Thank you, Ms. Gerwig. 

Mr. Dooley. 

TESTIMONY OF CAL DOOLEY 

Mr. DOOLEY. Thank you, members of the subcommittee. My 

name is Cal Dooley and I am president and CEO of the American 

Chemistry Council, and our council represents about 140 member 

companies that produce almost 85 percent of the chemicals manufactured in this country. 

I would just ask you to briefly consider the role that chemicals 

played in your lives today. Chemical products are fundamental to 

the clothes you wear, the way you got to work this morning, the 

electronic products that you communicate with, the chair you are 

sitting on, the protective finish on the dais and the desk. Chemicals 

are the medicines that help save lives, the safety equipment that 

protect our children and our military forces, and the insulation in 

the lightweight vehicles that reduce greenhouse gas emissions and 

save energy. 

ACC and its members share your goal of protecting human 

health and the environment from risks associated with some 

chemicals. In the vast majority of cases, however, chemicals can be 

and are used safely. While ACC believes that TSCA has been protective of health and the environment, there are good reasons why 

Congress should consider modernizing the statute. 

First, it is clear that the public for a variety of reasons does not 

have confidence that the regulatory system is adequately ensuring 

the safety of the products they use. Second, science and technology 

of testing and detecting chemicals has advanced considerably since 

TSCA was enacted and we can more effectively incorporate these 

new capabilities into a modernized regulatory system. And third, 

modernizing TSCA will make the best use of emerging developments in science and technology and protect our Nation’s interests 

in an innovative, competitive chemical industry. 

My simple message to the subcommittee this morning is that 

ACC and its member companies are prepared to work with you in 

modernizing TSCA. I would like to quickly address a few of the 

areas where Congress should focus its attention in considering 

changes to TSCA. We are committed to having the appropriate hazard, use and exposure information necessary to make decisions 

about safe use and we think the approach should be reflected in 

law. In general, we think it is appropriate to have more information about those uses where there are or may be exposures to humans or the environment. Information requirements should be 

driven by use and exposure patterns. We support new detection 

methodologies like biomonitoring. We think the federal chemical 

management system should be robust enough to apply that data 

and other relevant information in a prioritization process that allows a focus on key health and safety concerns like potential exposures to children. EPA should use hazard, use and exposure information to determine the safety of priority chemicals for their intended uses. 

Safety assessments conducted by EPA should not simply rely, 

however, on hazard as a sole determinant of the outcome. As an 

example, consider a single chemical that might be used in many 


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different applications, maybe from bullet-resistant vests and goods 

that are used in the retail marketplace to a chemical input in an 

industrial process. While the hazard characteristics are clearly the 

same regardless of the application, the exposure and risk considerations will vary significantly. This simple example helps illustrate 

the questions that a federal chemical management system must be 

capable of addressing. For example, what additional information is 

needed to ensure that the chemical can be used safely for its intended purpose? On what basis should EPA make a decision that 

it is safe? How should EPA weight the relative hazards and risks 

of the alternatives? And how can we ensure that the decisions are 

made in a timely manner and that they protect health and the environment and the national interests and technological innovation? 

In ACC’s view, a robust federal chemical management system 

must be capable of providing chemical manufacturers, users, the 

public and the government with the answers to those questions. 

Those are the questions that we are committed to addressing and 

we are also committed to working with you toward the goal of modernizing TSCA. Thank you. 

[The prepared statement of Mr. Dooley follows:] 


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Ms. SUTTON. Thank you, Mr. Dooley. 

Mr. DeLisi. 

TESTIMONY OF V.M. DELISI 

Mr. DELISI. Good afternoon. It is a pleasure being before this distinguished subcommittee. My name is Jim DeLisi and I am president of Fanwood Chemical located in Fanwood, New Jersey. 

Fanwood Chemical is a member of SOCMA, the leading trade association representing the batch and custom chemical industry. Our industry makes a $60 billion annual contribution to the U.S. 

economy and contributes to the chemical industry’s position as the 

Nation’s leading exporter. SOCMA supports EPA’s and Congress’s 

fundamental goal of protecting health and the environment. 

SOCMA members are prepared to do our part in that effort. We are 

pleased to have this opportunity to share with you our perspective 

on revisiting the Toxic Substances Control Act. As I will explain 

today, SOCMA agrees with many that TSCA needs to be revisited 

and certain aspects of EPA’s TSCA program could be improved but 

a sweeping overhaul like implementing Europe’s REACH is unnecessary and would be unwise. Since its enactment, TSCA and its unreasonable-risk standard have generally stood the test of time as 

a flexible law that has protected human health and the environment without crippling innovation. 

First, I would like to start by saying that any evaluation of TSCA 

should consider the contributions the chemical industry has made 

in providing the United States with one of the highest standards 

of living in the world, even as overall indices of public health and 

environmental quality have improved. Secondly, any evaluation 

should also take into account the vast amount of data that have 

been submitted by our industry to the EPA and to other agencies 

such as the FDA, DOT, OSHA, Consumer Products Safety Commission under other statutes that regulate our industry. Lastly, it 

should look at how this balance between protecting human health 

and the environment and preserving innovation has been achieved 

and how it can be maintained. SOCMA believe this balance has 

been and will continue to be achieved by a chemicals policy that 

is fundamentally guided by science in a careful assessment of risk. 

Data requirements have been driven by the intended and foreseeable use and disposal of a chemical. This fundamental approach 

should be maintained when considering a revised approach to 

chemical risk management. 

One area of TSCA that has faced substantial criticism is the reporting requirements applicable to industry. In particular, many 

believe that EPA does not have sufficient authority under TSCA to 

request data. SOCMA disagrees with this claim but we do believe 

that data gathering is an area worthy of improvement and that we 

should reconsider what is the best approach to gathering data and 

information on chemicals. In order to do this, Congress should look 

at how EPA currently implements TSCA and consider how the program could be enhanced. 

Before amending TSCA to create new obligations for EPA, Congress should also explore whether EPA can better leverage activities going on outside of the TSCA program, whether occurring 

under federal agencies like FDA or abroad. For example, companies 


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are embarking on a massive project to generate standardized test 

data for European REACH program. Through collaborative datasharing efforts, EPA should be able to take advantage of the work 

done for that program just as other countries can leverage the work 

conducted here. Why should the United States want to duplicate 

testing that is already being conducted? A collaborative approach 

should be promoted by Congress. 

This leads me to the Chemical Assessment and Management Program, better known as ChAMP, the voluntary program to which 

the United States committed in 2007 along with Canada and Mexico under the Security and Prosperity Partnership. Through this 

program, EPA is prioritizing chemicals by hazard and risk in order 

to systematically decide what further action may or may not be required. EPA is already well down the path of implementing this 

program. ChAMP is also addressing the TSCA inventory. EPA has 

initiated action to reset the TSCA inventory to more accurately 

identify chemicals in commerce. Many people do not realize that at 

any given time, significantly fewer than the roughly 80,000 chemicals currently on the inventory are likely to actually be in commerce. For example, the last inventory update reported only 6,200 

chemicals in commerce during 2005. Admittedly, that does not include materials produced on a single site at less than 25,000 

pounds a year. Nevertheless, this important fact is conveniently ignored by those who try to show that TSCA is inadequate, who 

claim that the inventory reflects the number of chemicals in commerce and then compare that number to the number of existing 

chemicals that have been studied by EPA under section 4. 

In closing, SOCMA has pointed out several main areas of TSCA 

that are being enhanced and we would urge you to focus your current inquiry on how to better implement existing authorities and 

activities. SOCMA believe that TSCA will not require a complete 

overhaul but could be enhanced by new challenges. Thank you, and 

I look forward to taking questions. 

[The prepared statement of Mr. DeLisi follows:] 


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Mr. RUSH. Mr. Drevna. 

TESTIMONY OF CHARLES T. DREVNA 

Mr. DREVNA. Chairman Rush, Ranking Member Radanovich and 

the rest of the subcommittee, thanks for having us here. My name 

is Charlie Drevna. I am president of NPRA, the National Petrochemical & Refiners Association. Our member companies produce 

the basic chemicals that are the building blocks of the thousands 

of finished products that help make our lives simpler and safer. 

NPRA welcomes the opportunity to provide its perspective on the 

Toxic Substances Control Act, which is one of the key laws that can 

directly affect the marketplace, both for chemicals and for finished 

products. 

Congress enacted TSCA in 1976 as an effort to categorize and 

evaluate the risk that chemicals may pose to humans and the environment. NPRA believes that the intent of Congress in crafting the 

statute was to construct a scientifically based chemical risk management program that was protective of human health and the environment while also allowing the development of products that 

will enhance health, safety and the environment. NPRA fully understands the committee’s desire to examine TSCA’s implementation and where necessary make the appropriate modifications to 

the statute to ensure that its goals and objectives are realized. 

We live in an era where global competition and rapid technologic 

change now unfortunately coupled with a debilitating financial crisis are calling into question the business and political foundations 

upon which our prosperity has rested for decades. NPRA believes 

we must ensure the overarching goals of TSCA are achieved while 

at the same time promoting innovation in creating life-saving or 

-enhancing products, promoting economic growth and strengthening American competitiveness in the global marketplace. We are 

confident that these goals are complementary, not mutually exclusive, as some would say, and NPRA pledges to work with Congress 

and with all stakeholders to ensure the desired outcome. 

Recently, several groups have called for a substantial overhaul of 

TSCA to make it more like the system recently adopted in Europe, 

otherwise known as REACH. While I agree that we could all benefit by first reviewing and then perhaps reforming TSCA and updating certain sections, I do not believe that a wholesale rewrite is 

necessary, especially given the fact that systems like REACH are 

largely new and untested. We have not yet begun to see what the 

impact of REACH will have on chemicals management in the E.U. 

or its effect on a European economy. My written testimony further 

elaborates on this point. 

NPRA believes that a more pragmatic approach to TSCA reform 

will result in a better chemicals management system and still 

achieve the original intent of Congress. Key areas to explore while 

examining TSCA reform include information sharing, information 

collection and use, and a statutory recognition of EPA’s own best 

practices and timelines for action. For example, EPA could share 

confidential business information with other types of government 

officials, both domestic and foreign, as long as that information is 

afforded the same level of protection required of EPA. NPRA would 


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not object to changes in the statute that would allow for better information sharing. 

Another area that could be updated is how EPA collects information and prioritizes future work. Under TSCA, EPA is given the authority to collect information on the hazards, potential exposures 

and risks of chemicals. However, the statute does not mandate that 

the information be collected in any particular order nor does it require EPA to collect and disseminate the information in a timely 

manner. In addition, test rules could be updated to reflect EPA’s 

own best practices and specific timelines for action. Test rules 

could also institutionalize a tiered, targeted and risk-based approach, which has proven over time to be the most effective and efficient chemicals policy. 

NPRA urges this subcommittee to consider the approaches used 

by Canada and the United States under the Security and Prosperity Management Program, otherwise known as ChAMP, and at 

EPA it is also undertaking and making significant progress. This 

innovative program should be afforded the opportunity to work and 

produce the desired results. 

The last area I would like to address is EPA resources for TSCA 

implementation. While many say the statute is flawed or outdated, 

I contend that a lack of sufficient funding has been every bit as big 

a problem as any challenge imposed by statutory language. EPA 

must be given the resources to appropriately manage chemicals in 

commerce. 

In conclusion, I believe that if we take a careful, thorough look 

at TSCA and the history of its implementation along with the funding requirements associated with this kind of complex and technical work, we will find a strong statutory framework. I think if we 

work together as stakeholders in a transparent process and give 

this effort the time and thought that it deserves, we will end up 

in this Nation with a chemicals management system that is unparalleled. I thank you for your attention and the opportunity to be 

here today and look forward to your questions. 

[The prepared statement of Mr. Drevna follows:] 


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Mr. RUSH. The Chair thanks all the witnesses. I recognize myself 

for 5 minutes for the purposes of questioning the panel. 

I would like to ask each one of you on the record the same basic 

question that I asked the first panel. Do you believe that TSCA 

needs to be reformed? Please answer yes or no beginning with Mr. 

Denison. 

Mr. DENISON. Yes, I do, Mr. Chairman. 

Mr. RUSH. Ms. Gerwin. 

Ms. GERWIN. Mr. Chairman, my organization has not taken a 

public policy position. 

Mr. RUSH. Cal Dooley. 

Mr. DOOLEY. We support modernization and reform, yes. 

Mr. RUSH. Mr. DeLisi. 

Mr. DELISI. We support revisiting the statute. 

Mr. RUSH. Mr. Drevna. 

Mr. DREVNA. Mr. Chairman, we support the revisiting, then if 

necessary the reform. I think it has to be a stepwise process. 

Mr. RUSH. Mr. Denison, it sounds to me like there are a lot of 

problem with this statute. It looks that way to me. Furthermore, 

it sounds to me like these are generally problems that cannot be 

fixed by having EPA take a different approach to interpreting the 

statute or getting a few more staff. At the same time, others have 

suggested that the problem here is not really the statute, that the 

problem is EPA’s interpretation of the statute. Now, what do you 

believe? Do you believe that the statute really needs to be rewritten or do you think that changes at the EPA will address all these 

problems and concerns? 

Mr. DENISON. Mr. Chairman, I believe that the problems with 

TSCA are fundamentally structural and inherent to the language 

with the addition that legal interpretation of those standards has 

made matters even worse and has confounded the Congressional 

intent, as evidenced in the original statute. But the problems are 

structural in that they require such heavy burdens on the agency 

in terms of both resources and evidence that they effectively take 

provisions that would work if those burdens were not so high and 

make them unworkable. For example, the requirement that EPA 

must face to require a company to test a chemical is so onerous in 

terms of having to first have evidence that that chemical may pose 

a risk in order to require information, the catch-22 that was alluded to earlier is in operation. Even if that were not there, the 

fact that a rule to require testing has to go through full notice and 

comment rulemaking and takes many hundreds of thousands of 

dollars to develop and 2 to 10 years to develop means that when 

we are dealing with tens of thousands of chemicals, we simply can’t 

rely on a system that has that level of burden placed on the agency 

and that level of resource required. 

Mr. RUSH. Ms. Gerwin, you mentioned in your testimony about 

the difficulties that your company is facing trying to move toward 

using safer chemicals, and I applaud your company’s efforts. You 

describe tremendous costs that Kaiser Permanente has taken on in 

this effort including hiring your own industrial hygienist and coming up with the testing protocols to test the safety of products and 

chemicals that you use. This sounds to me like it is a very large 

burden that you have assumed. Are you aware of any other compaVerDate Mar 15 2010 05:59 Feb 04, 2012 Jkt 067095 PO 00000 Frm 00131 Fmt 6633 Sfmt 6633 E:\HR\OC\A095.XXX A095

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nies that are doing similar things? Do you think that a smaller 

company would be able to do what you have done? 

Ms. GERWIN. It is a significant use of our time and resources to 

do the kind of testing that we have done, and I think there are 

other organizations that take on some similar tasks. I don’t know 

of any that actually go to the lengths that we have gone to for so 

long. As I had mentioned in my testimony, we have been doing this 

for more than a decade, and I think smaller organizations would 

find it to be an extreme burden on their resources to try to do the 

kind of work that we are doing. So it is an investment on our part 

that we are making in order to achieve the goals that we want to 

achieve and it represents an organizational burden of time and resources. 

Mr. RUSH. Are you aware of any other companies besides Kaiser, 

your company, that are doing similar things? 

Ms. GERWIN. I am not aware of any organization that is doing 

the amount of testing that we are doing but I know that there are 

other organizations and some healthcare organizations that are focusing on single chemicals or single products. 

Mr. RUSH. The Chair now recognizes the ranking member for 5 

minutes of questioning. 

Mr. RADANOVICH. Thank you, Mr. Chairman. 

I want to welcome the panel and thank you for being here. I 

want to preface the discussion that we have by quoting a New York 

Times article that was printed on June 30, 2008, and it is regarding the hyperbole of taking on difficult subjects like this. It starts 

out by saying ‘‘Need press, repeat, green, sex, toxic, cancer, secret 

and fat.’’ Those are the things that get attention on the press, and 

the reason I am saying that is because when you start talking 

about, a previous witness mentioned the idea of the shower curtains that were a problem emitting odors and it was later on debunked in total because after they went into and found out that 

there was nothing behind the accusation that it could be releasing 

as many as 108 volatile chemicals, and this is the scary part about 

getting into changes like this. Most people here agree that TSCA 

needs to be looked at, but what I don’t want to see is a repeat of 

the Consumer Products Safety Act where you end up putting an incredible burden on industry, raising their costs in association with 

this. So again, you know, this is the red flag that needs to go up 

when the consideration of the revision of something like TSCA 

needs to happen. 

I do have a couple of questions. Mr. Denison, when you mentioned on the issue of asbestos, was it TSCA that prevented asbestos from—as I understand the regulations that were being sought 

after had failed in court. Wasn’t it shoddy workmanship on the 

part of EPA that brought that case to the court that ended up preventing the listing of asbestos? 

Mr. DENISON. Congressman, it absolutely was not. EPA spent 

more than a decade and millions of dollars developing that regulation. It amassed, as I said, a 45,000-page record of documentation. 

What the court found was on several levels that the agency had not 

examined every possible alternative to asbestos in every possible 

use of asbestos on the market, and if you read that court decision 

and the analyses that have been done of it, you find very quickly 


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that the amount of work that the agency would have had to have 

done to have met the statutory requirements as interpreted by the 

courts was simply impossible to reach. 

Mr. RADANOVICH. Let me read the court decision. It says, ‘‘We 

note that of all the asbestos bans, the EPA did the most impressive 

job in this area both in conducting its studies and in supporting its 

contention that banning asbestos products would save over 102 

lives. Were the petitions only questioning the EPA’s decision to ban 

friction products like brake pads, we would be tempted to uphold 

the EPA.’’ 

Mr. DENISON. Well, in that particular case, I am not familiar 

with that particular passage but I think what they were saying 

was that the standard of evidence that was required under the 

statute was only met according to the court in that one area. That 

doesn’t mean that that is the only area that EPA looked at the 

risks or looked at the benefits but that is how high the bar was. 

Mr. RADANOVICH. Thank you, Mr. Denison. 

One of the other questions, I want to repeat this throughout this 

hearing because I think it needs to be a mantra, the previous witness had mentioned the awful accident in Bhopal, India. I fail to 

see any part of TSCA that had anything to do with that accident 

or where that law came into it but you bring up these sexy things 

that get press and you alarm people and it opens the door to regulations that can be not really done surgically to make a law better 

but it brings it in with a meat cleaver and makes a mess out it. 

So that is the caution that I want to make, that is, if we move forward in regulation that it works for everybody and it keeps a legitimate, good industry and allows them to continue to thrive. 

So with that, Mr. DeLisi, I would like to ask you a question. I 

come from the point of view that managing risk is not as simple 

as removing risk but rather gets into the business of risk-risk 

tradeoffs. Could you please tell me if you agree with this risk-risk 

tradeoff concept as it relates to the regulation of chemicals, for example, maybe formaldehyde? 

Mr. DELISI. Absolutely. Frankly, I would not want to be a regulator that had to try to make some of these decisions, but when you 

replace a chemical, you need to understand completely what the 

tradeoffs are and some of the things that have been suggested for 

replacement, things like benzene, I mean, if you don’t have benzene 

you don’t have Tylenol. So there needs to be a careful study of the 

tradeoffs that are being made, things like tires. We all understand 

the risks. Tires can explode. I was on the New Jersey Turnpike 

yesterday and a truck lost a tire that exploded. We face that every 

day. So we all face risk tradeoffs in our lives every day and also 

involved in the chemical industry too. 

Mr. RADANOVICH. Thank you, sir. 

Mr. Chairman, I see that I am over time so I would request one 

more round of questioning. 

Mr. RUSH. The chairman is committed to a second round of questions for those members who can’t complete their line of questioning in the 5-minute time. 

Mr. RADANOVICH. Thank you so much, Mr. Chairman. 

Mr. RUSH. The Chair now recognizes Ms. Schakowsky of Illinois. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. 


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First let me apologize to the panel for not being in the room for 

your testimony. I think as Mr. Dooley is well aware, that won’t prevent me from asking questions, even if it should. 

Mr. Denison, this is directed to you. Actually, they all are. As we 

have heard from several members today, everybody supports the 

use of good science I think it is instructive to the committee to be 

aware of the recent observations of a committee of the National Research Council. In a 2006 report entitled ‘‘Toxicity Testing for the 

Assessment of Environmental Agents,’’ the committee stated, 

‘‘TSCA authorizing EPA to review existing chemicals for toxicity 

and exposure information on them is typically so incomplete that 

it does not support the review process. The basis for establishing 

priorities and requiring testing for industrial chemicals in the 

United States has not progressed much over the last 20 years.’’ I 

am wondering if you agree with this assessment of the scientific experts. 

Mr. DENISON. Congresswoman, I do very much. I believe the National Academy was one of the first to sound the alarm about the 

lack of data way back in the mid-1980s and pointed out that TSCA 

was failing even then to generate the information needed to base 

good scientific decisions about chemicals on and that report that 

you alluded to just 2 years ago simply says that we have not made 

much progress in the intervening 2 decades in terms of tackling 

that basic problem. The Academy has also issued a set of reports 

over the last few months on risk assessment as managed by the 

Environmental Protection Agency and it has found that there are 

major problems with the assumptions that EPA uses and with the 

lack of ability for EPA to recognize that people are exposed to multiple chemicals at the same time, not just one chemical at a time. 

So I think the good science mantra that we hear here is absolutely a need that requires TSCA reform because TSCA is not 

using the best science, and I think that we have an opportunity 

here to bring our chemicals management program into the 21st 

century in terms of using the best science out there to drive these 

decisions. So the notion that good science is only practiced by industry somehow or that this is a one-sided issue is not the case. 

Ms. SCHAKOWSKY. This all may have come up already in testimony, so were we to do in a perfect world the kind of review that 

is necessary, it wouldn’t just be chemical-by-chemical review, we 

would also be looking at the cumulative effect and the interactions 

as well? 

Mr. DENISON. That is right. We are exposed to multiple chemicals from multiple sources all at the same time and yet our assessment methods and our way of going about getting data on chemicals one at a time does not lend itself to elucidating the question, 

what is the impact of all of that cumulative and aggregate exposure? So there is a lot of new science going on here that could begin 

to answer that question. We need to incorporate that best science 

into the way EPA assesses chemicals. 

Ms. SCHAKOWSKY. We worked a lot in this subcommittee and 

committee on the Consumer Products Safety Commission Improvement Act, and I have hear some suggest that we shouldn’t worry 

about levels of a particular chemical in a particular product such 


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as phthalates in rubber duckies because it is far too low to have 

any impact. How are we to respond to that kind of charge? 

Mr. DENISON. Well, it is a very good question. I think the emphasis that the associations at this table just made on the need to look 

at use of chemicals and making decisions about them I hardly endorse. The problem has been that we have done a very lousy job 

as a Nation in understanding what we can be exposed to and how. 

The phthalates in plastics, the brominated flame retardants used 

in our furniture are all chemicals that for decades we were told 

there would be no human exposure to those chemicals. They absolutely would stay put and we would never be exposed to them. We 

have found out how wrong those assumptions were. So I think part 

of the reason why I call for much more comprehensive information 

about chemicals including the use of chemicals, because I agree 

that is very important, is because without that information, we 

make wrong assumptions that prove wrong only decades later 

when essentially the entire human population has been exposed to 

those chemicals and we still don’t know what the risks are. 

Ms. SCHAKOWSKY. Well, this is a new area of jurisdiction for our 

subcommittee that we look very much forward to working on. I 

thank all of you for your input and testimony. 

Mr. RUSH. The Chair now recognizes Mr. Sarbanes. 

Mr. SARBANES. Thank you, Mr. Chairman. 

Thank you all for your testimony. I am trying to understand how 

TSCA is viewed from sort of different quarters, and I imagine there 

are some people who would say that it is a joke. If you were just 

at lunch with somebody, Mr. Denison, and they said oh, yeah, 

TSCA, you know, that regulates chemical safety, would you, well, 

that is really kind of a joke or would you say it is an open secret 

that it doesn’t really do much, or do you say well, that is a reasonably good statute that just needs some upgrading and overhauling? 

Just kind of put it in a vernacular for me. 

Mr. DENISON. Congressman, I think I would probably aim toward 

the middle of the three statements that you made. I think it is 

largely an open secret that this policy has not been sufficiently protected, that EPA has not been able to get the information it needs 

and has not been able to act on that information when it does happen to obtain it. So I don’t know that it is a joke. I think the intent 

at the time and the policy statements in TSCA are very solid. The 

problem has been that it simply has not delivered on the promises 

it made, and I think that is inherent in the statute that has not 

been looked at for essentially 3 decades. So we have to go back and 

figure out why it didn’t work and fix those structural defects. 

Mr. SARBANES. Let me ask you about REACH because a couple 

people have alluded to that, some with a sense of alarm, and I 

would ask anyone on the panel to speak to this. Is REACH too far, 

is that overreaching to go to REACH? I mean, how much of a burden would that really represent? Describe that burden in terms of 

there might be an initial period of assimilating the new standards 

but presumably over time you can make the gathering of information, the presentation of safety data and other things part of the 

course of your operations such that it would not be so burdensome. 

And I don’t know that REACH is the answer. It just that it has 


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been invoked a couple of times as a standard either to be concerned 

about or to reach for. So again, anybody can speak to that. 

Mr. DELISI. I would like to make a couple of comments on that. 

First, many of the things that have been discussed this morning 

and this afternoon are not regulated by TSCA. There was a lot of 

discussion this morning about exposure to biocides and insecticides 

and things like that, which are regulated under FIFRA, not under 

TSCA, and my understanding from my friends in the ag chemical 

industry is, there are broad reviews being undertaken on a whole 

swath of ag chemicals under the FIFRA statute. There was some 

reference this morning to some cleaning products and some consumer goods. I don’t think TSCA was ever envisioned to be involved in that. That is the Consumer Products Safety Commission 

and other places where things are reasonably well regulated. 

REACH is a significant overreach because of the deadlines and 

the way things are put together under REACH and the so-called 

substance information exchange forums. When the E.U. proposed 

REACH, they expected to have somewhere around 30,000 products 

and 300,000 pre-registrations. What they ended up with is 2.5 million pre-registrations of 150,000 products. Until the world gets a 

chance to see if REACH can work, 3 or 4 years from now we may 

all be sitting here saying REACH is an outstandingly good way to 

regulate chemicals and be recommending it to Congress and EPA 

to look at it, but I think the E.U. needs a chance to test it and see 

if it works. There are many of us that believe it is going to have 

a substantial detrimental effect on the E.U. economy all the way 

up the line. 

Mr. DOOLEY. Congressman Sarbanes, I would just encourage the 

committee—Stu Eisenstadt has submitted a statement for the 

record that deals with REACH and I encourage you to read it. It 

includes some of the information that Mr. DeLisi also addressed, 

but I would also encourage the committee to look not only at 

REACH but look at the Canadian system that they are currently 

putting in place because they are somewhat different, and I think 

they are instructive in terms of how we think we can be most effective in modernizing our TSCA system. 

One of our concerns about REACH is, is that it doesn’t really embrace a prioritization system. You know, we always are going to 

have to recognize that, you know, a regulatory agency such as EPA 

is going to have limited resources. We ought to be targeting those 

resources and focusing our greatest concern on those chemicals 

that are chemicals of concern, that might be those that are persistent, that are biocumulative and that we ought to also then have 

a prioritization where you are going to require more information 

from my member companies when you have these high chemicals 

of concern, which REACH doesn’t address effectively. The Canadian system takes a much different approach where they have analyzed about 23,000 different chemicals. They identified 4,000 or so 

that we ought to be focusing most of our attention on. When we 

are talking about modernizing TSCA, we think that has to be one 

of the fundamental components of it. You know, let us set up a system where we are providing more information and data out there. 

Let us identify those chemicals which we should be most concerned 

with in terms of the health risks. Let us ensure that EPA has the 


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resources and the ability to make a safety assessment of those 

chemicals that are going into the marketplace because ultimately, 

you know, my manufacturers, my companies want to ensure that 

Kaiser has the confidence in the products that they are using and 

they are going to have the confidence when they are assuring that 

the private sector is providing the right information and EPA and 

the regulatory process is doing the appropriate science-based assessment of the safety of those products. 

Mr. SARBANES. Thank you. 

Mr. DENISON. Could I briefly address that, Congressman? 

Ms. SCHAKOWSKY [Presiding]. Yes. 

Mr. DENISON. REACH is a reality. It is in place and it changes 

the dynamic of many of the issues we are talking about as we look 

at TSCA reform. So most of the chemical industry is global in nature and many of the companies represented by the associations at 

this table do business in Europe. They are already going to have 

to comply with REACH. They are going to have to develop the data 

that it requires. That makes our lift that much easier. You know, 

we don’t have to reinvent the wheel, and I totally agree with Mr. 

Dooley, we shouldn’t be out there testing chemicals that have already been tested in Europe. So I think REACH, regardless of how 

good or bad a model people think it is, it changes the entire chemical global economy in a way that has to be recognized and has to 

be taken into account in terms of how we think about TSCA reform. The idea of getting to all of the chemicals in commerce which 

REACH is trying to do I think is fundamentally where we need to 

go. How fast we can get there and how we do it and how we 

prioritize that, those are all great areas for discussion. But we have 

to get to that point. 

Ms. SCHAKOWSKY. My friend, Mr. Stearns from Florida. 

Mr. STEARNS. Thank you, Madam Chair. 

Mr. DeLisi, is it unfair to say that since the World Trade Organization will make it very tough to ban articles in commerce, if we 

ban chemicals in the United States, the manufacturers of those 

chemicals in the United States will go somewhere else, but the 

products for which the chemicals were made will still wind up 

being sold in the United States, and if so, why? 

Mr. DELISI. Basically the United States consumer will look for 

the best value they can get, and if you take a chemical out of commerce in the United States that produces a product that the consumer wants to buy and they can get the same finished product, 

the same finished article from India, China or Korea or anyplace 

else, that material will find its way to the United States market 

and the United States will have lost the ability to produce that 

product and the WTO would make it very difficult to ban the importation of that article as long as there was no exposure to that 

particular product. 

Mr. STEARNS. Do you want to add to that, Mr. Drevna? 

Mr. DREVNA. I would like to add one thing to that and maybe 

augment it a bit, and again, you know, I think we are all sitting 

at the table, and the first panel, I think we don’t disagree on a lot. 

It is how we get there that is the important thing and do it the 

right way. But in follow-up to Mr. DeLisi’s comment, if you don’t 

make the finished product, if you don’t have the chemical here, you 


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are not going to make the finished product here, and if you start 

going down the food chain, so to speak, you are not going to have 

the building blocks made here either, my members, the petrochemical producers. So if we don’t do this right, we will be ceding 

our entire manufacturing base to foreign suppliers. So these are 

the kinds of things I think that Ranking Member Mr. Radanovich 

was speaking about, that whatever we do, let us do it right. From 

the industry side here, we are not sitting here saying don’t do anything to TSCA, leave us alone, you have beaten us up over the last 

30 years. No, we are not saying that at all. We all have the same 

objective, I hope, because if not, we shouldn’t even be here. But let 

us make sure we do it right so from Mr. Denison’s side of the table, 

and I don’t want to put sides on this thing, that we get to where 

he and his group want to go but we still maintain a strong manufacturing base and employment in this country. And again, they 

are not mutually exclusive. 

Mr. STEARNS. Mr. DeLisi, small- and medium-sized companies, 

can they do the REACH themselves? 

Mr. DELISI. It is almost impossible. The setup under REACH, all 

the testing work has to be done in so-called substance information 

exchange forums, many of which have more than 4,000 or 5,000 

members, and so what is happening is that consortia are being 

formed to do some of the testing and in many instances the consortia are being controlled by very large European companies and 

sometimes they are not allowing U.S. and other producers equal access to the data. It is going to be very, very difficult to figure out 

how small- and medium-sized companies can survive under 

REACH-like requirements. 

Mr. STEARNS. Maybe we can talk about, I guess REACH is just 

starting in Europe. Can you tell me the laboratory capacity in Europe maybe after REACH went into effect? Has this allowed the 

European chemical manufacturers to innovate with better or safer 

chemicals or more carbon emission-friendly efforts like alternative 

energy or green energy? What is the status here? 

Mr. DELISI. Well, it has been widely published that most, if not 

all, the laboratory capacity in Europe is being diverted to REACH 

testing requirements, and in fact a lot of the laboratory capacity all 

over the world is being diverted to that and so it is not doing other 

kinds of things that may or may not have a better result. 

Mr. STEARNS. So you are saying basically they are not innovating 

and they are not necessarily providing safer chemicals, they are 

just complying with all the regulations? 

Mr. DELISI. There is only a limited amount of resource to put 

into R&D activities and a lot of it right now is being diverted into 

REACH. 

Mr. STEARNS. So if that happened in the United States, do you 

expect the same thing to happen here that is happening in Europe? 

Mr. DELISI. Undoubtedly. 

Mr. STEARNS. Is your contention that the main difference between REACH and TSCA is not section 6(c) requirements to consider other factors but rather whether sound, high-quality and repeatable science underpins the regulation rather than unsubstantiated research or gaps in the data? A very contorted question. The 

main difference between REACH and TSCA. 


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Mr. DELISI. The main difference between REACH and TSCA is, 

there is no grandfathering under REACH and so it requires complete testing data sets to be done on everything that is going to 

continue to be in commerce regardless of the inherent hazards or 

known on the products. So it is requiring the redoing of an awful 

lot of effort that is reasonably well known by industry. 

Mr. STEARNS. Mr. Drevna, do you want to comment on that too? 

Mr. DREVNA. Well, you know, I only go to say that, you know, 

and I will agree with Mr. Denison, if it is already done, why duplicate it, and to force that on every manufacturer in the United 

States will cause paralysis. 

Mr. STEARNS. Thank you, Madam Chair. 

Ms. SCHAKOWSKY. My friend, Ms. Sutton, the Representative 

from Ohio, is next. 

Ms. SUTTON. Thank you, Chairwoman Schakowsky. 

Mr. Denison and all of you, it has been alluded to here today, 

and I think that most Americans would be shocked that asbestos 

is not currently banned. I think that they would be surprised to 

learn that. A week or so ago we had a hearing in another area but 

I am noticing a pattern here, and it dealt with the tainted peanut 

butter that has resulted in a salmonella outbreak across this country killing people where I live, and we learned then, or I know because I knew it because we introduced a bill last year to give the 

FDA mandatory recall authority, which people were likewise 

shocked to understand that our government didn’t have the authority to recall things when they know that there is a problem, that 

it is voluntary, that we expect companies to just do what is in the 

best interest of the American public and perhaps sometimes they 

live up to that more than others. Certainly some do, some obviously 

do not. 

And then you come and tell us about the issue of formaldehyde 

in plywood, and I just have to get more information about this. You 

made a reference to the United States becoming a dumping ground 

for unsafe products and you used the example of the plywood coming in from China, plywood that does not even reach standards 

that allow it to be utilized in China or Japan or other parts of the 

world, but it is coming to the United States. And I guess my first 

question is this. It is coming to the United States because it is 

cheaper? 

Mr. DENISON. Yes, that is the primary reason. Those adhesives 

are less expensive than the safer alternatives and they reduce cost 

and there are other reasons that have to do with why it is being 

made in China in the first place that make it cheaper as well. 

Ms. SUTTON. And I would love in another venue to talk about 

those other reasons because, you know, I am a person that thinks 

frankly our international trading system isn’t living up to the 

promise that perhaps it could but another day and another time. 

Okay. So it is coming in because of its cost, lower cost, it is being 

imported. I assume that it has been banned for use in these other 

countries because of data that exists that shows it is dangerous, 

correct, so we know it? And what is the liability for a company that 

is choosing because it is cheaper to import this which we know is 

toxic for the American people? Can you give us an idea about what 

potential consequence that company has when, you know, years 


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from now people suffer and die because we are allowing it to come 

into the country? 

Mr. DENISON. Well, I do think that the contrast between asbestos 

and an example like formaldehyde is an important one. Part of the 

reason that asbestos despite the fact that it was not banned is actually largely off the market, it is creeping back in in a few places 

but it is largely off the market, is because of liability that the companies that made it and used it face. But that is a very special case 

because asbestos causes a signature disease that can be linked directly to asbestos exposure. Most chemicals are far more complex 

than that and the ability to go to court and say this chemical 

caused that person to get that disease is very limited. That is part 

of the new science that we have to incorporate into the way we 

think about chemicals because we can’t wait until we can have absolute proof that chemical X is the sole cause of disease Y in order 

to regulate. Formaldehyde is in that case where we know it is 

linked to many different diseases, and in fact actually there the 

evidence of its ability to cause cancer is established firmly. But I 

think we have to adapt our model and the way we think about 

chemicals and this burden of proof to reflect the reality of the 

science that we now know about chemical exposures and effects. 

Ms. SUTTON. Well, I appreciate that and I would love to follow 

up with you after the hearing. Thank you. 

Mr. DENISON. I would be happy to. 

Ms. SCHAKOWSKY. Now a new member to this Congress and to 

this committee, Mr. Scalise. 

Mr. SCALISE. Thank you, Madam Chair. 

Mr. Dooley, we have had some testimony in other subcommittees 

where the effects of energy regulation is being considered, what effects that would have on various industries, and there were a few 

industry members of your organization that had talked about the 

various problems they have had as energy costs went up but also 

as some of these changes are being anticipated and what that 

meant to jobs in the United States and in some case layoffs here 

and other cases people making decisions to move operations overseas so as not to be regulated in an overly burdensome way, and 

I think as we look at TSCA and revisit the changes that might be 

made and we realize the importance of being cautious that we address problems without being over-regulatory in a way that actually creates jobs that are safe jobs in this country. How is your industry looking at this and what things have you seen already or 

what concerns do you have about how that may impact jobs for 

businesses that are playing by the rules, doing things right but 

concerned about over-regulation? 

Mr. DOOLEY. I think what our industry is supportive of is a modernization of our chemical management system that is done in a 

manner which enhances the public confidence that consumers and 

users of our products have, that also ensures we are enacting a system that is science based and is efficient and also embraces a riskbased approach, and we think we can do that through this modernization that would accomplish a lot of the objectives of all parties that have testified today. But there are some areas which we 

think are critical in order to maintain the investment in the United 

States in the development of these innovative and technological adVerDate Mar 15 2010 05:59 Feb 04, 2012 Jkt 067095 PO 00000 Frm 00140 Fmt 6633 Sfmt 6633 E:\HR\OC\A095.XXX A095

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vances that are contributing to the U.S. chemical industry being at 

the leading edge of, you know, a lot of the energy efficiency technologies that are being developed. 

And if I can just touch a little bit of where we at, which is again, 

as I have stated before, is that, you know, we are committed to providing the appropriate data. You know, there needs to be some improvements in what we have seen in the past. We need, though, 

to ensure that we are prioritizing when we are providing all that 

data, unlike what REACH does where you have, you know, millions 

of these applications that are coming in, is that you need to be, you 

know, targeting those chemicals that should be the greatest concern, and then when you have those chemicals that are the greatest concern, it might be formaldehyde, it might be asbestos, it 

might be something else, is it doesn’t mean that those chemicals 

or products are going to be dangerous in all applications because 

some applications might not have an exposure to humans and so 

then you are going to have to have a system that will allow you 

to go down and to identify where those chemicals are at risk, those 

exposures which we should be concerned with so that we can also 

incorporate that data that can help us manage that. And the one 

thing that also brings into play is, is like REACH is taking more 

of what we refer to as a hazard-based approach, that if you have 

a chemical that is identified as a chemical of concern, is that you 

could ban it for all applications versus just those applications 

which result in an exposure that could result in a problem. And 

that is a system that we think if you put in place will ensure that 

our industry can continue to be competitive internationally. 

Mr. SCALISE. And I think there are some—ethanol is an example 

where used at a high level it is very dangerous but it is actually 

very prevalent in a number of products that are used across the 

board at a low level and it causes no problem, so obviously the dosage, the amount is something that has really go to be focused on. 

Mr. DOOLEY. And that is a great example. We had Ms. Swanson 

with the Learning Disabilities Association which talked about, you 

know, some of their concerns with neurological impacts of various 

chemicals. Ethanol is in fact a chemical that has been demonstrated if used in excess to cause fetal alcohol syndrome, a neurological disease, and something nobody wants to, you know, see 

occur. But ethanol is also a naturally occurring product in apple 

juice. If you took it to the extreme and took a hazard-based approach because ethanol created a neurological response, you would 

end up then again in the extreme banning apple juice and a lot of 

other, you know, natural products which actually have no risk or 

pose no risk to consumption. And so that is the challenge we face 

here is, you know, how do we put together a system where we provide the adequate information, we have those exposures which create a risk and a problem and ensure that we are providing that 

level of safety. 

Mr. SCALISE. And I think that is a concern, that we take a responsible approach that encompasses all those variables 

I will yield back. Thank you. 

Ms. SCHAKOWSKY. Representative Castor of Florida. 

Ms. CASTOR. Thank you, Madam Chair. 


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I would like each of you on the panel to just state very briefly 

whether or not you support as part of the modernization of TSCA 

the shifting of the burden of proof to the chemical manufacturer 

rather than forcing EPA to assume complete responsibility for determining risk. 

Mr. DREVNA. Ms. Castor, I think a lot of that is already being 

done. There has been talk that a REACH-like approach would take 

all the burden off the government and put all the burden on the 

industry. The industry is more than willing to give the appropriate 

data and to do what is right but that is not going to relieve government, the EPA, whatever authority you deem necessary to handle 

these myriad of laws, that they can’t get data from other sources, 

and they do, and I think there is either a miscommunication or a 

misunderstanding with how much data EPA has and what they 

have done with it. They have got tons of data. 

Ms. CASTOR. So is that a yes or a no? 

Mr. DREVNA. I am sorry. Yes, we think that the industry has and 

will step up more to the plate. 

Ms. CASTOR. And you would support a statutory change? 

Mr. DREVNA. If it is done—again, as I said before, if it gets to 

the end, the result without extra burdens, without making it noncompetitive vis-&-vis international and keeping the American economy strong and growing or hopefully get back to that. 

Mr. DELISI. I agree basically with what has been said and I 

think at the end of the day that burden is going to need to be 

shared. 

Mr. DOOLEY. I would just echo that. It is an inevitably going to 

be a shared responsibility. Our board at the American Chemistry 

Council has adopted a position where EPA needs to be in a position 

of assessing the safety of the products that we put into the marketplace. So, you know, we are willing to accept a much greater responsibility than is currently required under statute but it will inevitably have to be a shared responsibility. 

Ms. GERWIG. And I think where the burden of proof should not 

exist is at the end-user level, which is the experience that I have 

been describing at Kaiser Permanente. So I think the discussion 

that others on the panel have been having about perhaps a shared 

collaborative approach would be a good one. 

Mr. DENISON. I do think in a legal basis, the industry needs to 

have the burden of proof, but I absolutely agree, EPA needs to play 

an oversight role of that that is very careful. 

I do want to say, there have been, with all due respect, a number 

of major inaccuracies stated about REACH. It does prioritize. It 

does not require the same data for all chemicals. It has some aspects that are driven by hazard but its fundamental framework is 

risk based, not hazard based, and it does consider uses of chemicals 

in deciding whether or not to restrict a particular use. 

Ms. CASTOR. Thank you, and I have one other question. I would 

ask you to submit your answers for the record because I think it 

is going to be a more involved answer. I would ask you all to explain why since the adoption of TSCA in 1976 only one group of 

chemicals has been barred. 

With that, I will yield back my time. 

Ms. SCHAKOWSKY. Thank you. 


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At this point let me ask unanimous consent to submit a number 

of documents including those from Mr. Radanovich and others into 

the record. 

[The information appears at the conclusion of the hearing.] 

Ms. SCHAKOWSKY. Mr. Radanovich has asked to have one more 

question, and you may. 

Mr. RADANOVICH. Thank you, Madam Chair. 

Mr. Dooley, welcome to the panel and back to Congress. Cal and 

I shared a district in California, a big ag producing district, so I 

have got a FIFRA question. But I wanted a real quick once, since 

we are running out of time and going to vote, on the change-ometer if zero is no change to TSCA and 10 is change like the Consumer Products Safety Act, where would you be in the zero to 10 

range? 

Mr. DOOLEY. That is tough because that is always going to be 

relative, and, you know, I could say that 50 percent but Mr. 

Denison might think my 50 percent is only 25 percent. But, you 

know, I would contend that TSCA is not broken but is in dire need 

of modernization and we think that it provides a good foundation 

to move forward, and so I will go with a 50 percent change-o-meter. 

Mr. RADANOVICH. Real quickly, Mr. Dooley, if FIFRA—there is a 

lot of people that feel that the FIFRA, which deals with pesticides, 

agriculture stuff, that the rules of FIFRA ought to just be flipped 

into TSCA and that be done. Can you state whether or not that 

would be a great idea or not? 

Mr. DOOLEY. Well, we would be very, very cautious about going 

down that path, again because of the—it wouldn’t in many cases 

be effective at enhancing the public safety of our products, but I 

would say again that when you go through a process of 

prioritization and you do find a chemical that is of great concern 

because it might be an endocrine disruptor, it might be biocumulative, is that we are going to have to have a different standard in 

terms of the amount of data that the industry is going to have to 

provide and the scientific research and assessment of those products. We don’t contend it would be FIFRA necessarily but it will 

be a higher standard than what is currently being provided under 

TSCA. 

Mr. RADANOVICH. All right. Thank you, Mr. Dooley, and Madam 

Chair, I yield back. 

Ms. SCHAKOWSKY. Thank you. At this point let me thank our 

panel for their testimony, we appreciate it very much, and the 

hearing is adjourned. 

[Whereupon, at 1:46 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 


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