Testimony of James J. Jones

Acting Assistant Administrator

Office of Chemical Safety and Pollution Prevention

U.S. Environmental Protection Agency

before the

Committee on Environment and Public Works

and the

Subcommittee on Superfund, Toxic and Environmental Health

United States Senate

July 24, 2012

Good morning Chairman Boxer, Chairman Lautenberg, Ranking Member Inhofe, Ranking Member 

Crapo and members of the committee. Thank you for the opportunity to address the committee today 

on the reform of chemicals management in the United States and the U.S. Environmental Protection 

Agency’s (EPA) authority to assess the safety of flame retardant chemicals under the Toxic 

Substances Control Act (TSCA). Ensuring chemical safety, maintaining public confidence that the 

EPA is protecting the American people, and promoting our global leadership in chemicals 

management remain top priorities for the EPA and Administrator Lisa Jackson.

I want to thank this committee for your continued leadership on this very important issue and your 

efforts to bring about reform of TSCA. With each passing year, the need for TSCA reform grows –

the importance and prevalence of chemicals in our daily lives increases, and yet there remain 

significant gaps in our knowledge and understanding of many of these chemicals. The time to bring 

TSCA into the 21st Century is long overdue. Today, I also want to discuss a prime example of the 

shortcomings of TSCA – the limited success and long history of the agency’s work on brominated 

flame retardants – that stands as a clear illustration of the need for TSCA reform.

Chemicals are found in most everything we use and consume, and can be essential for our health, our

well being, and our prosperity. It should be equally essential that chemicals are safe. Compared to 30 

years ago, we have a better understanding of the environmental impacts, exposure pathways, and 

distressing health effects some chemicals can have – especially on children. While our understanding 

of chemical safety is constantly evolving, significant gaps in our scientific knowledge regarding many 

chemicals remain. For these reasons, it is critical that we close those knowledge gaps. Recent press 

reports on flame retardants highlight the public health risks posed by certain chemicals such as flame 

retardants. Public understanding of these risks is growing, and that is why the public is increasingly 

demanding that the government provide an assurance about chemicals, even chemicals like flame 

retardants that can also provide significant benefits. To date, based on these concerns, the EPA helped 

negotiate voluntary phase-outs of several of the more toxic retardants, and has also initiated regulatory 

actions; however, as explained in more detail below, TSCA reform would have given the EPA 

additional tools to address this serious issue.
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Background on TSCA

The EPA’s chemical management authority is carried out under TSCA — a law that when enacted in 

1976 was an important step forward to protect human health and the environment. But today, TSCA is 

the only major environmental statute that has not been reauthorized. Over the years, not only has 

TSCA fallen behind the rapidly advancing industry it is intended to regulate, it has also proven an 

inadequate tool for providing the protection against chemical risks that the public rightfully expects

and deserves.

When TSCA was enacted, it grandfathered in, without any evaluation, the 62,000 chemicals in 

commerce that existed in 1976. The TSCA Inventory currently lists over 84,000 chemicals, few of 

which have been studied for their risks, especially to children. Unlike the laws applicable to drugs and 

pesticides, TSCA does not have a mandatory program where the EPA must conduct a review to 

determine the safety of existing chemicals.

And the process of requiring testing through rulemaking chemical-by-chemical has proven time 

consuming. As a result, in the 35 years since TSCA was passed, we have only been able to require 

testing on approximately 200 of the 84,000 chemicals listed on the TSCA Inventory. The EPA has 

also relied on voluntary programs to collect data, including through the High Production Volume 

(HPV) Challenge Program, which resulted in the submittal of screening level data for 1,366 HPV 

chemicals.

When the EPA determines that a chemical poses a significant health concern, taking action under 

TSCA to limit or ban a chemical is challenging. For example, in 1989, after years of study and nearly 

unanimous scientific opinion, the EPA issued a rule phasing out most uses of the cancer causing 

substance asbestos. Yet, a federal court overturned most of this action because the EPA failed to clear 

the hurdles imposed under TSCA before existing chemicals can be controlled.

Today, advances in toxicology and analytical chemistry are enhancing our understanding of the 

implications of multiple pathways of exposure, and a better understanding of the cumulative effects 

and interactions between the chemicals in the products we use every day. The EPA is working to 

develop methodology to address potential health effects of multiple chemical exposures and evaluate

cumulative risks. When TSCA was enacted, there was not the understanding of the subtle effects 

chemicals may have on hormone systems, human reproduction, and intellectual development and 

cognition, particularly in young children.

Essential Principles for Reform of Chemicals Management Legislation

In September 2009, the EPA Administrator Jackson announced a set of administration principles to 

update and strengthen TSCA. These include that the agency should have the tools to quickly and 

efficiently obtain information from manufacturers that is relevant to determining the safety of 
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chemicals. The EPA also should have clear authority to assess chemicals against a safety standard and 

to take risk management actions when chemicals do not meet the safety standard.

At the same time, Administrator Jackson also affirmed that, while the legislative reform process is 

underway, the agency is committed to utilizing the current authority under TSCA to the fullest extent 

to protect human health and the environment.

Work Plan Chemicals

Earlier this year, the EPA developed a screening process to identify chemicals for review based on 

their combined hazard, exposure, and persistence and bioaccumulation characteristics. This process 

included criteria specifically targeted at identifying chemical risks to children. Following this initial 

screen, the EPA identified 83 work plan chemicals for risk assessment in the TSCA chemicals 

management program, with an initial seven for risk assessment in 2012.

On June 1, 2012, the EPA identified an additional 18 chemicals that the agency intends to review and 

then develop risk assessments in 2013 and 2014, including three flame retardant chemicals -- Bis(2-

Ethylhexyl)-3,4,5,6-tetrabromophthalate (TBPH), 2-Ethylhexyl-2,3,4,5-tetrabromobenzoate (TBB), 

and Tris(2-chloroethyl)phosphate (TCEP). The EPA is currently developing a strategy, scheduled for 

completion by the end of this year that will address these three and a broader set of flame retardant 

chemicals. This effort will assist the agency in focusing risk assessments on those flame retardant 

chemicals that pose the greatest potential concerns. The EPA anticipates initiating the risk assessments 

on this category of chemicals in 2013.

Polybrominated Diphenyl Ether (PBDE) Flame Retardant Chemicals

The EPA is concerned that PBDEs are persistent, bioaccumulative, and toxic to both humans and the 

environment. A critical endpoint of concern for human health is neurobehavioral effects during 

development, which makes them a concern for children’s health. Various PBDEs have also been 

studied for ecotoxicity in mammals, birds, fish, and invertebrates. In some cases, current levels of 

exposure for wildlife may be at or near adverse effect levels.

PBDEs are not chemically bound to plastics, foam, fabrics, or other products in which they are used, 

making them more likely to leach out of these products. Despite the U.S. phasing out the manufacture 

and import of penta- and octaBDE in 2004, their component congeners PBDEs are still being detected 

in humans and the environment. Some reports indicate that levels are increasing1. One potential source 

is imported articles to which these compounds have been added. Another is the breakdown of 

decaBDE in the environment to more toxic and bioaccumulative PBDE congeners. In late 2009, the 

U.S. manufacturers of decaBDE announced that they intend to voluntarily phase out most uses of 

decaBDE by the end of 2013.

 

1

Shaw SD, Kannan K. 2009. Polybrominated diphenyl ethers in marine ecosystems of the American continents:

foresight from current knowledge. Rev Environ Hlth 2009, 24, 157-229
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Efforts on PBDE Flame Retardant Chemicals

In late 2009, the EPA released an Action Plan for addressing concerns with PBDE flame retardant 

chemicals and recently issued proposed rules that would require additional testing on these chemicals 

and require the EPA review any new uses of these chemicals, including imported articles. The EPA 

also helped facilitate an industry plan to phaseout decaBDE and launched a multi-stakeholder 

partnership to assess alternatives for this chemical to help move the market to safer chemicals. This 

follows the EPA’s earlier facilitation of an industry phaseout of two other widely-used PBDE flame 

retardants, pentaBDE and octaBDE in 2004 and an associated partnership to help identify safer flame 

retardants for use in polyurethane foam.

In its 2009 Action Plan, the EPA committed to support and encourage the voluntary phase out of the 

manufacture and import of decaBDE. Developed with public participation through the EPA’s Design 

for the Environment Program, the EPA will shortly release the draft alternatives assessment on 

decaBDE for public comment. This assessment will profile the environmental and human health 

hazards on 30 alternatives to decaBDE. By providing a detailed comparison of the potential human 

health and environmental effects of chemical alternatives, the EPA can help manufacturers identify 

and transition to safer alternative flame retardant chemicals.

The EPA first reviewed a new flame retardant component of several products in 1995 for use in 

polyurethane foam and was unable to identify that a component of flame retardants was persistent, 

bioaccumulative and toxic. Later, after the chemicals were in commerce, information became 

available that showed the chemicals were being found in humans and the environment. This is an

example that highlights the critical need for the agency to have greater evidence that new chemicals 

are safe prior to commercialization and to be able to take effective action after commercialization, 

when needed. Unfortunately, taking the necessary steps to ensure that chemicals already in commerce 

are safe can be a cumbersome, involved regulatory process that can take years.

While the latest steps taken by the agency are clearly a step forward, they must be viewed in the 

context of what has been a long history of actions on flame retardants, a history that has stretched over 

the course of two decades with a range of voluntary efforts and regulatory actions on flame retardant 

chemicals in both the EPA’s new and existing chemicals programs. The long history of the EPA’s 

action on brominated flame retardants is tied in no small part to the shortcomings of TSCA. 
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Summary

Simply put, the EPA may have made a different determination in 1995 if TSCA required the 

submission of more robust hazard, exposure, and use data needed to adequately assess risk, and the 

EPA may have been able to act more quickly and effectively on the risk information available if 

TSCA provided more robust tools to deal with chemicals already introduced into commerce. The 

American public has the right to expect that the chemicals manufactured, imported, and used in this 

country are safe and the EPA needs an effective law that gives us the tools necessary to provide the 

public with this assurance. The time is now to fix this badly outdated law. TSCA must be updated and 

strengthened so that the EPA has the tools to do our job of protecting public health and the 

environment.

I would be happy to answer any questions you may have.