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[Senate Report 109-220]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 373

109th Congress 
 2d Session                      SENATE                          Report
                                                                109-220
_______________________________________________________________________

       ENGINE COOLANT AND ANTIFREEZE BITTERING AGENT ACT OF 2005

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1110

                             together with

                             MINORITY VIEWS

                                     

        March 14, 2006.--Ordered to be printed

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                       one hundred ninth congress
                             second session

                     TED STEVENS, Alaska, Chairman
                 DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona                 JOHN D. ROCKEFELLER IV, West 
CONRAD BURNS, Montana                    Virginia
TRENT LOTT, Mississippi              JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas          BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine              BARBARA BOXER, California
GORDON H. SMITH, Oregon              BILL NELSON, Florida
JOHN ENSIGN, Nevada                  MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire        E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina           MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
                    Lisa Sutherland, Staff Director
             Christine Drager Kurth, Deputy Staff Director
                      Ken Nahigian, Chief Counsel
     Margaret Cummisky, Democratic Staff Director and Chief Counsel
 Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel

                                                       Calendar No. 373
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-220

======================================================================

 
       ENGINE COOLANT AND ANTIFREEZE BITTERING AGENT ACT OF 2005

                                _______
                                

                 March 14, 2006.--Ordered to be printed

                                _______
                                

       Mr. Stevens, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 1110]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
1110) TITLE to amend the 
Federal Hazardous Substances Act to require engine coolant and 
antifreeze to contain a bittering agent in order to render the 
coolant or antifreeze unpalatable, having considered the same, 
reports favorably thereon without amendment with 
amendments deg. with amendments (in the nature of a 
substitute) deg. and recommends that the bill joint 
resolution deg. (as amended) do pass.

                          Purpose of the Bill

  The purpose of the Engine Coolant and Antifreeze Bittering 
Agent Act of 2005, as reported, is to reduce the number of 
antifreeze poisonings in children and animals through the 
addition of denatonium benzoate to ethylene glycol-based engine 
coolant and antifreeze products.

                          Background and Needs

  The bill would amend the Federal Hazardous Substances Act \1\ 
(FHSA), under which the Consumer Product Safety Commission 
(CPSC) has the authority to regulate engine coolant and 
antifreeze. Three States already require the addition of 
denatonium benzoate in antifreeze. Denatonium benzoate is an 
aversive agent which imparts an extremely bitter taste upon 
contact with the tongue. With a number of States considering 
mandates to add bitterant to antifreeze, there is a concern 
that inconsistent State laws would force manufacturers into 
creating several different formulations, thereby affecting the 
production of engine coolant and antifreeze products. This 
legislation would set forth one national standard for the 
production of embittered engine coolant and antifreeze 
products.
---------------------------------------------------------------------------
    \1\ 15 U.S.C. 1261-1278
---------------------------------------------------------------------------
  Ethylene glycol based antifreeze is a hazardous substance 
with a sweet taste. Animals (particularly dogs) are drawn to 
ingest the liquid, which can be lethal in small doses. An 
estimated 10,000 dogs and cats are poisoned by antifreeze each 
year.\2\ Children are also potential victims of antifreeze 
poisoning. A 1998 study by the American Association of Poison 
Control Centers (AAPCC) found that 801 children that year had 
been exposed to, or poisoned by, ethylene glycol, the primary 
active ingredient in many engine coolant and antifreeze 
products sold to consumers.\3\ More recently, according to the 
2003 AAPCC Annual Report, there were 592 ethylene glycol 
poisonings of children under 6, and 803 in children between 6 
and 19.\4\
---------------------------------------------------------------------------
    \2\ Washington State University Veterinary Medical School, cited by 
U.S. Conference of Mayors, Mayor Martin Chavez (Albuquerque, NM), 
``Bittering Agent Makes for Safer Kids, Wildlife and Pets,'' 
www.usmayors.org/uscm/us_mayor_newspaper/documents/06_07_04/
bittering.asp, Accessed December 9, 2005.
    \3\ See AAPCC Website, ``1998 Pediatric Exposures,'' http://
aapcc.org/, Accessed December 9, 2005.
    \4\ See 2003 AAPCC Annual Report, Table 22A, ``Ethylene Glycol,'' 
www.aapcc.org/poison1.htm, Accessed February 3, 2006.
---------------------------------------------------------------------------
  By requiring the addition of denatonium benzoate to 
antifreeze, this bill would reduce the possibility that a child 
or animal is drawn to accidentally ingest a deadly amount of 
antifreeze. This aversive method also has been used to deter 
ingestion of a multitude of other consumer products, including 
deer repellant, nail polish, household cleaners, paints, 
windshield washing fluid, and to coat electrical 
cables.5
---------------------------------------------------------------------------
    \5\ Bitrex Website A Product of McFarlan Smith, ``List of 
Applications,'' http://www.bitrex.com/pages/why_bitrex_frameset.htm5, 
Accessed January 30, 2006.
---------------------------------------------------------------------------
  The bill's mandate addresses two substances, ethylene glycol 
and denatonium benzoate.

ETHYLENE GLYCOL

  Ethylene glycol is a toxic, clear, colorless, and sweet 
tasting liquid that is used as the primary compound in the 
majority of engine coolant and antifreeze products. Due to the 
inherent sweet taste of ethylene glycol, improper disposal or 
leakage of antifreeze in non-commercial settings has raised 
concerns that unsecured ethylene glycol-based antifreeze poses 
an unnecessary health risk to both children and animals. Child 
resistant safety caps are already used by antifreeze 
manufacturers to prevent injuries. The addition of denatonium 
benzoate as a bittering agent could reduce even further the 
number of incidents connected to ethylene glycol poisoning.

DENATONIUM BENZOATE

  Denatonium benzoate is a bittering agent/additive commonly 
distributed in the United States under the brand name of 
Bitrex. According to the California Institute of Technology's 
Center for Science and Engineering of Materials, denatonium 
benzoate is recognized as the most bitter substance known. In 
minute quantities, denatonium benzoate can render household, 
garden, or automotive products unpalatable, thereby deterring 
ingestion by children and animals.\6\
---------------------------------------------------------------------------
    \6\ Center for the Science & Engineering of Materials Website, 
``The Most Bitter Substance,'' www.csem.caltech.edu/material_of_month/
bitrex.html, Accessed December 9, 2005.
---------------------------------------------------------------------------

                         Summary of Provisions

  S. 1110 is a product safety measure that would require 
manufacturers of engine coolant and antifreeze products to add 
a bittering agent so as to render those products unpalatable to 
children and animals. To ensure that the bittering agent would 
not present unreasonable adverse effects to the environment, 
the introduced version of S. 1110 was amended to include an 
environmental evaluation by the CPSC. The revised bill would 
preempt State law, instituting a national standard for the 
production and distribution of engine coolant and antifreeze 
products sold in non-wholesale containers. Additionally, 
assigned liability provisions in the bill would ensure that 
manufacturers of antifreeze, denatonium benzoate, and 
alternative bittering agents could be held liable for harm 
caused by their respective products. In recognition of the 
possibility that new bittering agents may become available, the 
CPSC would be authorized to approve the use of alternative 
bittering agents through rulemaking. However, Commission 
approval of the use of alternative bitterants in antifreeze 
would be contingent upon the alternative being found to be as 
effective as denatonium benzoate, both in terms of its 
bittering capacity and compatibility with motor vehicle 
engines, and that it would not cause an unreasonable adverse 
effect on the environment.

                          Legislative History

  Senator Allen, with Senator Pryor, introduced S. 1110 on May 
24, 2005. Cosponsors of the bill include Senators Inouye, 
Stevens, Domenici, Warner, Baucus, Santorum, Collins, Ensign, 
Murkowski, and Martinez.
  On July 18, 2005, the Subcommittee on Consumer Affairs, 
Product Safety, and Insurance held a hearing on S. 1110. A 
diverse group of Federal and State government officials, 
companies, associations, and private parties with expertise in 
regard to bittering antifreeze appeared before the Committee.
  On November 17, 2005, the Committee on Commerce, Science, and 
Transportation considered the bill in open Executive Session. 
Chairman Stevens offered an amendment. The Committee adopted 
the amendment by a voice vote with Senator Boxer, Senator 
Nelson of Florida, Senator Cantwell, and Senator Lautenberg 
asking to be reported as voting ``no'' on the amendment and the 
underlying legislation. The Committee ordered S. 1110 be 
reported with amendments.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                 December 14, 2005.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1110, the Engine 
Coolant and Antifreeze Bittering Agent Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Geoffrey 
Gerhardt.
            Sincerely,
                                               Douglas Holtz-Eakin.
    Enclosure.

S. 1110--Engine Coolant and Antifreeze Bittering Agent Act of 2005

    S. 1110 would direct the Consumer Product Safety Commission 
(CPSC) to issue regulations requiring the use of a bittering 
agent in antifreeze and other engine coolants. The purpose of 
the bittering agent would be to make antifreeze unpalatable to 
humans and animals. Prior to issuing its regulations, the CPSC 
would be required to conduct an environmental impact evaluation 
in conjunction with the Environmental Protection Agency. The 
bill would require the CPSC to ensure that manufacturers comply 
with the new regulations, and maintain compliance records. 
Based on information provided by the CPSC, CBO estimates that 
implementing S. 1110 would increase spending subject to 
appropriation by less than $500,000 annually.
    The legislation would preempt state laws that require the 
addition of bittering agents in antifreeze and would establish 
a uniform federal standard. The bill also would limit liability 
claims associated with the addition of bittering agents to 
antifreeze. The preemption and the limitation on liability 
would be intergovernmental mandates as defined in the Unfunded 
Mandates Reform Act (UMRA).
    Although the preemption would limit the application of 
state law, it would not impose a duty on states that would 
require additional spending. The liability protection would be 
narrow in scope--providing protection primarily to 
manufacturers and other entities involved in distributing 
antifreeze that includes a bittering agent. CBO is unaware of 
any current or pending case that would be affected by the bill; 
consequently, we estimate that the costs of the mandates would 
be small and would not exceed the threshold established in UMRA 
($62 million in 2005, adjusted annually for inflation).
    S. 1110 contains private-sector mandates as defined in UMRA 
on manufacturers of engine coolant and antifreeze that 
distribute their products to be sold by retail businesses. In 
the event that the CPSC finds evidence that the use of the 
bittering agent denatonium benzoate (or a comparable 
alternative) has no ``unreasonable adverse effect on the 
environment,'' those manufacturers would be required to:
           Add denatonium benzoate to their product 
        mixtures that are comprised of more than 10 percent 
        ethylene glycol; and
           Keep detailed records of any bittering 
        agents used in their products.
    CBO estimates that the aggregate direct costs of complying 
with those mandates would be minimal compared to the annual 
threshold established by UMRA for private-sector mandates ($123 
million in 2005, adjusted annually for inflation).
    Under S. 1110, if the CPSC determines that the use of the 
bittering agent in engine coolant or antifreeze would have no 
adverse effects on the environment, coolant and antifreeze 
manufacturers would be required to add the agent to certain 
product mixtures. The bill would exempt coolant and antifreeze 
distributed to original manufacturers (such as motor vehicle 
manufacturers) and garages that purchase wholesale engine 
coolant or antifreeze for purposes other than retail sales. 
According to industry sources, about 160 million gallons of 
coolant and antifreeze are sold in the U.S. retail market each 
year. Industry and government sources indicate that adding the 
bittering agent to product mixtures would cost manufacturers 
less than $0.03 per gallon of coolant or antifreeze. 
Furthermore, the industry expects to incur some costs 
associated with upgrades necessary for storing denatonium 
benzoate at manufacturing plants. Industry sources estimate 
such costs to fall between $50,000 and $70,000 per plant. Based 
on those data, CBO estimates that the costs associated with 
this mandate would not exceed $6 million per year.
    Also, contingent upon the CPSC's determination, coolant and 
antifreeze manufacturers would be required to record the trade 
name, scientific name, and any active ingredient of any 
bittering agent used in product mixtures. The bill also would 
require manufacturers to make those records available to the 
public. Since manufacturers would already have such 
information, CBO expects the costs associated with such record 
keeping to be minimal.
    The CBO staff contacts for this estimate are Geoffrey 
Gerhardt (for federal costs), Leo Lex (for the state and local 
impact), and Craig Cammarata (for the private-sector impact). 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  S. 1110 would require the CPSC, in consultation with the EPA 
and appropriate State and local officials in California and 
Oregon, to perform an evaluation to determine whether the 
inclusion of denatonium benzoate in engine coolant and 
antifreeze has caused any unreasonable adverse effects on the 
environment in the foregoing States. Because the CPSC already 
regulates the proper labeling of engine coolant and antifreeze, 
the number of persons covered by this bill should be consistent 
with levels impacted under current Federal standards related to 
the regulation of engine coolant and antifreeze. The evaluation 
will not include new animal or human testing, so the necessary 
resources for concluding such an evaluation are significantly 
reduced.

                            ECONOMIC IMPACT

  S. 1110 is not expected to have an adverse impact on the 
nation's economy. Rather, the imposition of one national 
standard for the production of engine coolant and antifreeze 
will avoid market inefficiencies that could have resulted if 
each State regulated the production of the particular products. 
The antifreeze industry, up to this point, has borne the cost 
of adding denatonium benzoate to engine coolant and antifreeze. 
The estimated cost of adding denatonium benzoate to antifreeze 
is minimal, approximately ``two or three cents a gallon [of 
antifreeze].'' \8\
---------------------------------------------------------------------------
    \8\ Matt Palmquist, ``Pet Project,'' San Francisco Weekly Website, 
www.sfweekly.com/Issues/2002-03-27/news/bayview_print.html, Accessed 
December 9, 2005.
---------------------------------------------------------------------------

                                PRIVACY

  S. 1110 would have minimal effect, if any, on the privacy 
rights of individuals.

                               PAPERWORK

  The Committee does not anticipate a major increase in 
paperwork burdens for private industry resulting from the 
passage of this legislation. In those areas where the bill 
would require additional paperwork, it is aimed at providing 
consumers with the right to petition manufacturers of engine 
coolant or antifreeze for a record of any bittering agents used 
in the relevant products. A certain amount of additional 
paperwork, however, would result from the bill's mandate for 
the CPSC to evaluate bittering agents used in California and 
Oregon. The CPSC would publish in the Federal Register its 
findings from this evaluation within 90 days after enactment of 
the Act.

                      Section-by-Section Analysis

Section 1. Short title.

  Section 1 sets forth the short title of the bill as the 
``Engine Coolant and Antifreeze Bittering Agent Act of 2005.''

Section 2. Addition of bittering agent in antifreeze.

  Section 2 of this bill would amend FHSA by adding section 25 
to FHSA, which would establish a national standard for the 
production and distribution of engine coolant and antifreeze 
products by requiring the addition of a bittering agent.
  Section 25(a)(1)(A-C) would require the CPSC, in consultation 
with EPA and State and local officials in California and 
Oregon, to evaluate whether evidence exists of any unreasonable 
adverse effect on the environment resulting from the addition 
of denatonium benzoate in engine coolant and antifreeze 
products.
  Section 25(a)(2)(A) would require all antifreeze products 
containing more than 10 percent ethylene glycol to have a 
chemical concentration of at least 30-50 parts per million of 
the bittering agent denatonium benzoate. The 10 percent 
threshold would cover all off-the-shelf, retail antifreeze 
products made with ethylene glycol.
  Section 25(a)(2)(B) would allow for additional bittering 
agents to enter the market if the CPSC decides, through a 
rulemaking, that an alternative additive is as effective as 
denatonium benzoate and does not present an unreasonable 
adverse effect to the environment.
  Section 25(a)(3) defines ``unreasonable adverse effect'' as 
that which poses an unreasonable risk to human health or the 
environment, after taking into account economic, social, and 
environmental costs and benefits.
  Section 25(a)(4) would establish that any antifreeze product 
manufactured without denatonium benzoate or an approved 
alternative be considered a banned hazardous substance. The 
CPSC would have the authority to impose penalties on 
manufacturers of antifreeze that fail to add the bittering 
agent. If the omission is purposeful, or a repeat offense, the 
CPSC could fine a manufacturer up to $500,000 when a human 
death occurs, under current regulations.\7\
---------------------------------------------------------------------------
    \7\ 15 U.S.C. 1264
---------------------------------------------------------------------------
  Section 25(b) would require antifreeze manufacturers to 
maintain a record, available to the public upon request, of the 
antifreeze product trade name, a record of the scientific name 
(ethylene glycol), and a compilation of any active ingredients 
of the relevant bittering agent (denatonium benzoate).
  Section 25(c) would assign liability to manufacturers, 
processors, distributors, recyclers, or sellers of engine 
coolant and antifreeze products, manufacturers and distributors 
of denatonium benzoate, and manufacturers and distributors of 
any alternative bittering agent. It would establish assigned 
liability based upon which product, i.e., antifreeze, 
denatonium benzoate, or alternative bittering agent, is proven 
to have caused personal injury, death, property damage, damage 
to the environment (including natural resources), or economic 
loss. If the injury, death, damage, or loss stems from the 
inclusion of denatonium benzoate in an engine coolant or 
antifreeze product, the manufacturer, processor, distributor, 
recycler, or seller of the engine coolant or antifreeze product 
would not be held liable. The bill would not afford any 
protection from liability to manufacturers and distributors of 
denatonium benzoate or alternative bittering agents.
  Section 25(d) would preempt all State or political 
subdivision statutes and regulations that prohibit, limit, 
standardize, or impose any requirement different from the 
Federal standard set forth by this Act.
  Section 25(e) would exempt sales of motor vehicles that 
contain engine coolant or antifreeze, or sales of wholesale 
containers of engine coolant or antifreeze containing more than 
55 gallons of antifreeze, from the Federal standard imposed by 
this Act.

         Minority Views of Senator Boxer and Senator Lautenberg

  S. 1110, the Engine Coolant and Antifreeze Bittering Agent 
Act of 2005, undermines the ``polluter pays'' principle by 
including broad liability waivers; supporting the use of a 
chemical, denatonium benzoate, which could threaten public 
health and environmental quality, including drinking water 
supplies; undercutting pollution prevention efforts; promoting 
a product of questionable effectiveness; and preempting State 
protections. Congress recently rejected oil industry supported 
efforts to enact legislation limiting polluters' liability for 
the clean up of methyl tertiary butyl ether, or ``MTBE'' that 
contaminates water supplies. S. 1110 raises similar concerns.
  S. 1110 contains a waiver of liability for the manufacturers, 
processors, distributors, recyclers, and sellers of engine 
coolant or antifreeze that contains denatonium benzoate, or 
``DB.'' This waiver provides protection for these commercial 
entities from liability for any personal injury, death, 
property damage, environmental damage (including natural 
resources) or economic loss related to DB in engine coolant or 
antifreeze.
  The parallels between DB and MTBE are striking. Both 
chemicals exhibit properties that increase risks of groundwater 
contamination. According to the U.S. Environmental Protection 
Agency (EPA), there is insufficient information available to 
assess the safety of DB. While the EPA acknowledged a lack of 
data, the Agency promulgated a Risk Potential Profile for 
Bitrex, a commercial brand of DB. The data for the profile was 
extrapolated from a related chemical, not from an examination 
of DB itself. The EPA predicted from this profile that DB is 
water soluble; expected to resist biodegradation; and expected 
to show the greatest movement in groundwater when applied to 
sandy soil. The EPA emphasizes that ``this analysis should not 
be construed to be an Agency position on the health and safety 
of Bitrex [DB]. As stated, not enough information is available 
to the Agency at this time to make such a finding.''
  All of these factors are especially troubling given that S. 
1110 will likely trigger a substantial expansion in the 
production, use, and disposal of DB. This raises serious 
concerns because coolant is frequently disposed of down drains, 
where it flows into waste water treatment plants, or simply 
dumped onto the ground. Manufacturers of DB note that it is the 
bitterest substance known to man. Thus, even if DB was actually 
safe for consumption, its potential to ruin drinking water 
supplies should be obvious. Congress needs to consider very 
carefully whether introducing DB into car radiators throughout 
the United States is sound environmental policy at a time when 
our drinking water supplies are already limited and in danger 
of contamination from a variety of pollution sources. Doing so 
with a liability waiver only increases the potential for 
disastrous results.
  S. 1110 also benefits manufacturers of coolant or antifreeze 
that decide to use toxic ingredients in their products, rather 
than promoting existing non-toxic alternatives. Many antifreeze 
and coolants are toxic because their manufacturers use ethylene 
glycol. Other manufacturers sell coolant or antifreeze with 
propylene glycol, a non-toxic substance that meets the American 
Society for Testing and Materials' standards for coolants. The 
Agency for Toxic Substances and Disease Registry states that 
``large amounts of ethylene glycol can damage the kidneys, 
heart and nervous system. [Yet], [p]ropolyene glycol is 
generally regarded as safe for food.'' \1\
---------------------------------------------------------------------------
    \1\ Agency for Toxic Substances and Disease Registry, ToxFAQs for 
Ethylene Glycol and Propylene Glycol, (available at: http://
www.atsdr.cdc.gov/tfacts96.html).
---------------------------------------------------------------------------
  The Federal government should support the use of the least 
toxic alternative or non-toxic coolants, (such as propylene 
glycol) that will eliminate the cause of poisonings, instead of 
limiting the liability of manufacturers of a potentially 
dangerous chemical.
  Perhaps most importantly, the introduction of DB into 
millions of automotive radiators throughout the United States 
is unlikely to prevent accidental poisoning from ethylene 
glycol. The legislation's favorable treatment of toxic, 
ethylene glycol based products and promotion of bittering 
agents, including DB is especially unwise because studies have 
questioned the effectiveness of bittering agents in reducing 
poisonings in children and animals. In 2004, the Oregon Poison 
Control Center concluded:
          The first law mandating addition of DB was never 
        necessary, as unintentional [ethylene glycol] or 
        [methanol] exposures in pre-school age children did not 
        cause measurable toxicity. The mandatory addition of DB 
        to automotive products has produced no measurable 
        reduction in unintentional pediatric toxic alcohol 
        exposures in Oregon. There is no compelling reason to 
        consider similar legislation in other jurisdictions.'' 
        \2\ [emphasis added]
---------------------------------------------------------------------------
    \2\ Michael E. Mullins (Division of Emergency Medicine, Washington 
University School of Medicine, St. Louis, Missouri) and B. Zane 
Horowitz (Oregon Poison Center, Oregon Health Sciences University, 
Portland, Oregon), Was it Necessary to Add Bitrex (Denatonium Benzoate) 
to Automotive Products?, 46 Vet. Hum. Toxicol. 150, 151, 152 (2004).
---------------------------------------------------------------------------
  The Congressional Research Service also noted that a ``recent 
review concluded that with respect to carnivores, `products 
that contain denatonium derivatives . . . are ineffective 
repellents, almost regardless of species.' '' 3 
[emphasis added] Even industry-sponsored studies ``indicate 
that BITREX did not impart any aversive properties to 
antifreeze.'' \4\ [emphasis added]
---------------------------------------------------------------------------
    \3\ Linda-Jo Schierow, Congressional Research Service, Background 
Information on Denatonium Benzoate, CRS-4 (2004).
    \4\ Letter from Mary Jane Von Allmen to the Consumer Product Safety 
Commission (Aug. 26, 1991).
---------------------------------------------------------------------------
  In contrast, a study from the University of California at 
Davis on the efficacy of animal repellents concluded, 
``[g]enerally, products which have repeatedly demonstrated good 
efficacy in our trials are those products that produce 
sulfurous odors.'' \5\
---------------------------------------------------------------------------
    \5\ Dale Nolte and Kimberly Wagner, Comparing the Efficacy of 
Delivery Systems and Active Ingredients of Deer Repellents, Proceedings 
of the 19th Vertebrate Pest Conference, University of California at 
Davis, 93 (T.P. Salmon & A.C. Crabb, Eds.) (2000).
---------------------------------------------------------------------------
  S. 1110 would prevent the States from developing laws that 
conflict with its provisions. Thus, S. 1110 would not allow a 
State to enforce a requirement that manufacturers use an 
``aversive'' agent in toxic coolant, rather than a 
``bittering'' agent. This preemption provision would apply even 
though studies have found that alternative aversive agents may 
be more efficacious than bitter tasting substances. The Federal 
government should not enact legislation that strips away the 
ability of a State to better protect the health and safety of 
its citizens.
  S. 1110 also requires that the Consumer Product Safety 
Commission (CPSC) conduct an evaluation, including a cost 
benefit analysis, within 30 days of enactment that analyzes 
whether the ``use'' of DB has any ``unreasonable adverse 
effects.'' The CPSC must conduct a similar evaluation on future 
bittering agents used in lieu of DB. S. 1110 defines 
``unreasonable adverse effects'' to mean ``an unreasonable risk 
to human health or the environment, taking into account the 
economic, social, and environmental costs and benefits.''
  As an initial matter, Congress should not require a substance 
without knowing whether it has ``unreasonable adverse 
effects,'' particularly in conjunction with a liability waiver. 
There are other serious problems with the CPSC provision, 
including the choice of the CPSC and its use of cost-benefit 
analysis. The CPSC does not have sufficient expertise in 
assessing the environmental fate, transport, and effect of 
chemicals. Nor does the CPSC have sufficient expertise in 
determining the human health effects of chemical pollutants. 
Moreover, the CPSC cannot effectively assess a chemical's 
effect on wildlife, drinking water supplies, water treatment 
plants and a myriad of other factors implicated by the use of 
DB. Mere consultation with EPA and the States of Oregon and 
California is not a sufficient substitute for critical 
expertise, in that the EPA already determined that existing 
data is insufficient to evaluate the effect of DB on health and 
safety.
  Coolant and antifreeze manufacturers should remain fully 
responsible for their products, including the damages they 
cause. S. 1110 undercuts this basic requirement.
                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                    Federal Hazardous Substances Act

SEC. 25. ADDITION OF BITTERING AGENT IN ANTIFREEZE.

  (a) Bittering Agent.--
          (1) Environmental evaluation required.--
                  (A) In general.--Within 30 days after the 
                date of enactment of the Engine Coolant and 
                Antifreeze Bittering Agent Act of 2005, the 
                Consumer Product Safety Commission shall 
                commence an evaluation, in consultation with 
                the Environmental Protection Agency and 
                appropriate State health and environmental 
                officials in Oregon and California, to 
                determine whether there is evidence that the 
                use of the bittering agent denatonium benzoate 
                in engine coolant or antifreeze has an 
                unreasonable adverse effect on the environment.
                  (B) Certain tests may not be used.--The 
                evaluation may not include any new animal or 
                human testing.
                  (C) Deadline.--The Commission shall complete 
                the evaluation within 90 days after the date of 
                enactment of that Act and publish its findings 
                in the Federal Register.
          (2) Use of bittering agent.--
                  (A) In general.--Unless the Commission, in 
                its evaluation under paragraph (1), finds there 
                is evidence of an unreasonable adverse effect 
                on the environment, any engine coolant or 
                antifreeze that is manufactured on or after the 
                date that is 180 days after the date of 
                publication of the Commission's finding in the 
                Federal Register, and that contains more than 
                10 percent ethylene glycol, shall include not 
                less than 30 parts per million, and not more 
                than 50 parts per million, denatonium benzoate 
                as a bittering agent in order to render the 
                coolant or antifreeze unpalatable.
                  (B) Alternative agent.--If the inclusion of 
                denatonium benzoate in engine coolant or 
                antifreeze is required under subparagraph (A) 
                and the Commission finds that--
                          (i) an alternative bittering additive 
                        is as effective as denatonium benzoate 
                        in rendering coolant or antifreeze 
                        unpalatable in terms of both its 
                        bittering capacity and its 
                        compatibility with motor vehicle engine 
                        coolant and antifreeze, and
                          (ii) there is no evidence that the 
                        use of the alternative bittering 
                        additive has an unreasonable adverse 
                        effect on the environment,
                then the Commission may initiate a rulemaking 
                to permit the use of the alternative bittering 
                additive in lieu of denatonium benzoate.
          (3) Unreasonable adverse effect defined.--In this 
        subsection, the term `unreasonable adverse effect on 
        the environment' means an unreasonable risk to human 
        health or the environment, taking into account the 
        economic, social, and environmental costs and benefits.
          (4) Failure to comply.--Any engine coolant or 
        antifreeze described in paragraph (2) that is not in 
        compliance with that paragraph shall be--
                  (A) considered to be a banned hazardous 
                substance; and
                  (B) subject to section 5.
  (b) Recordkeeping.--
          (1) In general.--A manufacturer of an engine coolant 
        or antifreeze described in subsection (a)(1) shall 
        maintain a record of the trade name, scientific name, 
        and any active ingredient of a bittering agent used 
        under this section.
          (2) Availability to public.--Any record maintained 
        under paragraph (1) shall be made available to the 
        public on receipt by the manufacturer of a request from 
        any person.
  (c) Limitation of Liability.--
          (1) In general.--Subject to paragraph (2), a 
        manufacturer, processor, distributor, recycler, or 
        seller of an engine coolant or antifreeze described in 
        subsection (a)(1) shall not be liable to a person for 
        any personal injury, death, property damage, damage to 
        the environment (including natural resources), or 
        economic loss that results from the inclusion in the 
        engine coolant or antifreeze of denatonium benzoate in 
        accordance with subsection (a).
          (2) Exception.--Paragraph (1) shall not apply in any 
        case in which a cause of liability referred to in that 
        paragraph is unrelated to the inclusion in an engine 
        coolant or antifreeze of denatonium benzoate. Nothing 
        in this subsection shall be construed to exempt any 
        manufacturer or distributor of denatonium benzoate, or 
        an alternative bittering additive the use of which is 
        permitted under subsection (a)(2), from any liability 
        related to denatonium benzoate or the alternative 
        bittering additive.
  (d) Preemption.--No State or political subdivision of a State 
shall establish or continue to enforce, with respect to retail 
containers containing less than 55 gallons of engine coolant or 
antifreeze, any prohibition, limitation, standard, or other 
requirement relating to the inclusion of a bittering agent in 
engine coolant or antifreeze that is different from, or in 
addition to, the requirements of this section.
  (e) Exemption.--This section does not apply to--
          (1) the sale of a motor vehicle that contains engine 
        coolant or antifreeze; or
          (2) a wholesale container of engine coolant or 
        antifreeze that contains 55 gallons or more of engine 
        coolant or antifreeze.

                                  
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