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 m embers of the c ommittee. Thank you for th e opportunity to address the committee today
on the refor m of chemicals management in the United States and the U.S. E nvironmental 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 th is 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 o f chemicals in our daily lives increases, and yet there remain significant gaps in our knowle dge and understanding of many of these chemicals. T he time to bring
TSCA into the 21 st 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 a gency’s work on bromina ted
flame retardants

– that stands a s a clear illustration of the need for TSCA reform.

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

, ou r well bei ng , 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 chemica l safety is constantly evolving

, significant gaps in our scientific knowledge regarding many
chemicals remain. F or these reasons

, it is critical that we close those knowledge gaps. Recent press
reports on flame r etardants highlight the public health risks posed by certain chemicals such as flame
retardants

. Public understanding of these risks is growing, and t hat i s why the public is increasingly demanding that the government prov ide an assurance about chemicals

, even chemicals like flame
retardants that can also provide significant benefit s

. 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 refo rm would have given the EPA
additional tools to address this serious issue

.2

Backgroun d 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 pr oviding 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 8 4 ,000 c hemicals, 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 e xisting chemicals.

And the process of requiring testing through rulemaking chemical

- by

- chemical has proven time consuming

. As a result, in the 3 5 years since TSCA was passed, we have only been able to require testing on a pproximately 200 of the 84,000 ch emicals 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

.

W he n 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 o ut 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 p athways 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 risk s. When TSCA was enacted, there was not the understanding of the subtle effects
chemicals may have on hormon e systems, human reproduction, and intellectual development and cognition, p articularly in young children.

Essential Principles for Reform of Chemicals Management Legislation

In September 2009, the EPA Administrator Jackson announced a set of a dministrat ion principles to update and strengthen TSCA. These include that the a gency should have the tools to quickly and efficiently obtain information from manufacturers that is relevant to determining the safety of3

chemicals. The EPA also should have clear autho rity to assess chemicals against a safety standard and to take risk management actions when chemicals d o not meet the safety standard.

At the same time, Administrator Jackson also affirmed that, while the legislative reform process is underway, the a gency is committed to utilizing the current authority under TSCA to the fullest extent to protect hu man health and the environment.

Work Plan Chemicals

Earlier this year, the EPA develop ed 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 sev en for risk assessment in 2012.

On June 1, 2012, the EPA identified an additional 18 chemicals that the a gency 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 a gency in focusing risk assessments on those flame retar dant 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 use d, 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 increasing 1 . 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 con geners. In late 2009, the
U.S. manufacturers of decaBDE announced that they intend to volu n tarily ph a se out most uses of
deca BDE 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

- 2294

Efforts on PBDE Flame Retardant Chemicals

In late 2009, the EPA released a n Action P lan 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 lau nched a multi

- stakeholder partnership to assess alternatives for this chemical to help move the market to safer chemicals. This
follows the EPA’s earlier facilitat ion of an industry phaseout of two other widely

- used PBDE flame
retardant s, pentaBDE and octa BDE 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
hazard s 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, a fter the chemical s w ere in comme rce, information became
available that showed the chemicals were being foun d in humans and the environment . This is an example that highlights the critical need for the a gency to have greater evidence that new chemicals are safe p rior to commercialization and to be able to take effective action after commercialization

, when needed

. U nfortunately, 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 la test 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.5

Summary

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

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

co untry 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

.