LEGISLATION TO IMPLEMENT THE 

POPS, PIC, AND LRTAP POPS 

AGREEMENTS 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON ENVIRONMENT AND 

HAZARDOUS MATERIALS 

OF THE 

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

MARCH 2, 2006 

Serial No. 109-63 

Printed for the use of the Committee on Energy and Commerce 

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 2006 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 

Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 

27-145PDF 
COMMITTEE ON ENERGY AND COMMERCE 

JOE BARTON, Texas, Chairman 

RALPH M. HALL, Texas 

MICHAEL BILIRAKIS, Florida 

 Vice Chairman 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

PAUL E. GILLMOR, Ohio 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. “CHIP” PICKERING, Mississippi 

 Vice Chairman

VITO FOSSELLA, New York 

ROY BLUNT, Missouri

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

SUE MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

JOHN D. DINGELL, Michigan 

 Ranking Member 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

SHERROD BROWN, Ohio 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JIM DAVIS, Florida 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

BUD ALBRIGHT, Staff Director 

DAVID CAVICKE, General Counsel

REID P. F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS 

PAUL GILLMOR, Ohio, Chairman 

RALPH M. HALL, Texas 

NATHAN DEAL, Georgia 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

VITO FOSSELLA, New York 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

SUE MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

JOE BARTON, Texas 

 (EX OFFICIO) 

HILDA L. SOLIS, California 

 Ranking Member 

FRANK PALLONE, JR., New Jersey 

BART STUPAK, Michigan 

ALBERT R. WYNN, Maryland 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JAN SCHAKOWSKY, Illinois 

JAY INSLEE, Washington 

GENE GREEN, Texas 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

JOHN D. DINGELL, Michigan 

 (EX OFFICIO)

(II)
CONTENTS 

Page 

Testimony of: 

McMurray, Hon. Claudia A., Assistant Secretary for Oceans and International 

Environmental and Scientific Affairs, U.S. Department of State ................................ 24 

Hazen, Susan B., Principal Deputy Assistant Administrator, Office of Prevention, 

Pesticides, and Toxic Substances, U.S. Environmental Protection Agency ................ 31 

Yeager, Brooks B., Visiting Fellow, The H. John Heinz III Center for Science, 

Economics, and the Environment ................................................................................. 54 

Walls, Michael P., Managing Director, Regulatory and Technical Affairs Department, 

American Chemistry Council ........................................................................................ 

64 

Polsky, Claudia, Deputy Attorney General, Environment Section, California 

Department of Justice .................................................................................................... 69 

Roewer, Jim, Executive Director, Utility Sold Waste Activities Group ........................... 80 

Goldman, Lynn R., Professor, Environmental Health Sciences, Bloomberg School of 

Public Health, Johns Hopkins University ..................................................................... 85 

Elliott, E. Donald, Partner, Willkie Farr & Gallagher LLP ............................................... 91 

Goldberg, Steven, Vice President and Associate General Counsel, Regulatory Law & 

Government Affairs, CropLife America ....................................................................... 96 

Wiser, Glenn M., Senior Attorney, Center for International and Environmental Law ..... 102 

Additional material submitted for the record: 

Elliott, E. Donald, Partner, Willkie Farr & Gallagher LLP, response for the record......... 115 

Roewer, Jim, Executive Director, Utility Sold Waste Activities Group, response for 

the record........................................................................................................................ 122 

Yeager, Brooks B., Visiting Fellow, The H. John Heinz III Center for Science, 

Economics, and the Environment, response for the record ........................................... 126 

Goldman, Lynn R., Professor, Environmental Health Sciences, Bloomberg School of 

Public Health, Johns Hopkins University, response for the record............................... 130 

Goldberg, Steven, Vice President and Associate General Counsel, Regulatory Law & 

Government Affairs, CropLife America, response for the record................................. 132 

Walls, Michael P., Managing Director, Regulatory and Technical Affairs Department, 

American Chemistry Council, response for the record ................................................. 140 

Wiser, Glenn M., Senior Attorney, Center for International and Environmental Law, 

response for the record ................................................................................................... 144 

McMurray, Hon. Claudia A., Assistant Secretary for Oceans and International 

Environmental and Scientific Affairs, U.S. Department of State, response for the 

record.............................................................................................................................. 156 

Hazen, Susan B., Principal Deputy Assistant Administrator, Office of Prevention, 

Pesticides, and Toxic Substances, U.S. Environmental Protection Agency, response 

for the record .................................................................................................................. 162 

(III) 

(1) 

LEGISLATION TO IMPLEMENT THE 

POPS, PIC, AND LRTAP POPS 

AGREEMENTS 

THURSDAY, MARCH 2, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:11 a.m., in Room 2123 

of the Rayburn House Office Building, Hon. Paul E. Gillmor (chairman) 

presiding. 

 Members present: Representatives Hall, Wilson, Bass, Pitts, 

Sullivan, Murphy, Solis, Pallone, Stupak, Wynn, Capps, Schakowsky, 

Inslee, Green, Baldwin, Dingell (ex officio), and Gillmor. 

 Staff present: Tom Hassenboehler, Counsel; Jerry Couri, Policy 

Coordinator; Peter Kielty, Legislative Clerk; Dick Frandsen, Minority 

Senior Counsel; and Lori Schmidt, Minority Counsel. 

MR. HALL. [Presiding] Okay, we will get under way. This is a 

hearing of the House Subcommittee on Environmental and Hazardous 

Materials. This is a hearing that I will be reading Chairman Barton’s 

opening statement in his absence. And at this time, I will recognize 

myself for that reading. It is as follows. 

 Thank you, Mr. Chairman, for holding this hearing to discuss 

implementing legislation for three international agreements that the 

United States has negotiated and signed over the past decade. These 

agreements all center on the banning or severe restriction of chemicals 

known as persistent organic pollutants. These treaties have their genesis 

in the first Bush Administration, or were negotiated under the Clinton 

Administration, and finalized and signed on to by the current Bush 

Administration. While the Senate plays an important role in the 

ratification procedures, the House must pass implementing legislation to 

amend current laws to be in compliance with these agreements. 

 I thank Chairman Gillmor and the subcommittee for the leadership in 

calling this hearing and making efforts to move this process forward. I 

have long hoped that legislation on this issue could be bipartisan. I was 

glad Chairman Gillmor held hearings on draft legislation last year. I 

thought that was a great starting point for discussion. I did not expect a 

competing bill to be introduced by the Ranking Member and I hope that 

does not mean that we have rejected bipartisan work. I am hopeful that 
2

their actions will be based on merit and not designed to slow down or 

complicate the process by seeking to address other issues such as the 

opening of the Toxic Substances Control Act or putting personal politics 

into the mix. These treaties are important living documents and 

decisions and proposals for additional chemicals currently are being 

debated and decided upon without full U.S. participation. So on that 

note, I am hopeful that all members of the committee and the 

subcommittee will be able to work towards an amicable solution to 

ensure our voice is heard when these critical decisions are being made. 

 That being said, I have several concerns over H.R. 4800 by Ms. Solis 

that I find to be troubling and dangerous precedents to set in American 

law. H.R. 4800 indicates that the U.N. determination to ban or limit 

future chemicals automatically becomes EPA’s standard too. I believe 

that standard review gets it wrong because if the U.S. opts in, it should 

not be the U.N. that determines what is in the U.S. best interest without a 

proper domestic consideration by our own EPA. This consideration is 

especially important when we are considering adopting stringent control 

measures which could be as severe as a complete ban on manufacturing. 

This automatic standard in H.R. 4800 appears nowhere in current 

environmental law and will be ripe for judicial challenge and scrutiny. 

 Let me repeat, the rulemaking standard of the minority bill takes a 

standard from the treaty used to determine whether a chemical should be 

listed at all and supplants it into broad new EPA domestic rulemaking 

authority that could limit the production, use, or manufacturing of certain 

chemicals in this country in the future. 

 While I understand the chemicals that currently make up the treaties 

are the worst offenders and largely have ceased to be produced in the 

United States and pursuing control measures for the actual regulation of 

new and unknown future chemicals, information on social and economic 

considerations including cost, risk, and alternatives should be considered 

by our own Government. What is wrong in balancing costs, risk, and 

alternatives? It is arguable that every chemical in industrial society 

could lead to “significant adverse human health and our environmental 

effects,” if you are exposed to mass quantities--I do not read too well 

from a printed page. Under Ms. Solis’ bill standard in essence there is no 

determination on whether the chemical has any benefit for job 

considerations or even domestic security purposes. If a chemical 

proposed to be banned under the treaty on the Solis standard had 

potential uses for domestic security purposes under her bill, that could 

not be taken into consideration at all which is why the Gillmor standard 

and the safeguards in his bill are so vital. 

 We simply do not know what the international body will propose as 

its control measure in the future. Treaties are living bodies that evolve 
3

over time and I believe it is for these reasons that it is critical to provide 

for a check and balance to occur that does not cede any authority to 

unelected, unaccountable, international bodies while at the same time 

allows for the U.S. to actively engage and participate in these 

Conventions and maintain its role as a world leader. 

 The Gillmor draft seeks to address three important issues 

surrounding full implementation and ratification of these agreements. 

First, it fulfills the regulatory prohibitions and restrictions necessary to 

address chemicals that are already listed in the treaties. Second, it 

addresses the process by which the United States participates in decisions 

involving the potential additions of new chemicals to the list of the 

treaties. Finally, it gives EPA tailored rulemaking authority for chemical 

substances or mixtures added to the treaties only to the extent necessary 

to meet the obligation of the United States under the treaties. 

 With these assurances, it is my hope that the efforts of the 

subcommittee will allow this process to go forward. Once again, I thank 

all the witnesses for their participation and I look forward to hearing the 

testimony. 

MR. HALL. The chair recognizes Ms. Solis for five minutes. 

 MS. SOLIS. Thank you. 

 Good morning everyone. We are here today to discuss the 

legislation to implement the Stockholm Convention on Persistent 

Organic Pollutants, known as POPs. I would like to thank all our 

witnesses for joining us today and would like to recognize a fellow 

Californian who is here, Deputy Attorney General Claudia Polsky, who 

is testifying on behalf of California Attorney General Bill Lockyer. 

Thank you for being here. 

 Persistent Organic Pollutants like DDT and PCBs, as you know, are 

chemical substances that remain in the environment, spread easily, 

accumulate in our bodies, lead to cancer, neurological and learning 

disabilities, and cause potential risks to immune and reproductive 

systems. Simply put, these are the worst of the worst chemicals. 

 The Stockholm Convention was created to protect public health 

around the world by limiting these substances. President Clinton’s 

Administration negotiated this treaty which President Bush signed into 

law in a ceremony in 2001, showing our Nation’s commitment to protect 

the public against significant adverse human health and environment 

effects of POPs. What we need now is a commitment to support action 

which effectively and efficiently allows implementation of the 

Stockholm Convention and further regulation of additional pollutants as 

agreed to by the United States. But despite multiple statements that 

ratification remains a top priority for the Bush Administration, there has 

been little effort to move us closer to that goal. Only once in the 107th
4

Congress did the Administration provide recommendations to amending 

existing law to offer the treaty’s implementation. This subcommittee did 

not address the treaty until three years after the Bush Rose Garden 

Ceremony. And that hearing was in July of 2004, nearly 19 months ago. 

Since the end of 2004, the only contact on this matter has been a letter 

dated July 22, 2005, promising, and I quote, “to work closely on the 

issue.” There has been no communication that I am aware of, and since 

July of 2005 of that letter, the Administration has made no effort to 

bridge the differences. Given the track record, I find the 

Administration’s call to action simply disingenuous. 

 That is why I decided to introduce H.R. 4800. I believe the United 

States must continue to be a leader in the global effort to protect public 

health from the effects of harmful toxic chemicals known to humans. 

My legislation effectively and efficiently allows for implementation of 

the Stockholm Convention and further regulation of additional pollutants 

as agreed to by the United States. It has broadbased support by public 

health advocates, environmental organizations, and the United States 

chief negotiator for the Stockholm Convention. H.R. 4800, my bill, 

establishes a workable process to protect public health from the effects of 

POPs and preserving the U.S. opt in authority. It includes health-based 

standard to determine regulations to protect against significant adverse 

human health environmental effects of additional pollutants which is a 

standard President Clinton and President Bush committed when they 

agreed with the Stockholm Convention. 

 Additionally, the bill includes a provision which explicitly protects 

U.S. sovereignty, while stating a final rule to regulate POPs shall not 

take effect unless the United States has consented to be bound by that 

listing. And as the lead negotiator of the United States to the treaty 

stated in written testimony, H.R. 4800 puts forward a relatively 

straightforward process which would allow the U.S. to fully implement 

the Convention while retaining full discretion with regard to the 

regulation of any POP. 

 I am extremely concerned that the process established by H.R. 4591 

will limit the rights of our States to use their authority to protect public 

health, and will effectively ensure that the U.S. takes no action to protect 

public health from additional pollutions. Simply put, it will worsen the 

already ineffective structure of the Toxic Substances Control Act. A 

statute which we know has failed to even regulate asbestos. 

Additionally, 12 bipartisan attorney generals pointed out that this 

legislation would preempt the right of States to act, action which 

Washington State’s Attorney General Rob McKenna called 

counterproductive to our shared interest in protecting the health and 

welfare of our citizens. 
5

 I would like to insert into the record two letters from the attorney 

generals. And I would like to thank California Attorney General Bill 

Lockyer who pointed out that the goals of the Stockholm Convention 

must be achieved without undermining advances that States have made 

to help safeguard our public health and I agree with that. As a global 

leader, the United States should adopt legislation which would allow for 

effective, efficient implementation of the Stockholm Convention which 

protects the public health at home and abroad and which preserves U.S. 

sovereignty and the rights of our States. My legislation achieves these 

goals. 

 Thank you witnesses for being here and I yield back the balance of 

my time. 
6
7
8
9
10

 MR. GILLMOR. Thank you, Ms. Solis, and I would also like to thank 

Chairman Hall for starting the meeting so we could stay on time. I was 

tied up in another meeting. I would like to request unanimous consent 

that all members have five days to submit statements for the record, and 

also unanimous consent to revise and extend my remarks, without 

objection. 

 Today our subcommittee is meeting to review two bills. One 

introduced by me, H.R. 4591, and provisions of which have been 

circulating around town for about 20 months, and H.R. 4800, legislation 

introduced by our Ranking Member about two weeks ago. 

 Let me make some brief comments about the legislation I introduced. 

I believe that H.R. 4591 reasonably implements the POPs and the PIC 

Conventions and the Long Range Transboundary Air Pollution protocol. 

My legislation is drafted based on certain principles embedded in its 

provisions, and I would like to point them out for the benefit of the 

members. 

 First, my bill is a targeted legislative fix that does what is needed and 

is important for us to become full partners in this agreement. 

 Second, I believe the U.S. official laws and standards, and not those 

of an unelected and non-accountable international body, should 

determine what specific control measures United States takes. Standards 

in America should be set by Americans, and I do not think Congress 

should give away its power and the power of the Federal Government to 

other countries over which we have no control. 

 Third, I believe that the public should be fully informed about 

actions being taken under those agreements, and Congress should be 
11

informed when conflicts arise with existing environmental statutes. And 

fourth, I believe that sound, objective, and peer reviewed science should 

be at the core of any regulatory decisions made by the United States 

under these treaties. 

 The amendments that I am proposing to TSCA, the only Federal 

environmental statute that explicitly regulates manufacturing, extends 

additional authority to EPA only for chemical substances or mixtures 

added to these treaties. It does not provide for any general EPA 

regulatory authority, global manufacturing use, or distribution in the 

commerce of chemicals. 

 I would also like to comment about another subject which recently 

arose and that is the preemption of State environmental laws. Coming 

from the Ohio State Senate, I am very sensitive to protecting a State’s 

prerogatives. When drafting my legislation, I wanted to ensure that we 

did not replace the existing relationship between States and the Federal 

Government--under which States can be more stringent than the Federal 

Government but not less stringent. I also wanted to ensure that the States 

could not lower standards that would place our country out of 

compliance with our obligations under the POPs Convention. 

 Now some of the State Attorneys General have put out a news 

release a couple of days ago claiming that the draft would somehow 

reduce States’ ability to adopt more stringent standards. Let me point 

out, this bill has been around for 20 months; I am the principal sponsor 

of the bill; I am the Chairman of the Subcommittee. Not a single one of 

those attorneys general contacted me at any point about that subject, and 

I am happy that we have a representative of the California Attorney 

General’s Office here; maybe she can explain to me why they did not do 

so and instead chose to regulate, or try to legislate, by news release. 

Interestingly, if they had contacted me earlier, we could have cleared up 

that confusion immediately. There is no intent and there never has been, 

to change the current law in that regard. In fact, EPA’s interpretation of 

the language disagrees with the interpretation of the attorneys general. 

But I have said, to avoid any confusion, I would support adding language 

to clarify that that is in fact the case. 

 [The prepared statement of Hon. Paul E. Gillmor follows:] 

PREPARED STATEMENT OF THE HON. PAUL GILLMOR, CHAIRMAN, SUBCOMMITTEE ON 

ENVIRONMENT AND HAZARDOUS MATERIALS

The Subcommittee will now come to order. 

The Chair would also like to request unanimous consent that all members have five 

(5) days to submit statements for the record and the chair wishes to ask unanimous 

consent to revise and extend his remarks for the record. 

Today, our Subcommittee is meeting to review two bills, mine – H.R. 4591, 

provisions which have been circulating around town for 20 months – and H.R. 4800, 
12

legislation introduced by our Ranking Member, Mrs. Solis, two weeks ago. Let me make 

some brief comments about the legislation. 

I understand that H.R. 4591 reasonably implements the POPs and PIC Conventions 

and the LRTAP Protocol. 

My legislation is drafted based on certain principles imbedded in its provisions and I 

would like to point them out for the benefit of the members. 

First, my bill is a targeted legislative fix that does what is needed and important for 

us to become a full-partner in these agreements. 

Second, I believe U.S. officials, laws, and standards – not those of an unelected and 

unaccountable international body – should determine what specific control measures the 

United States takes. Standards in America should be set by Americans, and Congress 

should not give away its power and the power of the Federal government to other 

countries over which we have no control. 

 Third, I believe that the public should be fully informed about actions being taken 

under these agreements and that Congress should be informed when conflicts with 

existing environmental statutes occur. 

Fourth, I believe sound, objective, peer-reviewed science should be at the core of 

any regulatory decisions made by the United States under these treaties. 

The amendments that I am proposing to TSCA – the only federal environmental 

statute that explicitly regulates manufacturing -- extend additional authority to EPA only 

for chemical substances or mixtures added to these treaties. It does not provide for any 

general expansion of EPA regulatory authority over manufacturing, use or distribution in 

commerce of chemicals. 

 I would like to comment about another subject which recently arose: pre-emption of 

state environmental laws. 

Coming from the Ohio Senate, I am very sensitive to protecting state prerogatives. 

When drafting my legislation, I wanted to ensure that we did not replace the existing 

legal relation between states and the Federal government under which states could be 

more stringent than the Federal government, but not less stringent. I also wanted to 

ensure that states could not lower standards that would place our country out of 

compliance with our obligations under the POPs Convention. 

Some State Attorneys General put out a news release a couple of days ago claiming 

my bill would somehow reduce the states ability to adopt more stringent standards. 

Interestingly, not a single one contacted me and if they had then it could have been 

cleared up immediately. 

There is no intent to change the ability of the state to act more stringently. EPA has 

said that the language in H.R. 4591 does not make this change. 

 However, to avoid any confusion, I support adding language to clarify that that is the 

case. 

The Chair now recognizes the gentlelady from California, Mrs. Solis for the 

purposes of making an opening statement. 

 MR. GILLMOR. I now recognize the gentleman from New Jersey for 

an opening statement. 

 MR. PALLONE. Thank you, Mr. Chairman. 

 I appreciate that we are finally starting to move forward on amending 

the Toxic Substances Controlled Act to implement these important 

international agreements concerning toxic chemicals, but we have two 

different approaches before us at this hearing and I think it is critical that 

we examine the serious differences and ensure that our implementing 

legislation is fully protective of human health and the environment. 
13

 I want to mention that the committee received a letter this week from 

11 State Attorney Generals--including the New Jersey AG--who strongly 

object to several provisions of the Chairman’s mark, H.R. 4591. Their 

concerns are mine and should be taken seriously by the subcommittee. 

First of all, I strongly disagree with the broad State preemption language 

in H.R. 4591. I strongly support the ability of individual States to go 

beyond Federal regulatory restrictions. New Jersey frequently leads the 

Nation in progressive environmental protections and I cannot support 

any effort to infringe on their right to do so. I fail to see how additional 

restrictions on States’ rights could be adverse to U.S. interests in 

regulating POPs. 

 Next, I am deeply concerned about making adjustments to existing 

U.S. standards for accepting of new POPs. We should look to the 

international scientific health-based standard, one the U.S. had developed 

and incorporate only processes needed to comply with U.S. law. EPA 

must act within an appropriate timeframe to make a decision on any 

newly listed POPs. Excluding requirements for EPA action on new 

listings guts the main function of the agreements, which is to protect 

human health and the environment. The net effect would be to freeze 

U.S. protections to currently listed POPs which we already regulate or 

ban. 

 And finally, Mr. Chairman, there is no reason to adapt a completely 

different judicial review standard than the one found in existing 

environmental laws such as the Clean Water Act, the Clean Air Act, the 

Safe Drinking Water Act, and the Solid Waste Disposal Act. Our goal is 

to add protections, not processes. And I believe obviously that the 

Ranking Member, Ranking Member Solis’s approach to implementing 

legislation is much more effective and in the spirit of the agreement 

signed by this country. I encourage the members of this subcommittee to 

carefully consider her bill and note the differences between it and H.R. 

4591. 

 On a different note, Mr. Chairman, I just wanted to point out in the 

presence of our witnesses from the EPA that I think it is high time for us 

to have an oversight hearing on the EPA’s budget. The full committee is 

holding a budget hearing with the Department of Energy, and over in 

Resources, my other committee, we are holding a hearing on the budgets 

for NOAA and the Fish and Wildlife Service and somehow the EPA with 

its dramatic cuts this year gets off scot-free. I really do not understand it. 

I think it has been too long since this subcommittee has exercised its 

oversight duties on the budget so I would ask that that happen, Mr. 

Chairman and again thank you. 

 MR. GILLMOR. Thank you. 
14

 The chair recognizes the gentleman from New Hampshire for an 

opening statement. 

 MR. BASS. No opening statement, Mr. Chairman. 

 MR. GILLMOR. Does the gentleman from Michigan have an opening 

statement? The gentleman, Mr. Stupak? 

 MR. STUPAK. I appreciate Mr. Bass yielding to me. 

 Thank you, Mr. Chairman and Ranking Member Solis. Thank you 

for holding today’s hearing. I would like to welcome our witnesses to 

testify before our committee and who testified before back in 2004. I 

look forward to hearing from each of you again. 

 I would like to commend Ms. Solis for her leadership on this issue 

and echo my support for H.R. 4800 which I am a cosponsor of. I believe 

this bill is the right approach. This legislation better reflects the 

Convention’s original intent by employing a health-based standard for 

implementing regulations against future POPs. It also protects States’ 

ability to enact stricter standards if they deem them necessary. 

 In contrast, I have a concern about the potential for Mr. Gillmor’s 

bill to adversely impact my home State of Michigan’s foresight in 

enacting a ban on flame retardants called polybrominated diphenyl 

ethers, better known as PBDEs. Studies have shown that the presence of 

this chemical can cause liver and thyroid damage, as well as, 

developmental and reproductive problems. This chemical is one of five 

already set to be considered by the Convention in the future. Should the 

convention decide to add PBDEs to the list of POPs, I am concerned that 

under Mr. Gillmor’s legislation, the Federal Government would not take 

the appropriate action in banning this chemical or worse would preempt 

Michigan’s law, no longer allowing my State to effectively regulate its 

use. This would be a step backwards in the effort Michigan has taken to 

protect public health. 

 I am also concerned about the Administration’s reluctance to 

implement treaties like the Stockholm Convention. Since signing this 

treaty, the Administration has not provided implementing legislation and 

has not worked with Congress to develop a bill capable of gaining the 

broad support of members and advocacy groups necessary. 

 Routinely, the Administration has failed to act on another important 

international agreement, the U.S. Canadian agreement concerning 

Transboundary Movement of Hazardous Waste. This bilateral 

agreement was made to protect the citizens of Michigan and other States 

from unwanted trash from Canada, however, the Administration has 

failed to act to implement this bill. Because the Administration has been 

unwilling to support or bring legislation to the Hill, Mr. Gillmor’s bill, 

the International Solid Waste Importation and Management Act has been 

introduced to enforce this agreement. Even though this bill passed in this 
15

committee unanimously with the support of both parties, the 

Administration continues to refuse to take a position on this legislation. 

 While I am encouraged that the Administration has come here today 

to provide their insight on implementation of the Stockholm Convention 

on organic pollutants, it is past due that this Administration lend their 

support for legislation to enforce the U.S. Canada bilateral that, as I said, 

has strong congressional backing and we hope they would back that 

legislation. 

 I look forward to hearing the testimony of our witnesses today. 

 Thank you, Mr. Chairman. 

 MR. GILLMOR. Thank you. 

 Does the gentleman from Pennsylvania have an opening statement? 

 MR. PITTS. No opening statement, Mr. Chairman. 

 MR. GILLMOR. The gentleman from Michigan, the distinguished 

Ranking Member of the full committee. 

 MR. DINGELL. Mr. Chairman, thank you. I commend you for this 

hearing and I thank you for your recognition. 

 Five years ago, the President announced that the United States would 

sign the Stockholm Convention on the Persistent Organic Pollutants 

called POPs which has been negotiated under his predecessor, President 

Clinton. The Administration has yet to submit in this or the previous 

Congress a legislative proposal for implementing the treaty with respect 

to these chemicals. Nor has any congressional committee reported any 

legislation this Congress. All the 12 POPs chemicals or pesticides listed 

in the treaty, known as the dirty dozen, are already banned or tightly 

controlled in the United States. These are some of the most dangerous 

chemicals known to man and include such infamous substances as DDT, 

PCB, and dioxins. The POPs Convention created a science-based 

procedure that will govern the inclusion of additional chemicals into the 

Convention, and defines the criteria that must be met. These criteria 

focus on substances that are toxic, that build up in the body and that are 

resistant to natural breakdown, and that can be transported long 

distances. 

 The task before the Congress now is to provide the Environmental 

Protection Agency, with the rulemaking authority and a regulatory 

standard that allows it to properly implement the control measures 

recommended by the Conference of the Parties for a new chemical, 

sometimes call the “13th POP.” The implementing legislation must allow 

EPA to proceed in an efficient and expeditious manner using the results 

of the science-based international process. And I want to stress that this 

is a science-based process. 

The ability of EPA to regulate additional extremely dangerous 

substances is unclear. We must be mindful of a recent example: EPA’s 
16

recent experience with asbestos, a known carcinogen. The Nation saw 

the EPA spend the decade--from 1979 to 1989--doing analyses and 

assessments to support the regulation to ban certain uses of asbestos 

under the Toxic Substances Control Act. I should note that the final rule 

was struck down by the courts. If we cannot regulate a substance as 

dangerous as asbestos under the Toxic Substances Control Act, our 

ability to regulate a 13th POP appears to be inadequate and should be the 

matter of not only bipartisan concern but serious discussions and 

consideration in the legislation. 

 Today’s hearing focuses on two legislative proposals--H.R. 4591 

introduced by the distinguished Subcommittee Chairman, Mr. Gillmor, 

and H.R. 4800 introduced by the Ranking Subcommittee Member, Hilda 

Solis. Chairman Gillmor’s bill, H.R. 4591, incorporates the concept of 

the Toxic Substances Control Act and adds additional criteria. I have 

serious concerns that the rulemaking standard and the criteria contained 

in H.R. 4591 would not allow EPA to act in an efficient manner in a 

realistic and expeditious timeframe. Moreover, that standard appears 

nowhere in the treaty or in existing United States law. I find this 

standard problematic as it poses an opportunity for litigation and years of 

delay. It will also not properly account for public health benefits nor 

recognize the work of the science-based international processes. 

 In contrast, the bill introduced by my friend, Ms. Solis, H.R. 4800, 

would require EPA to use a health-based standard and would allow 

expeditious action. H.R. 4800 has preserved the United States 

sovereignty by providing that no regulation may go into effect until the 

President has exercised his opt-in authority. I commend Ms. Solis for 

her hard work and for an excellent bill. 

This hearing also provides the Administration with the opportunity to 

clarify whether it believes the Senate must formally consent to each new 

chemical added by the Convention. Such a requirement would most 

likely lead to further delay in implementation of control measures 

adopted by the POPs Convention. 

 Mr. Chairman, the committee has a history of approaching successful 

environmental legislation in a bipartisan fashion. This approach in the 

past has offered a process satisfactory to all Members, to outside 

interests, and to the broad public interest. It is my hope that such an 

approach will be followed here and that we will be successful in that 

regard. 

 I thank the witnesses for appearing today. I thank you for your 

recognition and for the hearing and I look forward to the testimony of the 

witnesses. I yield back the balance of my time. 

 [The prepared statement of Hon. John D. Dingell follows:] 
17

PREPARED STATEMENT OF THE HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF MICHIGAN

Almost five years ago the President announced that the United States would sign the 

Stockholm Convention on Persistent Organic Pollutants called POPs, which had been 

negotiated under his predecessor, President Clinton. The Administration has yet to 

submit in this or the previous Congress a legislative proposal for implementing the treaty 

with respect to chemicals. Nor has any Congressional Committee reported any 

legislation this Congress. 

All of the 12 POPs chemicals listed in the treaty, known as “the dirty dozen,” are 

already banned or tightly controlled in the United States. These are some of the most 

dangerous chemicals known to man and include such infamous substances as DDT, 

PCBs, and dioxins. 

The POPs Convention created a science-based procedure that will govern the 

inclusion of additional chemicals to the Convention, and defines the criteria that must be 

met. These criteria focus on substances that are toxic, that build up in the body and are 

resistant to natural breakdown, and that can be transported long distances. 

The task now before the Congress is to provide the Environmental Protection 

Agency (EPA) with rulemaking authority and a regulatory standard that allows it to 

promptly implement the control measures recommended by the Conference of the Parties 

for a new chemical, sometimes called “the 13th POP.” The implementing legislation 

must allow the EPA to proceed in an efficient and expeditious manner using the results of 

the science-based international process. And I want to stress that this is a science-based 

process. 

The ability of EPA to regulate additional extremely dangerous substances is unclear. 

We must be mindful of a recent example: EPA’s experience with asbestos, a known 

carcinogen. The Nation saw EPA spend a decade — from 1979 to 1989 — doing 

analyses and assessments to support regulation to ban certain uses of asbestos under the 

Toxic Substances Control Act. I should note that the final rule was struck down by the 

courts. If we cannot regulate a substance as dangerous as asbestos under the Toxic 

Substances Control Act, our ability to regulate a 13th POP also appears to be inadequate 

and should be the matter of bipartisan discussions and consideration in the legislation. 

Today’s Subcommittee hearing focuses on two legislative proposals — H.R. 4591 

introduced by Subcommittee Chairman Gillmor and H.R. 4800 introduced by our 

Ranking Subcommittee Member Hilda Solis. 

Chairman Gillmor’s bill, H.R. 4591, incorporates the concepts of Toxic Substance 

Control Act and adds additional criteria. I have serious concerns that the rulemaking 

standard and the criteria contained in H.R. 4591 would not allow the EPA to act in an 

efficient manner in a realistic and expeditious timeframe. Moreover, that standard 

appears nowhere in the treaty or in existing United States law. I find this standard 

problematic as it poses an opportunity for litigation and years of delay. It also may not 

properly account for public health benefits nor recognize the work of the science-based 

international processes. 

In contrast, the Solis bill, H.R. 4800, would require EPA to use a health-based 

standard and would allow expeditious action. H.R. 4800 is careful to preserve United 

States sovereignty by providing that no regulation may go into effect until the President 

has exercised his opt-in authority. I commend Ranking Member Solis for her hard work 

and for this excellent bill. 

This hearing also provides the Administration with the opportunity to clarify 

whether it believes that the Senate must formally consent to each new chemical added by 

the Convention. Such a requirement would most likely lead to further delay in 

implementation of control measures adopted by the POPs Convention. 
18

Mr. Chairman, this Committee has a history of approaching successful 

environmental legislation in a bipartisan fashion. This approach in the past has offered a 

process satisfactory to all Members, to outside interests, and to the broad public interest. 

It is my hope that such an approach will be followed here. 

I thank the witnesses for appearing today, and I look forward to their testimony. 

 MR. GILLMOR. Thank you, Mr. Dingell and we will go to our first 

panel. 

 I beg your pardon, the gentlelady from Wisconsin, who should never 

be overlooked. 

 MS. BALDWIN. Thank you, Mr. Chairman. I am grateful to you, Mr. 

Chairman for holding this hearing today. And I am also grateful to you 

for allowing the subcommittee to discuss two bills, one Republican and 

one Democrat. The bipartisanship is noted and appreciated. 

 President Bush signed the U.S. on to the Stockholm Convention on 

Persistent Organic Pollutants or POPs in May 2001. And I am grateful 

for his leadership as POPs called dangerous environmental and health 

hazards across the globe. America is the one superpower in an 

increasingly interconnected world and I believe that along with that 

incredible responsibility and power comes responsibilities to humankind 

and the planet itself. 

 Our hearing today focuses on what role we want to play on 

improving the global environment and thus improving the health of 

humans and animals alike. We want other nations to work cooperatively 

to address our world’s threats and challenges. We must do the same and 

we must lead by example. I am the cosponsor of Ranking Member 

Solis’s legislation. Her bill like the Chairman’s is comprehensive yet 

H.R. 4800 more closely parallels the Stockholm Convention, particularly 

Article 8. Specifically, H.R. 4800 contains a health-based standard that 

requires the Administration to act if a potential POP causes significant 

adverse human health and environmental effects. In contrast, this 

legislation is permissive not mandatory in allowing the Administration to 

take action on a potential POP. There are many occasions where the 

cost-benefit approach embraced by H.R. 4591 should determine whether 

our country should take action. But when you are dealing with 

chemicals that have been scientifically determined to cause so serious 

human health problems, we should move expeditiously to reduce 

exposure to that toxin. In the long run, if we act to prevent health and 

environmental problems by reducing exposure to potential POPs there 

will be a benefit for those costs. Worldwide chronic illnesses could be 

reduced, children protected from exposure would be healthier, and thus 

able to be more productive citizens wherever they may live. 

 Thank you, Mr. Chairman, I yield back my time. 

[Additional statements submitted for the record follow:] 
19

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

Thank you, Mr. Chairman, for holding this hearing to discuss implementing 

legislation for three international agreements that the United States has negotiated and 

signed over the past decade. These agreements all center on the banning or severe 

restriction of chemicals known as persistent organic pollutants. 

These treaties have their genesis in the first Bush Administration, were negotiated 

under the Clinton Administration, and finalized and signed onto by the current Bush 

Administration. While the Senate plays an important role in the ratification procedures, 

the House must pass implementing legislation to amend current law to be in compliance 

with these agreements. I thank Chairman Gillmor and the Subcommittee for their 

leadership in calling this hearing and making efforts to move this process forward. 

I have long hoped that legislation on this issue could be bipartisan. I was glad 

Chairman Gillmor had hearings on draft legislation last year, and I thought that was a 

great starting point for discussions. I did not expect a competing bill to be introduced by 

the Ranking Member, and I hope that doesn’t mean they have rejected bipartisan work. I 

am hopeful that their actions will be based on merit and not designed to slow down or 

complicate the process by seeking to address other issues such as opening up the Toxic 

Substances Control Act or putting partisan politics into the mix. 

These treaties are important living documents and decisions and proposals for 

additional chemicals currently are being debated and decided upon without full U.S. 

participation. So on that note, I am hopeful that all members of the Committee and 

Subcommittee will be able to work towards an amicable solution to ensure our voice is 

heard when these critical decisions are being made. 

That being said, I have several concerns with HR 4800, by Ms. Solis, that I find to 

be troubling and dangerous precedents to set in American law. HR 4800 mandates that 

the U.N. determination to ban or limit future chemicals automatically becomes EPA’s 

standard too. I believe that standard of review gets it wrong because if the U.S. opts in, it 

shouldn’t be the U.N. that determines what is in the U.S. best interests without a proper 

domestic consideration by our own EPA. This consideration is especially important when 

we are considering adopting stringent control measures, which could be as severe as a 

complete ban on manufacturing. This automatic standard in HR 4800 appears nowhere in 

current environmental law and will be ripe for judicial challenge and scrutiny. Let me 

repeat, the rulemaking standard in the minority bill takes a standard from the treaty used 

to determine whether a chemical should be listed at all, and supplants it into broad new 

EPA domestic rulemaking authority that could limit the production, use, or 

manufacturing of certain chemicals in this country in the future. While I understand the 

chemicals that currently make up the treaties are the worst offenders and largely have 

ceased to be produced in the United States, in pursuing control measures for the actual 

regulation of new and unknown future chemicals, information on socio-economic 

considerations, including costs, risks and alternatives should be considered by our own 

government. What is wrong in balancing costs, risks and alternatives? 

It is arguable that every chemical in industrial society could lead to “significant 

adverse human health and/or environmental effects,” if you are exposed to mass 

quantities. Under this Solis bill standard, in essence, there is no determination on whether 

the chemical has any benefit for job considerations, or even domestic security purposes. 

If a chemical proposed to be banned under the Treaty and the Solis standard had potential 

uses for domestic security purposes, under her bill that could not be taken into 

consideration. At all. Which is why the Gillmor standard and the safeguards in his bill are 

so vital. We simply do not know what the international body will propose as its control 

measures in the future. Treaties are living bodies that evolve over time, and I believe it is 

for these reasons that it is critical to provide for a check and balance to occur that does 
20

not cede any authority to unelected, unaccountable international bodies, while at the same 

time allows for the U.S. to actively engage and participate in these conventions and 

maintain its role as a world leader. 

The Gillmor draft seeks to address three important issues surrounding full 

implementation and ratification of these agreements. First, it fulfills the regulatory 

prohibitions and restrictions necessary to address chemicals that are already listed in the 

treaties. Second, it addresses the process by which the United States participates in 

decisions involving the potential addition of new chemicals to the lists in the treaties. 

Finally, it gives EPA tailored rulemaking authority for chemical substances or mixtures 

added to the treaties, only to the extent necessary to meet the obligations of the United 

States under the treaties. With these assurances, it is my hope that the efforts of the 

Subcommittee will allow this process to go forth. Once again, I thank all the witnesses 

for their participation, and I look forward to hearing the testimony. 

PREPARED STATEMENT OF THE HON. LOIS CAPPS, A REPRESENTATIVE IN CONGRESS FROM 

THE STATE OF CALIFORNIA

Thank you, Mr. Chairman. 

I’m very pleased with the Subcommittee’s continued interest in the POPs Treaty and 

implementing legislation. In signing this treaty, we recognized that POPs pose a 

worldwide threat to human health and the environment. 

The U.S. government, industry, public health, and the environmental community all 

played a large role in drafting the treaty, which has widespread support. 

However, five years after signing, we have yet to act or consider implementing 

legislation on this historic treaty. 

This treaty eliminates, or significantly reduces, the global production, use and 

release of the 12 worst POPs. It also establishes a science-based process for adding other 

POPs to the list in the future. 

POPs persist for years in the environment, travel great distances on wind and water 

currents, and accumulate in food chains. Every day, Americans are exposed to POPs 

through fish and dairy products. And because they collect in body fat, women can 

transfer POPS to their fetuses during pregnancy and to infants during breast-feeding. 

Even at extremely low levels, POPs can cause irreversible damage. Scientific 

evidence has linked POPs to decreased birth weights, cancers, and learning and 

reproductive disorders. 

As a public health nurse, I value the giant step forward this treaty takes in reducing 

human exposure to these toxic substances. And that’s why I strongly support H.R. 4800 

– Congresswoman Solis’ bill. 

Her bill implements the letter and spirit of the POPs treaty. 

Specifically, it gives EPA clear authority to take regulatory action when a new POP 

is added to the treaty. It adopts the treaty’s health-based standard for regulating POPs. 

And, it respects state and local efforts to protect public health from POPs by specifically 

allowing stricter state standards. 

Conversely, in H.R. 4591, Chairman Gillmor’s bill, there is no requirement that 

EPA do anything after an international decision to add a new POP. There is no timeline 

for EPA to act, no obligation for them to say why not, and no citizens’ petition process to 

challenge EPA. 

His bill also abandons the treaty’s public health goal. For example, if EPA decided 

to regulate, it could do so only if it finds a “reasonable balance” between human health 

and the economic costs of the regulation. We should be acting to guard human health, 

not profits. 

Finally, H.R. 4591 would preempt all state and local POPs regulations and prohibit 

states from taking regulatory action in the future. 
21

Mr. Chairman, reducing the effectiveness of the POPs treaty is no way to ratify. 

H.R. 4800 is a better approach. It protects the spirit and intent of this treaty, with a 

forceful adding mechanism that allows prompt action by EPA on adding a new POP. 

I hope we can move this bill, very soon, and legislation in the Agriculture 

Committee so we can move further along in protecting human health and the 

environment. 

Thank you again for holding this legislative hearing. I look forward to our 

witnesses’ testimony. 

 MR. GILLMOR. If there are no further opening statements, we will go 

to our first panel. Our first witness is Claudia McMurray, Assistant 

Secretary of United States Department of State. I want to thank her for 

being here because I know that she has a very full schedule today and 

really had to hustle to get in here. We appreciate you being here. 

Secretary McMurray. 

STATEMENTS OF HON. CLAUDIA A. MCMURRAY, 

ASSISTANT SECRETARY FOR OCEANS AND 

INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC 

AFFAIRS, U.S. DEPARTMENT OF STATE; AND SUSAN B. 

HAZEN, PRINCIPAL DEPUTY ASSISTANT 

ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES, 

AND TOXIC SUBSTANCES, U.S. ENVIRONMENTAL 

PROTECTION AGENCY 

MS. MCMURRAY. Thank you, Mr. Chairman. 

 And I would also like to thank the members of the subcommittee for 

holding this hearing on legislation to allow the United States to join three 

extremely important international agreements to control dangerous toxic 

chemicals and pesticides. The three agreements are the Stockholm 

Convention on Persistent Organic Pollutants, the Protocol on Persistent 

Organic Pollutants of the Convention on Long-Range Transboundary Air 

Pollution, what I will call LRTAP POPs, and the Rotterdam Convention 

on the Prior Informed Consent Procedure for Certain Hazardous 

Chemicals and Pesticides in International Trade, which I will shorten to 

the Rotterdam Convention. I have a longer statement that I would like to 

submit for the record with your permission. 

 Since 2001, the Administration has urged the Congress to make it 

possible to join these agreements and that the committee approve 

implementing legislation as soon as possible as was expressed in strong 

support for the Stockholm Convention in a Rose Garden ceremony in 

2001. On that occasion, former Secretary Powell and former EPA 

Administrator Whitman also highlighted the important foreign policy 

environmental and health benefits of this agreement and the need for 

continued U.S. leadership in the field of persistent organic pollutants. 
22

 Over a few decades the U.S. has been a leader in developing sound 

and effective risk management regimes in the fields of toxic chemicals 

and pesticides. In fact, the United States was the first country to begin 

addressing the human health and environmental threats posed by 

pesticides and other toxic substances. Our expertise is continually 

sought by other countries in establishing their own domestic programs. 

Clearly we can make a unique contribution to the success of these three 

international agreements. It is particularly critical that the United States 

join these agreements now because all three have been in force for some 

time. The governing bodies of each of these agreements have already 

met at least once and later this year will convene again to make decisions 

on the future of their respective accords. As the recognized leader in the 

field of toxic chemicals management, it is vital that the United States 

participate in shaping the development of each of these agreements. 

 The Stockholm Convention which was completed in 2001 aims to 

protect human health and the environment from 12 chemicals that are of 

particular concern. These chemicals are unique because they have four 

intrinsic characteristics. They are toxic. They have the potential to 

accumulate in unhealthy quantities in both humans and animals. They 

are stable and resistant to natural breakdown and they can be transported 

over long distances through the atmosphere and the oceans. The 

Convention’s Conference of Parties will make final decisions on whether 

to add new chemicals. Once the parties add a chemical through an 

amendment, countries can decide the conditions under which they will 

consent to an amendment. At the time of ratification, we in the U.S. 

intend to declare that any amendment shall enter into force for the United 

States fully upon our deposit of a U.S. instrument of ratification, 

acceptance, or approval. Legalization of this so called optimum option 

for adopted amendments will ensure that decisions made by the 

Convention parties do not prejudge our domestic decision-making 

process. 

 The Stockholm Convention which now has been ratified by 118 

countries entered into force on May 17, 2004 and held its first 

Conference of the Parties in May 2005. At that meeting and I attended 

that meeting, the United States was neither able to participate fully in the 

important decisions taken there, nor able to intervene them on the key 

financial issue decided at the end of the meeting. The second 

Conference of the Parties will take place on May 1 through 5 of this year 

and will consider important issues related to compliance, the 

consideration of new chemicals, and guidance on best environmental 

practices for unintentionally and produced POPs. 

 H.R. 4591 would permit the United States to implement and become 

a party to two additional international agreements dealing with toxic 
23

chemicals and pesticides. One agreement closely related to the 

Stockholm Convention is the LRTAP POPs agreement that I mentioned 

earlier. That is a regional agreement negotiated under the auspices of the 

United Nation’s Economic Commission for Europe which includes the 

United States, Canada, Europe, and the former Soviet Republics. The 

obligations in LRTAP POPs are generally similar in nature and scope to 

those in the Stockholm Convention. One of the key differences is that 

LRTAP includes four substances not contained in the global accord 

reached in Stockholm. 

 LRTAP POPs entered into force on October 3, 2003, and has been 

ratified by 25 countries. The LRTAP executive body which serves as the 

governing body for all LRTAP protocols will hold its next meeting in 

December of 2006. The Executive Body will decide whether several 

substances currently being reviewed by the technical committee should 

be considered POPs and then discuss management options for two 

substances designated as POPs by the Executive Body in 2005. The 

Executive Body will also discuss options for improving the efficiency 

and effectiveness of the technical review of potential POPs. 

 The last agreement covered in H.R. 4591 is the Rotterdam 

Convention on Prior Informed Consent which is designed to promote 

shared responsibility between exporting and importing countries in 

protecting human health and the environment. The Rotterdam 

Convention stipulates that the export of certain especially hazards 

chemicals, in particular those the use of which has already been banned 

or severely restricted in a number of countries, can only take place with 

the prior informed consent of the importing country. The Convention 

also contains safeguards to ensure that an importing country cannot apply 

the agreements’ provisions, in a discriminatory manner, thus ensuring a 

level playing field for countries engaged in trading these products. The 

Rotterdam Convention significantly enhances the management of 

chemicals by enabling countries, especially developing countries, to 

identify their risks and make informed decisions about their importation 

and use. 

 The Rotterdam Convention has to date been ratified by 104 countries 

and entered into force on February 24, 2004. The Convention’s third 

Conference of the Parties will be held in October of this year and will 

also decide whether to formally add several substances to the list of 

chemicals already covered by the Convention. 

 In summary, Mr. Chairman, together these three agreements address 

a number of critical chemical management problems faced by the 

international community. These agreements enjoy broad support from 

the public, from environmental groups, from industry organizations, and 

also from many Members of Congress. All of these agreements will 
24

provide considerable health and environmental benefits to our citizens 

and those around the world. As I have already noted, the requisite 

number of countries have ratified these agreements and all three are now 

in force. Their respective governing bodies will be meeting in the 

upcoming months and critical decisions will be made on the future 

course of each agreement. As the country with the world’s most 

comprehensive risk management scheme for toxic chemicals, the U.S. 

should continue its leadership role as an active and influential 

participant, a seat not just at the table but at the head of the table. In 

short, this issue is just too important for the United States to sit on the 

side lines as an observer. 

 Mr. Chairman and members of the subcommittee, it is therefore 

urgent that this Congress pass implementing legislation that will allow us 

to join these agreements and participate as parties in these upcoming 

meetings. H.R. 4591 would allow the United States to implement 

obligations for all three of these important agreements which are a 

cornerstone of international efforts to foster environmentally sound 

management of chemicals. H.R. 4591 includes the elements the 

Administration believes are appropriate to take domestic action. It is 

fully consistent with the international process for the consideration of 

adding additional chemicals to the scope of these agreements. Passage of 

this legislation will confirm the strength of our commitment to protection 

of human health and the environment in the United States and around the 

world and with our allies to participate fully in the process by which 

these agreements will evolve over time. We strongly support Chairman 

Gillmor’s efforts to move this bill forward. We have been working 

towards U.S. ratification of the Stockholm Convention since the U.S. 

signed it in May 2001. Next month will be the five year anniversary of 

the President’s Rose Garden ceremony on POPs. U.S. ratification of this 

treaty remains a top priority for the Bush Administration. 

 I look forward to working with committee members on both sides of 

the aisle to expedite U.S. entry into these important agreements. 

 Thank you, Mr. Chairman. I would be happy to answer any 

questions you may have. 

 [The prepared statement of Hon. Claudia A. McMurray follows:] 

PREPARED STATEMENT OF HON. CLAUDIA A. MCMURRAY, ASSISTANT SECRETARY FOR 

OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS, U.S.

DEPARTMENT OF STATE

Mr. Chairman, thank you for holding this hearing on implementing legislation to 

allow the United States to join three extremely important international agreements to 

control dangerous toxic chemicals and pesticides. The three agreements are the 

Stockholm Convention on Persistent Organic Pollutants (the “Stockholm Convention”), 

the Protocol on Persistent Organic Pollutants of the Convention on Long-Range 
25

Transboundary Air Pollution (“LRTAP POPs”), and the Rotterdam Convention on the 

Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in 

International Trade (the “Rotterdam Convention”). Since 2001, the Administration has 

urged that Congress make it possible to join these agreements and that the Committee 

approves implementing legislation as soon as possible. 

Mr. Chairman and members of the Subcommittee, I respectfully suggest to you that 

swift approval of implementing legislation would demonstrate strong U.S. support for 

these agreements and the benefits to public health and the environment that they provide. 

H.R. 4591 would allow the United States to implement obligations for all three of these 

important agreements, which are a cornerstone of international efforts to foster 

environmentally sound management of chemicals. The bill includes the elements the 

Administration believes are appropriate to take domestic action. It is fully consistent 

with the international process for the consideration of adding additional chemicals to the 

scope of these agreements. Passage of this legislation would confirm the strength of our 

commitment to protection of human health and the environment in the United States and 

across the world, and would allow us to participate fully in the processes by which these 

treaties will evolve over time. We strongly support Chairman Gillmor’s efforts to move 

this bill forward. 

There is a widespread consensus that the accords represent a significant step in the 

effort to protect the global environment. President Bush expressed his strong support for 

the Stockholm Convention in a Rose Garden ceremony in 2001. On that occasion, 

former Secretary Powell and former EPA Administrator Whitman also highlighted the 

important foreign policy, environmental and health benefits of this agreement and the 

need for continued U.S. leadership in this field. 

For over three decades the United States has been a leader in developing sound and 

effective risk management regimes in the fields of toxic chemicals and pesticides. In 

fact, the United States was among the first countries to begin addressing the human 

health and environmental threats posed by pesticides and other toxic substances. Our 

expertise is continually sought by other countries when establishing their own domestic 

programs. Clearly we can make a unique contribution to the success of these three 

international agreements. 

It is particularly critical that the United States join these agreements now because all 

three have been in force for some time. The governing bodies of each of these 

agreements have met at least once, and later this year will convene again to make 

decisions on the future of their respective accords. As a recognized leader in the field of 

toxic chemicals management, it is vital that the United States participate in shaping the 

development of each agreement. 

The Stockholm Convention, which was completed in 2001, aims to protect human 

health and the environment from twelve types of chemicals that are of particular concern. 

These chemicals are unique because they have four intrinsic characteristics: they are 

toxic; they have the potential to accumulate in unhealthy quantities in humans and 

animals; they are stable and thus resistant to natural breakdown; and they can be 

transported over long distances through the atmosphere and oceans. The persistent 

organic pollutants (“POPs”) initially covered by the treaty are: aldrin, 

hexachlorobenzene, chlordane, mirex, DDT, toxaphene, dieldrin, polychlorinated 

biphenyls (PCBs), endrin, heptachlor, dioxins and furans. 

POPs are capable of affecting human health and the environment far away from the 

regions where they are used and released. While none of the twelve chemicals covered 

by the Stockholm Convention are now used or manufactured in the United States, there 

are still some uses in other parts of the world, particularly in developing countries. As a 

result, they can still have a negative impact on the health of U.S. citizens. These 

chemicals, which have been found in disturbingly high concentrations in Alaska and the 

Great Lakes region, have been linked to cancer, damage to the nervous system, 
26

reproductive disorders, and disruption of the immune system. The risks are especially 

high for indigenous populations, who rely heavily on certain fish, marine mammal, and 

wildlife species, that tend to absorb and retain these chemicals. Some POPs, such as 

DDT, are known to have negative impacts on the wildlife species themselves. Because 

POPs are capable of long-range transport, no one country acting alone can address their 

human health and environmental effects. A global agreement is needed to control the use 

and release of these substances. 

The Stockholm Convention deals with intentionally produced POPs, such as DDT or 

PCBs; unintentionally produced POPs, such as dioxins and furans; and POPs wastes. For 

intentionally produced POPs, the Convention prohibits or restricts their production and 

use, subject to certain exemptions such as the continued use of DDT for malaria and other 

disease vector control. The Convention also prohibits or restricts trade in such 

substances. For unintentionally produced POPs, the Convention requires countries to 

develop national action plans to address releases and to apply "Best Available 

Techniques" on specified key source sectors to control them. Parties must also take 

appropriate measures to ensure that POPs wastes are managed in an environmentallysound manner. 

Recognizing the need for developing countries to manage POPs, the Convention 

includes a flexible system of financial and technical assistance through which these 

countries can receive help to meet their obligations. In fact, the United States has already 

spent over $20 million assisting several developing countries in building capacity in this 

area. 

Finally, the POPs Convention creates a science-based procedure to govern the 

addition of chemicals to the Convention beyond the current twelve substances. This 

process will, among other things, allow scientific experts to review and recommend to the 

Parties to the Convention whether chemicals proposed for addition to the agreement meet 

the criteria for toxicity, bioaccumulation, persistence, and long-range transport. In the 

language of the Convention, this science-based procedure involves an evaluation of 

"whether the chemical is likely, as a result of its long-range environmental transport, to 

lead to significant adverse human health or environmental effects, such that global action 

is warranted." 

If the POPs Review Committee determines that a chemical is likely to lead to 

significant adverse effects, the Committee then will consider information on socioeconomic considerations. This includes the technical and economic feasibility of control 

measures to meet risk reduction goals, availability of alternatives, and other socioeconomic factors. Based on information concerning management and a profile of risks, 

the Committee provides a recommendation on whether a chemical should be considered 

for addition to the Convention. Given our considerable technical expertise and our 

national interests related to the evolution of the Convention, we need to be full 

participants at these meetings as soon as possible. 

The Convention’s Conference of Parties (COP) will make final decisions on whether 

to add chemicals. Once the Parties add a chemical through an amendment, countries can 

decide the conditions under which they will consent to an amendment. At the time of 

ratification, we intend to declare that any such amendment shall enter into force for the 

United States only upon our deposit of a U.S. instrument of ratification, acceptance or 

approval. Utilization of this so-called “opt-in” option for adopting amendments will 

ensure that decisions made by the Convention Parties do not prejudge our domestic 

decision-making process. 

The Stockholm Convention, which has now been ratified by 118 countries, entered 

into force on May 17, 2004 and held its first COP in May 2005. At that meeting, the 

United States was neither able to participate fully in the important decisions taken there, 

nor able to intervene on a key financial issue decided at the end of the meeting. The 

second COP will take place May 1-5, 2006 and will consider important issues related to 
27

compliance, the consideration of new chemicals, and guidance on best environmental 

practices for unintentionally produced POPs. 

The implementing legislation would permit the United States to implement and 

become a Party to two additional international agreements dealing with toxic chemicals 

and pesticides. One agreement -- closely related to the Stockholm Convention -- is the 

POPs Protocol to the Convention on Long-Range Transboundary Air Pollution (LRTAP). 

LRTAP is a regional agreement negotiated under the auspices of the United Nations 

Economic Commission for Europe, which includes the United States, Canada, Europe, 

and the former Soviet Republics. The obligations in LRTAP POPs are generally similar 

in nature and scope to those in the Stockholm Convention. One of the key differences is 

that LRTAP includes four substances (lindane, chlordecone, hexabromobiphenyl, and 

polycyclic aromated hydrocarbons) not contained in the global accord reached in 

Stockholm. 

LRTAP POPs entered into force on October 23, 2003 and has been ratified by 25 

countries. The LRTAP Executive Body (EB), which serves as the governing body for all 

LRTAP Protocols, will hold its next meeting in December, 2006. The EB will decide 

whether several substances currently being reviewed by the technical committee should 

be considered POPs and discuss management options for two substances – 

perfluorooctane sulfonate (PFOS) and pentabromodiphenyl ether (PeBDE) – designated 

POPs by the Executive Body in 2005. The EB will also discuss options for improving 

the efficiency and effectiveness of the technical review of potential POPs. 

The last agreement covered in H.R. 4591 is the Rotterdam Convention on Prior 

Informed Consent, which is designed to promote shared responsibility between exporting 

and importing countries in protecting human health and the environment. The Rotterdam 

Convention stipulates that export of certain especially hazardous chemicals listed in the 

Convention, in particular those whose use has already been banned or severely restricted 

in a number of countries, can only take place with the prior informed consent of the 

importing country. The Convention also contains safeguards to ensure that an importing 

country cannot apply the agreement’s provisions in a discriminatory manner, thus 

ensuring a level playing field for countries engaged in trading these products. The 

Rotterdam Convention significantly enhances the safe management of chemicals by 

enabling countries, especially developing countries, to identify their risks and make 

informed decisions about their importation and use of listed chemicals. 

The Rotterdam Convention has to date been ratified by 104 countries, and entered 

into force on February 24, 2004. The Convention’s third Conference of Parties (COP) 

will be held in October 2006, and will also decide whether to formally add several 

substances to the list of chemicals covered by the Convention. 

In summary, Mr. Chairman, together these three agreements address a number of 

critical chemical management problems faced by the international community. These 

treaties enjoy broad support from the public, from environmental and industry 

organizations, and from many members of Congress. All of these agreements will 

provide considerable health and environmental benefits to our citizens and those around 

the world. 

As I have already noted, the requisite number of countries have already ratified these 

agreements and all three are now in force. Their respective governing bodies will be 

meeting in the upcoming months and critical decisions will be made on the future course 

of each accord. As the country with the world’s most comprehensive risk management 

scheme for toxic chemicals, the United States should continue its leadership role as an 

active and influential participant with a seat not just at the table, but at the head of the 

table. In short, this issue is too important for the United States to sit on the sidelines as 

an observer. 

Mr. Chairman and members of the Subcommittee, it is therefore urgent that the 

Congress pass implementing legislation that will allow us to join these agreements and 
28

participate as Parties in these upcoming meetings. We have been working toward U.S. 

ratification of the Stockholm Convention since the United States signed it in May, 2001. 

Next month will be the five-year anniversary of the President's Rose Garden ceremony on 

POPs. U.S. ratification of the treaty remains a top priority for the Bush Administration. 

I look forward to working with Committee members on both sides of the aisle to 

expedite U.S. entry into these important agreements. 

Thank you, Mr. Chairman. I would be happy to answer any questions that the 

Subcommittee members may have. 

 MR. GILLMOR. Thank you very much. 

 And we would now like to welcome back to the subcommittee Susan 

Hazen, Principal Deputy Assistant Administrator, Office of Prevention, 

Pesticides, and Toxic Substances, U.S. EPA. 

MS. HAZEN. Thank you very much, Mr. Chairman and the 

committee. 

 I have a longer statement which I would like to submit for the record. 

 Mr. Chairman and members of the committee, thank you for the 

invitation to appear before you today to discuss these three very 

important international environmental agreements that have already been 

identified by Ms. McMurray, the Stockholm Convention or the “POPs” 

Convention, the Rotterdam Convention, or the “PIC” Convention, and 

the LRTAP POPs Protocol. Becoming a party to these three agreements 

has been a priority for the Administration since the spring of 2001 when 

President Bush announced that the United States would sign the 

Stockholm Convention. We took part in the negotiation of each of these 

three agreements and we have been working steadily on legislation that 

would allow us to implement effectively their obligations. The time for 

finalizing legislation has now come and we are here to ask for your 

support in our ratification efforts. 

 These three agreements are now in full force. When I last appeared 

before this committee in July of 2004, these agreements were in their 

infancy. And at that time, I outlined in detail what the Administration 

saw as the value of these agreements and continues to see as the value, as 

they contribute, each in its own way, to a healthier global environment 

and to a healthy America by taking steps to address the production, use, 

releases, and trade in a number of substances that affect human health 

and the environment. The United States was an active player in the 

negotiation of each of these agreements, not only politically but 

technically, scientifically, and financially. But now, because of our nontreaty status, our participation is extremely limited. While we have 

attended all of the major meetings, we are no longer in a leadership role 

and our ability to influence decisions is steadily decreasing. We sit in the 

back of the room, at the very end of the row, behind the flag that says 

observers. And once all the parties in the room say what they want to 
29

say, the United States may be, but is not always, recognized by the chair 

of those meetings. 

 Given a number of the new substances being continued for addition 

to these agreements, it is critical for the United States to have a real and 

equal voice at the table. There are five new substances proposed for 

listing under the POPs or Stockholm Convention. There are five new 

substances under LRTAP, the Long-Range Transport POPs Protocol, and 

nine new substances for consideration under the PIC or Prior Informed 

Consent. The United States will want to ensure that available scientific 

information is carefully considered during the decision-making process 

and the decisions made by the parties to these very agreements are 

grounded in sound science, consistent with the requirements of the 

Convention. The United States should be fully engaged and help shape 

such decisions based on both our domestic and international priorities. 

 To that end, our agencies have reviewed Chairman Gillmor’s bill 

with an eye on the fundamental issue that I identified in July of 2004 

which is: does the legislation provide the legal authority necessary for 

the United States to implement all of the Toxic Substance Control Actrelated obligations of these agreements? We believe that this bill 

accomplishes this objective, filling in the gaps necessary in domestic law 

for the United States to fulfill the terms of these international 

agreements. The bill also provides a decision-making standard and 

approach that is generally consistent with that already applied by the 

U.S. Government when evaluating chemical substances and possible risk 

management actions. I would like to thank Chairman Gillmor and his 

staff for introducing a bill that would allow the United States to join 

these agreements which seek to promote the global reduction, if not 

elimination, of some of the world’s most persistent and toxic substances. 

I applaud the Chairman for taking a leadership role. 

 The current legislative bill also reflects the elements that this 

Administration believes are needed to move forward domestically and to 

reaffirm our commitment internationally to promote environmental 

health and safety. The legislation would also enable the United States to 

join future Convention amendments, if we choose, that are consistent 

with U.S. law and policy. This is a very important element of this 

legislation for the Administration. The United States has earned 

international credibility and respect for the strength of our scientific risk 

assessment and our regulatory decision-making. And, by our active 

participation in the international process, we want to continue to be in a 

position to implement such actions where they meet U.S. needs. 

 I would like now just to take a few minutes to discuss several events 

that have occurred in the context of these agreements that highlight the 

immediate consequences of our current non-party status, and why I think 
30

it is in the best interest of the United States to be at the table. In the 

POPs Convention, the membership of the--it is called the POPRC, it is 

the POP Review Committee, the committee where chemicals are 

reviewed--the membership was chosen. Well, it sounds like a rock band. 

The POPRC is really the group of experts who review the chemicals that 

are nominated to be considered for addition to the treaty, a fundamentally 

influential activity and a significant committee. Despite the recognized 

depth of our scientific expertise and the significant role that the U.S. 

plays in the commercial aspects of the substances covered by these 

agreements, due to our non-party status, we were not able to be part of 

that POPs Review Committee decision-making process. The same 

scenario had occurred a few months earlier in the context of the 

Rotterdam or the Prior Informed Consent Convention. 

 On a similar note, at the first meeting of the POP Review Committee 

in 2005, we found that observer views, even when made by 

Governments, were given limited weight in the deliberations. A specific 

case in point was in the development of a procedure for the treatment and 

handling of confidential business information as allowed under the 

Convention. Our view is that it would be beneficial to the POPs Review 

Committee to have the capability to protect as confidential business 

information a broader array of information than was decided by the 

Review Committee, in order to encourage the provision of valuable 

information in the deliberations. This in turn would result in better 

informed decision-making by the Review Committee and, ultimately, the 

Conference of the Parties. Our views on this matter were not given any 

consideration at all and, clearly, if we had been parties, at a minimum a 

debate would have occurred. It is not in the interest of the United States 

to continue to be-- 

 MR. GILLMOR. Can I ask you to wrap up? We are going 

significantly over time and I have a couple questions concerning some of 

the things you talked about. 

 MS. HAZEN. Sure. 

 MR. GILLMOR. Hopefully you can elaborate on that in the question. 

 MS. HAZEN. I would be happy to do that. 

 MR. GILLMOR. Okay. 

 MS. HAZEN. As I said, we just think this is very important and we 

thank you for the leadership that we have seen and I will close with that 

and be happy to answer any questions. 

 [The prepared statement of Susan B. Hazen follows:] 
31

PREPARED STATEMENT OF SUSAN B. HAZEN, PRINCIPAL DEPUTY ASSISTANT 

ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES

Mr. Chairman and Members of the Committee, thank you for the invitation to 

appear before you today to discuss three very important international environmental 

agreements: the Stockholm Convention on Persistent Organic Pollutants (the Stockholm 

Convention), the Rotterdam Convention on the Prior Informed Consent Procedure for 

Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam 

Convention), and the Protocol on Persistent Organic Pollutants, negotiated under the 

United Nations Economic Commission for Europe’s Convention on Long Range 

Transboundary Air Pollution (the LRTAP POPs Protocol). Becoming a Party to these 

three agreements has been a priority for the Administration since the spring of 2001, 

when President Bush announced that the United States would sign the Stockholm 

Convention. We took part in the negotiating of each of these three agreements, and we 

have been working steadily on legislation that would allow us to implement effectively 

their obligations. The time for finalizing legislation has now come, and we are here to 

ask for your support in our ratification efforts. 

 These three agreements are now in full force. When I last appeared before the 

Committee in July of 2004, these agreements were in their infancy. The Stockholm 

Convention had just gone into force a few months earlier. The Rotterdam Convention, 

although moving forward on a voluntary basis for years, had only been in force for six 

months, and the LRTAP POPs Protocol had been in force for nine months. At that time I 

outlined in detail what the Administration sees as the value of these agreements, as they 

contribute, each in its own way, to a healthier global environment and to a healthier 

America. The Stockholm Convention and the LRTAP POPs Protocol, for example, take 

steps to address the production, use, and release of substances that persist in the 

environment for long periods of time and bioaccumulate as they move up through the 

food chain. The reduction or elimination of POPs sources called for in these agreements 

will have significant benefit to the United States by reducing exposures that affect human 

health and the environment. The Rotterdam Convention promotes information exchange 

and informed risk-based decision-making in the global movement of hazardous chemicals 

and pesticides, empowering governments and citizens to make their own domestic 

science- and risk-based decisions in an informed manner. The United States worked 

closely with other partner countries to reach a broad consensus on these pollutionreducing agreements. And we now have a better understanding of the operation of these 

agreements, based on their experience to date. 

 As you know, the United States was an active player in the negotiation of each of 

these agreements. Our scientists led the way in reviewing and assessing the substantive 

matters addressed by these agreements, and the United States was one of the larger 

financial and technical assistance donors. But now our participation is limited. While we 

have attended all of the major meetings that were held to discuss these treaties since 

October 2003, when the first of these agreements came into force, we are no longer in a 

leadership role and our ability to influence decisions is steadily decreasing. We sit in the 

back of the room, at the very end of the row, behind the flag that says “Observers.” Once 

all the Parties in the room say what they want to say, the United States may be, but is not 

always, recognized by the Chair. 

Given a number of the new substances being considered for addition to these 

agreements, it is critical for the United States to have a real and equal voice at the table. 

For POPs, those substances include pentabromodiphenyl ether (pentaBDE), 

hexabromobiphenyl (HBB), perfluorooctanyl sulfonate (PFOS), lindane, and 

chlordecone. There are also five new substances proposed for listing under LRTAP, and 

nine new substances under PIC. Decisions made about these substances under these 

various agreements will haven an impact on global production of and trade in these 
32

substances. The United States, which has a lot of scientific information to bring to the 

table for discussion with respect to these substances, will want to ensure that available 

scientific information is carefully considered during the decision – making process, and 

that the decisions made by the Parties to these various agreements are grounded in sound 

science. Important decisions regarding these and other pollutants and chemicals of 

significant domestic interest will continue to be made over the course of the next few 

meetings of the Parties. The United States should be fully engaged to help shape the 

decisions, based on both domestic and international priorities.

 To that end, our Agencies have reviewed Chairman Gillmor’s bill, H.R. 4591 

introduced in December of 2005, with an eye on the fundamental issue I identified in July 

of 2004, which is: does the legislation provide the legal authority necessary for the 

United States to implement all of the Toxic Substances Control Act-related obligations of 

the three agreements? We believe that this bill accomplishes this objective, filling in the 

gaps necessary in domestic law for the United States to fulfill the terms of these 

international agreements. The bill also provides a decision-making standard and 

approach that is generally consistent with that already applied by the U.S. Government 

when evaluating chemical substances and possible risk management actions. I would like 

to thank Chairman Gillmor and his staff for introducing a bill that would allow the United 

States to join these agreements which seek to promote the global reduction, if not 

elimination, of some of the world’s most persistent and toxic substances. I applaud the 

Chairman for taking a leadership role. 

 The current legislative bill reflects the elements that this Administration believes are 

needed to move forward domestically, and to reaffirm our commitment internationally to 

promote environmental health and safety. The bill, for example, contains language to 

ensure that any manufacturing, use, processing, distribution in commerce for export, and 

disposal of the substances listed in the Stockholm Convention or in the LRTAP POPs 

Protocol that is inconsistent with the obligations of those agreements would no longer be 

authorized. The proposed legislation effectively implements the Rotterdam Convention 

as it tracks the obligations in the Convention relating to notice of control action, export 

notification, export controls and labeling for PIC-listed substances. The bill also requires 

EPA to issue notices that would communicate to our own domestic producers and 

exporters the importing decisions of other countries. Many of the provisions of this bill, 

such as those that require the EPA to publish a number of federal register notices, will 

keep the public informed and allow the public to provide us with significant information 

as we prepare for the international process and our own domestic proceedings. 

 The legislation would also enable the United States to join future convention 

amendments, if we choose, that are consistent with U.S. law and policy. This is a very 

important element of this legislation for the Administration. The United States has have 

earned international credibility and respect for the strength of our scientific risk 

assessments and regulatory decision making, and we want to continue our work to ensure 

that the international process remains subject to a high level of analytical and scientific 

rigor. Our absence from these treaties diminishes the voice of some of the best science 

and policy experts in the world in the international process and tends to decrease the 

balance afforded to the United States’ risk-based approach to chemical management. We 

also miss the opportunity enjoyed by the Parties to chair key process and subsidiary 

bodies, which allows those Parties to directly participate and influence the fate and 

direction of the treaties. I assure you that we continue to think it is in the best interests of 

the United States to be a Party to these agreements. 

I would now like to take just a few minutes to discuss several events that have 

occurred in the context of these treaties that highlight the immediate consequences of our 

current non-Party status and why I think it is in the best interests of the United States to 

be at the table. In the Stockholm Convention, the terms of reference for the Persistent 

Organic Pollutants Review Committee (POPRC) was decided upon and its membership 
33

was chosen at the first conference of the Parties in May of 2005. The POPRC, while 

sounding like a rock band, is really the sole group of experts who review the chemicals 

that are nominated to be considered for addition to the treaty; a fundamentally influential 

activity and significant committee. At the Conference of the Parties, the United States, 

lacking ratification status, was not able to pursue a seat on the POPRC for its first term, 

when many crucial, precedent setting decisions will be made. Despite the recognized 

depth of the United States in terms of our scientific expertise and the significant role we 

play in the commercial aspects of the substances covered by these agreements, we are not 

able to be part of the POPRC decision – making process. The same scenario had 

occurred a few months earlier in the context of the Rotterdam Convention. 

 On a similar note, at the first meeting of the POPRC in 2005, we found that observer 

views, even when made by governments, were given limited weight in the deliberations. 

A specific case in point was in the development of a procedure for the treatment and 

handling of confidential business information. At the meeting, we made the point that it 

would be important to create a mechanism to provide confidential treatment to certain 

types of data, recognizing there are administrative costs to such a mechanism. Our view 

was that not having the capability to protect confidential business information may have 

the effect of discouraging the provision of valuable information in the committee’s 

deliberations. This, in turn, may result in less informed decision-making by the 

Conference of the Parties. Our view was not given any consideration. Clearly, if we had 

been parties, a debate on the issue would have occurred. 

 It is not in the interest of the United States to continue to be silent. President Bush 

recognized the importance of U.S. participation in the international chemical arena when 

he stood in the Rose Garden and announced that the United States would sign the 

Stockholm Convention. I know you understand and agree that the United States needs 

implementing legislation that would allow us to take the final steps and join these three 

important environmental agreements now. 

I am very proud of the leadership role the United States has played in developing 

these agreements. Each of these agreements provides an excellent example of how 

industry and environmental interests can work together to address serious issues, and they 

illustrate how effectively global action can be accomplished when nations are driven by 

common environmental goals. After ratification, EPA will continue to work with 

Congress, along with industry, environmental organizations, and others as we implement 

these agreements. We are committed to working together with our domestic stakeholders 

and the international community to address these chemicals globally. 

 The Administration has reviewed this bill, and we believe that the provisions of the 

bill would allow the United States to take back its leadership role through effective 

participation in the implementation of the agreements and to regulate, as necessary, for 

compliance with the obligations of these three agreements. In order to take part in the 

international response to address the covered substances, to ensure the integrity of the 

treaty process, and to bring to the table some of the best science in the world, it is 

necessary for the United States to be an active and recognized party. We support the 

Chairman’s efforts to move this bill forward and look forward to working with the 

committee as the process advances. 

 Thank you again for the opportunity to discuss these important international 

environmental agreements today. If the committee should need any technical assistance, 

we stand ready to help. Again, I want to thank you for your support and leadership in 

finalizing the implementing legislation necessary for the United States to meet the 

obligations under these three agreements. 

 I will be pleased to answer any questions. 
34

 MR. GILLMOR. The last time we held a hearing on this matter, both 

you and Ms. McMurray stated it was crucial that the United States pass 

implementing legislation in order to get a seat at the table. Obviously 

that did not happen and not only did we miss the first meetings of the 

parties, but we also will not be full parties at the next set of POPs 

meetings this spring. So the question is what happens if the United 

States is not able to pass implementing legislation and continues in its 

present “observer” status? 

 MS. HAZEN. Chairman, that is an extremely important question and 

thank you for asking it. The bottom line is that our domestic interests 

will go absolutely unrepresented in this process. The parties around the 

table will decide what substances should be listed, the information that 

we have and can bring to the table may be given increasingly less 

attention. Our domestic commercial interests will not be considered and 

the parties will determine what trade can or cannot occur. And we will 

have nothing to say about it. 

 MR. GILLMOR. Ms. McMurray, some opponents of my bill have 

argued that it is unusual for the United States, as a part of a larger 

international framework, to insist on its own domestic regulatory process 

and that this is a part of the Bush Administration’s unilateral foreign 

policy. It is my understanding though, that this type of policy position 

from the United States is not new and that the Clinton Administration 

had the very same position. Is that correct? 

 MS. MCMURRAY. Yes, Mr. Chairman. If I could address your last 

point first though. We are up here testifying on three agreements that are 

extremely multilateral and so I find it odd that the word unilateral would 

be used in that we are seeking to work on global problems in a global 

fora and we are trying very hard to do that. 

 But to address your other questions, I think you can look at a broad 

array of multilateral environmental agreements and these three are 

certainly examples and say that no particular regulatory regime is 

required. The results are what is important. We are trying to get 

particular results. We are trying to get rid of chemicals. We are trying to 

decrease emissions depending on which treaty you are talking about. 

And really it is up to the individual countries to determine how to do that 

and we are supportive of that kind of a regime. 

 MR. GILLMOR. Ms. Hazen, as you know, I believe that the U.S. 

should have its own regulatory process for POPs chemicals as protective 

insurance of our national interest, especially since treaties are pacts 

between parties that may not agree. Does the POPs treaty by itself 

convey a specific mechanism for regulating POPs chemicals in each 

country? 
35

 MS. HAZEN. No, Mr. Chairman, the treaty does not lay out a specific 

mechanism for regulating POPs. 

 MR. GILLMOR. And considering the different needs and the 

resources of various countries, would it be appropriate for the POPs 

treaty to lay out a binding process for each of its member parties to take 

in regulating listed chemicals? 

 MS. HAZEN. No, as I said, the treaty does not lay out specific 

mechanisms. Each individual nation or country will determine for itself 

what is the most appropriate process to regulate and to move forward. 

Obviously countries will need to and want to take into consideration their 

domestic considerations. 

 MR. GILLMOR. Ms. McMurray, does the Administration support 

H.R. 4591? 

 MS. MCMURRAY. Yes, Mr. Chairman, we support the quite targeted 

approach that the bill takes, the focus on the specific changes to TSCA 

that are necessary to make us parties to these agreements. 

 MR. GILLMOR. Thank you very much and I will yield back the 

balance of my time. 

 Ms. Solis? 

 MS. SOLIS. Thank you. 

 Ms. McMurray, we just received a copy of your statement a moment 

ago so I want to let the staff know that. My question for you, Ms. 

McMurray, is since the beginning of the 109th Congress in January of 

2005, has the Administration convened any joint meetings with industry 

officials, environmental groups, or public health groups, or State officials 

in an attempt to try to provide a broad based consensus on a set of 

amendments to the Toxic Substance Control Act to implement the POPs, 

yes or no? 

 MS. MCMURRAY. If you are asking for those specific dates, if I have 

convened meetings to discuss legislation, no because there has been none 

to discuss. 

 MS. SOLIS. Okay. I am not aware at this time of any EPA or State 

Department or other Administration officials reaching out to work 

“closely” with me or any Democratic members to develop a set of 

amendments to the Toxic Substance Control Act for the POPs 

Convention since the beginning of the 109th Congress in January of 2005. 

Am I correct? 

 MS. MCMURRAY. Well we worked quite extensively with your staff 

in the last Congress. And it was my understanding that you were in the 

process of developing a bill and it is only now that we have seen it. So 

we would be happy to work with you now to try and see if there is a 

bridge between yours and the Chairman’s bill. 
36

 MS. SOLIS. Well it is incredible for me to try to understand that you 

say in your statement that there is an urgency to get all this legislation 

done now so that we can appropriately be at the table at these upcoming 

meetings, but even in your testimony you state that on what is upcoming 

May 1st and 5th, we would not even qualify if we worked that judiciously 

here to get anything done. So I think some of what is being said is 

somewhat disingenuous because I really believe that we could have 

probably had more collaboration and communication with you. You 

really have not and it is quite sad that, you know, we had to go this route 

at this time. We do want to try to work but I do not think that Mr. 

Gillmor’s bill, the Chairman of the subcommittee, will take care of the 

concerns that many of us had, particularly former President Clinton, as 

well as President Bush. We signed on to a Convention that says we are 

going to prioritize health effects and try to protect the environment and 

those are areas I think everyone internationally agrees with. I do not see 

that we are somehow giving up our sovereignty to foreign countries 

when we sign on to agreements that both your President and my 

President have agreed to. 

 The notion of preemption, I would like to get your feedback on that. 

What is your stand on the language that is presented by Mr. Gillmor on 

State preemption? 

 MS. MCMURRAY. Congresswoman, I think that the State 

Department is perhaps not qualified to comment on a domestic issue of 

the preemption of State law so I would hope that Suzie Hazen could be 

called on to respond to that. But having said that, we did, literally I do 

not even have a copy of the letter from the attorneys general so I cannot 

even if I were to acknowledge that this was something within my 

expertise which it is not, I have not seen the letter. 

 MS. SOLIS. Very well, then I will ask Ms. Hazen. 

 MS. HAZEN. Thank you, Ms. Solis. 

 I too have not seen the letter and I would very much like to see the 

concerns that were raised in it because seeing those concerns will help 

me relate that back to the preemption portion of TSCA that already 

exists. I think what is important here is that I think the goal of all of us is 

to ensure that States continue to have the same authorities that they have 

to regulate in a more stringent fashion. As soon as-- 

 MS. SOLIS. Do you feel, Ms. Hazen, that legislation that I introduced 

would still help us move towards implementation? 

 MS. HAZEN. With the concerns that have been raised by the 

attorneys general, I am reluctant to answer only because I am not aware 

of the specific concerns they have raised and if they are as substantive as 

folks would have me believe they are, I would like to see what it is they 

are raising about concerns. But I would be happy to take a look at the 
37

specific issues they have raised and again see how it relates to the 

existing TSCA Section 18 preemption language that is in place and has 

been in place since 1976. 

 MS. SOLIS. Could you clarify for me, does my bill, in your opinion, 

provide the legal authority necessary for the U.S. to implement all of the 

Toxic Substance Control Act related obligations of these three 

agreements? 

 MS. HAZEN. It does appear from our analysis of the bill that your 

bill would allow the United States to implement the obligations under 

these agreements. 

 MS. SOLIS. And yet in your testimony you do not even mention my 

legislation wall. 

 MS. HAZEN. We were focusing on what we have had an opportunity 

for a fairly long period of time to focus on, H.R. 4591. When last we 

were here, we offered to provide whatever technical assistance we could 

provide. EPA offered to provide whatever technical assistance we could. 

We did, in fact, work quite closely with your staff. We have not been 

asked, to my knowledge since that time, since we finished that sort of 

section if you will, to provide additional assistance but we would be 

happy to do that. 

 MS. SOLIS. I would also like to note for the record that Chief United 

States Negotiator for the POPs Convention, Mr. Yeager, who is going to 

be testifying also submitted prepared testimony that states that H.R. 4800 

puts forward a relatively straightforward process which would allow the 

U.S. to fully implement the Convention while retaining full discretion 

with regard to the regulation of any new POP. I yield back. 

 MR. GILLMOR. Does the gentleman from New Hampshire have 

questions? 

 MR. BASS. I do, Mr. Chairman. I thank the Chairman for 

recognizing me. 

 Both of you, one as a representative of the Department of State and 

the other representative of EPA, say that the bill introduced by my friend 

from Ohio would provide what the United States needs to implement 

these treaties. Now it is my understanding that the bill introduced by my 

friend from California, Ms. Solis, would defer most of the elements of 

regulatory decision-making including evaluation of science and means of 

regulations to the United Nation. It would also, as I understand it, 

completely eliminate considerations like cost, job impact, and national 

security. I am just curious to know why we need to do this in this 

legislation. In your opinion, do you think it is in effect to some extent an 

obligation of sovereignty when the treaties themselves do not actually 

require this? 
38

 MS. HAZEN. In H.R. 4591, the rulemaking standard is “to the extent 

necessary to protect human health and the environment in a matter that 

achieves a reasonable balance of the social costs.” It pulls in all the 

components of much of our existing domestic framework. In H.R. 4800, 

the standard is “to protect against significant adverse human effects 

which at a minimum implements the control measure specified for the 

chemical” that would happen in the international arena. We do believe 

that it is very important that, while the listing by the Conference of the 

Parties and the information relative to that listing is important for the 

U.S. to take into consideration, we do believe that it is very important 

that, at the end of the day, it is the U.S. domestic process and the needs 

of the U.S. people that are taken into consideration as we move forward 

in a regulatory frame. I hope that answers your question. 

 MR. BASS. For both of you, under various agreements such as the 

POPs Convention, there is a process an international review committee 

designed to evaluate and make recommendations for inclusion of new 

chemicals on the list. Are there strict timelines given to the international 

review committee to evaluate and make these recommendations and if 

so, what are these timelines, and if not, do you believe that it would take 

the international review committees several years from initial 

consideration of a particular chemical to the final recommendation of an 

inclusion? 

 MS. MCMURRAY. Congressman, there are timelines. I must say 

though that given those, the review committees do not always meet them. 

We are always reminded that if something should happen in 2006 but it 

may slip to 2007, so yes, it is a reality that we have to wait quite a long 

time for decision-making from its bodies. 

 MR. BASS. On another subject, in reviewing both of the bills that we 

have before the committee today, which of the two proposed pieces of 

legislation would most ensure transparency in public notification within 

the U.S. to obtain the necessary and crucial information in a manner that 

EPA will be able to have the necessary time to closely evaluate the 

weight of that? 

 MS. HAZEN. At this point in time, the components of the Gillmor 

bill that speak to going through a rulemaking process to collect 

information, a rulemaking process that gives opportunities for public 

comment, provides a very transparent framework that would allow the 

public, and I use that word very broadly to include industry, 

environmental community, and the entire set of stakeholders, to engage 

in the process and see exactly where we are and an opportunity to 

provide any information that we may not have and to comment on any 

information which we do have. 
39

 MR. BASS. From your review of both bills, do you believe that the 

Gillmor legislation provides for the EPA on the domestic level to be 

conducting their own evaluation in step with the international process in 

providing the necessary time to process the immense amount of 

comments and data and so forth to ensure the avoidance of potential legal 

issues versus the other bill, which I believe has a strict timeline that kicks 

in after determination of the International Convention setting much 

smaller windows. Is this an issue for EPA? 

 MS. HAZEN. Because we have not yet obviously entered into how 

any of these processes would actually work, it is a little bit difficult to 

answer that question. I can say that there is a need to have a full and 

open process to fully consider information coming in and the position 

that the U.S. would want to take. As again I am stumbling here a bit 

because without a process in place, it is somewhat difficult to judge. So 

you have caught me a little bit off guard with that but-- 

 MR. BASS. Fair enough, thank you. 

 I yield back, Mr. Chairman. 

 MR. GILLMOR. The gentleman yields back. 

 The gentlewoman from California. 

 MS. CAPPS. Thank you, Mr. Chairman, for holding this hearing. 

 Ms. Hazen, I would like to clarify a few of the issues relating to State 

preemption and the letter that you sent me dated August 3, 2004. I have 

a copy of it here and it followed a discussion or exchange that we had 

during our most recent hearing on this matter. As you acknowledged in 

your letter, Chairman Gillmor’s bill now introduced as H.R. 4591, 

preempts or precludes a State from establishing or continuing in effect 

any requirement for a chemical substance or mixture for which a listing 

under the POPs Convention has entered into force for the United States. 

But then the letter stated that a State could request or petition that the 

Federal EPA promulgate a rule to allow its more stringent State law to 

apply to the chemical assuming a number of conditions are met in the 

formal rulemaking. Is that correct? 

 MS. HAZEN. I apologize. I did not catch the first--I have the letter in 

front of me. 

 MS. CAPPS. Okay. 

 MS. HAZEN. And I was trying to find where you were reading for 

the first part. 

 MS. CAPPS. It is the second paragraph and you do state that Mr. 

Gillmor’s bill preempts or precludes a State from establishing or 

continuing any requirement for chemical substance as entered into force 

for the United States but then your letter states and this is the second 

paragraph that a State could request or petition that the Federal EPA 

promulgate a rule to allow its more stringent State law to apply to the 
40

chemical assuming a number of conditions are met in a formal 

rulemaking. I just want to verify that. 

 MS. HAZEN. That is consistent with the current Section 18 

preemption provision. 

 MS. CAPPS. Okay. In the 30 year history of the Toxic Substance 

Control Act, how many cases can you cite where the EPA has allowed a 

more stringent State law to be enacted or continued in effect? 

 MS. HAZEN. I do not have that information at my fingertips-- 

 MS. CAPPS. Okay. I have assumed that you might not and I would 

hope that you would get back to me in writing about that matter. 

 MS. HAZEN. I would be happy to. 

 MS. CAPPS. But I want to ask you this. Are you currently aware of 

any cases, and if so could you cite them, that you are in the process of 

evaluating now? 

 MS. HAZEN. I am personally not aware of any right now which is 

not to say that there are not, there may be some pending requests to the 

Agency. Again, I would be happy to look into that as soon as I get back-

- 

 MS. CAPPS. Okay, all right, I appreciate that information as well. 

 I want to follow up by asking is it also correct that while EPA is 

conducting the rulemaking, this could go on for many years since there is 

no deadline. The State law under--would be preempted during this time 

of rulemaking or precluded from continuing in effect if Chairman 

Gillmor’s bill is enacted into law. 

 MS. HAZEN. I believe what Chairman Gillmor said at the outset was 

that, based on his reading and his concerns that have been raised by the 

letter coming in from the attorneys general, that he is looking at, actually 

that we are looking at, the provisions that have to do with preemption. 

 MS. CAPPS. But as it exists now, during the rulemaking period, there 

would be no opportunity for States to enact their own legislation that 

would be in effect. 

 MS. HAZEN. I am not sure of the answer. I do not want to give you 

a mis-answer. 

 MS. CAPPS. I am asking for your interpretation of this law by the 

lawmaking agency and I would really appreciate if you would get back to 

be me because-- 

 MS. HAZEN. I will. 

 MS. CAPPS. --my assumption is that there is. We have two bills 

before us and that the Solis bill, H.R. 4800 does not preempt State 

authority to enact more stringent requirements for listed POPs chemicals. 

That is very clear it does not. Am I right? 
41

 MS. HAZEN. The Solis bill, as I said earlier, takes in, certainly talks 

about more stringent provisions. The question that we have had 

consistently on that is what does it say about less stringent. 

 MS. CAPPS. Well I am only asking about more stringent. 

 MS. HAZEN. We believe it would allow for more stringent. 

 MS. CAPPS. All right. 

 MS. HAZEN. But what we do not know is if it would allow a State-- 

 MS. CAPPS. Okay. I am only interested in the one part. Finally in 

conclusion, Ms. Hazen, I strongly urge you to read the testimony that 

will be presented today on behalf of California’s attorney general 

expressing his acute and I am quoting him now “acute concern regarding 

the sweeping preemption language contained in Chairman Gillmor’s 

H.R. 4591 and setting forth the specific examples.” And I believe on the 

second panel his assistant or deputy will be testifying and I want this to 

be clear and I look forward to hearing your responses. 

 Thank you very much, I yield back. 

 MS. HAZEN. I will get back to you immediately on this. 

 MS. CAPPS. Thank you. 

 MR. GILLMOR. The gentlelady’s time has expired. 

 The gentleman from Pennsylvania. 

 MR. PITTS. Thank you, Mr. Chairman. 

 Madam Secretary, does the POPs Convention require the 

international body when making a recommendation to list a chemical to 

consider U.S. manufacturing jobs, expert issues, or U.S. national security 

consequences that will arise as a result of regulatory action on that 

particular chemical? 

 MS. MCMURRAY. Congressman, my reading of the international 

agreement is that it would not take those very specific conditions that 

you cite into account, however, there is some allowance for economic 

impact and technological feasibility that can be taken into account under 

the treaty. So presumably if we made our case well enough before that 

technical review committee, we could have those factors considered. 

 MR. PITTS. Since several countries are preparing to offer proposals 

to list new chemicals at the next POPs conference of the parties, I have 

three questions. First, what countries are proposing these new additions. 

Secondly, what practical implications arise from us not being parties? 

And thirdly, if a proposal to list a chemical is rejected by the conference 

of the parties, is the proposal dead or can it be brought back at a later 

time? 

 MS. HAZEN. Is it all right if I-- 

 MR. PITTS. Yes, yes. 

 MS. HAZEN. The five chemicals that are being proposed for listing: 

pentabromodiphenyl ether by Norway, chlordecone and 
42

hexabromobiphenyl by the European Union, and then lindane by 

Mexico, and PFOS by Sweden, so those are the chemicals and the 

countries. I think the implication question is a very important and 

serious one. For pentabromodiphenyl ether, all uses in the U.S., all 

manufacturing in the U.S. was phased out last year and the company that 

manufactured has agreed not to and the agency, EPA, has followed that 

up with a regulatory backstop to assure that no new manufacture or 

import could begin. For both chlordecone and hexabromobiphenyl, we 

have no domestic production and, in fact, we too have followed those up 

with the same kind of backstop to ensure that they could not resume 

being made in the U.S. or to be imported. For lindane, there are two 

allowed uses in the U.S., one has to do with agriculture and one is a 

pharmaceutical use. And then for PFOS, we have four low volume uses, 

although no domestic production. And so for some of these, the 

implications would not be very severe, but for other pharmaceutical uses 

for which there may not be a substitute, for the low volume uses of PFOS 

for where there may not be substitutes that provide the same qualities, 

the implications could be severe. And then whether we could go back 

once a chemical is sort of, I think-- 

 MR. PITTS. Rejected. 

 MS. HAZEN. --rejected, it is unclear because that occurrence has not 

happened but I would certainly think if new information became 

available, the cycle could start over again and the country could 

resubmit. 

 MR. PITTS. Okay. Now as I understand it, the Gillmor legislation 

utilizes a substantial evidence standard as part of its judicial review 

provisions. Is that correct? 

 MS. HAZEN. That is correct. 

 MR. PITTS. Is it the case that currently talks of Section 19 also 

contains a substantial evidence standard? 

 MS. HAZEN. Yes, sir, it does. 

 MR. PITTS. Okay. Do you see any reason for the judicial review 

process to be different for POPs than it is for current TSCA? 

 MS. HAZEN. I think to have consistency between this and the Toxic 

Substance Control Act, the Section 19 provisions is very much in 

keeping with the Administration’s goal to have a very targeted strategic 

approach to changes. 

 MR. PITTS. Thank you, Mr. Chairman. 

 MR. GILLMOR. Thank you very much, Mr. Pitts. 

 The gentlelady from Illinois. 

 MS. SCHAKOWSKY. Thank you, Mr. Chairman. 

 I did want to briefly give my opening statement so it will be included 

orally in the record as well. 
43

 For quite sometime, the international community has recognized the 

threat that persistent organic pollutants, which are commonly referred to 

as POPs, pose to public health and the environment. POPs are 

exceedingly toxic chemicals that may take years to break down in the 

environment and can travel long distances. The use of these chemicals 

anywhere around the world is a threat to the health of our Nation. 

Effectively protecting the public health from POPs is only possible 

through international agreements. Congress has a duty to amend our 

laws so that the U.S. can be an active partner in international efforts to 

protect the public and the environment from these hazards. 

 As we all know, the Stockholm POPs Convention which entered into 

force on May 17, 2004, would ban or severly restrict the production, use, 

trade, and disposal of 12 of the most dangerous POPs. Unfortunately, 

the Convention has yet to be ratified by the United States. The two bills 

before us today, H.R. 4591 introduced by Chairman Gillmor and H.R. 

4800 introduced by Ranking Member Solis, aim to make the necessary 

changes to existing law so that the U.S. will be in compliance with the 

Stockholm Convention once it is ratified. 

 I am concerned, however, that the language drafted by the Chairman 

will make it difficult to regulate POPs in the United States. H.R. 4591 

seems to have been designed to preempt states’ authority to regulate 

substances that become subject to the treaty. And in addition to the letter 

that was presented, my--well as part of that letter by Attorney General 

Lisa Madigan has signed onto that letter and there is an additional letter 

from the Attorney General of the State of Washington who has sent a 

letter of great concern about H.R. 4591. Also H.R. 4591 sets a new cost 

benefit standard that must be met before the United States can regulate a 

newly listed POP. Top experts in this field believe that it will be very 

difficult for the EPA to regulate such a cost benefit standard, therefore 

making it nearly impossible to protect us from additional pollutants. In 

addition, I am concerned that the bill lacks strong enough language to 

force a timely implementation of a POPs Convention decision. 

 The Stockholm Convention sets a good precedent for international 

action and cooperation between all of the stakeholders in the interest of 

public health and the environment. I believe that H.R. 4800 which 

contains a health-based standard presents a solution that is properly 

aligned with the Stockholm Convention’s framework. 

And in my time remaining, I wanted to go back to the issue of the 

chemicals that are being the five chemicals now that are being 

considered for addition to the POPs list right now. Let me clarify. It is 

my understanding that none of those chemicals are manufactured in the 

United States. Is that right? 

 MS. HAZEN. That is correct. 
44

 MS. SCHAKOWSKY. And that some have, while you have backup 

language you said in the EPA to prevent the manufacture of how many 

of those was that? 

 MS. HAZEN. We have for one--for four of those we have what we 

call a significant no use rule which provides for a regulatory backstop. 

 MS. SCHAKOWSKY. Now are any of those, I think I missed that you 

actually use though imported into the United States? 

 MS. HAZEN. We have PFOS which has four low volume uses in the 

United States. We also have lindane, which is used in the United States. 

Currently I am aware of two uses for lindane. One is used as a 

pharmaceutical in shampoos for the treatment of head lice and it also has 

an agricultural use in the treatment of seed. It is a pretreatment used to 

deter bacteria growth on seed prior to its being planted. 

 MS. SCHAKOWSKY. I wanted to ask you if you agree. You have 

looked at both bills, right? 

 MS. HAZEN. Yes, I have. 

 MS. SCHAKOWSKY. Do you agree that under H.R. 4800, no 

regulation on industry of a new POP chemical could go into effect in the 

United States until the President has made an independent decision to 

consent to be bound? 

 MS. HAZEN. Both bills ensure that the U.S. maintains its opt in 

obligation which means we do not, we are not bound by the treaty until 

we affirmatively, the U.S., opt in for any new listing. 

 MS. SCHAKOWSKY. Thank you. 

 I yield back. 

 MR. GILLMOR. The gentlelady yields back. 

 The gentleman from Michigan. 

 MR. STUPAK. Thank you, Mr. Chairman. 

 Ms. Hazen, if I may, back in July of ’04, you appeared before our 

committee and I asked you, as I said in my opening statement, about the 

U.S./Canadian Transboundary. I asked the question when was the 

Administration or the EPA going to implement rules to enforce the 

Canadian/U.S. Waste Agreement as we call it, Hazardous Waste 

Agreement and you told me back in 2004 it would be soon, 2003 I was 

told it was soon, in 1994 I was told soon. Now we are at 2006, it is now 

12 years since I first asked the question, nothing has been done. When is 

the EPA going to enforce that agreement, the U.S./Canadian 

Transboundary Movement of Hazardous Waste Bilateral Agreement? 

 MS. HAZEN. After our last hearing, I got back to you after I had 

gone to the appropriate folks in the Agency to ask when that would 

happen. As you know, it is not something managed in my area. That 

does not mean I am not responsible as an EPA official for it. I am not 

aware of its current status and I will follow up. 
45

 MR. STUPAK. I am not blaming you personally, but you are a 

representative of the EPA that comes here and urges us, as I have heard 

this morning, to move quickly on this POPs agreement or another 

agreement. There is this urgency that the U.S. does not want to be, using 

your words, merely observers at these Conventions and these treaties, but 

yet, we are 12 years away. Has the Administration taken a position on 

Chairman Gillmor’s bill on the U.S./Canadian trash issue? It is our bill, 

it was passed by this committee unanimously, H.R. 2491? 

 MS. MCMURRAY. Congressman, not to my knowledge but I think 

we need to get back to you for the record. This is not something that 

either of us works on. 

 MR. STUPAK. You cannot be surprised I would ask the question 

because I have been asking it since 1994. So I am getting silence. How 

about-- 

 MS. MCMURRAY. I would be happy to-- 

 MR. STUPAK. --can you get back with me on the Administration’s 

position on H.R. 2491? 

 MS. MCMURRAY. Yes. 

 MR. STUPAK. Can you get back with me on the Administration’s 

position on enforcement of the U.S./Canadian Bilateral Agreement? 

 MS. MCMURRAY. Absolutely. 

 MR. STUPAK. Okay, 30 days, I am going to hold you to it. And then 

we get to the end of it, then what? 

 MS. HAZEN. Then do I go to jail? We will respond within 30 days. 

 MR. STUPAK. Okay. I am not going to say I like the response but I 

am sure there is one. 

 Okay, in my opening statement, I asked about my state, which has 

already banned on PBDEs the fire retardant. Do you agree that if 

Michigan’s ban is more stringent than the future Federal law that the 

Michigan law should be allowed to stand? What my concern is States 

are allowed to be more stringent with their requirements under the Clean 

Air Act, the Clean Water Act, the Safe Drinking Water Act, and the 

Solid Waste Disposal Act. Under Mr. Gillmor’s legislation, if I read it 

correctly, we would not be allowed to have our more stringent standards. 

 MS. HAZEN. Again, I have not yet seen the letter that has been 

submitted by the States attorneys general and I very much need to see the 

specifics of what is in that letter. I understand that there will be revision 

to the Chairman’s bill. And I would like to look at the letter as it relates 

to the existing Section 18 exemption component of TSCA. As you 

know, TSCA allows for States to regulate more stringently and we are 

told here the goal is to make sure that States can regulate more 

stringently when it meets their needs. 
46

 MR. STUPAK. Sure. So why should it be any different than the 

Clean Water Act, the Safe Drinking Water Act, the Solid Waste Disposal 

Act, or the Clean Air Act? 

 MS. HAZEN. My understanding is that when it comes to the Clean 

Air Act, the provisions under the Clean Air Act would not be covered 

and so that more stringent acts that are taken as a result of the Clean Air 

Act would immediately be appropriate. 

 MR. STUPAK. So under Gillmor would it really be the same as like 

the Clean Water Act, the Clean Air Act, where we allow the States to 

have more stringent standards? Why should this one bill be separate? 

 MS. HAZEN. I think the Gillmor bill does allow the States to impose 

more stringent standards. I think the question is, is there a process that 

needs to be gone through in order to do that and I think, is it not, the 

question that is in debate here? 

 MR. STUPAK. Right, the way I understand it, it is like the Food 

Safety Bill that we are supposed to be doing today on the floor, States 

would then have to petition whether it is the EPA or the FDA to have 

stricter standards where underneath these bills if a State has a standard 

that is more stringent, it is allowed without having to go through the 

administrative bureaucracy to get an approval that a State would see as a 

bigger standard especially when with all due respect you do not get back 

to us for 12 or 13 years on enforcement standards, how are we ever going 

to be able to do anything? 

 MS. HAZEN. The issue, as you say, is what is the process. Is there a 

process and should there be a process that one needs to go through in 

order to regulate more stringently? TSCA requires that folks come in to 

do that and ask for an exemption. 

 MR. STUPAK. Okay. 

 MS. HAZEN. I understand the question. We need to--I need to see 

this letter from the Attorneys General and then I can perhaps be more 

precise in my answer. 

 MR. STUPAK. Ms. McMurray, just one real quick question. What is 

the Administration’s position on whether each future chemical listed by 

the Convention will require specific events by, excuse me, specific 

advice and consent by the U.S. Senate? Will each chemical have to go 

through the full Senate advice and consent process before it can be 

regulated? 

 MS. MCMURRAY. Congressman, this is a matter that really we have 

to determine with the aid of the Senate Foreign Relations Committee. It 

relates to the resolution of ratification and we have never gotten that far 

before because we have never had any legislation to show them. 

 MR. STUPAK. So do you have a position or a recommendation you 

will make to the Senate Foreign Relations Committee? 
47

 MS. MCMURRAY. At this point, no, I do not. 

 MR. STUPAK. Will you get back to us in 30 days on that? 

 MS. MCMURRAY. We will be happy to, yes. 

 MR. STUPAK. Okay. Thank you, Mr. Chairman. 

 MR. HALL. [Presiding] All right, the chair recognizes the gentleman 

from Washington, Mr. Inslee. 

 MR. INSLEE. I thank you for the important hearing. 

 You know we have these persistent organics in the food chain out in 

the State of Washington and we are looking at listing of workers right 

now who have these incredible concentrations of these chemicals and 

others and we are part of that food chain so this is a big deal. And I can 

just tell you I am concerned about it would be a good irony if ratification 

of this treaty actually sends us backwards in our ability to move against 

organic phosphates. In Mr. Gillmor’s bill, I am afraid that is exactly 

what would happen because while we are largely in concurrence with the 

treaty now, this would actually remove the ability of States to move 

forward on this. So actually this is a sad irony that we would be ratifying 

an international treaty and disabling 50 organizations that could be 

committed to where we are moving forward on this. And I cannot see a 

reason why we would want to go backwards. That concern is shared by 

others including the Republican Attorney General in Washington and I 

will submit for the record a letter from him about those concerns. I will 

submit a letter from the Washington State Department of Ecology about 

that. 

 If you look at the State of Washington that has had significant efforts 

moving forward against brominated flame retardants PBEDs. Some 

States have already banned it. The State of Washington is considering 

that ban. Michigan banned it and I guess the question I have is wouldn’t 

the Gillmor bill stop the State of Washington from moving forward to 

ban PBEDs? 

 MS. HAZEN. This is the same preemption question and I apologize 

for saying the same thing, but everyone is referring to the concerns and 

the specific legislative issues raised in the letter from the State Attorney 

Generals and I have not had, I have not seen that letter. Clearly as I said, 

I believe the Administration’s goal here is to ensure that States can 

regulate more stringently when they need to and so I need to see what is 

in the State Attorneys General letter before I can comment specifically 

on what issues they have raised. 

 MR. INSLEE. I am not sure, I appreciate but I am not sure why you 

say that. If the Administration’s position is that States should be able to 

regulate on a more stringent basis than Federal legislation on organic 

phosphates, shouldn’t you be able to tell us you are against this provision 

of the Gillmor bill which essentially removes that ability? I mean what 
48

is the mystery here? Why do you have to learn it from the attorney 

generals that this bill is removing State ability to move forward? Why 

aren’t you on our side here? 

 MS. HAZEN. It is not an issue of sides. There already is the ability, 

the States already have the ability to regulate more stringently and under 

TSCA there is a provision, the Section 18 exemption provision. If a 

State wants to regulate more stringently, there is a petition process that is 

gone through and I have already committed to getting back to the 

Representative from California to your right that I will look into how 

many of those petitions have actually been filed before the Agency. And 

while she did not ask, I am assuming she also wants to know what their 

status is. My understanding here is the process that is a concern. Does a 

State have to go through a petition process in order to do this or not, and 

that is why I am trying to determine, that is why I need to see what 

questions this letter raises about the existing TSCA standard which has 

been in place for now almost 30 years. 

 MR. INSLEE. What is the understanding of what this Gillmor bill 

does to Federal preemption? What is your understanding States would 

have to do if at all to have a more stringent standard? 

 MS. HAZEN. My understanding of the Gillmor bill is that it is 

consistent with the current exemption provisions of TSCA Section 18 

and that a State could act more stringently if it went through the Section 

18 exemption process, Section 18 like process of TSCA. So that is my 

understanding of what is currently in the bill. 

 MR. INSLEE. So what you are telling us is if it just comports with 

existing law that is okay with you but if it imposes an additional 

restriction on States, an additional burden or hoops they have to jump 

through then you would be opposed to it. Is that right? 

 MS. HAZEN. What I am saying is that we obviously have current law 

that stipulates how this process is to work. If we are going to change 

that, we have to take a close look at it, all of us collectively, to protect 

the interests that we are all interested in. 

 MR. INSLEE. I want to ask just one question briefly of Ms. 

McMurray. You are the assistant secretary for Oceans and International 

Environmental and Scientific Affairs. This is a little beyond the scope of 

this hearing but it is a chance to ask you a question. What have you done 

about the increasing acidification of our oceans caused by carbon dioxide 

which is totally unregulated in this country right now? What have you 

done about that problem? 

 MS. MCMURRAY. Well Congressman, this certainly is beyond the 

scope of this hearing but I would happy to take a stab at an answer. To 

talk about carbon dioxide emissions you have to look at the approach that 

we have taken that is as the President has outlined an alternative to 
49

Kyoto which a number of countries obviously have chosen. We instead 

have looked at an alternative which is partnerships with other countries 

most prominently and most recently in Asia because we felt that the 

Kyoto process failed to engage China and India, the two largest emitters 

of carbon dioxide after the United States and growing so we decided to 

pursue a partnership with them and others in South Asia to put forward 

technology cooperation towards new sources of energy and other kinds 

of technology that would indeed lessen carbon dioxide emission but 

would then lead to the solution that hopefully is what, is the source of 

your questions which is less emissions. 

 MR. INSLEE. Just so you know your plan is a spectacular failure. 

Our CO2 emissions went up this year. It is on the front page of the 

National Post. That ought to be a enough to know you ought to do 

something else. 

 Thank you. 

 MS. MCMURRAY. Thank you. 

 MR. HALL. I thank the gentleman. 

 Mr. Green, the gentleman from Texas is recognized. 

 MR. GREEN. Thank you, Mr. Chairman and I would like to have my 

full statement placed into the record. 

MR. HALL. Without objection. 

 [The prepared statement Hon. Gene Green follows:] 

PREPARED STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF TEXAS

I would like to thank Chairman Gillmor and Ranking Member Solis for holding this 

hearing on legislation to implement international environmental agreements on Persistent 

Organic Pollutants (POPs), Prior Informed Consent (PIC), and Long Range 

Transboundary Air Pollutants (LRTAP). 

Many of us were here in July 2004 when the subcommittee last addressed this issue, 

with POPs being the most difficult to reach agreement on due to the potential impact it 

has on the American chemical industry. 

The problem with implementing the POPs Convention is not the 12 pollutants it 

currently bans, since each of these is already banned in the U.S., but how to add 

additional pollutants to that list. 

I believe all sides agree we must protect the U.S.’s ability to “opt-in” to future 

regulation of additional POPs so that the U.S. and the American chemical industry are not 

automatically bound by future international decisions. 

However, the two pieces of implementing legislation vary widely on rule-making 

criteria for the addition of future POPs, state preemption rights, and the judicial review 

process. 

By not passing implementing legislation, both in this committee and in the other 

committees with jurisdiction, we are leaving the U.S. on the sidelines while other parties 

to the Convention begin discussing the regulation of additional POPs. 

We need a piece of legislation that does not undermine American industry by 

subjecting them to whatever regulation the international Convention sees fit, but we also 
50

should also not be playing Santa Claus by giving industry a piece of legislation that will 

all but ensure no additional chemicals will be regulated. 

I believe we should work together with industry and environmental groups to reach 

a compromise piece of legislation that satisfies all sides to the extent possible, regulates 

additional chemicals that meet a fair standard, and protects the U.S.’s ability to opt-in to 

future POPs regulations. 

By turning this into a partisan battle, possibly nothing will get accomplished, and we 

hamstring the U.S.’s ability to participate in the key decisions that will be made under the 

Convention to regulate additional pollutants. 

Unfortunately, we have heard little from this Administration on this issue, and they 

have never sent their version of implementing legislation to Congress. Other committees 

in the House and Senate seem to be ignoring this as well. 

Mr. Chairman, since it is unlikely the other committees with jurisdiction on the 

POPs convention will act this Congress, I would like to see us work together to produce 

bipartisan, practical compromise legislation on POPS. In the legislative process, both 

sides need to be willing to reach compromises. 

 MR. GREEN. Ms. Hazen, my concern about the legislation we have 

and frankly even our Ranking Members’ is that I was hoping we would 

see a balance in this committee and hopefully we will see that after we 

get through with some of these hearings in view of it so I would like to in 

some of my questions talk about that. 

 Ms. Hazen, it is my understanding that these bills and treaties will 

not effect EPA’s ability to regulate air toxics under the Clean Air Act. 

And coming from Houston, we are continuing to fight our air pollution 

problems and I want to be sure that the case with these bills or treaties 

effect regulation of our air toxics under the Clean Air Act? 

 MS. HAZEN. These treaties, our involvement in the treaties, will not 

impact our domestic ability to follow through on what we need to do 

either under the Clean Air Act or any other act. 

 MR. GREEN. So what do you see as the policy differences between 

the Ranking Member’s bill and our, and the Chairman’s bill on the topic 

of adding additional chemicals to these treaties? I understand the ones 

that they are talking about doing we all produce in our country anyway 

and again coming from a district that produces a lot of chemicals is that 

true? 

 MS. HAZEN. Is it true that there are policy differences? 

 MR. GREEN. Well there are policy differences, I understand that but 

what are the policy differences but also is the--and the follow up would 

be are those chemicals that are discussed being banned, you know, are 

they produced in the United States anyway? 

 MS. HAZEN. There are policy differences between the bills as you 

point out. H.R. 4800 relies more solidly on a determination of an 

international body in terms of what action should be taken to regulate a 

chemical. While H.R. 4591 provides for the U.S. to take those issues 

into consideration as it makes its domestic determination, relying more 
51

heavily on domestic policy. As you noted, the chemicals that are 

currently listed on Stockholm POPs as well as those which are being 

proposed will not have significant impact on the U.S.; however, I did not 

have the opportunity to point out that we are talking about three 

agreements here. One of the other agreements, the POPs Long Range 

Transport Agreement envisions adding at least four of the seven that 

appear to be under consideration but it was four of those are not subject 

at this point to any use or manufacturing restrictions in the U.S. They are 

albeit manufactured in low volume but these would if these were to show 

up on the LRTAP POPs list, it would have an impact on us. 

 MR. GREEN. Okay. So it is not for us a concern about giving an 

international agency that total authority. But Ms. McMurray, do you see 

any evidence that the other countries are starting to use the process to 

nominate additional chemicals for regulation for competitive advantage 

under the cover of environmental regulation? 

 MS. MCMURRAY. Congressman, we have not analyzed it in that 

particular way. It relates though to your previous question which is are 

there chemicals perhaps coming down the line that would be 

manufactured in the United States that we might want to continue to 

manufacture and that would certainly raise the trade issue. I think that is 

certainly a possibility. It may become a possibility sooner rather than 

later and I think it underscores our need to be at the table as a party so 

that we can be vigilant about these chemicals. 

 MR. GREEN. Okay, thank you. 

 Ms. Hazen one last question, me and my colleagues are concerned 

about instituting the burdensome cost benefit in risk analysis to Section 6 

of the Toxic Substance Act for deciding whether to regulate additional 

chemicals under the treaties. Some people point to the inability of EPA 

to regulate even obvious materials like asbestos under Section 6 as proof 

as to an unworkable process, others like the Chairman and some folks in 

the industry say Gillmor’s bill provisions are similar to the section test 

but would be more streamlined. How did you compare in contrast the 

two standards for regulating new chemicals under the Chairman’s bill 

and the Ranking Member’s bill in terms of policy standard and 

regulatory process? 

 MS. HAZEN. My reading of H.R. 4800, the cost and benefits 

consideration would be similar to or identical to that which would have 

been taking place during the Conference of the Parties or the 

international decision. There are requirements in the Stockholm 

Convention for consideration of cost and benefits in Annex F of that 

Convention. H.R. 4591 relies more heavily on what has been the 

traditionally domestic practice of incorporating a significantly broader 

array of costs and benefits, as well as, socio-economic costs as well and 
52

so one I think is much broader than the other in assuring that we consider 

all implications, for example, including substitute uses for which there 

are no substitutes, those kinds of things. 

 MR. GREEN. Okay. Thank you, Mr. Chairman. 

 MR. GILLMOR. I want to thank all of you on our first panel very 

much for your participation. 

 Now we will move to our second panel. And we would like to ask 

each witness to try to limit their summary, if they can, to three minutes 

each and, after we go through everybody, then we will get into the 

questions. Also, I understand one of the witnesses, Mr. Yeager, has a 

commitment. If you want to go first, Mr. Yeager, go ahead. 

STATEMENTS OF BROOKS B. YEAGER, VISITING FELLOW, 

THE H. JOHN HEINZ III CENTER FOR SCIENCE, 

ECONOMICS, AND THE ENVIRONMENT; MICHAEL P. 

WALLS, MANAGING DIRECTOR, REGULATORY AND 

TECHNICAL AFFAIRS DEPARTMENT, AMERICAN 

CHEMISTRY COUNCIL; CLAUDIA POLSKY, DEPUTY 

ATTORNEY GENERAL, ENVIRONMENTAL SECTION, 

CALIFORNIA DEPARTMENT OF JUSTICE; JIM ROEWER, 

EXECUTIVE DIRECTOR, UTILITY SOLID WASTE 

ACTIVITIES GROUP; LYNN R. GOLDMAN, MD, MPH, 

PROFESSOR, ENVIRONMENTAL HEALTH SCIENCES, 

BLOOMBERG SCHOOL OF PUBLIC HEALTH, JOHNS 

HOPKINS UNIVERSITY; E. DONALD ELLIOTT, PARTNER, 

WILLKIE, FARR AND GALLAGHER, LLP; STEVEN 

GOLDBERG, VICE PRESIDENT AND ASSOCIATE 

GENERAL COUNSEL, REGULATORY LAW AND 

GOVERNMENT AFFAIRS, CROPLIFE AMERICA; AND 

GLENN M. WISER, SENIOR ATTORNEY, CENTER FOR 

INTERNATIONAL AND ENVIRONMENTAL LAW 

MR. YEAGER. I apologize for having a commitment in the afternoon. 

 If I might request that my full statement be included in the record. 

 MR. GILLMOR. Yes, the full statement of all the witnesses will be 

entered in the record. 

 MR. YEAGER. Mr. Chairman, I am here at your request and which I 

appreciate your invitation very much. 

 I want to note that I am not representing any organization or entity in 

connection with the hearing and so the views that I would state are 

entirely my own. 

 From April 1999 to January 2001, I served as the Deputy Assistant 

Secretary for Environment and Development at the Department of State, 
53

and in that capacity I was the chief negotiator for the Stockholm 

Convention. I want to focus my attention on the issue I think is of some 

interest to the committee about the provisions in the Convention that 

relate to the addition of chemicals, which was certainly a matter of 

extremely high priority for the U.S. negotiating team and the 

corresponding U.S. regulatory response to those provisions. I would like 

to echo Assistant Secretary McMurray’s comments that there are real 

disadvantages to the U.S. not being a participant in the Convention. I 

will note that it is almost five years since President Bush’s Rose Garden 

celebration of the Convention, which I took as an implicit understanding 

that the commission has negotiated, why the negotiating team was 

something that the Bush Administration strongly supported. But since 

that time, the Administration, I believe, has made it somewhat more 

difficult than it needs to be through draft legislation to implement the 

legislation and that drafting difficulty appears to have occurred most 

strongly in the provisions with regards to the additional chemicals. 

 The problem is, Mr. Chairman, that setting up a different standard 

from the one in the Convention for the listing of chemicals, or for the 

regulation of chemicals once listed, offers very little protection to U.S. 

interests beyond the protections already negotiated in the Convention. 

And it does have the effect of complicating U.S. regulatory response and, 

in fact, raising the potential that the U.S. could agree to list a chemical 

because of agreeing with the scientific assessment of the chemical was 

likely to produce significant adverse health and environmental effects of 

global concerns so the global action was warranted and at the same time 

make it impossible for the U.S. to completely fulfill its obligations once 

the chemical is listed. 

 The irony is that the provisions of the Convention itself were very 

carefully negotiated to fully protect U.S. interests and as we articulated 

during negotiations, the interest was to achieve an ambitious treaty that 

would address the global environmental damage of a small set of 

chemicals that were extremely unusual in their impacts and effects 

because of the characteristics that have been noted by many witnesses, 

but at the same time to create a Convention whose decisions would be 

practical and implantable by the United States, financially efficient and 

consistent with the fundamental structure of our national approach to 

chemical regulation. I think it is clear from the Bush Administration’s 

ratification submission to the Senate that in fact our negotiators 

succeeded in doing that. 

 And I am going to say that it would be useful, I think, for the 

Committee to look at the negotiating history of the Convention, and I 

would just like to note for the committee that the U.S. negotiating team 

during the Convention negotiations insisted on regular scientific criteria 
54

according to which a chemical would be evaluated, and regular 

institutional process through which the criteria would be applied which 

included a number of considerations that have been put forward by 

representatives this morning, including socio-economic conditions and 

impacts of various control measures. 

 And then finally, in negotiating the terms under which the 

Convention would review the recommendations of the scientific 

committee, and the conditions under which the Convention could make a 

decision to accept or reject a chemical, and the procedures for party 

governments in response to a commission decision. Basically, the 

commission decision has to be based on the order of science. It has to 

include a careful screening of all the aspects of the chemical, including 

the consequences of control measures. It has to be adopted by a 75 

percent vote, a three quarters majority of the Convention, and even then 

every government, including the United States, is able to opt out of such 

a listing and, in fact, as Ms. McMurray said in her statement, the U.S. 

will take the position that we have opted out, unless we decide to opt in 

at the U.S. Government’s discretion. 

 MR. GILLMOR. Mr. Yeager, we have to ask you to wrap up. 

 MR. YEAGER. Yes, I will be glad to. The thrust of my statement is 

that both bills before the committee do a service in tracking the 

Convention’s decision-making process and with the regulatory process in 

the United States that allows useful comment, information from industry 

and civil society, and for the U.S. to make a decision with regard to a 

chemical completely within some discretion. I think that there is a 

difficulty in setting up a standard for the U.S. regulatory process that is 

materially different from the Convention standard and that is it does not 

help protect us anymore, but it does make our implementation with the 

Convention more complicated. 

 Thank you. 

 [The prepared statement of Brooks B. Yeager follows:] 

PREPARED STATEMENT OF BROOKS B. YEAGER, VISITING FELLOW, THE H. JOHN HEINZ III

CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT

Mr. Chairman and Members of the Committee: 

I appreciate your invitation to testify at today’s hearing. For the record, my name is 

Brooks Yeager. I am currently an environmental consultant and the principal of Birdwell 

Strategies. I am also a Visiting Fellow at the H. John Heinz III Center for Science, 

Economics and the Environment. However, I am not representing any organization or 

entity in connection with this hearing, and the views I present today are entirely my own. 

From April, 1999 to January, 2001, I served as Deputy Assistant Secretary for 

Environment and Development at the U.S. State Department. In that capacity, I was 

responsible for the development and negotiation of U.S. Government policy in a range of 

bilateral and global environmental discussions and undertakings. 
55

During that time, I served as the United States' chief negotiator for the 2001 

Stockholm Convention on Persistent Organic Pollutants, known colloquially as the POPs 

Agreement or Treaty. I headed the U.S. delegation to the third, fourth, and fifth and final 

negotiating session on the Convention, and coordinated numerous intersessional 

consultations with various negotiating partners. I also led the U.S. interagency group that 

developed the U.S. position in preparation for the negotiations. 

We are here today to discuss proposed implementing legislation for this groundbreaking treaty. I have focused my testimony on what I believe to be an issue of keen 

interest to the Committee -- the scientific and institutional process for adding new 

chemicals to the Convention, including its negotiating history, and the corresponding 

U.S. regulatory process set out in the implementing legislation. 

Background: The U.S. Interest in a Global Treaty on Persistent Organic Pollutants 

First I would like to offer some background on the treaty itself. The Stockholm 

Convention represents the most important effort by the global community, to date, to rein 

in and ultimately halt the proliferation of toxic chemicals of global concern. It's an 

agreement that is at once ambitious, comprehensive, and realistic. The treaty targets 

some of the world's most dangerous chemicals -- POPs include pesticides such as 

chlordane, industrial chemicals such as PCBs, and by-products such as dioxins. 

POPs pose a particular hazard because of four characteristics: they are toxic; they 

are persistent, resisting normal processes that break down contaminants; they accumulate 

in the body fat of people, marine mammals, and other animals and are passed from 

mother to fetus; and they can travel great distances on wind and water currents. Even 

small quantities of POPs can wreak havoc in human and animal tissue, causing nervous 

system damage, diseases of the immune system, reproductive and developmental 

disorders, and cancers. 

Our government has made a concerted effort, starting not long after the publication 

of Rachel Carson’s pathbreaking Silent Spring, to eliminate the production and use of the 

most well-known POPs chemicals in the United States, and as a result, we no longer 

manufacture any of the 12 POPs listed in the Convention’s Annexes A and B, and have 

made great progress in reducing emissions of POPs byproducts listed in Annex C. 

Yet we are still vulnerable to POPs pollution. Our environment, wildlife, and 

human health continue to be affected by POPs from unremediated contaminated sites at 

home and the production and use of POPs elsewhere in the world. This last fact is central 

to understanding the United States’ strong national interest in the success of this global 

effort to reduce and eliminate POPs. POPs' mobility in air and water currents, for 

example, makes possible their presence along with metals and other particulates in 

incursions of Saharan dust into the continental United States. African dust is the 

dominant aerosol constituent in southern Florida's dense summer hazes. Similarly, one 

potential source of DDT in some salmon returns to Alaska rivers is its extensive use in 

Asian agriculture. The Convention’s global mechanism to reduce and eliminate these 

"chemical travelers without passports" is very much in our national interest. 

The Stockholm Convention Negotiations 

The Stockholm POPs Convention was negotiated by more than one hundred and 

twenty governments over a four-year period, from 1998 to 2001. As the head of the U.S. 

delegation, I was responsible for developing the United States’ negotiating objectives and 

strategies, and for assuring that our national interest, positions, and requirements were 

reflected in the final text. Fortunately, I had the privilege of working with a superb 

interagency team, with senior policy and technical representatives from seven agencies, 

including the EPA, whose senior experts can be credited with developing much of the 

Convention’s technical architecture. 
56

Development of the U.S. position was accomplished through an exhaustive process 

involving regular working teams among the seven domestic agencies, and frequent 

consultations with industry, the environmental and public health communities, Native 

American representatives, and various interested state governments, including the State 

of Alaska. 

Notably, both industry and environmental representatives made important 

contributions to the final product. I would like to note in particular the constructive roles 

played by Clif Curtis, Richard Liroff, and the POPs Team at the World Wildlife Fund, 

and Michael Walls and Paul Hagen of the American Chemistry Council (ACC). A letter 

to EPA Administrator Whitman on February 26, 2002, from Mr. Frederick Webber, 

ACC's President and CEO, expressed ACC’s support for the result of the negotiations: 

 ACC strongly recommends that the Administration seek the U.S. Senate's advice 

and consent to ratification as soon as possible. We believe it is important for the 

United States to continue its leadership role in the global effort to address the risks 

posed by POPs emissions, and believe that the United States should make every 

effort to be among the first 50 countries ratifying the Convention. 

Impediments to U.S. Ratification 

Four years later, one hundred and nineteen countries have now ratified the 

Convention, but the United States has not. Our failure to do so is unfortunate from a 

variety of perspectives. First, it prevents the U.S. from playing its rightful role as a leader 

in global chemicals management. Second, it prevents us from helping to shape the 

Convention’s operational mechanisms and standards as they are developed by the 

Conference of Parties. Third, it places our chemical industry at a potential disadvantage 

as the Convention considers restrictions on future chemicals. Finally, our failure to ratify 

can only deepen our estrangement within the international community, and the 

impression, widely held, that we consistently allow domestic political concerns to trump 

our interest in cooperating with others for the good of the world. 

Although the Convention was negotiated under the Clinton Administration, it was 

strongly supported and signed by the incoming Bush Administration, celebrated by 

President Bush in a 2001 Rose Garden ceremony, and forwarded to the Senate for 

expeditious ratification. At the same time, however, senior officials in the 

Administration who had not been involved in the negotiations and did not understand the 

Convention’s built-in protections for national discretion injected unnecessary 

complications in the Congressional discussions of implementing legislation for the 

Convention, and the Administration must bear a great deal of responsibility for the delay 

in ratification. 

As various Committees grappled with the legislative changes necessary to 

implement the Convention, Administration officials insisted on language that, at least in 

my view, would unduly burden and hobble the U.S. response to the listing of new 

chemicals under the Convention. This language offers very little, if any, protection to 

U.S. interests beyond the protections already negotiated in the Convention, but does have 

the effect of complicating the U.S. regulatory response, proposing domestic regulatory 

standards that differ significantly from the standards in the Convention, and de-linking 

the U.S. regulatory process from our obligations under the Convention. 

Overview of the Stockholm POPs Convention: Structure and Policy 

Before delving into the specifics of the proposed implementing legislation, a brief 

overview of the structure and mechanisms of the Stockholm POPs Convention may be in 

order. The POPs treaty is designed to eliminate or severely restrict production and use of 

POPs pesticides and industrial chemicals; ensure environmentally sound management 
57

and chemical transformation of POPs waste; and avert the development of new chemicals 

with POPs-like characteristics. 

Eliminating intentionally produced POPs. The agreement targets chemicals that are 

detrimental to human health and the environment globally, starting with a list of 12 POPs 

that includes formerly used pesticides, dioxins, and PCBs. Most of the pesticides are 

slated for immediate bans once the treaty takes effect. A longer phase-out (until 2025) is 

planned for certain PCB uses. With regard to DDT, the agreement sets the goal of 

ultimate elimination, with a timeline determined by the availability of cost-effective 

alternatives for malaria prevention. The agreement limits use in the interim to disease 

vector control in accordance with World Health Organization guidelines, and calls for 

research, development, and implementation of safe, effective, and affordable alternatives 

to DDT. 

Ultimately eliminating byproduct POPs. For dioxins, furans, and 

hexachlorobenzene, parties are called on to reduce total releases with the goal of their 

continuing minimization and, where feasible, ultimate elimination. The treaty urges the 

use of substitute or modified materials, products, and processes to prevent the formation 

and release of by-product POPs. 

Incorporating precaution. Precaution, including transparency and public 

participation, is a guiding approach throughout the treaty, with explicit references in the 

preamble, objective, provisions for adding POPs, and determination of best available 

technologies. 

Disposing of POPs wastes. The treaty includes provisions for the environmentally 

sound management and disposal of POPs wastes (including stockpiles, products, articles 

in use, and materials contaminated with POPs). The POP content in waste is to be 

destroyed, irreversibly transformed, or, in very limited situations, otherwise disposed of 

in an environmentally sound manner in coordination with Basel Convention 

requirements. 

Controlling POPs trade. Trade in POPs is allowed only for the purpose of 

environmentally sound disposal or in other very limited circumstances where the 

importing State provides certification of its environmental and human health 

commitments and its compliance with the POPs treaty's waste provisions. 

Allowing limited and transparent exemptions. Most exemptions to the treaty 

requirements are chemical-and country-specific. There are also broader exceptions for 

use in laboratory-scale research; for small quantities in the possession of an end-user; and 

for quantities occurring as unintentional trace contaminants in products. Notification 

procedures and other conditions apply to exemptions for POPs as constituents of 

manufactured articles and for certain closed-system site-limited intermediates. 

Funding commitments enabling all countries to participate. The ability of all 

countries to fulfill their obligations will be integral to the treaty's success. The treaty 

contains a sensible and realistic financial mechanism, utilizing the Global Environment 

Facility (GEF), through which donor countries have committed to assisting developing 

countries and transitional economies in meeting their obligations under the treaty. 

Adequacy, predictability, and timely flow of funds are essential. The treaty calls for 

regular review by the Conference of Parties of both the level of funding and the 

effectiveness of performance of the institutions entrusted with the treaty's financial 

operations. 

The POPs Treaty as a Careful Balance of Interests 

In my view, Mr. Chairman, this is a solid and carefully crafted treaty. But it is also a 

treaty that reflects a careful balance of interests achieved through negotiation and 

compromise. The U.S. interest, as we articulated it during the negotiations, was to 

achieve an ambitious treaty that would address the global environmental damage caused 

by POPs, but do so in a way that would be practical, implementable, financially efficient, 
58

and consistent with the fundamental structure of our national approach to chemical 

regulation. 

Other countries had different interests, some similar, some at variance with ours. 

The developing countries were neither willing nor able to invest in what to them was a 

new environmental priority such as POPs control and remediation without financial and 

technical assistance from the developed world. The G-77 negotiators insisted throughout 

the negotiation on a new financial mechanism, specific to the Convention, with 

mandatory assessments. The establishment of the GEF as the Convention’s interim 

financial mechanism represents a genuine compromise in which the donor countries 

committed to provide additional financial resources, but through a channel with a proven 

track record and one over which donor countries exert significant control. 

Similarly, the EU and a number of other countries insisted early in the negotiations 

on a framework for regulating byproducts such as dioxins based on quantitative baselines 

and mandatory percentage reductions. The United States and some developing countries 

considered this unrealistically rigid, in view of the highly varying levels of knowledge 

regarding dioxin sources in various national contexts and the even higher variation 

among countries in the capacity to address such sources. The framework for dioxin 

regulation which emerged sets an ambitious goal of ‘ultimate elimination...where 

feasible,’ but seeks to reach this goal through a nationally-driven process of inventory, 

planning, and appropriate regulation, under guidance from the Convention. This too was 

a genuine compromise that should produce real progress in dioxin source reduction in the 

coming years. 

The Process for Adding New POPs Chemicals: Negotiations on Article 8 

The process of balancing interests and finding a unified way forward was critical to 

developing a consensus as to how to add new POPs chemicals to the treaty over time. All 

parties clearly recognized that the Convention could not be successful if it were limited 

solely to the 12 chemicals already on the POPs list. All parties recognized, and stated, 

that the Convention was intended to be dynamic rather than static. But the question of 

what scientific and institutional process to use in adding chemicals to the list was fraught 

with difficulties and misunderstandings. 

For the United States, it was critical that this process be scientifically-driven and not 

subject to political whim. Some in the U.S. feared that other countries might be almost 

cavalier in adding chemicals to the list, and that such an approach would distort the treaty 

and distract parties from the strong efforts needed to deal with the chemicals already on 

the list. 

For some in the EU and elsewhere, it was critical that the process for adding 

chemicals not be subject to endless procedural roadblocks. This concern reflected an 

anxiety that the affected industries or governments might use procedural challenges to 

block the addition of chemicals that would legitimately qualify for the list on scientific 

grounds, and that this approach would impede the effectiveness of the Convention over 

time. 

The procedure for adding new chemicals which was finally adopted is, once again, a 

genuine compromise, but one which, in my view, successfully protects the U.S. interest 

in every respect. It may be useful to give a short account of the negotiations on this 

important issue. 

First, the U.S. negotiating team insisted on, and successfully negotiated, rigorous 

scientific criteria according to which a nominated chemical would be evaluated. These 

criteria are contained in Annex D of the Convention. Then we negotiated the process 

through which these criteria should be applied, by a scientific screening committee (the 

so-called POPs Review Committee or ‘POPRC’), working under the supervision of the 

Conference of the Parties (the COP). Finally, we negotiated the terms under which the 

COP would review the recommendations of this scientific group, the conditions under 
59

which the COP could make a decision to add or reject a chemical, and the procedures for 

party governments to accept or reject the COP’s decision. 

The Convention’s Procedures for Adding Chemicals Protect the U.S. Interest 

The final agreement on these issues offers the United States the safeguards of 

rigorous science, a careful review procedure, a high institutional threshold for COP 

decisions to add chemicals, and the right to reject the addition of a new chemical, if 

appropriate. In addition, this compromise also successfully resolved, at least in this 

context, the long-running controversy between the United States and the European Union 

on the subject of precaution, and did so in a way which may have useful applications in 

the future. 

As negotiated, The Convention provisions for the addition of chemicals, coupled 

with the exemption procedures and the process for amending the Convention annexes, set 

a very high scientific and institutional standard for the addition of new chemicals. They 

also provide the U.S. with the full opportunity to bring our government’s scientific 

expertise to bear on the examination of any chemical proposed for addition to the 

Convention, with great deal of flexibility in formulating a national response to any such 

nomination, and with complete discretion in deciding whether to accept or reject the 

listing of new chemicals, once the Convention reaches a decision on them. 

Under these provisions, the Conference of the Parties (COP) has already established 

a Persistent Organic Pollutants Review Committee (POPRC). Parties must submit 

chemical nominations to the POPRC, which will evaluate any chemical nominated based 

on the agreed scientific criteria including persistence, bioaccumulation, long-range 

transport, and toxicity. If the POPRC is satisfied that the screening criteria have been 

fulfilled, it must prepare a draft risk profile in accordance with Annex E, to be made 

available for input from all Parties and observers. Only if, on the basis of the risk profile, 

The POPRC concludes that the chemical 

... is likely as a result of its long-range transport to lead to significant adverse 

human health and/or environmental effects such that global action is warranted... 

shall the Committee then proceed to invite information from Parties and observers related 

as to ‘socio-economic considerations’ as set out in Annex F, and, after having considered 

such information, recommend to the Conference of the Parties “whether the chemical 

should be considered... for listing in Annexes A, B, or C. Even then, a decision of the 

Conference of the Parties to list the chemical, which must come in the form of an 

amendment to the annexes, must be agreed by consensus, or, if there is objection, by a 

three-quarters majority of those present and voting. 

 Under Article 22(3) of the Convention, COP-agreed amendments to add new 

chemicals become binding upon all Parties, subject to the opportunity to “opt out” of 

such obligations within one year. However, there exists another safeguard under Article 

25(4), which was proposed by the U.S., allowing a Party to declare when ratifying the 

Convention that it will be bound by new chemical amendments only if it affirmatively 

“opts in” via a separate, subsequent ratification process. A number of parties have already 

taken advantage of this option, and it is my understanding that the State Department has 

indicated that the U.S. will do so as well when it submits its ratification. 

Including these and other procedural safeguards in the POPs treaty was a major 

objective of U.S. negotiators. At the end of the long, hard concluding week of 

negotiations in Johannesburg in December 2000, I can say that the U.S. negotiators felt 

extremely pleased with the balance of the treaty, and were fully satisfied with the 

particular provisions for the addition of new chemicals. 
60

Congressional Action Needed to Implement the Stockholm Convention 

The Congressional action necessary to implement the POPs treaty must come in two 

areas – implementing legislation and financial support of the Global Environment 

Facility, the treaty’s financial mechanism. In today’s discussion I focus on the need for 

sound implementing legislation. 

Chairman Gillmor’s “Stockholm and Rotterdam Toxics Treaty Act of 2006” 

(H.R.4591) would amend the Toxics Substances Control Act (the first amendments to 

TSCA since its enactment in 1976) to implement the Stockholm POPs Convention as 

well as the Protocol on POPs to the Convention on Long-Range Transboundary Air 

Pollution (LRTAP POPs Protocol) and the Rotterdam Convention for trade in hazardous 

chemicals. Representative Solis’ “POPs, LRTAP POPs, and PIC Implementation Act of 

2006,” (H.R.4800) addresses the same set of issues. My comments will focus on issues 

related to the implementation of the Stockholm Convention, and particularly its 

provisions for the addition of new POPs chemicals over time. 

Comments on Proposed Implementing Legislation 

Mr. Chairman, the Bush Administration’s ratification submittal makes clear that in 

the Administration’s view at the time, U.S. implementation of the Convention required 

only minimal change in the key U.S. chemical regulatory statutes, primarily directed at 

providing necessary authorities to prevent production of POPs chemicals for export. For 

the most part, as the submittal recognizes at several points, the U.S. will implement its 

obligations under existing authorities. This position is an implicit recognition of the 

successful effort by the Clinton Administration to craft obligations which, though strong, 

comport with the existing structure of U.S. regulation. Interestingly, the submittal’s 

discussion of the Convention’s Article 8 listing provisions does not call for any 

substantial changes in the underlying statutes, reflecting the conclusion that bringing the 

U.S. regulatory process into conformance with the obligations of the Convention would 

be largely a process of aligning procedural steps. 

It is clear, however, that some adjustments in both TSCA and FIFRA are desirable, 

both to ensure that the Convention’s objectives for the regulation of new chemicals are 

achieved through the appropriate national means, and to provide for appropriate input 

from industry and civil society to the EPA as it formulates the scientific and technical 

view of the U.S. as new chemicals move through the POPRC process. 

Both bills before the Committee do a reasonable job of tracking the Convention’s 

process for adding new chemicals. At each stage of the process, the bills create 

opportunities for the U.S. private sector and civil society to offer comments and 

information to help inform both U.S. decisions in the Convention context and the agency 

regulatory process necessary to effect the U.S. position. However, of the two principal 

bills before the Committee, I believe that H.R.4800 has a number of advantages in 

providing for U.S. implementation of the Convention. 

H.R. 4800 takes a straightforward approach to reflecting the Convention decisionmaking process in the U.S. regulatory environment, while at the same time, protecting the 

full range of discretion as to what position to take, and ultimately whether to support or 

reject the listing of any particular chemical afforded by the Convention. At each stage of 

the decision-making process, H.R.4800 provides an appropriate opportunity for public 

comment. Importantly, although it requires regulatory action, it allows the EPA to make 

an independent regulatory decision that either conforms to the Convention’s listing, or 

rejects its application to the U.S. 

However, it does so in a manner that recognizes that the U.S. will be a participant in 

the Convention’s decision process. Moreover, it assumes that the Convention’s 

fundamental standard of “significant adverse effect to human health and/or the 

environment,” if accepted for any particular chemical by the U.S., will set the standard 

for consequent U.S. regulations. 
61

In contrast, H.R.4591 as currently presented includes several major shortcomings 

that would jeopardize U.S. participation in the Convention and would also make it 

unnecessarily difficult to regulate POPs in the United States. It would establish new 

regulatory standards which dissociate the domestic legislative process from the 

painstaking, multi-year international process to review and list a new POPs chemical, 

even though the U.S. was a principal architect of that process and will remain a key 

player in those deliberations as a party to the Convention. Finally, in the view of many 

observers with more knowledge than I can claim of the U.S. domestic regulatory context, 

it would set damaging and unacceptable precedents for domestic management of 

chemicals. 

Specifically, under H.R.4591, there is no requirement that EPA do anything after an 

international decision to add a POP to the Convention, even if the United States supports 

the international decision. There is no timeline within which EPA must act (or declare its 

intention not to act). There is no requirement⎯similar to what is already found in TSCA 

§ 5⎯for EPA to publish a statement of reasons for its inaction. And there is no citizens 

petition process⎯similar to what is already found in TSCA § 21⎯to challenge EPA to 

act if it fails to do so. 

But if EPA does decide to regulate, it can do so only “to the extent necessary to 

protect human health and the environment in a manner that achieves a reasonable balance 

of social, environmental, and economic costs and benefits,” a term of art that sets a 

different standard from the one the U.S. will have agreed to in the Convention, and one 

which, by virtue of its novelty, is bound to result in years of litigation and judicial 

interpretation. 

By contrast, under the Stockholm Convention, parties are obligated to regulate 

additional POPs in a manner meeting the standards of the Convention and the terms of 

the appropriate Annex, unless they have exercised their right to “opt out” with reference 

to the chemical in question. In general, the Convention requires that parties (including 

the United States) must decide upon additional POPs “in a precautionary manner.” Yet 

H.R.4591 would prohibit EPA from regulating with anything remotely resembling a 

precautionary manner. Instead of acting to guard human health, EPA would have to 

strike a “reasonable balance” between the costs of the regulation to chemical companies, 

and the benefits of protecting women, children, Native Americans, and others from some 

of the world’s most dangerous chemicals. Further differentiating the U.S. regulatory 

standard from that enshrined in the Convention, the language of H.R.4591 implies a 

requirement for the strict application of cost-benefit analysis, a tool which, in the view of 

many analysts, nearly always results in an overvaluation of the costs of regulation and a 

dramatic under-valuation of the benefits, most of which (e.g., good health, children 

whose development is not impaired by toxic chemicals, etc.) cannot be realistically or 

fully valued in monetary terms. 

Finally, H.R.4591 would require EPA to undergo unnecessary and duplicative 

analysis in the event it chooses to regulate. As a party to the Stockholm Convention, the 

United States will participate in a thorough scientific investigation of additional POPs 

before they are added to the Convention. Yet H.R.4591 would all but ignore the results 

of this international investigation, and would instead require EPA to undertake additional, 

duplicative, time-consuming assessments before it could issue a rule in response to a 

new-listing decision. 

In summary, H.R.4800 puts forward a relatively straightforward process which 

would allow the U.S. to fully implement the Convention while retaining full discretion 

with regard to the regulation of any new POP, whereas H.R.4591 adds considerable 

regulatory baggage which would complicate the U.S. response, and employs different 

regulatory standards from those agreed in the Convention, thus raising the possibility that 

the U.S. might agree with a Convention listing decision, but find itself unable to fully 

implement it. 
62

Mr. Chairman, and Members of the Committee, United States ratification of the 

Stockholm Convention presents a real "win-win" opportunity for the U.S. and the other 

119 nations already party to this historic agreement. It's a "win" for the U.S., providing 

an effective, responsible international instrument that is in our country's best interests in 

addressing the pernicious challenges of POPs globally, in concert with the global 

community. At the same time, it's a "win" for the other treaty partners, who would 

benefit from the tremendous technical and policy expertise and experience that only the 

U.S. can bring to the table. Some of that expertise can of course be provided as an 

observer. But such expertise is most effectively and fully brought to bear when one has a 

direct stake in the outcome, as a party. Hopefully, sooner rather than later, the U.S will 

be in a position to deposit its instrument of ratification. In my view, H.R.4800, 

Representative Solis’ bill, which is more seamlessly aligned with the Convention’s 

procedures, offers the best opportunity to achieve this goal soon. 

Thank you for the opportunity to testify today. I would be happy to answer any 

questions. 

 MR. GILLMOR. Thank you. 

 We will go to Michael Walls, American Chemistry Council. 

MR. WALLS. Good morning, Mr. Chairman. 

 Excuse me, members of the subcommittee. Thank you for the 

chance to be here today. We appreciate the opportunity to reiterate our 

industry’s strong support not only for these three international 

agreements, but for Mr. Gillmor’s legislation, H.R. 4591. 

 We have three principal points to make today. First, the U.S. must 

be a party to these agreements. H.R. 4591 is the best vehicle for assuring 

that the U.S. can meet its obligations under those agreements. Second, 

the Stockholm POPs Treaty establishes a process and a standard for how 

chemicals should be added to the list of covered substances and how they 

should be regulated. H.R. 4591 ensures that process is fairly and 

faithfully reflected in a parallel domestic regulatory process. Finally, 

nothing in these agreements requires that the United States cede domestic 

regulatory authority to the international body. Decisions under those 

agreements are important and they should factor into domestic decisionmaking. But the treaties allow each party to make their own decisions. 

H.R. 4591 ensures that there is a robust record on which EPA can base 

its decisions. 

 So why is it important that the United States be a party to these 

agreements? Decisions are already being made, and the fact is that U.S. 

influence on those decisions has been significantly diminished. U.S. 

businesses, and potentially U.S. jobs, are affected as a result. Now all of 

us agree that the procedures for adding new substances under the 

Stockholm Convention are well designed. But it remains to be seen 

whether those procedures will be rigorously implemented. In fact, it 

would be naive to assume that all parties to those agreements share the 

U.S. view on what the criteria and decision-making standards are. And 

we have already had some experience with other governments’ efforts to 
63

exclude, dilute, and redefine the criteria as they are set out in these 

agreements. 

 Let me cite a few examples. Guidance is being developed under the 

Stockholm Convention to implement Annexes E and F. In both cases, 

the significant debate right now is whether or not risk, a fundamental 

principle in both of those annexes, will be included at all. In late 2005, 

the executive body under the LRTAP POPs protocol received a 

recommendation from the U.S. Government that additional guidance be 

provided to the parties on how to interpret whether a substance is likely 

to cause significant adverse effects. Note that that is the standard under 

the POPs protocol for determining whether, not how, but whether a 

substance is listed under that agreement. The parties to that protocol 

rejected the U.S. proposal and basically indicated a view that the terms 

“likely” and “significant” as used in that standard created some 

significant interpretive problems. 

 In short, the U.S. Government’s attempts to ensure that the POPs 

agreements are being implemented as we intended them to be are being 

thwarted. We need implementing legislation that sends a powerful signal 

to those governments, a powerful signal that we are not going to weaken 

the risk-benefit approach in the agreements. We need a domestic 

regulatory process that mirrors the international process, and H.R. 4591 

does that. Just as the treaties contemplate a reasonable balance of 

hazard, risk, cost, benefits, and impacts, H.R. 4591 does the same thing. 

 Now by contrast, H.R. 4800 purports to implement a decisionmaking standard in the LRTAP POPs protocol. But as I have already 

mentioned, even the other parties to that agreement believe that there are 

problems with applying that standard. Now, in our view, H.R. 4800 

takes the decision-making standard of the POPs protocol out of context. 

It takes a standard to be applied to whether a substance will be listed, and 

attempts to apply it to the question of how a substance should be 

regulated, particularly as a matter of domestic law. 

 MR. GILLMOR. I need to ask you to wrap up pretty soon. 

 MR. WALLS. I am doing that just now, Mr. Chairman. 

 The text of both treaties require that all of those considerations be 

factored in the decision-making process and our domestic implementing 

legislation should do no less. 

 Thank you very much. 

 [The prepared statement of Michael P. Walls follows:] 
64

PREPARED STATEMENT OF MICHAEL P. WALLS, MANAGING DIRECTOR, REGULATORY AND 

TECHNICAL AFFAIRS DEPARTMENT, AMERICAN CHEMISTRY COUNCIL

I. Introduction

The American Chemistry Council (ACC) appreciates this opportunity to reiterate its 

strong support for the three international agreements that are the subject of this hearing: 

the Stockholm Convention on Persistent Organic Pollutants (POPs), the U.N. Economic 

Commission for Europe’s POPs Protocol to the Convention on Long-Range 

Transboundary Air Pollution (LRTAP POPs Protocol) and the Rotterdam Convention on 

Prior Informed Consent (PIC). We also appreciate the opportunity to record our strong 

support for H.R. 4591, Mr. Gillmor’s legislation to implement these agreements by 

amending the Toxic Substances Control Act (TSCA). 

Prompt action on H.R. 4591 is required to ensure that the United States can continue 

its international leadership role under these agreements. H.R. 4591 contains the 

legislative changes to TSCA necessary for the United States to meet its obligations under 

these agreements, and it sends a powerful message to other governments – a message that 

the agreements must be implemented as they were intended, with no more and no less. 

II. U.S. Participation is Necessary in Order to Ensure the Reasonable 

Implementation of these Agreements. 

As the Subcommittee is aware, the LRTAP POPs Protocol, the Stockholm 

Convention and the PIC Convention are all in force. Initial meetings of the parties to 

these agreements have been held, key positions on subsidiary bodies have been allocated, 

and work has already begun in those subsidiary bodies. Chemicals of significant 

importance to U.S. industry have been nominated for inclusion in the conventions. 

Future decisions on nominated chemicals, review processes and best practices will have a 

major impact on our industry, which is global in scale. Already the risk-based, sciencejustified processes for listing new chemicals are under attack by governments who would 

prefer to ignore those requirements. Yet the ability of the United States to lead and 

appropriately influence the decisions that have long-term consequences for the operation 

of the agreements has been significantly reduced because our government is not a Party. 

For that reason, we think that it is vital that the Congress take action quickly to adopt 

H.R. 4591 and allow the United States to join these agreements and deal effectively with 

their implementation at both the domestic and international level. In ACC’s view, H.R. 

4591 is the best vehicle for integrating TSCA and U.S. obligations under the agreement. 

III. H.R. 4591 Addresses the Key Required Changes in U.S. Statutory Authority 

 The three international agreements only require modest statutory changes to TSCA. 

These include: 

• Extending EPA authority to prohibit export of current POPs substances for 

purposes prohibited by the Convention. 

• Imposing certification requirements for exports to countries not party to the 

POPs agreements. 

• Codifying the treaty exemptions in TSCA. 

• Integrating the Rotterdam PIC export notification provisions into existing 

TSCA export notification requirements. 

In ACC’s view, there is no real disagreement that these elements must be addressed 

in implementing legislation. 

The single most controversial issue with respect to these treaties has been how to 

handle future decisions to add new POPs substances under the agreements as a matter of 

U.S. law and regulation. 
65

The POPs agreements do not obligate the Parties to establish mechanisms to address 

future treaty amendments like new chemicals, and the United States could limit its 

implementing changes to the targeted fixes noted above. But the treaties contemplate the 

possibility that chemicals will be added to the list of covered substances in the future, and 

ACC shares the view that legislative economy suggests an adding mechanism should be 

considered for the legislation. ACC therefore supports the establishment of a new 

domestic process that would give EPA special new authority to prohibit or restrict the 

manufacture, use, or export of POPs substances listed by future decisions under the 

treaties. 

The Stockholm Convention establishes a process by which a new chemical will be 

added to the list of POPs: 

1. A Party nominates a chemical for consideration as a POP substance. 

2. The treaty Secretariat reviews the nomination to ensure that it meets the 

minimum criteria established in Annex D (e.g., that the nomination includes 

information on the persistent, bioaccumulative, and toxic properties of the 

substances, and the propensity for long-range transport). If the nomination 

meets the criteria, it is forwarded to the POPs Review Committee (POPRC). 

3. The POPRC reviews the nomination, and if further consideration is warranted, 

the Committee requests information necessary to prepare a Risk Profile on the 

substance pursuant to Annex E. 

4. The POPRC reviews the Risk Profile. If the POPRC decides that further 

consideration is warranted because long-range transport of the substance will 

lead to significant health or environmental impacts such that global action is 

necessary, the Committee requests information to prepare a risk management 

evaluation, including information on the socio-economic benefit and 

alternatives to the nominated substance, pursuant to Annex F. 

5. On the basis of the risk management evaluation, the POPRC makes a 

recommendation to the Conference of the Parties (COP) whether the chemical 

should be listed in Annex A, B or C of the treaty. 

6. The COP then decides whether to amend the Convention to include the new 

chemical on one of the Annexes. 

H.R. 4591 requires EPA to provide public notice and an opportunity to comment at 

each decision point in this process – upon the nomination of a substance, the preparation 

of the risk profile and risk management evaluation, and the recommendation to the COP. 

The process will provide ample public notice of activities under the treaties, and it will 

assure that U.S. representatives in the POPRC and the COP have all relevant information 

before them at each stage of the international process. 

More importantly, the international agreements adopt a flexible approach to risk 

management measures. For example, elimination of a substance is not a legal 

requirement for a POP substance, but constitutes one option to manage the risks of a 

POPs release. A domestic regulatory process is required to provide the United States 

sufficient flexibility to determine how it will regulate a particular substance and what, if 

any, critical uses or exemptions might be necessary. The domestic process should 

include the risk and cost/benefit considerations envisioned in the treaty. Further, as the 

treaty provisions and annexes make clear, risk and cost/benefit considerations are not 

trumped by the need for precaution. Rather, those considerations give substance to the 

precautionary decisions made through the treaty process. 

H.R. 4591 appropriately reflects these risk management considerations in a domestic 

regulatory process for new POPs substances that mirror the procedural and substantive 

decisions under the Stockholm Convention and the LRTAP POPs Protocol. When a new 

substance is adopted under one of these agreements, EPA is granted special new authority 
66

to regulate these newly listed substances “to the extent necessary to protect human health 

and the environment in a manner that achieves a reasonable balance of social, 

environmental, and economic costs and benefits.” In reaching its regulatory decision, 

EPA is to consider: 

• The effects and magnitude of the effects of the substance on health or the 

environment. 

• The benefits of the substance and the availability, risks and economic 

consequences of alternatives to the substance. 

• The economic consequences of the proposed risk management requirement. 

• The domestic and international consequences likely to arise as a result of the 

domestic regulatory action. 

EPA is also authorized to consider additional information in the domestic or 

international record. 

The decision-making standard and the first three required elements in EPA’s 

regulatory considerations provide the necessary domestic counterpart to the process 

outlined in the POPs agreements. The treaties require that relevant social, economic, 

environmental and health information is considered in reaching a decision to list a new 

chemical; H.R. 4591 ensures that the same information is considered in reaching a 

domestic decision. Between the notice and comment requirements and the international 

process, EPA will have a robust domestic and international record to consider in reaching 

a domestic regulatory decision – and a sufficient opportunity to ensure that the record 

supports its subsequent regulatory actions. 

H.R. 4591 sends a powerful signal to those governments that are attempting to 

weaken the risk/benefit approach set out in the POPs agreements. To date, the 

international process for evaluating new chemicals is only in the initial stages, but some 

governments are working to remove or dilute the criteria for evaluating new chemicals, 

including the evaluation of risk, costs and the potential consequences and risks of any 

alternatives and potential risk management measures. These efforts further reinforce the 

need for a clear domestic regulatory process. 

The domestic regulatory process in H.R. 4591 sends a clear signal that in order to 

ensure that the United States can be party to a treaty amendment to list a new chemical, 

the record must provide appropriate support. The international agreements adopt a 

risk/benefit approach in implementing appropriate regulatory controls on listed 

chemicals, and in considering chemicals nominated as potential POPs. The agreements 

rely on technical and economic considerations to ensure that priority pollutants are 

targeted and meaningful control actions taken on a global basis. H.R. 4591 does no less – 

and supports the appropriate use of analytical tools such as risk assessment and 

cost/benefit analysis that EPA already employs in its decisions to manage the risks of 

chemicals. 

Section 6 of TSCA already provides EPA the necessary authority to prohibit or 

restrict the manufacture, processing, use, distribution or disposal of a chemical substance. 

Due to the special global considerations that apply to substances nominated as POPs, the 

chemical industry has been willing to consider an appropriately narrow modification to 

the approach used in TSCA Section 6. For example, the H.R. 4591 imposes no 

requirement on EPA to demonstrate that a substance poses an “unreasonable risk” to 

health or the environment, does not require EPA to demonstrate that its preferred risk 

management approach is the “least burdensome regulatory alternative,” and imposes 

none of the procedural elements of Section 6, such as the informal hearings required for 

proposals under that section. 

We also note that H.R. 4591 does not prevent EPA from regulating POPs substances 

under its existing statutory authority, including TSCA. The United States regulated the 
67

existing POPs long before the international agreements were drafted, employing a 

regulatory process that considered scientific evidence, risks to health and the 

environment, and socio-economic consequences. The domestic POPs process established 

in H.R. 4591 simply adapts existing requirements in a manner that ensures the United 

States can meet its international obligations. 

H.R. 4591 also appropriately establishes a requirement that the Executive Branch 

consult with Congress as amendments to the treaty obligations are considered. This 

provision constitutes no restriction on the President’s power to conduct foreign policy, 

and ensures that Congress is made aware of significant developments in the future 

implementation of the agreements. 

IV. Conclusion 

The American Chemistry Council believes that the Stockholm Convention, LRTAP 

Protocol, and Rotterdam Convention are significant steps in securing international action 

on chemicals through coordinated risk management at the global level. The agreements 

establish a harmonized approach for action on listed chemicals, and should produce 

meaningful improvements in public health and environmental protection. The United 

States must become a Party to the agreements as soon as possible. 

 H.R. 4591 fully implements U.S. obligations under the three agreements into TSCA. 

It complements EPA’s existing regulatory authority, provides proper public notice and an 

opportunity to comment at all stages of the international process, and ensures that the 

United States can cooperate with the international community in addressing global risks. 

We commend Mr. Gillmor for introducing this bill, and urge the Subcommittee and 

Congress to take quick action on the legislation to ensure that the United States can once 

again fill its leadership role in international chemical regulatory matters. 

 MR. GILLMOR. Thank you very much, Mr. Walls. 

 Ranking Member Solis has asked to recognize Ms. Polsky out of 

order, because she has to leave; Ms. Polsky. 

MS. POLSKY. Thank you. 

 Mr. Chairman and members of the subcommittee, my name is 

Claudia Polsky and I am a Deputy Attorney General in the California 

Department of Justice Environment Section. I appreciate the opportunity 

to testify before you on behalf of California Attorney General Bill 

Lockyer providing domestic legislation to implement the Stockholm 

Convention on POPs. 

 Mr. Lockyer’s concerns about the preemptive effects of the 

Chairman’s bill on State environmental laws is, as you now know, shared 

by at least 11 other attorneys general who felt this issue of sufficient 

importance that we wanted to send a representative to you, in person, to 

answer any questions you may have on this matter. 

 Environmental protection is an area of traditional State regulation. It 

is at the very core of States’ police powers to protect the health and 

welfare of their citizens. As the Supreme Court explained in a recent 

preemption case, in the areas of traditional State regulation, the Supreme 

Court assumes that Federal statutes do not supplant State law, unless 

Congress has made such an intention clear and manifest. Unfortunately, 

as described in detail in my written testimony, the Gillmor bill makes its 
68

preemptive intention both clear and manifest. And it thereby threatens to 

destroy a very productive Federal-State partnership in toxics regulation. 

 Specifically, the Gillmor bill has proposed a new subsection of 

TSCA, governing that statute’s effect on State law. This proposed 

Subsection 18(a)(2)(C) does not parallel the existing subsection of TSCA 

that would continue to govern the relationship between States and the 

Federal Government for non-POP chemicals. Instead, the proposed new 

subsection, by prohibiting States from establishing or continuing in effect 

any legal requirement with respect to a Stockholm POP listing that has 

entered into force for the United States, nullifies otherwise available 

options for preserving State regulation when EPA regulates a chemical 

under TSCA. Existing options under TSCA which would not be 

available under the Gillmor amendment are: States’ ability to ban a 

particular chemical within their borders, and States’ ability to regulate 

pursuant to any and every other Federal environmental law. Both would 

out the requirement that States seek EPA permission to do so. That is 

absolutely critical. 

 The bill thus represents a step backward, rather than forward with 

respect to regulation of the most persistent and dangerous chemicals. It 

actually makes these chemicals harder for States to regulate than shorter 

lived, more benign chemicals. 

 Now, I want to turn to address Chairman Gillmor’s explicit statement 

today that H.R. 4591 is in fact, not intended to preempt State laws and 

that essentially this has all been a misunderstanding, and the State 

Attorneys General are hot and bothered about nothing. I have two 

responses to that. One, I do not believe there has been any 

misunderstanding. Eleven attorneys general reading this text have come 

to the independent legal conclusion that the Gillmor bill threatens to 

displace State authority to regulate POPs. Their interpretation is 

bolstered by two very basic cantons of statutory construction. First, 

where a specific matter is addressed by statute, one does not look to the 

statute’s general provisions for guidance on that matter. Thus, because 

the new subsection of TSCA, Section 18 would pertain specifically to 

POP chemicals and less preemptive sections preceding it would not 

control interpretation. 

 The second canton is that where a statute expressly undermines-- 

 MR. GILLMOR. For time reasons we are going to have to wrap up, 

Ms. Polsky. 

 MS. POLSKY. Okay. Let me jump then to my second and critical 

response to your suggestion today that you have no preemptive intent 

and that response is that is terrific. If that is the case, Attorney General 

Lockyer and the other attorneys general who have written to you, or to 

the subcommittee to replace the existing preemption language in the 
69

Gillmor bill with the language in section 507 of the Solis bill, which 

expressly authorizes States to regulate POPs as stringently or more 

stringently than POPs are regulated by EPA. 

 Thank you. 

 [The prepared statement of Claudia Polsky follows:] 

PREPARED STATEMENT OF CLAUDIA POLSKY, DEPUTY ATTORNEY GENERAL,

ENVIRONMENTAL SECTION, CALIFORNIA DEPARTMENT OF JUSTICE

SUMMARY of the testimony of California Department of Justice 

Bill Lockyer, Attorney General 

Presented by Claudia Polsky, Deputy Attorney General 

The Attorney General of California protects public health and natural resources in 

California by prosecuting actions pursuant to both State and Federal environmental laws 

within State borders. This testimony focuses on the Attorney General’s concern regarding 

the sweeping preemption language contained in Chairman Gillmor’s H.R. 4591, which 

will amend Section 18 of the Toxic Substances Control Act (TSCA) in ways inimical to 

State sovereign interests and to pollution prevention. The Attorney General’s legal 

analysis is that proposed new subsection (a)(2)(C) of Section 18 of TSCA not only has 

the potential to preempt important State laws regulating toxic pollutants, but may result in 

a regulatory regime under TSCA wherein the most toxic pollutants are the least regulated. 

California and other States have historically taken a leadership role in reducing the 

nation’s use of persistent organic pollutants (POPs), regulating existing Stockholm 

Convention pesticides such as DDT and PCBs well in advance of federal regulation. 

States have a critical role in preserving, and in continuing to enact, State laws that reduce 

the use of additional POPs that will be listed under the Stockholm Convention in future. 

The Attorney General’s testimony describes the interaction between federal and 

State toxics regulation, and the precise mechanism by which H.R. 4591 would displace 

State law; it explains the importance to California and other States of preserving State 

regulation of chemicals with POP attributes; and it urges the Subcommittee to reject the 

Gillmor preemption language in favor of that contained in the Solis bill, H.R. 4800. 

Mr. Chairman and Members of the Subcommittee: 

I. Introduction

My name is Claudia Polsky, and I am a Deputy Attorney General in the State of 

California Department of Justice. I appreciate the opportunity to testify today on behalf 

of Attorney General Bill Lockyer regarding the competing Gillmor and Solis bills to 

implement the Stockholm Convention on Persistent Organic Pollutants (“POPs Treaty” or 

“Stockholm Convention”). 

The California Attorney General is a State constitutional officer, empowered to 

litigate not only on behalf of State client agencies, but in his independent capacity to 

represent the interests of the People of the State of California. Under our State 

Government Code, the Attorney General is specifically authorized and urged to initiate 

independent legal actions to protect the California environment from “pollution, 

impairment, or destruction.” The Attorney General prosecutes actions pursuant to both 

State and Federal environmental laws within State borders, and is mindful of the 

important complementary roles that State and Federal rules play in environmental 

protection. 

My testimony today will therefore focus on the Attorney General’s acute concern 

regarding the sweeping preemption language contained in Chairman Gillmor’s H.R. 
70

4591, which will amend Section 18 of the Toxic Substances Control Act (TSCA) (15 

U.S.C. § 2617) in ways inimical to State sovereign interests and to pollution prevention. 

The Attorney General’s analysis is that proposed new subsection (a)(2)(C) of Section 18 

of TSCA not only has the potential to preempt important State laws regulating toxic 

pollutants, but may result in a perverse regulatory regime under TSCA wherein the most

toxic pollutants are the least regulated. Specifically: as soon as a Treaty POP listing goes 

into force for any non-pesticidal chemical in the United States, State regulation of the 

listed chemical would, under the Gillmor bill, be immediately preempted -- regardless of 

whether State regulation was the same as, or more stringent than, EPA regulation, and 

even where EPA declined to regulate the chemical in any significant way. 

This testimony describes the pioneering role of California and other States in 

identifying and regulating persistent toxic chemicals, in which States serve as the 

laboratories of democracy envisioned by the Constitution’s framers. It then explains the 

mechanics of H.R. 4591's preemption provision, and its likely consequences for POPs 

regulation in California and other States. This testimony concludes by urging the 

Subcommittee to adopt the alternative preemption language contained in the Solis bill, 

H.R. 4800. This language makes explicit that any State law with respect to a POPs 

chemical that is equally protective or more protective of health and environment than a 

corresponding federal law or regulation is presumed to survive preemption, and States 

need not apply to EPA for any discretionary determination in the matter. Such a regime 

mirrors the cooperative federalist structure of our bedrock federal environmental laws, 

and will realize the Stockholm Convention’s potential for reducing the adverse impacts 

from POPs chemicals quickly and effectively. 

II. California’s preemption concerns 

The California Attorney General is gravely concerned by any statutory language that 

threatens States’ role in identifying and controlling the most toxic and long-lived 

chemicals within their borders – those with POP characteristics. States have historically 

played a leadership role in protecting Americans from persistent organic pollutants in the 

absence of, or well in advance of, federal regulatory action. For example, the State of 

Connecticut in 1976 banned the manufacture and heavily regulated the use of PCBs (one 

of the initial “dirty dozen” chemicals currently listed under the POPs Treaty) two years 

before EPA regulated this class of chemicals. Similarly, Michigan banned most uses of 

the POPs chemical DDT in 1969, and New York State banned it in 1970, well in advance 

of EPA’s nationwide ban in 1972. 

States continue to play a leadership role in the POP arena as they begin to regulate 

flame retardants, dioxins, and newly identified carcinogens in advance of, or more 

stringently than, the federal EPA. Eager as the People of the State of California are to see 

the U.S. ratify and implement the POP Treaty, their Attorney General urges you to reject 

any implementation bill that would displace State authority to establish and continue 

more stringent POP regulation than that adopted by EPA. 

I present this testimony solely on behalf of Attorney General Lockyer and the 

People of the State of California that he represents. As the most populous State in the 

nation; as the nation’s number one agricultural State, with all of the pesticide use that 

status implies; and as the State with the most extensive regulation of persistent organic 

chemicals, California has more at stake in this preemption battle than does any other 

single State. 
71

III. How H.R. 4591 preempts State law

Under the Gillmor bill, whenever a new, non-pesticidal POP is listed under the 

Stockholm Convention, State regulations of that chemical would be categorically 

preempted at the moment of the listing’s “entry into force” for the United States. (H.R. 

4591, Section 6, governing “conforming amendments” to TSCA.) The California 

Attorney General’s preemption concerns regarding such a TSCA amendment can only be 

understood by examining how the Gillmor bill upsets the existing, carefully crafted 

federal-State relationship under TSCA. 

The Toxic Substances Control Act is enforced exclusively by the federal 

government. Unlike the regime under statutes such as the Clean Water Act and the 

Resource Conservation and Recovery Act (RCRA), States have no delegated 

enforcement authority under TSCA. Further, Section 18 of TSCA contains an express 

preemption provision, such that State regulation may in certain instances be precluded or 

displaced by EPA regulation. Nonetheless, TSCA preserves significant State authority to 

regulate TSCA-regulated chemicals and chemical mixtures (hereafter, “chemicals”), by 

sparing State regulations from preemption if they meet any one of four criteria. The net 

effect is that States may regulate toxic chemicals if federal regulation is absent; States are 

presumed to have broad authority to ban any and all TSCA chemicals within their 

borders; and States are empowered to regulate chemicals pursuant to all other federal 

environmental laws that delegate such authority to States. 

First, States may regulate any chemical that is not being regulated by U.S. EPA. 

TSCA § 18(a)(1). Second, outright State prohibitions on the use of any EPA-regulated 

substance within State borders are expressly authorized by Section 18(a)(2)(B). States do 

not need EPA permission to enact or retain such prohibitions, even if they result in more 

stringent chemical regulation at the State than federal level. TSCA § 18(a)(2)(B)(iii). 

Third, States may establish or retain any State regulation of a TSCA-regulated chemical 

if the State regulation is adopted pursuant to any other federal law, including but not 

limited to the Clean Air Act. TSCA § 18(a)(2)(B)(ii). Again, retention of such State 

regulations is automatic, and does not require EPA permission. 

Fourth and finally, if EPA grants a discretionary “exemption” from preemption upon 

“application” by a State, that State may establish or retain its own regulations regarding a 

TSCA-regulated chemical. TSCA § 18(b). Such exemptions may be granted as long as 

the State regulations do not conflict with federal regulations, the State regulations confer 

a “significantly higher degree of protection from risk” than do corresponding federal 

regulations, and the State regulations do not unduly burden interstate commerce. Id. 

Thus, TSCA accommodates States’ interests in regulation except in those limited cases 

where State regulations are largely duplicative of federal regulations, pose enforcement 

conflicts for regulators, or pose compliance problems for regulated entities. 

Troublingly, however, the new TSCA subsection 18(a)(2)(C) contemplated by the 

Gillmor bill has substantially greater preemptive effect than the existing TSCA 

preemption subsections, even though it will govern some of the most dangerous 

chemicals, where the case for federal/State cooperation is most compelling. The Gillmor 

bill prohibits States or their subdivisions from “establishing or continuing in effect” any 

existing legal requirement – such as a statute, regulation, or other legal mandate – that 

applies to a POPs chemical for which a listing has “entered into force for the U.S.” 

(Proposed TSCA § 18(a)(2)(C).) 

First, and most obviously, this language lacks the type of automatic exceptions to 

preemption contained in subsection (a)(2)(b). Thus, States could not automatically 

prohibit the use of a POPs chemical within their borders – a significant insult to their 

territorial sovereignty, as well as an impediment to environmental and public health 

protection. States also could not regulate POPs chemicals pursuant to any and every 

other Federal law, as they currently can under subsection (a)(2)(b), which will continue to 

apply to non-POPs chemicals. 
72

Further, whereas EPA’s promulgation of a substantive “rule” regulating a TSCA 

chemical is what in some instances triggers preemption, and the need for a State to apply 

to EPA for an exemption from preemption, the preemption trigger in the Gillmor bill is a 

POPs listing’s “entry into force for the U.S.” A hypothetical scenario is the U.S. 

consents to be bound by (“opts in” to) listing of an additional POP chemical in the future, 

but obtains a Treaty-authorized exemption that allows the U.S. to continue using the 

chemical for specific purposes (a “use exemption”). This exemption could indeed be 

broad enough to exempt all current domestic uses of that chemical. The underlying POPs 

listing would nonetheless be “in force” for the U.S., meaning that State regulation of the 

relevant chemical would be preempted even in the face of complete federal regulatory 

inaction. 

The net result of the preemption language in the Gillmor bill is that H.R. 4591, 

which would amend TSCA to address the world’s most dangerous and persistent toxins, 

would make those toxics harder for States to regulate than less toxic and shorter-lived 

chemicals. Although federal laws sometimes -- and with good reason -- preempt State 

laws that conflict with federal laws, or that render dual compliance with federal and State 

law unworkable for regulated industries, the Attorney General is unaware of any instance 

in which a federal environmental law preempts State law in the absence of any 

substantive federal regulation of the same subject matter. 

The upside-down statutory architecture of H.R. 4591, which effectively makes 

federal regulation a ceiling rather than regulatory floor with regard to POPs chemicals, 

makes no sense on several levels. First, there is no evidence of a need for nationally 

uniform regulation of POPs chemicals, which may be in greater use or present greater 

hazards in some States than in others. POP reduction is not primarily a matter of product 

packaging or labeling mandates -- the type of regulation that induces uniformity concerns 

-- but rather, a matter or prohibiting certain product uses or pollutant emissions in 

localities where they cause human health and environmental harm. Neither is there any 

evidence before the Subcommittee of tension between existing federal and State law 

governing chemicals with POP attributes. And there can be no suggestion that State 

regulation of POP chemicals will create tension with the Stockholm Convention itself. 

To the contrary: State leadership in POP regulation furthers the Treaty’s fundamental 

purpose of expeditious reduction of persistent organic pollutants. As a final matter, the 

Gillmor bill’s statutory design is at odds with the long-standing design of federal 

environmental statutes, such as the Clean Water Act, RCRA, and even much of the 

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which generally require 

State standards to meet or exceed federal requirements. 

The preemption language in H.R. 4591 is unprecedented, unnecessary, and unwise, 

and it provides sufficient basis to reject the Gillmor implementation bill in toto.

IV. California examples

I turn now from the hypothetical to actual California-specific examples of State 

legislation that, under the Gillmor bill, would likely be preempted by POP listings under 

the Treaty. As a preliminary matter, because the United States already has banned all of 

the initial “dirty dozen” chemicals listed under the POPs Treaty, the regulatory action as 

far as the United States is concerned lies in the potential for future additions to the list of 

Treaty-regulated chemicals. 

Among the organic chemicals with persistence attributes and environmental effects 

likely to qualify them for listing as POPs chemicals are numerous pesticides and 

brominated flame retardants. In both of these realms, California has been a regulatory 

leader, and a POP Treaty listing followed by weak or nonexistent federal regulation 

would sound the death knell for heretofore successful State efforts. This result is 

unnecessary and wholly counterproductive where the State’s exercise of its police power 
73

to protect the general health and welfare does not conflict with any important federal 

interest or impose undue burdens on nationwide businesses. 

An example of scientifically and popularly supported, yet preempt-able California 

legislation under the Gillmor bill is the State’s banning of certain brominated flame 

retardants, or PBDEs, in 2003. This action was prompted by the discovery of 

astonishingly high, and increasing, levels of these compounds in human breast tissue, in 

human blood, in wildlife, and in sediments in our State. Animal studies have shown that 

PBDEs are neurodevelopmental toxins, liver toxins, and disrupters of thyroid function at 

exposure levels only slightly above those observed in our State’s population. 

California’s ban on the “penta” and “octa” forms of PDBE took effect a mere two 

months ago, and has yet to effect its anticipated pollution reduction. Its potential may 

never be realized, however, should the Gillmor bill become law. PBDE is currently 

under consideration for listing by the POPs Review Committee. And if its variants are 

listed and the U.S. opts in to such regulation, California’s law – even if more health 

protective than EPA’s – could be a legal nullity. 

California has also pro-actively regulated certain chemicals with POPs attributes 

under its 1986 citizen initiative Proposition 65 (“Prop 65"), a law designed to reduce 

human exposure to carcinogens and reproductive toxins within the State. Prop 65 

requires the State to publish annually a list of chemicals “known to the State to cause 

cancer or reproductive toxicity.” Shortly after the listing of a chemical under Prop 65, 

businesses are prohibited from knowingly discharging any significant amount of that 

chemical into any source of drinking water in the State. They are also required to provide 

a “clear and reasonable” warning to members of the public before exposing them to a 

listed chemical through other means (such as air emissions or consumer products) that 

would pose a “significant risk.” 

Prop 65 already regulates two chemicals that are under active consideration for POP 

treaty listing: chlordecone (better known by its trade name, Kepone), and the flame 

retardant hexabromobiphenyl (a polybrominated biphenyl, or PBB). It is more than 

likely that additional chemicals already listed, and to be listed, under Proposition 65 will 

come over time to be listed under the POPs Treaty, thereby making California’s warning 

and discharge requirements subject to ouster – notwithstanding California’s compelling 

rationale for regulating, within its own borders, those chemicals that are “known to the 

State to cause cancer or reproductive toxicity” in its citizens. 

California has also regulated POP pesticides in advance of anticipated international 

and national regulation. One example is our statewide ban on lindane, a persistent 

organic chemical used as both an agricultural pesticide and a pharmaceutical treatment 

for head lice. Lindane-based lice treatments create a particular health risk to children, 

who can experience seizures and other central nervous system effects as a result of 

lindane exposure. 

After a California agency determined in the mid-1990s that lindane was both the 

least effective and the most toxic lice treatment available, California, in 2000, became the 

first state in the nation to ban the sale and use of lindane in such treatments. In addition 

to the direct risk reduction achieved by this ban, the ban has led to a 10-fold reduction in 

lindane pollution of water leaving State water treatment plants, reducing downstream 

exposure risks. 

POP pesticides are not regulated by TSCA, and thus not within the purview of this 

Subcommittee. I nonetheless urge the Subcommittee to consider the inconsistency and 

illogic in enacting domestic POPs legislation that authorizes States to regulate pesticidal 

POPs, yet preempts States from regulating non-pesticidal POPs with identical health and 

environmental effects. 
74

V. Other States share -- or should share - California’s concerns

In chronicling how much California has to lose under the preemptive regime of H.R. 

4591, however, I do not mean to suggest that our State’s concerns are unique. 

California’s concerns about preemption of state laws governing the most toxic and longlived pollutants have been explicitly echoed by the ten co-signatories to the multi-state 

letter recently sent to the House Committee on Energy and Commerce regarding POP 

treaty implementation – New Mexico, Massachusetts, Connecticut, Delaware, Georgia, 

Illinois, Minnesota, New Jersey, New York, and Oregon. 

Attorney General Lockyer’s concerns are also shared by Washington State Attorney 

General Rob McKenna, who wrote separately to the Committee to urge that “States must 

remain free to regulate in this area [of POP chemicals],” and that federal preemption in 

POP regulation is “counter productive to our shared interest in protecting the health and 

welfare of our citizens.” 

Indeed, State legislation at risk under the Gillmor bill encompasses virtually every 

State in the Union. For example, California’s landmark legislation banning the most 

dangerous brominated flame retardants has inspired nationwide emulation, including 

emulation by many States represented by members of this Subcommittee. I note that 

PBDE legislation has been enacted in Representative Fossella’s State of New York, 

Representative Allen’s State of Maine, and in Representatives Rogers’ and Stupak’s State 

of Michigan, among others. Thus, the preemption issue is not a remotely partisan one, 

but rather, a matter of preserving all States’ ability to investigate, innovate, and regulate 

with respect to the most dangerous toxic chemicals known. 

VI. Conclusion 

The multi-State Attorney General letter (Attachment A hereto) identifies problems 

with H.R. 4591 beyond the preemption language that I have highlighted today. As other 

witnesses describe more fully in their testimony, the Gillmor bill requires EPA to use a 

type of cost-benefit standard in deciding whether to regulate or prohibit a POP, rather 

than the health-based standard contained in the Stockholm Convention. In addition, the 

bill requires duplicative EPA review of scientific evidence that will already have been 

amply vetted by the POPs Review Committee prior to a new POP listing. Both of these 

features will inject delay into domestic POPs regulation, and will result in regulation that 

is highly vulnerable to industry challenge. 

The Gillmor bill’s preemptive language, when combined with these other 

impediments to swift and stringent EPA regulation of POPs Treaty chemicals, virtually 

insures a significant lag between international listing and stringent domestic regulation of 

POPs chemicals. This regime is not in States’ interests; it is not in our national interest; 

and it does not advance the Stockholm Convention’s goal of “protecting human health 

and the environment from the harmful impacts of persistent organic pollutants.” 

Accordingly, as an alternative to Chairman Gillmor’s bill, the Attorney General 

urges the Subcommittee’s support for Representative Solis’ Treaty implementation bill, 

H.R. 4800. Section 507 of that bill, which provides that State laws governing listed POPs 

are not pre-empted as long as they are at least as stringent as federal laws, is the 

appropriate means of resolving overlapping federal and State authority in the area of 

toxics regulation. The Solis bill respects constitutional principles of cooperative 

federalism; it recognizes that protection of citizens’ health and welfare is a core police 

power of the States that should not be lightly abrogated; and it preserves conditions under 

which State regulatory innovation may spur national action, rather than dictating a 

lowest-common-denominator approach to toxics regulation. 

// Attachment
75

ATTACHMENT A

Multi-State Attorney General letter to House Committee on Energy and Commerce 
76
77

 MR. GILLMOR. We normally give questions when we are done with 

all the witnesses, but since you have to leave, let me make one point. 

 One, you did not write me. I have not received any letter from you. 

All I have seen is a news release. Two, this bill has been out there for 20 

months. If the attorneys general had a concern, it would seem logical to 
78

contact the Chairman of the Subcommittee or the sponsor of the bill. I 

have not heard from you and I would like to know why. 

 MS. POLSKY. Sure. Thank you, Chairman. 

 A few responses, first of all, let me say candidly to the extent that 

earlier input from the State Attorneys General would have been 

beneficial to this subcommittee; I regret that that did not occur. 

However, it must be noted that preemption concerns about a nearly 

identical bill were amply expressed by other parties in 2004, the opinion 

of the State Attorney-- 

 MR. GILLMOR. You expressed an opinion at that time in response to 

a letter from a member of the committee that there were not those 

problems with preemption existing. So I understand where you are 

coming from, and you understand where I am coming from. 

 MS. POLSKY. Sure. All I would like to say is that fortunately, it 

appears that there is ample time for course correction and to the extent 

that there has been any misunderstanding about your subjective 

preemptive intent, I urge you to clarify the language. 

 Thank you. 

 MR. GILLMOR. Thank you. 

 We will now go to Mr. Roewer, Utility Solid Waste Activities 

Group. 

MR. ROEWER. Thank you, Mr. Chairman, Ms. Solis. 

 I would like to commend the subcommittee on holding this hearing 

and I would like to thank you for the opportunity to present the views of 

the Utility Solid Waste Activities Group, or USWAG, and the Edison 

Electric Institute regarding legislation implementing the Stockholm 

POPs Convention and the LRTAP POPs protocol. 

 The utility industry supports the leading role that the United States 

has played in helping to force the POPs Convention and we share the 

view of others expressed here today. It is extremely important the 

United States continue to play a leading role regarding the 

implementation and future strategic direction of the Convention. We are 

concerned, however, that further delay in implementing legislation is 

seriously compromising the United States’ interests in playing a 

meaningful and constructive role in the process. The first party’s 

conference was held last May and the next is scheduled for this May in 

Geneva. The game is underway and the United States is not a player in a 

process where important decisions are being taken that will affect the 

future use of chemicals in this and other countries. The time has come 

for Congress to ratify the Convention and enact enabling legislation so 

that the United States can fully participate as a party. 

 The introduction of your bill is a critical first step in achieving this 

objective and establishes the appropriate statutory structure for 
79

implementing the United States’ obligations under the Convention in a 

manner consistent with the Convention’s goals, while at the same time 

preserving the sovereign role of the United States in establishing laws 

within its borders. The legislation correctly recognizes that PCBs are 

already subject to a mature and comprehensive regulatory program under 

Section 6E of TSCA. The PCB regulatory program has been in place for 

a quarter of a century and is among the most comprehensive and 

effective in the world and is the product of considerable regulatory 

scrutiny and development. Recognizing this, H.R. 4591 appropriately 

removes PCBs from the legislation’s blanket prohibition on the 

manufacture, processing, use, and disposal of POPs chemicals because, 

quite frankly, our existing regulatory controls already meet the 

Convention’s objectives for PCBs. The manner in which your legislation 

addresses PCBs is an excellent example of how the POPs implementing 

legislation should be structured. 

 Nothing in the Convention directs, let alone suggests, that the United 

States rewrite its existing laws to meet its obligations. The purpose of 

implementing legislation should be to allow Congress to exercise its 

authority to establish how the United States, through our existing 

domestic laws, will meet its obligations as a party. Thus, POPs 

legislation should reflect a deliberate and thoughtful analysis regarding 

whether existing U.S. laws allow the United States to meet its 

obligations. To the extent that any such laws are deficient in any 

particular area, implementing legislation should be comprised of targeted 

amendments to fill such gaps. 

 We are concerned, however, that some may view the implementation 

process as an opportunity to revisit more generally the scope of TSCA. 

Attempting to reopen the scope and structure of TSCA under the guise 

that such amendments are necessary to fulfill our obligations is 

unnecessary and would only result in further delay in getting the United 

States into the game. The subcommittee should not let this legislative 

effort become a Christmas tree for TSCA. If it does, other issues that 

have long been resolved, such as the established ban on importation of 

PCBs into this country, may very well be reopened. 

 H.R. 4591 also takes the right respect with regards to the POPs 

listing process whether or not the United States should issue rules further 

regulating a newly identified POP. The legislature would establish a 

structured process whereby new POPs listing decisions are thoroughly 

monitored and evaluated by EPA and the public throughout the listing 

process. In this way, if a new POP is identified by the Conference of 

Parties, the United States then has a robust record to evaluate the 

technical soundness of the list and could decide whether additional 

domestic controls are required for this POP. These types of checks and 
80

balances are necessary because, despite the rather detailed process in the 

Convention for rendering listing decisions, the United States cannot 

presume that each new listing decision will adhere to these procedures or 

will be technically sound. Technical mistakes and procedural lapses 

have been known to occur in rendering decisions under the Convention. 

Therefore, it is essential that implementing legislation retain a 

mechanism for the United States to independently evaluate and 

determine on its own whether and how to further control a newly 

identified POP. 

 MR. GILLMOR. Thank you. 

 MR. ROEWER. Finally, if I may, I would like to touch on the issue of 

preemption as we-- 

 MR. GILLMOR. If you can do it quickly, because we do have a vote. 

 MR. ROEWER. Just one minute at most. Since its original enactment, 

TSCA Section 18 has a Federal preemption provision. As we read your 

bill, that does nothing to that preemption provision. It still allows states 

and local governments to petition EPA seeking the authority and 

approval to regulate those substances more stringently than under TSCA. 

 Thank you. 

 [The prepared statement of Jim Roewer follows:] 

PREPARED STATEMENT OF JIM ROEWER, EXECUTIVE DIRECTOR, UTILITY SOLD WASTE 

ACTIVITIES GROUP

Summary 

• The time has come for Congress to ratify the Stockholm Convention and enact 

implementing legislation so that the United States can fully participate as a 

Party in this important process. 

• H.R. 4591 is a critical first step in achieving this objective. It would establish 

the appropriate structure for implementing the United States’ obligations under 

the Convention in a manner faithful to the Convention’s goals, while preserving 

the United States’ sovereign role in establishing laws within its borders. 

• The legislation correctly recognizes that PCBs are already subject to a 

comprehensive regulatory program under section 6(e) of the Toxic Substances 

Control Act (“TSCA”) and, as a result, properly removes PCBs from the 

legislation’s prohibition on POP chemicals because existing regulatory controls 

already meet the Convention’s objectives for PCBs. 

• Nothing in the Convention directs – let alone suggests – that the United States 

rewrite its existing laws to meet its Convention obligations. The purpose of 

implementing legislation is to allow Congress to exercise its authority to 

establish how the United States, through our existing domestic laws, will meet 

its obligations as a Party to the Convention. 
81

• Reopening the scope of TSCA under the guise that such amendments are 

necessary to fulfill our goals under the Convention is unnecessary and would 

further delay the United States’ ratification of the Convention. 

• H.R. 4591 takes the right approach with respect to the listing process for newly 

identified POP chemicals by establishing a process whereby new listing 

decisions are monitored and evaluated by EPA and the public. In this way, the 

United States will have a robust record upon which to evaluate the technical 

soundness of the listing decision and on which to decide whether additional 

controls are warranted for the new POP. 

• H.R. 4591 remains faithful to TSCA’s preemption provision by prohibiting any 

State or political subdivision from establishing or continuing in effect any 

requirement applicable to a POP chemical that is more stringent than federal 

law, while preserving the ability of States or political subdivisions to petition 

EPA seeking approval for adopting or continuing in effect more stringent laws. 

Good morning. My name is James Roewer. I am the Executive Director of the 

Utility Solid Waste Activities Group (or “USWAG”) and I would like to thank the 

Subcommittee for the opportunity to present this statement on behalf of USWAG and the 

Edison Electric Institute (“EEI”) regarding the important issue of implementing 

legislation to enable the United States to fulfill its obligations as a party to the Stockholm 

POPs Convention, LRTAP POPs Protocol, and Rotterdam PIC Convention (which I refer 

to collectively as the “ POPs Convention” or “Convention”).1

The utility industry has a substantial interest in the development of legislation 

implementing the POPs Convention because, among other reasons, polychlorinated 

biphenyls or PCBs are one of the 12 persistent organic pollutants (“POPs”) identified in 

the Convention. Therefore, let me commend the Subcommittee for holding this hearing. 

EEI and USWAG support the leading role that the United States has played in helping to 

forge the POPs Convention, and we share the view of others that it is extremely important 

for the United States to continue to play a leading role regarding the implementation and 

future strategic decisions involving the Convention. 

We are concerned, however, that further delay in enacting implementing legislation 

is seriously compromising the interests of the United States in playing a meaningful and 

constructive role in this process. As you know, the first Conference of the Parties was 

held last May, with the second Conference scheduled for this May in Geneva. Put 

simply, the game is underway and the United States is not a player in a process where 

important decisions affecting the future use of chemicals in this and other countries are 

being made. The time has come for Congress to both ratify the Convention and enact 

implementing legislation so the United States can fully and effectively participate as a 

Party in this important process. 

 

1

 EEI is an association of U.S. shareholder-owned electric companies, international affiliates, and 

industry associates worldwide. EEl’s U.S. members serve roughly 90 percent of the ultimate 

customers in the shareholder-owned segment of the industry and nearly 70 percent of all electric utility 

ultimate customers in the nation, and generate nearly 70 percent of the electricity produced in the 

United States. USWAG is a consortium of EEI, the American Public Power Association (“APPA”), the 

National Rural Electric Cooperative Association (“NRECA”), the American Gas Association (“AGA”), 

and approximately 80 electric utility operating companies located throughout the country. APPA is 

the national association of publicly owned electric utilities. NRECA is the national association of 

rural electric cooperatives, many of which are small businesses. AGA is the national association of 

natural gas utilities. Together, USWAG members represent more than 85 percent of the total electric 

generating capacity of the United States and service more than 95 percent of the nation’s consumers of 

electricity and over 93% of the nation’s consumers of natural gas. 
82

Fortunately, the introduction of H.R. 4591 is a critical first step in achieving this 

objective. It would establish the appropriate statutory structure for implementing the 

United States’ obligations under the Convention in a manner that is faithful to the 

Convention’s goals, while at the same time preserving the sovereign role of the United 

States in establishing laws within its borders. As an initial matter, it correctly recognizes 

that PCBs are already subject to a mature and comprehensive regulatory program under 

section 6(e) of the Toxic Substances Control Act (“TSCA”), which allows for the limited 

use of PCBs in a manner ensuring that their use will not pose an unreasonable risk of 

injury to health or the environment. The United States’ PCB regulatory program, which 

has been in place for over a quarter of a century, is among the most comprehensive and 

effective in the world and is the product of considerable regulatory scrutiny and 

development. 

Recognizing this, H.R. 4591 appropriately removes PCBs from the legislation’s 

blanket prohibition on the manufacture, processing, use and disposal of POP chemicals 

because our existing regulatory controls already meet the Convention’s objectives for 

PCBs. This approach is consistent with Secretary of State Powell’s letter transmitting the 

POPs Convention to the President, where he explained that “[t]he United States has 

already taken strict measures to regulate PCBs” and that “[e]xisting statutory authority 

allows the United States to implement each of these obligations [applicable to PCBs], 

nearly all of which are currently addressed under existing PCB regulations.” See 

Message from the President of the United States Transmitting Stockholm Convention on 

Persistent Organic Pollutants, With Annexes, Done at Stockholm, May 22-23, 2001, 

Treaty Doc. 107-5, 107th Congress, 2d Session, at XX. 

The manner in which H.R. 4591 addresses PCBs is a good example of how the 

POPs implementing legislation should be structured. Nothing in the Convention directs – 

let alone suggests – that the United States rewrite its existing laws to meet its Convention 

obligations. Rather, the purpose of the implementing legislation is to allow Congress to 

exercise its authority to establish how the United States, through our existing domestic 

laws, will meet its obligations as a Party to the Convention. Where an existing domestic 

regulatory program already enables the United States to meet its Convention obligations 

– as is the case with PCBs – there is no need to amend U.S. law. 

Indeed, given that the United States already is one of the world’s leaders in chemical 

regulation, it is not remarkable that in his letter transmitting the Convention to the 

President, Secretary Powell also explained that “the United States could implement nearly 

all Convention obligations under existing [U.S.] authorities” with the exception of 

certain gaps that can be addressed by targeted legislative amendments to TSCA and 

FIFRA. Id. at XXII (emphasis added). Thus, POPs implementing legislation should 

reflect a deliberate and thoughtful analysis regarding whether existing U.S. laws allow 

the United States to meet its Convention obligations. To the extent that such laws are 

deficient in any particular area, implementing legislation should be comprised of targeted 

amendments to fill such gaps. H.R. 4591 reflects this thoughtful and targeted approach to 

implementing the United States’ obligations under the Convention. 

We are concerned, however, that some may view the implementation process as an 

opportunity to revisit more generally the scope of TSCA, as opposed to focusing solely 

on the targeted amendments necessary to fulfill our Convention obligations. Attempting 

to reopen the scope and structure of TSCA under the guise that such amendments are 

necessary to fulfill our goals under the Convention is unnecessary and would result only 

in further delay in getting the United States into the game. I respectfully submit that the 

Subcommittee not let this legislative effort become a “Christmas tree” of amendments to 

TSCA; if it does, other issues that have long been resolved – such as the established ban 

on importing PCBs into this country – could be reopened. 

In this regard, H.R. 4591 also takes the right approach with respect to the so-called 

“listing process” – namely, whether or not the United States should issue rules further 
83

regulating a chemical newly identified as a POP under the Convention. Rather than 

establishing a statutory presumption in favor of automatically deferring to the decision of 

the Conference of the Parties – many of whom have less developed environmental 

controls than does the United States – H.R. 4591 would establish a structured process 

whereby new POP listing decisions are thoroughly monitored and evaluated by EPA and 

the public throughout the listing process. In this way, if a new POP is identified by the 

Conference of the Parties, the United States will have a robust record to evaluate the 

technical soundness of the listing decision upon which it could decide whether additional 

domestic controls are required for the new POP. 

This type of checks and balances is necessary because, despite the rather detailed 

procedures in the Convention for rendering listing decisions, the United States should not 

presume that each new listing decision will adequately adhere to these procedures or will 

be technically sound; unfortunately, technical mistakes and/or procedural lapses have 

been known to occur in rendering determinations under the Convention. Therefore, it is 

important that implementing legislation retain a mechanism for the United States to 

independently evaluate and determine on its own whether and how to further control a 

newly identified POP. H.R. 4591 does this, and thereby preserves the sovereign role of 

the United States in enacting domestic legislation applicable to its citizens. 

Finally, we want to touch briefly on the issue of preemption. Since it original 

enactment in 1976, TSCA section 18 has included a federal preemption provision 

prohibiting any State or political subdivision from regulating a chemical substance 

already controlled under TSCA unless the State or local law is identical to TSCA’s 

control provision or is adopted under the authority of another federal law. Congress 

included this provision in TSCA because it wanted to ensure uniformity in the regulation 

of chemical substances, as opposed to a patchwork of 50 differing State regulations. At 

the same time, TSCA authorizes EPA to grant petitions from State and local governments 

to regulate a particular chemical more stringently than otherwise required under federal 

law if such State or local regulation does not, among other things, unduly burden 

interstate commerce. This structure has worked well for nearly 30 years, and there is no 

need to modify this provision. 

H.R. 4591 is consistent with TSCA’s long-standing statutory structure by 

prohibiting any State or political subdivision from establishing or continuing in effect any 

requirement applicable to a POPs chemical listed in the Convention. However, consistent 

with TSCA, nothing in H.R. 4591 prohibits any State or political subdivision from 

petitioning EPA to seek approval for adopting or continuing in effect a State or local law 

applicable to a POP that is more stringent than federal law. 

Unfortunately, H.R. 4800 turns TSCA’s existing preemption provision on its head 

by directing that any new POP regulation become the regulatory “floor” for any State or 

political subdivision, while at the same time not prohibiting a State or local regulation 

from being more stringent than federal law. This effectively would allow any State or 

political subdivision to end-run TSCA’s petitioning process, where EPA must first 

approve any State or local regulation that is more stringent than federal law. The net 

result would be a patchwork of differing State and local chemical regulation laws; 

precisely the opposite result of what Congress intended in enacting TSCA. This 

attempted gerrymandering with TSCA’s established structure is neither necessary nor 

constructive in forging implementing legislation, and we respectfully submit that the 

Subcommittee not go down this path. 

* * * * 

I would like to thank the Subcommittee for the opportunity to present the views of 

EEI and USWAG on legislation for implementing the Stockholm Convention. I would 

be glad to answer any questions you have concerning my testimony. 
84

MR. GILLMOR. Well, considering what you said, I am glad you took 

the extra minute. 

 MR. ROEWER. I thought you would. 

 MR. GILLMOR. Dr. Goldman, if you can stay within the three 

minutes, we could take your testimony; Ms. Solis and I hopefully will be 

able to get over and make the votes, and then we will come back as soon 

as possible. I would anticipate that would be at 12:45. Dr. Goldman? 

MS. GOLDMAN. I think I can do that. Thank you, Mr. Chairman and 

thank you also to Ms. Solis for the opportunity to testify at this hearing 

today. 

 I am a pediatrician and a professor at the Johns Hopkins Bloomberg 

School of Public Health, and between 1993 and 1998, I served as 

Assistant Administrator for Prevention Pesticides and Toxic Substances 

at the U.S. EPA. This is the office of EPA that is responsible for the 

implementation of TSCA. 

 I am skipping over the points that I will make about the PIC 

legislation, except to say that this is a very important agreement 

internationally, especially to developing countries, and should be a 

priority for us to ratify that agreement. In terms of POPs, you are all 

well aware of the very serious array of health effects including cancer, 

neurological developmental, and reproductive effects that have been 

associated with POPs, particularly high levels of exposure that occur to 

the fetus and the infant who, of course, we would like to protect. 

LRTAP POPs is a very important mutual agreement. It has already been 

pointed out the very significant role that that agreement will play in 

commerce throughout Europe and our commerce with Europe and of 

course, we want to be a part of that agreement. 

 In terms of the Stockholm Convention on Persistent Organic 

Pollutants, that agreement, as Mr. Yeager has already pointed out, was 

very carefully negotiated by the U.S. Government to assure that it is 

science-based and also that there is a process by which the United States 

can choose to opt in or opt out of the new POPs listing. Your criterion, 

Mr. Chairman, in terms of science-based and no international convention 

telling us what to do, was foremost on the minds of everybody involved 

in this Convention as it was being developed. And you are all very well 

aware that has entered into force. 

 What I would like to turn to now are the two pieces of legislation 

that have been put forward, H.R. 4591 and H.R. 4800. There are two 

crucial differences that I think are very important. One is that H.R. 4591 

would impose a requirement that EPA would decide to opt in only to the 

extent necessary to protect human health and the environment in a 

manner that it sees as a reasonable balance of social, environmental, and 

economic costs and benefits. And preferable is the approach proposed in 
85

H.R. 4800, in which Congress would establish a presumption that EPA 

will implement these decisions from the POPs Conventions and require 

that EPA would demonstrate why a listed chemical should not be 

controlled. We certainly want to maintain our prerogative in not to 

waive a chemical that is listed by the Commission, but the EPA should 

explain and citizens should have recourse to be able to file a suit if EPA 

fails in its duty to make such decisions just as we had with other 

environmental laws. Second, the decision standard is not in alignment 

with the standard agreement in the POPs Convention, or with current 

law. I think that it creates new burdens on the aAgency, is a recipe for 

paralysis, and also creates many new opportunities for litigation, which I 

think would not be the intent of the Chairman, or any other member of 

this body. 

 So in concluding, I would say that we do need to be a part of the 

global POPs Convention. We do need to assume our share of 

responsibility and I believe that there is a path forward that would be a 

bipartisan approach that would achieve that in the future. 

 Thank you very much. 

 [The prepared statement of Lynn R. Goldman follows:] 

PREPARED STATEMENT OF LYNN R. GOLDMAN, MD, MPH, PROFESSOR, ENVIRONMENTAL 

HEALTH SERVICES, BLOOMBERG SCHOOL OF PUBLIC HEALTH, JOHNS HOPKINS UNIVERSITY

Mr. Chairman and members of the Subcommittee on Environment and Hazardous 

Materials, it is my honor to testify today on proposed legislation to implement the POPs, 

PIC, and LRTAP POPs agreements. I am a Professor of Environmental Health Sciences 

at the Bloomberg School of Public Health. I also serve as chair of the Board for the 

Children’s Environmental Health Network and member of the Board of Trustees of 

Environmental Defense. However, my testimony represents my own views and not the 

views of these other organizations. 

From 1993-98, I served as Assistant Administrator for Prevention, Pesticides and 

Toxic Substances at the US Environmental Protection Agency (EPA). While serving in 

that position I was involved with the regulation of chemicals and pesticides and with 

technical efforts related to the development of the POPs Conventions. I led the US 

delegation to the first POPs negotiating session as well. 

Rotterdam Convention on Prior Informed Consent (PIC) 

Under the Toxic Substances Control Act (TSCA) the US has an inventory of 

chemicals that have been manufactured in the U.S. while all “new” chemicals since 

TSCA’s enactment have been allowed on the market only after filing of a Premanufacture 

Notice (PMN). By contrast, in most countries, no one knows which chemicals are on the 

market and which are not. At the same time, a myriad of chemicals and pesticides have 

been marketed (or donated) to developing countries. Most often this commerce has 

helped to advance economic progress since chemicals are at the core of most industrial 

processes. Unfortunately, at times, there have been serious adverse consequences. 

In the 1980s it became clear that there was a need for information exchange from 

chemical exporters to importers for certain highly hazardous chemicals. Initially 

established as a voluntary procedure, the principle of prior informed consent is quite 

simple. Exporting countries are to notify importing countries prior to shipping a 
86

chemical that is “banned or severely restricted.” In the 1990s developing countries 

pressured for a convention on prior informed consent. They believed that such a 

convention would not only provide needed information exchange but also strengthen 

their national capacities and provide a means of legal enforcement of making such 

notices mandatory. Given that the voluntary system appeared to be workable, the US and 

other nations directed UNEP to form a process to develop such a convention. 

The Rotterdam Convention on the Prior Informed Consent Procedure for Certain 

Hazardous Chemicals and Pesticides in International Trade was signed in 1998, two years 

before the target date in Chapter 19 of Agenda 21. The Convention is a logical 

outgrowth of voluntary efforts that preceded it. While at the EPA I participated in 

processes that assured that the terms of the convention are consistent with US regulatory 

and science based approaches and acceptable to environmental and industry groups alike. 

The convention requires that chemicals and pesticides that have been added to the 

convention because they are banned or severely restricted in at least one country in each 

of two regions shall not be exported unless explicitly agreed by the importing country. 

The PIC list also includes certain pesticide formulations that are too dangerous to be used 

in countries where high-level protective equipment may not be available; these are 

considered to be “severely restricted” when approved for use in the U.S. The Convention 

came into force in February 2004 and the first Conference of Parties was held last 

September. Until the U.S. ratifies this convention, decisions about adding further 

chemicals to the list will be made without a U.S. vote. Clearly, the US should promptly 

step forward to ratify the PIC so that it can be a full participant in this important effort. 

Just as clearly ratification of the PIC convention should be a straightforward process. 

The U.S. ratification should follow the enactment of domestic implementing legislation 

which should give EPA clear authority to carry out all the provisions of PIC in a prompt 

and expeditious manner, including notifying the international authority that the U.S. does 

not wish a particular PIC listed chemical to be imported into the U.S. At this point there 

seem to be no plans by the U.S. government to put such a process in place; Congress 

should address this point in legislation. 

Persistent Organic Pollutants Cause Global Problems that Require Global Solutions 

Persistent organic pollutants are chemical substances that possess characteristics of 

persistence in the environment, bioaccumulation in organisms, and toxicity. POPs is a 

category of substances that includes chemicals and pesticides like dioxin, polychlorinated 

biphenyls (PCBs), and DDT. Each of these substances is associated with an array of 

health effects, including cancer, neurological, developmental and reproductive effects. 

Once released into the environment, POPs can cause harm to health and the environment 

thousands of miles away. They accumulate and magnify in the food chain; we are 

exposed when we eat foods near the top of the food chain (mostly animal products). 

Food is usually an innocent carrier of POPs present in the general environment but there 

have been incidents where the POPs were introduced via contaminated animal feeds. In 

consequence of food contamination by POPs, all of us have many of these chemicals in 

our bodies. Most POPs are transferred from a mother to the fetus through the placenta, 

and later to the infant via breast milk. This is of particular concern because the fetus and 

infant are most susceptible to many of the known adverse health effects of POPs. Breast 

milk is the best food for young infants and the American Academy of Pediatrics 

recommends that, whenever possible, infants be breastfed for at least the first six months 

of life. Control of POPs therefore is about protecting our food supply, protecting the 

fetus and protecting the safety of breast milk for infants. Clearly, POPs are among the 

substances that are of most concern on a global basis. 

Given the seriousness of the threats to health and the environment that are posed by 

persistent toxic chemicals it should come as no surprise that the US government has taken 

many steps to eliminate and control their release to the environment. In 1978 
87

amendments to the Toxic Substances Control Act, Congress directed the EPA to ban the 

manufacture of PCBs and to clean up PCBs in the environment. EPA banned DDT and 

many of the other most persistent and harmful pesticides. Under the 1990 Clean Air Act 

EPA was able to achieve dramatic reductions in dioxin releases from incinerators and we 

have also eliminated certain technologies that are associated with very high releases of 

dioxins such as chlorine paper pulp bleaching, production of certain chemicals that 

contain dioxin contaminants, and the herbicide 2.4.5-T (“Agent Orange”)/ 

While at the EPA I participated in the development of some general policies to 

address POPs. In 1998, EPA published a final policy under TSCA for PBT chemicals 

that established a practice of placing controls or bans on chemicals that are above certain 

thresholds for persistence and bioaccumulative potential, pending further testing to prove 

that the chemicals are safe for humans and ecosystems1

. This policy had some positive 

effect. In 2000, the EPA received 1,650 Premanufacture Notices. Of these, the EPA 

identified 53 with potential PBT characteristics, of which seven were dropped from 

review after further scrutiny. Among the remaining 46, production was banned for 11 

pending further testing and 35 were regulated to control their release into the 

environment2

. This experience demonstrates that new POPs are under development 

every day; one should not assume that such developments would exclusively occur in the 

US. 

In 1999, the EPA also lowered the reporting threshold for several of the most 

persistent bioaccumulative chemicals under the Toxics Release Inventory: aldrin, benzo 

(a) pyrene, chlordane, dioxins and furans, heptachlor, hexachlorobenzene, isodrin, lead 

and lead compounds, mercury and mercury compounds, methoxychlor, 

octachlorostyrene, pendimethalin, pentachlorobenzene, polycyclic aromatic compounds, 

PCBs, tetrabromobisphenol A, camphechlor (toxaphene) and Trifluralin 3

. This rule also 

created a new category of dioxin and dioxin-like compounds under TRI and set a low 

reporting threshold (0.1 grams) for this category. Reporting under TRI has helped to 

clearly identify many sources of these chemicals to the environment in addition to the 

“usual suspects” such as the chemical industry. However, it should be noted that the 

Bush administration has proposed to alter these reporting thresholds and to decrease the 

frequency of such reporting. 

It has long been recognized that domestic actions to control POPs emissions will not 

be sufficient to secure our nation’s food supply and environment from harmful levels of 

contamination by POPs chemicals and pesticides. POPs know no boundaries and, 

unfortunately, POPs emitted from numerous small sources on a global basis can have a 

cumulative impact that is deleterious. The U.S. Government first took multilateral action 

on POPs in the context of the North American region. To secure the Great Lakes, which 

contains one-fifth of the world’s supply of fresh water, the US and Canada established 

the Boundary Waters Agreement of 1909. In 1978 the two countries signed the first 

 

1

 U.S. Environmental Protection Agency, Persistent Bioaccumulative Toxic Chemicals: Lowering of 

Reporting Thresholds for Certain PBT Chemicals; Addition of Certain PBT Chemicals; Amendments 

to Proposed Addition of Dioxin and Dioxin-like Compounds Category; Toxic Chemical Release 

Reporting; Chemical Right-to-Know: EPA 49 CFR Part 372, Final Rule. Federal Register, 1999. 

64(209): p. 58666-58753. 2

 U.S. Environmental Protection Agency, 2000 PBT Accomplishments. 2001, EPA: Washington, DC. 

p. 28. 

3

 U.S. Environmental Protection Agency, Persistent Bioaccumulative Toxic Chemicals: Lowering of 

Reporting Thresholds for Certain PBT Chemicals; Addition of Certain PBT Chemicals; Amendments 

to Proposed Addition of Dioxin and Dioxin-like Compounds Category; Toxic Chemical Release 

Reporting; Chemical Right-to-Know: EPA 49 CFR Part 372, Final Rule. Federal Register, 1999. 

64(209): p. 58666-58753. U.S. Environmental Protection Agency, Lead and Lead Compounds; 

Lowering of Reporting Thresholds; Community Right-to-Know Toxic Chemical Release Reporting, 

40 CFR Part 372; Final Rule. Federal Register, 2001. 66(11): p. 4500-4577. 
88

agreement to rid the lakes of “persistent toxic substances.” In 1997, Canada and the U.S. 

signed an agreement called the “Great Lakes Binational Toxics Strategy”, which aimed 

for “virtual elimination” of releases to the Great Lakes of a number of POPs: 

aldrin/dieldrin, benzo(a)pyrene, chlordane, DDT, hexachlorobenzene, alkyl-lead, mercury 

and compounds, mirex, octachlorostyrene, PCBs, dioxins and furans, and toxaphene 

Because POPs are largely transported by air, Mexico was brought into the picture in 

efforts carried out under the North American Commission for Environmental 

Cooperation (CEC) to take action on the twelve “dirty dozen’ POPs chemicals 4

. 

The LRTAP POPs Protocol 

Air transport of POPs has also been controlled under the international LRTAP 

(Convention on Long-range Transboundary Air Pollution) POPs agreement adopted in 

1988, is under the UN Economic Commission for Europe. The LRTAP POPs protocol 

bans the production and use of aldrin, chlordane, chlordecone, dieldrin, endrin, 

hexabromobiphenyl, mirex and toxaphene; phases out production of DDT, heptachlor, 

hexaclorobenzene, and PCBs; severely restricts the use of DDT, HCH (including lindane) 

and PCBs; reduces emissions of dioxins, furans, PAHs and HCB; and sets limit values 

emissions from incinerating municipal, hazardous and medical waste. While at EPA I 

worked with scientists and the chemical and pesticide industry to assure that the technical 

structure of the LRTAP POPs agreement was sound and in accord with scientific 

principles and policies that could be supported by all parties. This protocol came into 

force in October 2003 and unfortunately has not yet been ratified by the U.S. (although 

we have ratified the LRTAP convention). 

The Stockholm Convention on Persistent Organic Pollutants 

In May of 2001, the Stockholm Convention on Persistent Organic Pollutants (POPs) 

was signed by the by a number of nations including the United States. The treaty calls 

for the elimination of the pesticides aldrin, chlordane, dieldrin, endrin, heptachlor, 

hexachlorobenzene (HCB), mirex and toxaphene, as well as the industrial chemical 

polychlorinated biphenyls (PCBs); restriction of use of the pesticide DDT to disease 

vector control until safe, affordable and effective alternatives are in place; removal of 

PCB equipment; and minimization of unintentional release of dioxins and furans. It also 

includes provisions to include additional POPs to the treaty and prevent the introduction 

of new POPs into commerce, and provides for technical and financial assistance to 

developing countries and countries with economies in transition. For adding new 

chemicals, an international committee of government-appointed scientists will decide 

whether the required criteria of persistence, bio-accumulation, potential for long-range 

transport, and adverse effects to human health or the environment are met, and therefore 

whether to recommend that the Conference of the Parties consider adding the chemical to 

the treaty. An amendment to add a chemical to the Stockholm Convention can only 

apply to the United States if we decide to “opt in” to it. The Bush Administration 

estimates that it will typically take about five years for a chemical to be nominated and 

ultimately added to the Convention. This is enough time to involve industry and the 

public in a deliberative process and to assure that the outcome is not a surprise to anyone. 

The Stockholm Convention comes into force last year. 

Pending Legislation 

You have before you today two bills that have been put forward for ratification of 

the PIC and POPs conventions. These two bills are similar with regards to the PIC 

convention but take different approaches to POPs ratification. H.R.4800 is a direct 

 

4

 U.S. Environmental Protection Agency, Draft Multimedia Strategy for Priority Persistent, 

Bioaccumulative, and Toxic (PBT) Pollutants. 1998, EPA: Washington, DC. p. 29.
89

approach that would fully ratify the Conventions while reserving the right for the US to 

make its own decision with about the regulation of any new POP. H.R.4591 adds a 

number of burdensome and complicated provisions, including novel criteria that are at 

variance with the language in both Convention and in current US law. Under H.R. 4591 

the bar has been raised to such a significant degree that in my opinion it is a step 

backward in comparison with current U.S. law. Let me explain further: 

Presumption of implementation: Congress needs to establish a presumption that the 

EPA will implement decisions made by the Stockholm Convention. Congress should 

expect that the US Government will fully participate in the decision making process of 

the convention, including the application of decision criteria and the consideration of 

invitation provided by the US government that is relevant to the criteria. Although 

Congress should set a clear expectation for regulatory action following a POPs listing, it 

should allow the EPA to make an independent regulatory decision either consistent with 

the Convention’s listing, or in rejection of its applicability to the circumstances in the 

U.S. While HR 4800 would achieve this purpose, HR 4591 does not. Rather, HR 4591 

neither requires action by EPA for decisions nor does it even set a timeline for the EPA to 

determine whether it would act or to publish a statement of reasons for its failure to act. 

HR 4591 gives citizens no recourse if the EPA fails to act 

Decision standard: The standard that the US negotiated for the POPs convention, 

that is, to “protect against significant adverse human health and environmental effects 

associated with the chemical substance or mixture”, should be the standard for actions to 

implement POPs convention decisions. HR 4800 adheres to this standard. HR 4591, on 

the other hand, is loaded down with prescriptive language regarding “sound science” and 

various kinds of risk-analytical determinations in vogue today, which are certain to 

contribute nothing of value beyond the expert process of the convention. These new 

procedures, if enacted by Congress, would increase the burden to EPA and the taxpayers 

of unnecessary analyses, open new opportunities for litigation, and render it difficult if 

not impossible for the EPA to take action to implement POPs listings. The existing 

TSCA section 6 standard is ineffective, as was demonstrated in the court decision which 

threw out EPA's attempt at regulation of asbestos, and should not be used as the standard 

for attempting to regulate POPs or that attempt will be doomed to failure. 

In closing, the US needs to step up to the plate to assume its share of the 

responsibilities for assuring global chemical safety. In the best of all possible worlds we 

would have been a member of the PIC, LRTAP POPs and Stockholm agreements from 

the beginning. However, there still time for us to become engaged as active participants. 

I hope that the members of the committee will come together in a bipartisan fashion to 

support legislation such as HR 4800. The future health of our children, and the planet, 

depend on it. 

 

MR. GILLMOR. Thank you. I am impressed by the presentation of 

your statement. 

 We are in recess now and we will return right after the last vote. I 

would anticipate that would be about 12:35. Thank you very much. 

 [Recess.]

 MR. GILLMOR. The subcommittee will come to order, and we will 

proceed with Mr. Elliott. 

MR. ELLIOTT. Thank you, Mr. Chairman. 

 I am an attorney in private practice with Willkie Farr and Gallagher, 

but I am testifying today as a private citizen and not on behalf of any 

client or interest. I am former General Counsel to EPA and a professor 
90

of environmental law at Yale and Georgetown, and particularly 

interested in international and comparative environmental law. 

 I want to talk particularly about the process for adding new 

substances through the informal rulemaking. But the overall perspective 

I have is I am encouraged by the occasional notes of bipartisanship and 

getting this done. I am discouraged by some of the partisan posturing on 

all sides and I do think the important issue is not the differences between 

the two bills, which I see as being relatively narrow and technical, but 

working together to get the POPs Conventions ratified and in place. 

 With regard to the issue of adding new substances through informal 

rulemaking, I do support the approach in the Gillmor bill, the broader 

consideration of issues. I think there are a number of distinct advantages 

to having a broad process through informal rulemaking, rather than 

trying to narrowly constrain the issues. Number one, it is a safety valve 

in case American interests or special situations have not previously been 

adequately considered. Number two, I think it is a very important 

opportunity to promote public understanding and acceptance of the 

international decisions. Number three, based on my experience, attempts 

to exclude economics and risk issues from other environmental statutes 

haven’t worked very well and actually when you tell the EPA 

Administrator we are not supposed to think about economics, I actually 

think it takes on a greater role. My experience in briefing EPA 

administrators on economics is they normally said okay, I thought it was 

worse than that, really that is not that bad. So I think it may actually be 

counterproductive. 

 And finally, I do not think the American people are ready, if they 

ever will be, to delegate our Government’s decision-making authority to 

an international bureaucracy. And with all due respect to my colleague, 

Glenn Wiser, I do not believe that one bill is more true to the letter or 

spirit of the international conventions than the other. I think that there is 

a difficult constitutional issue, not with regard to whether or not treaties 

are part of the law of the land, I think that is agreed, but over whether or 

not we can legitimately delegate the Government’s decision-making 

authority to others. We have in the past, for example: the Montreal 

Protocol is part of the Clean Air Act. We have a long tradition of 

implementing international agreements through our own domestic 

processes and I think that is the approach that we should follow here. 

 My last comment is I was General Counsel of the EPA at the time of 

the asbestos ban decision and the court decision overturning it. I do 

agree with those who suggest that TSCA needs to be streamlined and 

improved in some ways, but I do not think this is the right time or place 

to try to do that. And I would note finally, that I do not believe that the 

Solis bill by limiting a standard in the rulemaking “significant adverse 
91

effect” would solve the problem that we had with the asbestos decision, 

because that was precisely the issue on which the court reversed us; we 

had not adequately shown a “significant adverse effect.” 

 So for all those reasons, I favor the broader ventilation of the issues 

through rulemaking in the Gillmor bill, but my overall perspective is you 

all are close and I hope you can work together and get this done. 

 Thank you for the opportunity to share my views. 

 [The prepared statement of E. Donald Elliott follows:] 

PREPARED STATEMENT OF E. DONALD ELLIOTT, PARTNER, WILLKIE FARR & GALLAGHER,

LLP 

Summary of Key Points in Testimony of E. Donald Elliott

• Law professor and former EPA General Counsel; Supports Gilmor 

legislation, (H.R. 4591) especially aspect of adding new substances through 

informal rulemaking under TSCA. 

• Implementing international regimes for controlling hazardous chemicals 

should be done in a way that preserves what is distinctively valuable about 

U.S. environmental law and administrative procedures and without generating 

unnecessary controversy about giving up national sovereignty to international 

bodies. 

• Informal rulemaking following opportunity for public notice and comment is 

“one of the greatest inventions of modern government.” The issues open to 

discussion in such a rulemaking should not be unduly constrained or 

restricted. 

• Broad notice and comment rulemaking provides an important safety valve in 

case American interests or special situations have not been considered 

adequately. 

• Broad notice and comment rulemaking before adding new substances also 

provides an important opportunity to promote public understanding and 

acceptance of international decisions by allowing them to be discussed and 

considered at the national level. 

• Legislating that any consideration of economics or risk substitution are off 

limits in the rulemaking would be a mistake. Artificial limits on what can be 

raised are not only bad policy, but perversely, may result in economic 

considerations actually taking on a larger role in decisions, because it hands 

opponents the argument that economics and substitution effects have not been 

properly considered, as opposed to properly airing out those issues at the 

administrative level. 

• The American people are not ready – if they ever will be – to delegate our 

government’s decision-making authority to faceless international bureaucrats 

over whom they have no control. Those of us who support international 

regimes to control hazardous chemicals do not need to pick an unnecessary 

fight over the controversial issue of giving up national sovereignty. 
92

Testimony of E. Donald Elliott1

As a long-time academic in environmental and administrative law, as well as a 

former EPA General Counsel and a practicing environmental lawyer, I am pleased to 

support H.R. 4591, Mr. Gillmor’s legislation to implement the three important 

international agreements listed above, and particularly the aspect of adding new 

substances through rulemaking under the Toxic Substances Control Act (TSCA). 

Implementing the international regimes for controlling hazardous chemicals as a matter 

of U.S. law is important and overdue, but it should be done wisely, and in a way that 

preserves what is distinctively valuable about U.S. environmental law and administrative 

procedures without generating unnecessary controversy about giving up national 

sovereignty to international bodies. 

The most important issue for the next generation of environmental policy, in my 

opinion, is how to integrate the system of laws for protecting the environment in the U.S. 

into the developing global system. For that reason, I have written extensively arguing for 

greater harmonization of U.S. environmental law with the evolving worldwide system, 

and I currently teach a seminar at the Georgetown University Law Center comparing 

approaches for regulating chemicals, biotech and nanotech in the U.S. and the European 

Union. Integrating U.S. law with international environmental law was also an important 

focal point during my tenure at EPA, where we were involved in setting up the 

international activities division and writing domestic legislation to implement the 

Montreal Protocol on CFCs into the Clean Air Amendments of 1990. 

Suffice it to say that there are important differences between the regulatory regimes, 

cultures, legal traditions and institutional approaches to environmental regulation in the 

U.S. and abroad. Both we and our foreign colleagues have many things to learn from 

others, but also many important techniques to share with the rest of the world. I am 

convinced that in the long-run the system of integrated environmental protection that 

emerges internationally will be an amalgam that incorporates the best features of the U.S. 

system, the E.U. system and also features drawn from other countries, including 

developing countries. But we are nowhere near being able to design that ultimate system 

today. It will evolve over time as we interact and argue about principles and specific 

cases in numerous international forums. 

But in the meantime, we must be careful to preserve what is best about U.S. 

environmental regulation and administrative procedures, while at the same time learning 

to integrate successful approaches from our colleagues worldwide. But I emphasize that 

not all foreign approaches are successful just because they are different! I have little 

patience with those who are concerned that E.U. is somehow getting “ahead” on the 

environment, and therefore that we must rush to adopt piecemeal European approaches to 

environmental protection, many of which are remarkably similar to ideas that we tried 

and abandoned 20 or 30 years ago! And in any event, some are alien to our legal system 

and democratic traditions. 

There are many features of environmental law in the U.S. that are far superior to the 

systems that prevail in Europe and at the international level. These include (1) broad 

opportunities for public participation and input from all elements of society, (2) 

sophisticated approaches for regulatory impact assessment including risk assessment and 

economic analysis, and (3) judicial review by affected groups who feel their interests 

have not been properly considered by decision-makers. I support the Gilmor legislation 

because it seems to me to preserve these distinctively-American aspects by using notice 

and comment rulemaking under the Toxic Substances Control Act to implement the 

 

1

 Partner and Chair of Worldwide Environmental Department, Willkie Farr & Gallagher LLP, 

Professor (adj) of Law, Yale and Georgetown Law Schools; Former General Counsel, 

Environmental Protection Agency, 1898-1991. 
93

international agreements to control hazardous chemicals, and particularly to add new 

substances to the regime. 

Informal notice and comment rulemaking under Section 553 of the Administrative 

Procedure Act has been called “one of the greatest inventions of modern government,”2

by a preeminent administrative law scholar, the late Kenneth Culp Davis, then of the 

University of Chicago law school. Modeled on legislative hearings, notice and comment 

rulemaking before an administrative agency can be a relatively quick and inexpensive 

means for allowing all affected elements of society to participate in policymaking by 

submitting written comments and data for consideration by decision-makers. We have a 

well-developed system of notice and comment rulemaking to provide opportunities not 

just for “transparency” but for genuine public participation in making decisions, while 

such processes are only beginning to develop aboard. 

I urge the Subcommittee and the Congress to preserve what is best about the U.S. 

system for environmental regulation by allowing broad opportunities for public 

participation in rulemakings under TSCA as a way of implementing the conventions, and 

most particularly on the controversial issue of adding new substances to the international 

regimes. In my opinion, rulemaking that allows broad consideration and discussion of all 

relevant factors are a good investment, because they will greatly enhance the 

acceptability of international decisions by providing an opportunity for discussion and reconsideration at the national level. I anticipate that there will be few, if any, actual 

instances of EPA deviating from the international consensus to add a new hazardous 

substance to the regime, but broad notice and comment rulemaking provides an important 

safety value in case American interests or special situations have not been considered, as 

well as an important opportunity to promote public understanding and acceptance of 

international decisions by allowing them to be discussed and considered at the national 

level. The American people are not ready – if they ever will be – to delegate our 

government’s decision-making authority to faceless international bureaucrats over whom 

they have no control by writing what amounts to a blank check to follow their lead. 

There is no more recurrent and controversial issue in 20th century law than the extent to 

which American “sovereignty” can be delegated to international bodies. Even if it can be 

done constitutionally (an issue that is by no means self-evident), it is unwise and should 

not be done lightly as a policy matter. This is a fight that we in the environmental area do 

not need and should not pick. The approach in the Gilmore bill is a sensible way to avoid 

an unnecessary and unproductive controversy about the process for adding new 

substances to the international regulatory regime.3

I am aware that other proposals, including that introduced by Ms. Solis, take a 

narrower approach and would radically constrain the issues open for consideration in 

rulemaking, essentially limiting EPA’s mandate to verifying that the international body 

acted correctly in finding that a substance poses a significant threat to human health or 

the environment. While constraining the factors that EPA may consider in a rulemaking 

is an approach that is used in some domestic environmental laws, I think that experience 

has shown that it is wiser to let participants raise a broad range of concerns for the 

agency’s consideration. For example, the New Source Performance Standards under 

section 111 of the Clean Air, which allows broad consideration of economic and energy 

effects as well as pollution reduction benefits, has generally worked efficiently and 

without great controversy. Whereas the decision by Congress to preclude EPA from 

 

2

 Kenneth Culp Davis, Cases, Text and Problems on Administrative Law 241 (6ht ed. 1977). 3

 Thus, I am in general agreement with the testimony of the American Chemistry Council in this 

hearing. I do not necessarily subscribe to their position, however, the use of informal rulemaking 

under TSCA Section 6 should be limited to implementing international agreements. As I have 

written elsewhere, the cumbersome procedures and evidentiary standards for regulating substances 

under TSCA section 6 are badly broken and need to be fixed, but that it is topic for another day.
94

considering economics in setting National Ambient Air Quality standards has provoked 

great controversy and litigation. In my view, trying to prohibit discussion of important 

values is self-defeating and counter-productive. My experience in briefing 

Administrators of EPA over the years about the anticipated economic effects of proposed 

rules was that they generally breathed a sigh of relief and said, “oh that’s not so bad; I 

thought it would be worse.” Perversely, then, ruling any consideration of economics out 

of bounds before the game begins may result in economic considerations actually taking 

on a larger role in the ultimate decision, because opponents can argue that economics and 

risk substitution effects were never even considered. On the other hand, when those 

considerations are thoroughly ventilated and laid to rest on the record, EPA generally 

moves forward anyway, but with greater confidence that the actual economic and other 

anticipated effects will not in fact be nearly as disastrous as imagined by the opponents. 

It is ironic to me that some of my friends in the environmental movement argue for 

constraining public dialogue and limiting consideration to certain specified factors only. 

The central insight of our first great environmental statute, the National Environmental 

Policy Act of 1969, which has been emulated worldwide, is that public understanding and 

acceptance of decisions significantly affecting the human environment will be increased 

if all relevant considerations are laid on the public record prior to a decision. We should 

follow that same insight in adding new substances to the POPs convention by 

encouraging broad-ranging public dialogue and participation. 

I appreciate this opportunity to share my views with the Subcommittee. 

 MR. GILLMOR. Thank you, Mr. Elliott. 

 Mr. Goldberg. 

MR. GOLDBERG. Thank you, Mr. Chairman. 

 I am Steven Goldberg. I am Vice President and Associate General 

Counsel of PSF Corporation and I am here today representing CropLife 

America. CropLife America is the National Trade Association 

representing the developers, manufacturers, formulators, and distributors 

of plant science solutions for agriculture and pest management in the 

U.S. We commend you, Mr. Chairman, and Ms. Solis, and the entire 

committee for your continued leadership on these complex issues. Be 

assured, CropLife America does support the POPs and PIC international 

and environmental agreements. 

 It may be obvious that our industry’s products provide many benefits 

to people in the environment. Our products have an enormous beneficial 

impact on the availability of abundant and affordable food and fiber, 

while also protecting people, animals, and our homes and businesses 

from disease carrying and destructive pests. At the same time, we 

recognize that a number of the products currently listed in the POPs 

Convention are pesticides. The United States does have the strongest 

and most emulated pesticide regulatory system in the world and it is 

especially notable that under the Government’s statute the specific 

pesticides listed in the Convention were controlled in the U.S. long 

before the passage of the treaty. 

 It is important to note that FIFRA does apply a risk-benefit standard 

in U.S. law, and for that reason we believe that the Gillmor bill, H.R. 
95

4591, correctly reflects the decisions that should be taken in 

implementing this treaty. 

 Let me emphasize a few more points that have been made in my 

testimony. Given Congress’ specific and recurrent decisions on pesticide 

laws over the years, we believe FIFRA provides the necessary and 

appropriate statutory framework to implement the Conventions without 

adding pesticide provisions to TSCA. We believe that it is the 

subcommittee’s intent to maintain that jurisdictional alignment and we 

look forward to working with the subcommittee to preserve that 

alignment. 

 Second, EPA needs to play an active role in upholding the scientific 

integrity of the listing criteria and procedures in the POPs and PIC 

international agreements. We urge that implanting legislation not enable 

other countries to use these agreements to adversely impact the 

availability of U.S. registered pesticides that meet our standards for use 

in agriculture, public health, and for other purposes. We strongly support 

FIFRA as the basis for pesticide decisions by the U.S. Government since 

it provides rigorous protection for human health and the environment. 

 For these reasons, we support H.R. 4591 and commend Mr. Gillmor 

and your staff for continued leadership. This bill supports a sciencebased decision-making standard that parallels current U.S. law for 

evaluating chemical substance and risk mitigation and parallels U.S. 

pesticide implementation. We further support the bill’s preservation of 

U.S. sovereignty in determining which products can be manufactured, 

imported, and used. As mentioned before, timely U.S. ratification is vital 

for this legislation and these treaties. Members of the LRTAP and 

Stockholm Conventions have nominated additional chemicals that could 

be potentially banned. Some of these newly listed chemicals, such as 

lindane, would have a direct impact on domestic manufacturers and 

agricultural producers. Lindane is safely used today as a seed treatment 

for barley, wheat, oats, and rye, and for some of the crops remains the 

only available alternative. It is also approved by the U.S. Food and Drug 

Administration as a topical treatment for serious health risks such as 

human scabies and head lice. The U.S. will be excluded from meetings 

considering these products unless legislation is signed into law and the 

Conventions are ratified. 

 This hearing is an important step towards U.S. ratification. This is a 

complicated issue and I commend the Chairman and the subcommittee 

for the progress that has been made towards crafting implementing 

legislation. We support H.R. 4591 as introduced by Chairman Gillmor, 

and urge this committee to quickly adopt the legislation and allow the 

U.S. full participation in these treaties. 

 Thank you. 
96

 [The prepared statement of Steven Goldberg follows:] 

PREPARED STATEMENT OF STEVEN GOLDBERG, VICE PRESIDENT AND ASSOCIATE GENERAL 

COUNSEL, REGULATORY LAW & GOVERNMENT AFFAIRS, CROPLIFE AMERICA

Introduction

Mr. Chairman and Members of the Subcommittee: 

I am Steven Goldberg, counsel to BASF Corporation and here today representing 

CropLife America. CropLife America is the national trade association representing the 

developers, manufacturers, formulators and distributors of plant science solutions for 

agriculture and pest management in the United States. Our member companies develop, 

produce, sell and distribute virtually all the crop protection products used by American 

farmers. Our mission is to foster the interests of the general public and CropLife member 

companies by promoting innovation and the environmentally sound discovery, 

manufacture, distribution and use of crop protection and production technologies for safe, 

high quality, affordable, abundant food, fiber and other crops. 

We commend Subcommittee Chairman Gillmor and the entire Committee on Energy 

and Commerce for your continued leadership on this complex issue. I appreciate the 

opportunity to testify before you this morning on the legislative proposals for 

implementing the Stockholm Convention on POPs and the Long-Range Transboundary 

Air Pollution (LRTAP) Protocol on POPs, as well as the Rotterdam Convention on the 

Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in 

International Trade (PIC). I had the distinguished opportunity to appear before this 

Committee in 2004 on this very issue and I think you will find our position on these 

important treaties are as relevant today as they were then. 

CropLife America supports the POPs and PIC international environmental 

agreements. The crop protection industry acknowledges its role and responsibility in 

protecting human health and the environment in the manufacture, distribution and use of 

pesticides. Our member companies are committed to the spirit and letter of these 

agreements, and we welcome the opportunity to make recommendations about their 

integration into U.S. law. We also recognize the importance of including a process in the 

legislation to guide U.S. decision-making on pesticides proposed for future inclusion in 

the international POPs listing. 

It may seem obvious, but our industry’s products provide many benefits to people 

and the environment. Our products have an enormous beneficial impact on the 

availability of abundant and affordable food and fiber while also protecting people, 

animals, and our homes and businesses from disease-carrying and destructive pests. 

Pesticides control outbreaks of crop-damaging diseases, insect infestations and noxious 

weeds in order to enhance U.S. food and fiber production. Pesticides are also used to 

combat damaging and health-threatening pests and insects, and to control and eliminate 

vector-borne illness caused by rats, mosquitoes (such as West Nile virus and other 

encephalitis) and ticks (such as Lyme disease), among others. They combat cockroaches 

and mold/mildew in housing, restrooms, cafeterias and elsewhere, reducing known 

allergens that cause asthma and other disease. Other insects and plant pests, such as 

poison ivy, fire ants and spiders, are controlled effectively by pesticides.

Using a sustainable approach, pesticides also contribute to the production of an 

abundant food supply and combating world hunger and malnutrition. Sustainability using 

high-yield conservation helps meet growing demand for food, animal feed, timber and 

paper while protecting wildlife habitat and species from expansion of cropland 

production. Two Nobel Peace Prize laureates and the co-founder of Greenpeace have 

commented favorably on the relationship between high-yield agriculture and 

conservation. According to Nobel Peace Prize winner Norman Borlaug, “Growing more 

crops and trees per acre leaves more land for nature.” Former U.S. Senator George 
97

McGovern also agrees, saying, “Modern high-yield farming has been a significant 

environmental and humanitarian success...” And Patrick Moore, co-founder of 

Greenpeace, has said that “high-yield agriculture ... is a solution.” As you move forward 

with the implementing legislation, we urge you to keep these positive contributions in 

mind. 

We believe the United States has the strongest and most emulated pesticide 

regulatory system in the world. Congress saw the need for a separate statute regulating 

pesticides in order to provide for extensive health and safety testing when it passed the 

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in 1947. Through 

subsequent major revisions to FIFRA in 1972, 1975, 1978 and 1988, and the passage of 

the Food Quality and Protection Act (1996), Congress has provided for an increasingly 

comprehensive pesticide regulatory system as the basis for EPA pesticide decisions. 

For example, under FIFRA’s strict provisions, the process of bringing pesticides to 

market by securing an EPA registration is complex and demanding, based on strong 

scientific principles and undertaken according to stringent government review and 

regulation. EPA requires up to 142 separate scientific safety tests to ensure that a 

product, when used properly, does not present health or environmental concerns. On 

average, only one in 139,000 chemicals makes it from the chemist's laboratory to the 

farmer's field. Pesticide development, testing and EPA approval takes 8 to 10 years and 

costs manufacturers up to $200 million for each product. 

Given Congress’ specific and recurrent decisions on pesticide law over the years, we 

believe FIFRA provides the necessary and appropriate statutory framework to implement 

the Conventions without adding pesticide provisions to the Toxic Substances Control 

Act. We believe it is this Subcommittee’s intent to maintain the existing jurisdictional 

alignment of FIFRA and TSCA, and we look forward to working with the Committee to 

preserve this alignment. 

CropLife America supports the sovereign right of nations to decide which pesticides 

they will allow to be imported and used within their borders. The POPs and PIC 

Conventions recognize this important concept and provide for each nation’s right to 

implement the agreements within its domestic regulatory framework. FIFRA, with its 

protective health and safety provisions, should be the basis for U.S. pesticide decisions 

under implementing legislation for POPs and PIC. Specifically, our industry urges that 

workable implementation legislation recognize the existing risk-benefit standards of 

FIFRA. The United States may become party to other international agreements, and 

POPs and PIC implementing legislation may serve as a precedent for future agreements. 

Health and environmental protections established by FIFRA’s stringent scientific 

standards and U.S. law should be upheld when implementing such agreements. 

EPA must play an active role in upholding the scientific integrity of the listing 

criteria and procedures in the POPs and PIC international agreements. We urge that 

implementing legislation not enable other countries to use these agreements to adversely 

impact the availability of U.S. registered pesticides that meet FIFRA standards for use in 

agriculture, public health protection and other purposes. The agreements should not 

become the means to impose artificial barriers to trade, impose a competitive 

disadvantage on U.S. growers or adversely impact public health. We strongly support 

FIFRA as the basis for pesticide decisions by the U.S. government, since it provides 

rigorous protection for human health and the environment. 

For these reasons, we support the legislation introduced by Chairman Gillmor and 

commend both he and his staff for their continued leadership in moving this issue 

forward. We believe H.R. 4591 embodies the key provisions identified above and best 

implements the original scope and intent of the treaties. The bill supports a sciencebased, decision-making standard that parallels current U.S. law for evaluating chemical 

substances and risk mitigation. We further support the bill’s preservation of U.S. 
98

sovereignty in determining which products can be manufactured, imported and used 

domestically. 

We believe that timely U.S. ratification and implementation of these treaties is vital 

to protecting our country’s interests. A number of meetings have already been held by 

each of the three Conventions, and yet the U.S. remains strictly an observer to these 

negotiations. The Rotterdam Convention on PIC held its second Conference of the 

Parties meeting in September 2005 and more recently a meeting of the Chemical Review 

Committee in February 2006. The second Conference of the Stockholm Convention on 

POPs is scheduled for May of this year. Decisions made at these meetings will continue 

to impact U.S. businesses and markets and yet U.S. negotiators have no authority to 

influence these policy discussions. 

Members of both the Long-Range Transboundary Air Pollution (LRTAP) and the 

Stockholm Conventions have recently nominated additional chemicals that could 

potentially be banned in accordance with the POPs agreements. Some of these newly 

listed chemicals, such as lindane, would have a direct impact on domestic manufacturers 

and agricultural producers. Lindane is safely used today as a seed treatment for barley, 

wheat, oats and rye for wireworm control and for some of these crops, remains the only 

alternative available. While limited alternatives do exist for other agricultural pests 

controlled by lindane, their cost and effectiveness in controlling related pests make them 

economically unfeasible in the U.S. Lindane is also approved by the U.S. Food and Drug 

Administration as a topical pharmaceutical treatment for serious health risks such as 

human scabies and head lice. Approximately one in every ten American children will 

suffer from head lice infestation by the time they reach the 6th grade. It is imperative that 

the U.S. obtain official voting status while these and other valuable products are being 

considered for possible elimination by the Conventions. The U.S. will be excluded from 

these meetings until implementing legislation is signed into law and the conventions are 

ratified by the U.S., hopefully before the end of this legislative session. 

LRTAP POPs Protocol and Stockholm POPs Convention

CropLife America actively supported the inter-governmental negotiations that led to 

the U.S. signing of both the Convention on Long-Range Transboundary Air Pollution on 

Persistent Organic Pollutants and Stockholm POPs Convention. Our support of both 

agreements is based on established policies and procedures in the POPs agreements for: 

1. Identifying new POPs chemicals within a transparent, science-based, 

risk/benefit assessment process, such as those outlined in H.R. 4591. Final 

determination of the POPs status for a pesticide is based on a consideration of 

socio-economic benefits and risks. 

2. Recognizing the sovereignty of each nation to undertake mitigation 

requirements for POPs and to “opt-in” or “opt-out” of each international POPs 

listing based on its domestic risk management conclusions. 

3. Contemplating the process for developing national regulatory programs for 

countries that do not have a regulatory framework in place, while recognizing 

the sovereignty of existing regulatory programs. 

Our industry believes that if a pesticide use is contemplated for international POPs 

listing, then any alternatives, if they exist, synthetic pesticide or otherwise, should be 

subject to the same risk-benefit analysis and process to ensure that appropriate 

alternatives exist. 
99

We agree with the findings of the Conventions regarding pesticides, recognizing that 

some beneficial uses still exist, particularly in developing countries, as reflected in the 

specific exemptions in annexes of both agreements. 

Rotterdam Convention on Prior Informed Consent 

CropLife America supports the Rotterdam Convention on Prior Informed Consent. 

The PIC Convention is first and foremost an information exchange mechanism to assist 

decision-making in developing countries. It makes an important contribution to 

developing countries’ ability to make informed judgments in their national interest. 

Furthermore, PIC affirms the right of each government to make regulatory decisions that 

take into account the benefits of product use to agriculture and the public good. We are 

pleased with the balanced distribution of obligations between importing and exporting 

countries. The obligations in PIC are consistent with our industry’s product stewardship 

efforts to ensure the safe use of our products. 

Our industry has actively supported the voluntary PIC procedure first established in 

the late 1980’s as part of the FAO Code of Conduct, and we participated as a nongovernmental organization in the intergovernmental negotiations that led to the current 

Convention. We look forward to continuing this tradition of cooperation with the 

Committee. In particular, we support the provisions in this legislative proposal for 

stakeholder opportunity to comment on each step in the international decision-making 

process regarding proposals for listing additional chemicals. Consulting with 

stakeholders and soliciting broad stakeholder input will ensure full consideration of 

potential impacts of a proposed listing and provide broad input into EPA decisionmaking. It is important that these provisions remain intact through the legislative 

process. 

Recommendations for POPs and PIC Implementing Legislation

Our industry looks forward to the opportunity to fully support implementing 

legislation to support the POPs and PIC agreements. We are committed to working with 

this Subcommittee to ensure that these agreements are fully implemented, without 

unintended consequences, and offer the following recommendations: 

• The POPs and PIC agreements affect not only U.S. pesticide manufacturers but U.S. 

growers as well. Without the active participation of the U.S. government in 

governance of the Conventions, having full representation and voting power, 

America’s ability to export commodities grown with the benefits of U.S. crop 

protection products could be subject to arbitrary bans and unfair trade barriers by 

other nations. 

• We support EPA as the pre-eminent pesticide regulatory agency that recognizes the 

risks of pesticides and the beneficial role pesticides play in protecting human health 

and the environment and providing for a safe and abundant food supply. FIFRA is 

the only appropriate statute through which U.S. decisions on POPs and PIC 

pesticides should be made. 

• Any modification of existing domestic use exemptions for pesticides listed under 

POPs or PIC must be effectuated through the existing FIFRA Section 6 process. 

• We further believe that any chemicals proposed as replacement alternatives to those 

listed as POPs must also be subject to the same scientifically rigorous socioeconomic and risk/benefit assessments. 

Conclusion

In closing, our industry remains committed to the scientific growth and 

improvement of regulatory capacity, especially in the developing world. For more than 

10 years, we have been active participants in the OECD and NAFTA international forums 
100

to harmonize pesticide regulatory processes. We are also committed to a transparent, 

science-based process for implementing the Conventions, and we believe that current 

statutory framework under FIFRA is ample, with appropriate adjustments, to successfully 

implement U.S. industry’s obligations.

This hearing is an important step towards U.S. ratification of these treaties. This is a 

complicated issue, and I commend the Chairman and the Subcommittee for the progress 

that has been made towards crafting implementing legislation. We support H.R. 4591 as 

introduced by Chairman Gillmor and urge this committee to quickly adopt this legislation 

and allow the U.S. full participation in the treaties. 

Thank you again for the opportunity to share our views with the Committee. We 

look forward to working with the Chairman and other Committee members to ensure that 

POPs and PIC are properly implemented to meet the global human health and 

environmental goals set forth in the three international agreements. 

 [Below we use agreements, treaties, and conventions synonymously in the same 

paragraph.] 

Summary

• CropLife America supports the POPs and PIC agreements and remains 

committed to working with both Congress and the Administration to enact 

legislation needed to ratify these treaties. Because the U.S. has the strongest 

and most emulated pesticide regulatory system in the world, we support 

legislation that protects U.S. sovereignty in complying with its international 

obligations. The Federal Insecticide, Fungicide and Rodenticide Act provides 

the necessary statutory framework to implement the Conventions without 

adding pesticide provisions to the Toxic Substances Control Act. We believe it 

is this Subcommittee’s intent to maintain the existing jurisdictional alignment 

between FIFRA and TSCA and look forward to working with Congress to 

achieve this intent. 

• CropLife America supports FIFRA as the basis for U.S. pesticide decisions 

under the POPs/PIC treaties. The rights of individual countries to determine 

which pesticides will be permitted for use domestically and allowed to be 

imported into their country must be protected. We further support the existing 

risk-benefit standards established by FIFRA and encourage the adoption of 

implementing legislation that preserves these principles. 

• A number of meetings have already been held by members of each treaty where 

participation by the U.S. has been limited to observer status. Meanwhile, 

foreign countries can continue to propose the elimination of valuable products 

used in the U.S. for protecting our food supply and public health. We 

encourage the timely ratification of the treaties to allow for official U.S. 

participation. 

CropLife America believes H.R. 4591 provides the legal authority needed for the 

U.S. to ratify the treaties. We further believe this legislation best reflects the original 

scope and intent of the POPs/PIC treaties and encourage Congress to adopt this 

legislation and allow the U.S. to ratify these important agreements. 

MR. GILLMOR. Thank you very much, Mr. Goldberg. 

 Mr. Wiser. 

MR. WISER. Thank you, Mr. Chairman. 
101

 I would like to begin by making what I think should be a very clear 

and obvious point and that is that neither the Gillmor nor the Solis bill 

cedes rulemaking authority to the United Nations. Both bills respect and 

maintain U.S. sovereignty by ensuring that the United States can make 

its own independent judgment whether to be bound by future 

international decisions to regulate additional POPs. However, they do 

have a number of striking contrasts. I will address three of them. 

 First, timely U.S. action. Once the United States commits to 

regulating additional POPs chemicals that have been added to the 

Stockholm Convention, EPA must have the mandate to respond quickly 

and effectively to that commitment. The Gillmor bill does not require 

EPA to take any action after an international decision to add a new POP 

to the Convention, even when the United States fully supports that 

decision. The Solis bill embodies a better approach. It directs EPA to 

take prompt regulatory action when a new POP chemical is added to the 

Convention. Such action can include the decision not to regulate if EPA 

concludes that the chemical is not likely to cause significant adverse 

effects on human health or the environment. 

 Second, the regulatory standard. A health-based decision-making 

standard is at the heart of the Stockholm Convention. As a treaty that 

would become part of our supreme law of the land, the Convention 

should be the source of the standard for U.S. implementing amendments. 

The Gillmor bill jettisons the Convention’s health standard and instead 

directs EPA to search for a reasonable balance between the cost to 

chemical companies and the benefits of protecting children and other 

vulnerable Americans from some of the world’s most dangerous 

chemicals. Such cost-benefit standards have been shown time and again 

to overestimate the cost of regulation and dramatically undervalue the 

benefits of protecting public health. Moreover, because the Gillmor bill 

would allow cost to trump health, it would severely jeopardize the ability 

of the United States to join the rest of the world in accepting decisions to 

add dangerous POPs chemicals to the treaty. The Solis bill adopts the 

Stockholm Convention’s health-based standard for regulating POPs. The 

bill asks EPA to implement the control measures specified in the 

Convention in a manner that protects again significant adverse human 

health and environmental effects. 

 Third and finally, the standard for judicial review. POPs 

implementing legislation must avoid approaches that do not work. The 

Government Accountability Office reported last year that EPA has 

regulated very few existing chemicals under TSCA Section 6, none since 

1990, because EPA has been unable to meet the TSCA regulatory 

standard. The report adds that TSCA’s substantial evidence rule for 

judicial review has been a significant factor in that failure. The Gillmor 
102

bill would extend this failure to POPs legislation by combining a cost 

benefit balancing standard for rulemaking and a substantial evidence 

standard for judicial review. Thus, it would apply two of the most 

onerous reasons why TSCA Section 6 has failed as a viable tool with 

which EPA can protect human health and the environment from 

extremely dangerous chemicals. This Section 6 isle approach should 

have no place in implementing legislation for international obligations of 

the United States because it has failed to protect Americans and because 

it would make it difficult or impossible for EPA to implement a new 

POPs listing decision. The Solis bill takes a more workable and 

appropriate approach where international relations are implicated by 

providing any person the right to petition for judicial review when they 

allege a POPs rulemaking has been arbitrary or capricious. 

 In closing, we urge you, the members of this subcommittee, to 

support legislation that will enable the United States to reassert global 

leadership in protecting its citizens and that will live up to the 

expectations of the American people that protecting human health should 

be a primary objective of U.S. environmental and health law. The Solis 

bill will do this in a pragmatic and effective manner, the Gillmor bill will 

not. 

 Thank you. 

 [The prepared statement of Glenn M. Wiser follows:] 

PREPARED STATEMENT OF GLENN M. WISER, SENIOR ATTORNEY, CENTER FOR 

INTERNATIONAL AND ENVIRONMENTAL LAW

I. Introduction

Mr. Chairman and Members of the Subcommittee: 

My name is Glenn Wiser. I am a Senior Attorney at the Center for International 

Environmental Law (CIEL), where I manage our Chemicals Program. Thank you for the 

opportunity to testify on behalf of my organization and on behalf of our partners, 

including National Environmental Trust, Oceana, Pesticide Action Network North 

America, Physicians for Social Responsibility, Sierra Club, U.S. Public Interest Research 

Group, Commonweal, Citizen’s Environmental Coalition, and the Environmental Health 

Fund, on draft legislation to implement the Stockholm Convention on Persistent Organic 

Pollutants (POPs). CIEL is a public interest, not-for-profit environmental law firm 

founded in 1989 to strengthen international and national environmental law and policy 

around the world. 

Much of my work at CIEL has focused on the development and implementation of 

multilateral environmental and health treaties, including the Stockholm POPs 

Convention. I am a member of the Steering Committee of the International POPs 

Elimination Network (IPEN), a global public interest network with more than 400 

participating non-governmental organizations in 70 countries in all regions of the world. 

Since May, 2001 I have worked closely with numerous U.S. environmental and health 

organizations to help develop legally sound, environmentally responsible legislation that 

will permit the United States to ratify and participate fully and effectively in the 

Stockholm Convention, in a manner consistent with the objects and purposes of the 

Convention. As part of these activities, we spearheaded the preparation of a letter sent 
103

earlier this week to Representatives Barton, Dingell, Gillmor, and Solis from 45 of 

America’s most prominent environmental health organizations to encourage leadership in 

ensuring that the paramount health and environmental protection goals of the Stockholm 

Convention are fully embodied in U.S. implementing amendments to TSCA. [Please see 

attached letter to Representatives Barton, Dingell, Gillmor, and Solis dated February 28, 

2006.] 

Today, I would like to provide you with a summary of our organizations’ views on 

legislation that would amend the Toxic Substances Control Act (TSCA) to implement the 

Stockholm POPs Convention, the LRTAP POPs Protocol, and the Rotterdam PIC 

Convention. My comments will focus primarily on those aspects of the legislation that 

deal with the Stockholm POPs Convention. First, I will briefly describe what POPs are 

and how the Stockholm Convention deals with them. Second, I will compare the Solis 

bill (H.R. 4800) and the Gillmor bill (H.R. 4591), and will explain that, while both bills 

ensure the sovereignty of U.S. decision-making on POPs, only the Solis bill will 

adequately implement both the letter and spirit of the Stockholm Convention. Third, I 

will discuss some key provisions of the Stockholm Convention related to listings of 

additional POPs, to clarify their respective roles and their relevance to U.S. implementing 

amendments. 

II. POPs and the Stockholm Convention

Persistent organic pollutants (POPs) are a global threat. Carried around the world by 

wind and water, they persist for years in the environment and accumulate in our bodies, 

where they can cause cancer, neurological and learning disabilities, and harm immune 

and reproductive systems. Infants and children in the United States and throughout the 

world are especially vulnerable to exposure before birth and from their mother’s milk. 

Many Americans, especially Alaskans and indigenous peoples, workers, and 

communities near industrial facilities, bear a heavy burden of chemical contamination 

from POPs. 

The Stockholm POPs Convention was negotiated with the active participation of the 

U.S. government and signed by the Bush Administration with broad support from the 

business community, workers, and the environmental and health community. The treaty 

bans or severely restricts ten industrial or agricultural chemicals, and sets the goal of 

minimizing and ultimately eliminating two industrial byproducts. At U.S. insistence, it 

also establishes a rigorous, science-based process for identifying and adding other POPs 

to the Convention. As none of the “dirty dozen POPs” chemicals presently in the treaty 

are intentionally produced in the United States, how Congress chooses to implement the 

treaty’s provisions for regulating other POPs is the test of U.S. leadership in this area. 

III. The Solis and Gillmor Bills: H.R. 4800 and H.R. 4591

Representatives Hilda Solis and Paul Gillmor have each introduced bills that would 

amend TSCA for the purpose of allowing the United States to implement the Stockholm 

Convention, the LRTAP POPs Protocol, and the Rotterdam PIC Convention. Both bills 

respect and maintain U.S. sovereignty by ensuring that the United States can make its 

own, independent decisions whether to be bound by future international decisions to 

regulate additional POPs. But the two bills have widely divergent visions of whether and 

how Americans should be protected from these dangerous substances. The Solis bill 

(H.R. 4800) seeks to implement the letter and spirit of the POPs Convention by giving 

EPA clear authority to regulate POPs and by living up to the expectations of the 

American people that protecting human health should be a primary objective of U.S. 

environmental and health law. 

In contrast, the Gillmor bill (H.R. 4591) would abandon the Convention’s 

fundamental health protection goal, introduce a standard that will weaken U.S. 

environmental and health safeguards, and create regulatory hurdles that would make it 
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practically impossible for EPA ever to protect Americans from some of the world’s most 

dangerous chemicals. Indeed, judging by the text of the Gillmor bill and the press release 

issued when it was introduced, one might reasonably conclude that the drive behind the 

bill is to enable the Bush Administration to win a “seat at the table” for negotiations on 

additional POPs that may be added to the Stockholm Convention, while ensuring that 

EPA will never have sufficient authority to regulate any such POPs that eventually are 

added. 

We believe such an approach would be cynical and misguided. 

If and when it is ratified, the Stockholm POPs Convention will become, as Article 

VI of our Constitution provides, part of the “supreme law of the land.” Thus, we urge all 

members of this Subcommittee, in considering implementing legislation for the 

Convention, to support TSCA amendments that are consistent with the treaty’s binding, 

overarching objective, as stated in its Article 1: “. . . [T]he objective of this Convention 

is to protect human health and the environment from persistent organic pollutants.” 

The contrasts between the Gillmor and Solis bills are especially striking in the 

following areas: 

A. Timely U.S. action 

Once the United States commits to regulating additional POPs chemicals that have 

been added to the Stockholm Convention, EPA must have the mandate to respond 

quickly and effectively. 

• The Gillmor bill does not require EPA to take any action after an international 

decision to add a new POP to the Convention, even when the United States 

supports the decision. 

• The Solis bill embodies a better approach, directing EPA to take prompt 

regulatory action when a new POP chemical is added to the Convention. Such 

action can include a decision not to regulate if EPA concludes that the chemical 

is not likely to cause significant adverse effects on human health or the 

environment. 

B. Regulatory standard 

A health-based decision-making standard is at the heart of the Stockholm 

Convention. As a treaty that will become part of “the law of the land,” the Convention 

should be the source of the standard for U.S. implementing amendments. 

• The Gillmor bill jettisons the Convention’s health standard and directs EPA to 

find a “reasonable balance” between the costs to chemical companies and the 

benefits of protecting children and other vulnerable Americans from some of 

the world’s most dangerous chemicals. Such cost-benefit standards have been 

shown time and again to overestimate the cost of regulation and dramatically 

undervalue the benefits of protecting public health. Moreover, because the 

Gillmor bill would allow costs to trump health, it would severely jeopardize the 

ability of the United States to join the rest of the world in accepting 

amendments that add dangerous POPs chemicals to the treaty. 

• The Solis bill adopts the Stockholm Convention’s health-based standard for 

regulating POPs. The bill directs EPA to implement the control measures 

specified in the Convention in a manner that protects against “significant 

adverse human health and environmental effects.” 

C. Judicial review 

The Government Accountability Office (GAO) reported last year that EPA has 

regulated very few existing chemicals under TSCA section 6 (none since 1990), because 
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it has had difficulty meeting the TSCA regulatory standard.1 TSCA’s “substantial 

evidence” rule for judicial review has been a significant factor in that difficulty: 

According to EPA officials, the economic costs of regulating a chemical are usually 

more easily documented than the risks of the chemical or the benefits associated 

with controlling those risks, and it is difficult to show by substantial evidence that 

EPA is promulgating the least burdensome requirement (emphasis added).2

• By combining a cost-benefit balancing standard for rulemaking and a 

substantial evidence standard for judicial review, the Gillmor bill would apply 

to POPs legislation two of the most onerous reasons why TSCA § 6 has failed 

as a viable tool with which EPA can protect human health and the environment 

from extremely dangerous chemicals. This § 6 approach should have no place 

in implementing legislation for international obligations of the United States, 

because it could make it difficult or impossible for EPA to reliably implement a 

new POPs listing decision. 

• The Solis bill takes a more workable, appropriate approach where international 

relations are implicated, by providing any person the right to petition for 

judicial review when they allege that a POPs rulemaking has been arbitrary or 

capricious. 

D. Relationship to state measures to protect health 

Many states are already taking action to regulate POPs, including California, 

Hawaii, Illinois, Maine, Massachusetts, Michigan, New Jersey, New York, and 

Washington. 

• The Gillmor bill would not only make it difficult for EPA to regulate a newly 

listed POP chemical, but would also preempt all state and local POPs 

regulations and prohibit states from taking regulatory action in the future. This 

sweeping preemption language could void state and local measures to control 

POPs even when the EPA ultimately fails to regulate the chemical. 

• The Solis bill respects state and local efforts to protect public health from POPs 

by specifically allowing states to adopt or maintain stricter standards. 

IV. Stockholm Convention Provisions for Additional POPs Listings

In past discussions on POPs implementing legislation undertaken by this 

Subcommittee, there has been some confusion about how the Stockholm Convention’s 

“adding mechanism” for other POPs works. This confusion has led to an erroneous 

belief by some that the Convention somehow authorizes or even requires a cost-benefit 

balancing standard. This section of my testimony attempts to alleviate some of this 

confusion by explaining the functions of some of those parts of the treaty that are related 

to decision-making on additional POPs. 

A. Article 8.7(a) articulates the standard for determining whether a substance 

is a POPs chemical under the Stockholm Convention 

Stockholm Article 8.7(a) articulates the standard by which the Convention’s 

Persistent Organic Pollutants Review Committee (POPRC) shall determine whether a 

chemical is a POP and thus, whether global action is warranted: a proposal to list a 

chemical shall proceed if the POPRC decides, on the basis of the risk profile conducted in 

accordance with Annex E, that “the chemical is likely as a result of its long-range 

 

1

 GAO, Chemical Regulation: Options Exist to Improve EPA’s Ability to Assess Health Risks and 

Manage Its Chemical Review Program 27-29 (GAO-05-458, June 2005). 2 Id.
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environmental transport to lead to significant adverse human health and/or environmental 

effects such that global action is warranted.” The Solis bill contains a regulatory standard 

based on this Article 8.7(a) standard, while the Gillmor bill does not. 

B. Annex F outlines informational considerations; it does not contain a 

rulemaking standard 

The Convention’s Annex F provides a non-exclusive list of items that the POPRC 

should consider when preparing its analysis of possible control measures for an additional 

POP. Confusion about the function of Annex F may be why some members of this 

Subcommittee have seemed to suggest or accept the argument that cost-benefit 

“balancing” is required by the Convention. Moreover, it may explain why they have 

claimed that statutory authority allowing EPA to regulate only to an extent “that achieves 

a reasonable balance of social, environmental, and economic costs and benefits” would 

permit the United States to comply with a Stockholm new listing amendment. As noted 

above, Annex F provides a non-exclusive list of items that the POPRC should consider 

when preparing its risk management evaluation of a chemical that may be added to the 

Convention. As such, it is basically a vehicle for the POPRC to gather and provide 

information to the parties regarding the comparative efficacy of various control strategies. 

Annex F contains no guidance whatsoever on how the POPRC will recommend, or 

the parties will decide, what the control measures will be. Thus, Annex F does not 

contain any “proposed rulemaking standards.” Moreover, nowhere does Annex F or the 

Convention body text contain an implicit or explicit suggestion that Convention parties 

must “balance” these items against each other when determining what the control 

measures for a POP should be. Indeed, a requirement to achieve a “balance” between 

these considerations could arguably conflict with the Art. 8.9 requirement that the 

Conference of the Parties must decide upon a proposed POP in “a precautionary manner.” 

C. The fundamental Convention standard for control measures is elimination 

The core terms of Stockholm Article 3 establish the Convention’s fundamental 

standard for control measures. If a chemical is added to Annex A, the control measures 

must be whatever “legal and administrative measures [are] necessary to eliminate” 

production, use, import, and export of the chemical. Thus, for all of the intentionally 

produced POPs currently listed in the Convention (with the exception of DDT), the 

required control measure is elimination, which is to be accomplished by means available 

within each party’s respective legal and administrative systems. We believe that a 

regulatory standard requiring cost-benefit balancing would be incapable of ensuring U.S. 

compliance with Stockholm Annex A amendments to which the United States desires to 

bind itself. Instead, when the United States agrees with the Conference decision that a 

chemical is a POP, the United States should take the “legal and administrative measures 

necessary to eliminate” production, use, import, and export of the chemical. 

DDT is the only POP listed in Annex B, and thus the only intentionally produced 

POP that is subject to restriction, rather than elimination, under the Stockholm 

Convention. DDT is the sole exception to the elimination rule because of its unique 

public health role in malaria vector control, especially in Sub-Saharan Africa. We do not 

believe that the specific conditions leading to the treatment of DDT in Annex B are 

relevant to the domestic regulatory situation in the United States; moreover, we do not 

anticipate that many, if indeed any, intentionally produced POPs will be added to Annex 

B in the future. 

However, if an intentionally produced POP were added to Annex B, then we are 

confident that the United States would fully protect its interests during the international 

negotiations on the listing decision, so that the control measures contained in that 

decision would adequately reflect the public health needs of the United States. Given 

U.S. technical expertise and the advanced state—compared to most other countries in the 
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world—of our health care, research and development, administrative, and other relevant 

capacities, we do not believe there is any realistic possibility that the global community 

would bind itself with Annex B control measures that were too strict for the United States 

to implement. Rather, the far more realistic scenario is that the United States will have to 

push many other countries to accept control measures that are stricter than they might 

otherwise prefer. 

D. A cost-benefit “balancing” standard will not enable the United States to 

comply with Stockholm new-listing amendments 

While the United States will have the option of deciding whether or not it will be 

bound by an amendment to add a POP to the Convention, it will not have the option (if it 

accepts a new-listing amendment) to devise control measures that are less stringent than 

those required under the treaty, because doing so would put the United States in violation 

of its treaty commitments. Thus, for new listing amendments to Stockholm Annexes A 

or B, we believe Congress should require EPA, within a fixed time, to initiate a 

rulemaking implementing the control measures required in the amendment, unless EPA 

concludes that the chemical does not pose significant adverse health or environmental 

effects. We do not agree that EPA should be required to engage in de novo cost-benefit 

“balancing,” because such balancing is not contained in the Convention and, due to the 

inherent shortcomings of cost-benefit balancing, it could prevent EPA from promulgating 

control measures that were strong enough to allow the United States to comply with the 

new-listing amendment. 

V. Conclusion

In closing, on behalf of my organization and our partners, and in collaboration with 

the 45 U.S. environmental and health organizations who endorsed Tuesday’s letter to 

Representatives Barton, Dingell, Gillmor, and Solis, I urge you to support implementing 

legislation that will enable the United States to reassert global leadership in protecting its 

citizens, especially our children and children’s children, from persistent organic 

pollutants. The Solis bill will do this in a pragmatic and effective manner, while the 

Gillmor bill will not. 

Attachment: Environmental and health organizations letter to Representatives Barton, 

Dingell, Gillmor, and Solis dated February 28, 2006 
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110
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112
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MR. GILLMOR. Thank you very much. 

 Mr. Roewer, I think we have completed the entire panel and I 

appreciate your patience while we went through that process. Mr. 

Roewer, a number of your panelists believe that the science process 

within the international body is rigorous enough that the United States 
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should not engage in another scientific review. Would you share that 

opinion? 

 MR. ROEWER. Well, I think it would be very short-sighted and 

limiting to not have a backstop within U.S. law to engage in an 

additional review of the same factors, as well as some additional factors 

that may come forward, additional evidence, as well as consideration for 

the very important issues that we heard here in national security, 

economic drivers as well. To not have that second look or that backstop 

really would not be, in our estimation, protective of the United States 

interests. 

 And as I said in my testimony, we really cannot presume that the 

listing decisions that are reached by the Conference of Parties for any of 

these Conventions are going to be technically sound. Mr. Walls referred 

to some short circuiting in the process. I think we have seen cases where 

the technical arguments were not as strong as they should be and dolcias 

that were developed by countries for Canada POPs, but nonetheless, even 

though the case was not made, the conference of parties, or in this case 

the POPRC, decided it looks enough like a POP that we are going to 

move it forward notwithstanding the fact that we may not have made the 

case or one of the characteristics of POPs. So for those reasons, I think it 

is very important the United States retain the ability to fully evaluate the 

chemicals that are listed in making decision of how and whether, or 

whether and how, those chemicals are regulated under our domestic 

laws. 

 MR. GILLMOR. Thank you. 

 Mr. Goldberg, in terms of other countries, where do you think the 

United States ranks in terms of chemical regulation and safety, 

particularly in assuring that chemicals will be safely used and present the 

lowest possible risk for human health? 

 MR. GOLDBERG. Well I defer part of that question to Mr. Walls. I 

will say for those products that are listed that are pesticides, the U.S. is 

by far the most protective in terms of its system, and to echo Mr. 

Roewer, part of the issue is ensuring that future decisions on POPs take 

into account the unique circumstances and unique needs of American 

growers, American producers, and the world at large in having safe and 

effective products. I think from a chemical system standpoint, TSCA has 

worked amazingly well at protecting the American public. 

 MR. GILLMOR. Do you want to jump in on that, Mr. Walls? 

 MR. WALLS. Yes, thank you, Mr. Chairman. 

 I think it would be useful to focus on what, how I read H.R. 4800 

and contrasting it with the approach that Mr. Goldberg just set out in 

terms of the protective nature of U.S. regulation. As I read H.R. 4800, 

EPA would be required to adopt any new regulations on chemicals that 
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have been subject to international action unless it can justify a no action 

decision solely on the grounds that it is not likely to pose a significant 

adverse health or adverse health or environmental effect. That means 

that the risk management considerations for domestic regulation are 

excluded. That is, EPA cannot look at the risk factors under that 

approach. And even if EPA were to subsequently determine that risk 

management considerations did not justify adopting the international 

decision, I think the agency would be constrained in its ability to 

effectively regulate domestically. 

 MR. GILLMOR. Thank you very much. 

 That will conclude our questions. I would ask the witnesses, 

however, if members of the subcommittee had questions that they would 

like to submit to you in writing, which may be the case, hopefully that is 

acceptable and that way you can get a response back. 

 With that, I kind of apologize, it gives you a real sense of how 

disorganized we are here in Congress but we try to muddle through. I 

appreciate all your testimony and all of your help. The meeting is 

adjourned. 

 [Whereupon, at 1:05 p.m., the subcommittee was adjourned.] 

RESPONSE FOR THE RECORD BY E. DONALD ELLIOTT, PARTNER, WILLKIE FARR &

GALLAGHER LLP 

The Honorable Paul E. Gillmor

1. How does the process of notice and comment in American environmental regulation 

compare to the same experience under the POP’s treaty? Do private public interests 

groups have more or less input on the international decision making process then the 

domestic one? Is it not the case that all NGO’s, from corporations to environmental 

groups, would have less input in environmental regulation if there is no domestic 

regime to determine implementation as under H.R. 4800? Why then, do you think 

would environmental groups support a process they have less influence over? 

I am loathe to try to speak for environmental groups. They may feel that 

environmental considerations carry more weight in the elitist world of international 

bureaucrats and negotiators than in the more democratic and participatory law-making 

processes in the United States where many different interests all have a seat at the table 

and are weighed in the balance. However, if that is their analysis (and I do not know that 

it is), it would be short-sighted and wrong. The best way to bring the American people to 

support environmental regulation is through a wide-ranging and thorough discussion in 

which all relevant issues and values are discussed, weighed and resolved, not by trying to 

short-circuit the deliberative process and limit consideration to only certain values that 

are paramount in the minds of some but ruling off-limits the considerations that others 

would like to bring to the debate. That approach of limiting debate never really works in 

the long run in a democratic society. That is the point that Jefferson made when he 

wrote: "I know no safe depositary of the ultimate powers of the society but the people 

themselves; and if we think them not enlightened enough to exercise their control with a 

wholesome discretion, the remedy is not to take it from them, but to inform their 
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discretion by education." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:278 and 

"Though [the people] may acquiesce, they cannot approve what they do not understand." 

--Thomas Jefferson: Opinion on Apportionment Bill, 1792. ME 3:211, 

http://etext.virginia.edu/jefferson/quotations/jeff1350.htm 

2. By not having an opportunity to voice economic concerns and only giving the 

United States a yes or no option on POP’s decisions, as is the case in H.R. 4800, 

does it not make it more difficult for the U.S. to opt – in to POP regulations? How 

does this lack of opportunity to compromise damage meaningful participation in the 

POPS Convention by the United States, not to mention implementation of future 

chemicals during the POP’s Treaty? 

I agree. Ironically, attempting to exclude economics, the availability of substitutes 

and other considerations from the discussion, may actually make it more difficult to 

regulate certain substances, not easier as some proponents wrongly suppose. I point that 

out in my prepared testimony and also my answer to Mr. Dingell’s Question #1 below 

and I will not repeat the full analysis here. Let me merely say that the classic case in 

American law that makes this point is International Harvester Co. v. Ruckelshaus, 478 

F.2d 615 (D.C. Cir. 1973). There Judge Leventhal pointed out that the extent of proof 

required should be a function of the consequences of an error in one direction or another. 

One has to consider benefits and the availability of substitutes to strike that balance 

properly and to decide how much science is enough. Adam Babich, Too Much Science 

In Environmental Law, 28 Columbia Journal of Environmental Law 119 (2003). 

3. Do you think it is inconsistent for the opponents of H.R. 4591 to express 

reservations about its impact on state sovereignty while supporting a bill that adopts 

a regulatory standard based on and international listing recommendation and 

impinges on national sovereignty by denying the U.S. the chance to consider 

domestic issues when regulating? 

Yes, inconsistent, but even worse, also ill-informed. Despite rhetorical usage to the 

contrary, states of the United States are not really “sovereign.” Under our Constitution, 

many of the essential attributes of sovereignty (such as the ability to conduct foreign 

relations or war) have been taken away from the states and given to the federal 

government. One of these attributes of “sovereignty” that no longer resides with the 

states is the power to regulate interstate commerce. U.S. Constitution, Art.I, Sect. 8. 

Congress has plenary power to regulate interstate commerce. When it chooses to do so, 

its action does not in any way impinge on the “sovereignty” of the states, because the 

People took that aspect of “sovereignty” away from the states in 1789 when they ratified 

the Constitution and gave it to the federal government. 

However, as a policy matter, I do favor clarifying H.R. 4591 as suggested by 

Chairman Gillmor during the hearing to make clear that the regular pre-emption process 

of TSCA Section 18 would apply. This section of TSCA is the appropriate balance 

between state and federal regulation that was carefully struck by Congress for the case of 

hazardous substances that move across state lines. It has generally worked well. For 

example (to answer a question that was asked but not answered during the hearing), more 

stringent regulation of toxics under California’s Proposition 65 was not preempted by the 

first Bush Administration under TSCA in the early 1990’s despite a request from some in 

industry to do so. I think that H.R. 4591 should use the same standards and process for 

preemption as the rest of TSCA, not a different one. 

The references at the hearing by some to other environmental statutes such as the 

Clean Air Act and Clean Water Act are totally inapt, because those statutes primarily 

regulate stationary facilities, not products that move across states lines. (Where they do
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regulate products that move across state lines, such as automobiles, federal standards are 

generally pre-emptive of inconsistent state regulation). This is the general pattern that 

applies not only in the U.S. but also in the E.U. – where regulation involves a product 

that moves across jurisdictions, regulation is generally pre-emptive. 

4. Is it reasonable to set the precedent of having other nations decide our 

environmental policy for us when they themselves have difficulty following through 

on their environmental treaty commitments, like the EU with Kyoto? 

No. The essence of my testimony is that we should retain the right to decide 

environmental policy for ourselves, using our own values and our own legal processes 

and traditions. The treaties wisely give us that right. While I feel that the situations in 

which we will ultimately deviate from the international consensus will be few and far 

between in practice, the principle that we should decide for ourselves in our own way is 

an important one (at least at this stage in history). 

5. In the hearing on July 13, 2004, Mr. Yeager, Mr. Wiser, and Dr. Goldman all agreed 

with the view that the treaty relies on countries to choose their own appropriate 

means of implementation and the adding process. Therefore, it is up to the 

individual country’s legislative body, which would be the Congress, to establish a 

process. HR 4591 proposes a standard that provides EPA with sufficient authority, 

that EPA has stated on the record gives them sufficient authority, and that several 

industry and trade groups have testified they are comfortable with. The rulemaking 

standard in the bill is “to protect human health and the environment” while the 

manner in which it does so is the balancing of social, environmental, and economic 

costs and benefits. However the standard itself remains to protect human health, all 

humans, women and children, not just manufacturing interests, as some allege. Why 

then, as proposed under HR 4800, does the U.S., need to jump to the conclusion of 

the international COP, even while the COP doesn’t require us to implement in the 

same manner? In other words, is it not inherent in this country’s domestic process to 

properly vet each proposal through the same regulatory standards of domestic law 

before we chose to sign up for it? While this instance may have its genesis from a 

treaty, in the end aren’t we talking about U.S. laws and U.S. persons that we are 

regulating and shouldn’t they have the same process they are guaranteed if the 

proposal didn’t have its genesis from an international proposal? 

I agree. 

The Honorable John D. Dingell and the Honorable Hilda L. Solis

1. In your written testimony, you stated that “As I have written elsewhere, the 

cumbersome procedures and evidentiary standards for regulating substances under 

TSCA Section 6 are badly broken and need to be fixed . . . .” Please state 

specifically which cumbersome procedures and evidentiary standards are badly 

broken and explain why and how they should be fixed. 

In a chapter for a forthcoming book comparing the approaches to regulating 

chemicals in the U.S. and the European Union, I have written (with German Law 

Professor Ortwin Renn): 

"Throughout its 35-year history, EPA has attempted to use its TSCA section 6 

authority on only a few occasions. But when it has done so, its principal 

attempts to use section 6 for precautionary regulation to prevent harm have 
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been set aside in court. As a result of this experience, EPA has generally drawn 

the lesson that section 6 of TSCA is not a useful “tool” for precautionary 

regulation. There are two separate problems with section 6. First, as the price 

of removing its opposition to the enactment of TSCA in 1976, the chemical 

industry negotiated virtually unique procedural provisions that require EPA to 

hold cumbersome oral hearings including cross-examination of witnesses 

before issuing a section 6 rule. 15 U.S.C. §2605(c). These so-called “hybrid 

rulemaking proceedings” are much slower, more cumbersome and more 

expensive for EPA to conduct than the notice-and-comment rulemaking 

proceedings under 5 U.S.C. §553 of the Administrative Procedure Act that are 

typical of most other statutes administered by EPA. 

“Even where EPA has shouldered the burden of mounting the extensive 

procedural hearings required by section 6 of TSCA, its rules have been set 

aside in court for lack of sufficient support in the record. The key case is 

Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir., 1991), which 

invalidated EPA’s 1989 TSCA rule to ban virtually all uses of asbestos, 54 Fed. 

Reg. 29,460 (1989). Asbestos was identified by the ancient Greek physician 

Galen as constituting a risk to health, and thousands of American workers have 

suffered from asbestos-related disease, hundreds of thousands of civil lawsuits 

for damages now clog our courts and over 70 companies have been forced into 

bankruptcy. In an attempt to deal with this major public health problem, in 

1989, EPA attempted to ban all uses of asbestos for which there were readily 

available substitutes. EPA’s rule was supported by 10 years of hearings, and 

over 100,000 pages of record, including several hundred scientific studies. 

This was a clear and self-conscious attempt by EPA to use section 6 of TSCA 

on a precautionary basis, arguing that since asbestos had been shown to be 

harmful in many uses, it should be banned in other contexts as well, at least if 

substitutes were readily available. The court disagreed, striking down EPA’s 

precautionary asbestos ban rule on the grounds that there was not sufficient 

proof of actual harm from each and every use of asbestos. In one (in)famous 

footnote, the court even opined (based on a numerical risk assessment cited by 

industry) that more people die from accidentally aspirating toothpicks than 

from some of the uses of asbestos that EPA wanted to ban. 

“Unfortunately, the Corrosion Proof Fittings case is not an outlier. Unlike 

regulators in Europe who may act on a precautionary basis in advance of hard 

and fast scientific proof by relying on consensus expert judgments, regulators 

in the U.S. must generally build a factual “record“ to support their decisions to 

regulate or to take a product off the market. AFL v. OSHA, 965 F.2d 962 (11th 

Cir. 1992)(invalidating permissible exposure limits for 428 toxic substances in 

the workplace which had been based on expert consensus standards). U.S. 

administrative law requirements to assemble a comprehensive factual record 

and for adversarial and “searching” judicial review of the factual basis of expert 

decisions tend to discourage U.S. agencies from promulgating risk-based 

regulations on a “precautionary” (i.e. weak or preliminary scientific) basis but 

instead to wait until a risk assessment can be conducted to provide the 

necessary “record” for judicial review (Martonik, Nash and Grossman, 2001). 

The present author has argued that this unfortunate situation results because in 

recent years, most U.S. courts have mistakenly assimilated questions of 

scientific support for precautionary regulations to questions of fact, rather than 

recognizing their true nature as questions of “policy.” Ethyl Corp. v. EPA, 541 

F.2d 1 (D.C. Cir.)(en banc), cert. denied, 426 U.S. 941 (1976; see also 
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Charnley and Elliott, 2002)[ Gail Charnley and E. Donald Elliott, Risk Versus 

Precaution: Environmental Law and Public Health Protection, 32 ELR 10363 

(Mar. 2002)]." Ortwin Renn and E. Donald Elliott, Precautionary Regulation 

of Chemicals in the US and EU, forthcoming in The Reality of Precaution: 

Comparing Risk Regulation in the US and Europe (eds., Jonathan Wiener, 

Michael Rogers, Jim Hammitt and Peter Sand). 

The solutions are more difficult, but I think we should follow something similar to 

what the European Union has endorsed in Commission of the European Communities, 

Communication from the Commission on the Precautionary Principle, COM (2000)1 

(Feb 2, 2000). http://europa.eu.int/comm/dgs/health_consumer/library/pub/pub07_en.pdf 

That policy statement recognizes that the quantum of scientific evidence necessary to 

support regulatory action will differ depending upon a number of factors including 

economics and the availability of substitutes. 

“Decision-makers need to be aware of the degree of uncertainty attached to the 

results of the evaluation of the available scientific information. Judging what is 

an 

"acceptable" level of risk for society is an eminently political responsibility. ... 

Examining costs and benefits entails comparing the overall cost to ... action 

and lack of action, in both the short and long term. This is not simply an 

economic cost-benefit analysis: its scope is much broader, and includes noneconomic considerations, such as the efficacy of possible options and their 

acceptability to the public.” 

On the other hand, the U.S. courts (as discussed above and in my next answer) have 

mistakenly assimilated the question of the extent of scientific certainty necessary to 

support regulation to a simple-minded question of fact, rather than recognizing that it is 

really a policy issue that should differ from one context to another – depending on the 

policy consequences of an error in one direction or the other. I explain the problem and 

the proposed solution this way in 2002 article with a co-author: 

”By overemphasizing the factual component of risk assessment, U.S. appellate 

courts misunderstand the nature of risk assessment and undervalue expert 

judgment and policy considerations. Implementation of the recent European 

Commission Communication on the precautionary principle, however, would 

not require the same high level of factual evidence to support decisions about 

managing potential risks.” Gail Charnley and E. Donald Elliott, Risk Versus 

Precaution: Environmental Law and Public Health Protection, 32 ELR 10363 

(Mar. 2002). 

A single standard for the quantum of scientific data or certainty needed to support 

regulation (whether it is “substantial evidence” or “capricious and arbitrary”) makes no 

sense. Rather, there should be a sliding scale for how much scientific certainty is 

required that changes depending on other policy factors such as the extent of harm that is 

possible, the availability of substitutes and economic benefits To take a concrete 

example, if a substance might kill millions of people, and it has only small benefits and 

substitutes are readily available, a much lesser degree of scientific proof should be 

required before taking regulatory action than if the potential harm is low but the benefits 

of continued use are high. 

To implement the concept of precautionary regulation successfully, agencies must 

be permitted to consider a broad range of policy factors, not just the scientific evidence 

underlying a finding of significant risk in isolation. The degree of scientific support 
120

required to support regulatory action should be lesser or greater depending on the 

consequences of a decision one way or the other. See International Harvester Co. v. 

Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). That is a major reason why I favor the 

broader scope of consideration of risk/benefit tradeoffs allowed by H.R. 4591. 

2. Do you believe that TSCA Section 6 is a useful tool for protecting Americans from 

exposures to harmful chemicals? If not, please explain why. 

No. Not as interpreted by the court of appeals in Corrosion Proof Fittings v. EPA, 

947 F.2d 1201 (5th Cir., 1991)(setting aside TSCA §6 rule banning 5 uses of asbestos, 54 

Fed. Reg. 29,460 (1989), on grounds that despite ten years of rulemaking, EPA had not 

compiled substantial evidence to support its action). That case sets the evidentiary 

standard for regulation under Section 6 so high that EPA can no longer use TSCA 

Section 6 as a useful tool for regulating chemicals. If after thousands of deaths from 

asbestos exposure, EPA could not regulate asbestos under section 6, it is virtually 

impossible for EPA to regulate any chemical under section 6. There is an extensive 

scientific literature about asbestos, and it is banned in many other countries throughout 

the world, including most countries in Europe. That asbestos cannot be banned 

successfully under TSCA section 6 in the United States is clear and convincing evidence, 

in my view, that section 6, as interpreted by the court in Corrosion Proof Fittings case, is 

no longer “a useful tool for protecting Americans from exposures to harmful chemicals.” 

That conclusion is borne out by the fact that EPA has not attempted to use section 6 in 

any significant way in the 15 years since the Corrosion Proof Fittings case was decided in 

1991. That case is a public policy and public health disaster and should be explicitly 

overruled by Congress. 

3. Based on your experience as General Counsel of the Environmental Protection 

Agency (EPA), including your work defending EPA’s attempt to regulate asbestos 

under Section 6 of TSCA, would it be better to use an “arbitrary and capricious” 

standard of judicial review, the standard that is used for most other environmental 

rulemakings? 

Along with most courts and commentators, I think there is no real difference in 

practice between the arbitrary and capricious standard and the substantial evidence 

standard. William Fox, Dean of Catholic University Law School, explains it this way in 

his administrative law treatise: 

“In 1984, one of the newer members of the D.C. Circuit (now a Supreme Court 

Justice), Antonin Scalia, took the bull by the horns and decided there simply 

was no difference between the substantial evidence test and the 

arbitrary/capricious test. Writing for the court in Assn of Data Processing 

Service Orgs. v. Bd. of Governors, Federal Reserve Sys., [745 F.2d 677 (D.C. 

Cir. 1984).] then-Judge Scalia ... put it: ‘[Substantial evidence] is only a 

specific application of [arbitrary/capricious] separately recited in the APA not 

to establish a more rigorous standard of factual support but to emphasize that in 

the case of formal proceedings, the factual support must be found in the closed 

[hearing] record as opposed to elsewhere’ In Scalia’s opinion, the distinction is 

mainly one of semantics. The touchstone for both tests is reasonableness. The 

differences between the two are differences of analytical technique rather than 

analytical substance. While not all courts of appeals have adopted Justice 

Scalia’s language, most courts appear to accept his reasoning. At present, there 

seems not to be much agonizing over the distinction between 
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arbitrary/capricious and substantial evidence.” William F. Fox, Jr., 

Understanding Administrative Law p. 334 (4th ed. Lexis Publishing, 

2000)(ISBN 0-8205-4727-1)(emphasis supplied). 

Congress would simply be fooling itself if it thought that it would make any real 

difference in practice to substitute one form of words for the other. Today most courts 

equate the two standards, and my experience is that there is little if any difference in their 

practical effect. It certainly would NOT address the underlying problems in TSCA 

Section 6 that have rendered it no longer a useful tool for EPA. See answer #1 above. 

4. On page 4 of your testimony you state that: “Informal notice and comment 

rulemaking under Section 553 of the Administrative Procedure Act has been called 

‘one of the greatest inventions of modern government . . .’.” Do you agree that H.R. 

4800 incorporates the Section 553 rulemaking procedures? (See, H.R. 4800, page 

44, lines 5-9: “Regulations promulgated by the Administrator under this section 

shall comply with section 553 of Title 5, United States Code (without regard to any 

reference in that section to sections 556 and 557 of that title).”) 

Yes. I agree. My concern with H.R. 4800 is that the issues in the rulemaking are too 

narrowly circumscribed so that the benefits that informal rulemaking would normally 

offer are lost. Informal rulemaking which is not artificially narrowed to a single issue 

gives the agency broad input from the public and educates the public so that they are 

more likely to understand and accept a regulation. This is the wise and successful 

strategy behind many of our environmental laws. The actual decision rarely changes 

much through the notice-and-comment process, but the process is useful nonetheless 

because it increases buy-in and also provides a safety valve in those rare instances in 

which the agency is about to make a serious mistake. 

While I do agree that technically H.R. 4800 utilizes informal rulemaking, I feel that 

it arbitrarily limits the usefulness of the rulemaking process by unduly restricting the 

issues that can be raised. (See, H.R. 4800, pages 38, lines 6-25 and page 39, lines 1-5: “if 

the parties to the LRTAP POPs Protocol decide to list a chemical substance or mixture 

..., the Administrator shall— ... (A) not more than 1 year after the date of such decision, 

publish in the Federal Register— (i) a proposed rule, to prohibit or restrict the domestic 

manufacture, processing, distribution in commerce for export, use, or disposal of the 

additional chemical substance or mixture, that protects against significant adverse human 

health and environmental effects from such domestic manufacture, processing, 

distribution in commerce for export, use, or disposal associated with the chemical 

substance or mixture ... which at a minimum implements the control measures specified 

for the chemical substance or mixture in Annex A and B of the POPs Convention and 

Annex I and to the LRTAP POPs Protocol.”). I read this language as precluding 

consideration by the Administrator in the rulemaking of any subjects except (1) whether a 

substance has in fact been added to the list, and (2) what regulatory measures are required 

to eliminate “significant adverse human health and environmental effects” from the 

substance and are at least as stringent as those required by the Convention and its 

Annexes. As the drafters are undoubtedly aware, very similar language has been read by 

the Supreme Court as precluding any consideration of economics, Whitman v. American 

Trucking Assn., 531 U.S. 457 (2001), and in light of the debate about consideration of 

other factors in the legislative history here, I think that the language of H.R. 4800 if 

enacted would be interpreted by the courts to limit consideration by EPA to the factors 

enumerated above. 

However, there is potentially room for a compromise in that the language 

“significant adverse human health and environmental effects” certainly could be read to 
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permit discussion in the rulemaking, and consideration by the Administrator in making a 

decision, of all relevant factors such as substitutes and benefits going to the question of 

whether a particular risk should be considered “significant” under all the circumstances. 

I would certainly welcome clarification by the supporters of the Solis bill that a broader 

discussion of all relevant factors is contemplated in the rulemaking, if that is indeed their 

intention. 

RESPONSE FOR THE RECORD BY JIM ROEWER, EXECUTIVE DIRECTOR, UTILITY SOLID WASTE 

ACTIVITIES GROUP

March 31, 2006 

The Honorable Paul E. Gillmor 

Chairman 

Subcommittee on Environment and 

 Hazardous Materials 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Mr. Gillmor: 

 Set forth below are my responses to the follow-up questions from the Subcommittee 

hearing held on March 2, 2006, entitled “Legislation to Implement the POPs, PIC, and 

LRTAP POPs Agreements.” On behalf of the Utility Solid Waste Activities Group 

(“USWAG”) and the Edison Electric Institute (“EEI”), I would again like to thank the 

Subcommittee for the opportunity to present our views on legislation implementing the 

Stockholm Convention. 

As I stated in my testimony earlier this month, USWAG and EEI support the leading 

role that the United States played in helping to forge the Convention and we believe that 

it is extremely important for the United States to enact implementing legislation so that it 

can continue to play a leading role regarding future strategic decisions involving the 

Convention. We believe that your bill – H.R. 4591 – provides the appropriate vehicle for 

implementing the United States’ participation in the Convention. 

Please contact me at (202) 508-5645 if you have questions regarding the answers set 

forth below. 

Very truly yours, 

James R. Roewer 

Executive Director 
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USWAG & EEI Response to Questions From Honorable Paul Gillmor

1. You state in your testimony that the type of check and balance systems contained in 

H.R. 4591 are necessary because, despite the rather detailed procedures in the 

Convention for rendering listing decisions, the U.S. should not presume that each new 

listing will adequately adhere to these procedures or will be technically sound. Can you 

tell me whether H.R. 4800 has any of these same assurances? If we opt in under Ms. 

Solis' standard, would we simply have to take the same standard as the international body 

proposes and bypass any check and balance that is a cornerstone of our democracy. Why 

should the U.S. needs to agree to this? 

Answer: H.R. 4800 does not contain anywhere near the same level of procedural 

safeguards as H.R. 4591 in evaluating the technical soundness of persistent organic 

pollutant (“POP”) listing decisions. Therefore, H.R. 4800 accords much greater statutory 

deference to the decisions of an international body in determining how the United States 

should regulate particular chemicals under its domestic laws. As a practical matter, H.R. 

4800 prevents EPA from conducting a full and open formal rulemaking regarding 

whether and how to regulate a newly identified POP; instead, H.R. 4800 subjects EPA to 

an accelerated decision-making process limited in scope to the same listing criteria that 

POPs Conference of the Parties uses to determine whether to list a particular chemical as 

a POP. This not only undermines the ability of the United States to verify the scientific 

and technical validity of a new listing decision – which have on occasion been 

procedurally and/or technically flawed – but it also prevents a full and open consideration 

of all relevant factors in determining whether and how a particular chemical should be 

regulated under our domestic laws. 

Such an approach is fundamentally at odds with this country’s long and successful 

practice of developing environmental regulations of chemicals through rulemaking 

procedures where all relevant factors, including economic implications, can be brought to 

light and considered by EPA before rendering a final rulemaking decision. Nothing in 

the Convention directs, let alone suggests, that the EPA restrict its traditional rulemaking 

process under the Administrative Procedure Act (“APA”) in evaluating whether and how 

to regulate a particular chemical, including chemicals newly identified as POPs by an 

international body. Not only is there no reason for the United States to agree to such an 

approach, but there are also compelling reasons to reject this approach; namely, to 

preserve the sovereignty of the United States in undertaking regulatory decisions through 

a process that allows all factors to be raised by the public and thoroughly considered by 

EPA before rendering a final decision. Such a process lies at the heart of the rulemaking 

process under the APA and nothing in the Convention directs the United States to 

eviscerate this procedure. 

As E. Donald Elliott, the former Assistant Administrator and General Counsel at 

EPA, articulated in his testimony before the Subcommittee earlier this month: “The 

American people are not ready – if they ever will be – to delegate our government’s 

decision-making authority to faceless international bureaucrats over whom they have no 

control by writing what amounts to a blank check to follow their lead.” Put simply, there 

is no reason for the United States to agree to the approach in H.R. 4800 that prevents the 

United States from deciding under its own laws and procedures whether and how to 

regulate particular chemical substances within our borders. 

2. As you mention in your testimony, conventions do not regulate people. However, you 

then talk about our nation potentially being subject to conflicting standards between 

domestic law and international standards. Could you please expound on this issue? 

Could a person be subject then to a two count indictment: one under TSCA and one under 

the Conventions? 
124

Answer: What I meant by conflicting standards was that unless the POPs 

Convention implementing legislation is coordinated with existing U.S. laws, it is likely 

that there will be duplicative and potentially inconsistent statutory directives under the 

implementing legislation and existing law. For example, consider PCBs. This particular 

POP is already extensively regulated under the Toxic Substances Control Act (“TSCA”). 

Indeed, PCBs are one of the most heavily regulated chemicals in the United States, with 

Congress having specifically singled out PCBs for regulation under TSCA section 6(e) 

(15 U.S.C. § 2605(e)). In response to this statutory directive, EPA has established a 

mature and comprehensive regulatory program for PCBs, which essentially regulates 

every facet of PCB use, storage, transportation and disposal in this country. See e.g., 40 

C.F.R. Part 761, Subparts A-K. At the same time, the Convention establishes goals for 

the management of PCBs, including PCB use and disposal requirements. These very 

activities, however, are already comprehensively regulated under TSCA. Therefore, 

unless the implementing legislation is drafted in a manner consistent with the structure of 

existing U.S law regulating PCBs – such as the case of H.R. 4591 – there is a high 

likelihood of duplicative and potentially inconsistent statutory schemes addressing the 

same chemical substance. Also, having two federal statutes independently regulating the 

same activity involving the same chemical substance raises the distinct possibility of a 

two count indictment for the same action: one under TSCA and one under the 

Convention’s implementing legislation. 

3. In the hearing on July 13, 2004, Mr. Yeager, Mr. Wiser, and Dr. Goldman all agreed 

with the view that the treaty relies on countries to choose their own appropriate means of 

implementation and the adding process. Therefore, it is up to the individual country's 

legislative body, which would be the Congress, to establish a process. HR 4591 proposes 

a standard that provides EPA with sufficient authority, that EPA has stated on the record 

gives them sufficient authority, and that several industry and trade groups have testified 

they are comfortable with. The rulemaking standard in the bill is "to protect human 

health and the environment" while the manner in which it does so is the balancing of 

social, environmental, and economic costs and benefits. However the standard itself 

remains to protect human health, all humans, women and children, not just manufacturing 

interests, as some allege. Why then, as proposed under HR 4800, does the U.S., need to 

jump to the conclusion of the international COP, even while the COP doesn't require us 

to implement in the same manner? In other words, is it not inherent in this country's 

domestic process to properly vet each proposal through the same regulatory standards of 

domestic law before we chose to sign up for it? While this instance may have its genesis 

from a treaty, in the end aren't we talking about U.S. laws and U.S. persons that we are 

regulating and shouldn't they have the same process they are guaranteed if the proposal 

didn't have its genesis from an international proposal? 

Answer: As explained in response to Question One above, we fully agree that it is 

inherent in this country’s domestic process to properly evaluate each POP listing decision 

through our existing regulatory procedures before determining whether and how to 

regulate a newly listed POP in this country. The fact that that the genesis of an obligation 

to evaluate whether and how to regulate a chemical substance in this country derives 

from an international treaty does not mean that the United States subordinate its domestic 

laws to an international body in rendering a domestic regulatory decision. 

As we all know, Treaties are commitments between nations to take certain actions 

and do not, in and of themselves, directly regulate individuals within those nations. 

Therefore, a key goal to keep in mind when crafting implementing legislation is to allow 

Congress to exercise its authority to establish how the United States, through our existing 

domestic laws, will meet its Treaty obligations. This will ensure that decisions regarding 
125

how the United States implements its Convention obligations remain within the sovereign 

jurisdiction of the United States and are determined by the Congress and the Executive 

Branch. 

Response to Questions From Honorable John Dingell and Honorable Hilda Solis

Do you agree that H.R. 4800 properly removes PCBs from the legislation's prohibition on 

POP chemicals because existing regulatory controls already meet the Convention's 

objectives for PCBs? 

Answer: Yes. H.R. 4800 correctly recognizes that PCBs are already subject to a 

mature and comprehensive regulatory program under section 6(e) of the Toxic 

Substances Control Act (“TSCA”), which in fact already includes a statutory ban on the 

manufacture and use of PCBs except as expressly allowed by EPA. See 15 U.S.C. 

§ 2605(e). This statutory ban meets or exceeds the PCB objectives set forth in the 

Convention; indeed, USWAG respectfully submits that the PCB goals included in the 

Convention are modeled in large part after the existing U.S. PCB regulatory program. 

Recognizing this, H.R. 4800 – like H.R. 4591 – appropriately removes PCBs from 

the legislation’s blanket prohibition on the manufacture, processing, use and disposal of 

POP chemicals because our existing regulatory controls already meet the Convention’s 

objectives for PCBs. For example, PCBs are only authorized for use in specified 

electrical equipment conditioned on an express finding by EPA that such uses will not 

pose an unreasonable risk of injury to health or the environment. See 15 U.S.C. 

§ 2605(e)(2)(B); see also 40 C.F.R. § 761.20(a)-(e). Consistent with this statutory 

standard, EPA has long ago established a ban on the use of certain PCB-containing 

electrical equipment, such as a complete ban on the use of PCB Transformers that pose a 

risk to food or feed (which went into effect over 20 years ago, on October 1, 1985). See 

id. at § 761.30(a)(1)(i). A similar ban went into effect in 1990 for PCB Transformers 

used in or near commercial buildings. See id. at § 761.30(a)(1)(ii). These bans far 

exceed – and plainly pre-date – many of the PCB phase-out goals set forth in the 

Convention. In addition to the existing domestic PCB bans, EPA’s PCB regulatory 

program also includes an array of PCB labeling, transportation, storage, and disposal 

requirements, all of which ensure that such practices will not pose an unreasonable risk of 

injury to health or the environment, and which address the PCB goals set forth in Part II 

of Annex A to the Convention (compare 40 C.F.R. Part 761, Subparts A-K with Part II of 

Annex A to the Convention). 

The fact that the existing PCB regulatory program meets the Convention’s goals 

with respect to PCBs was expressly addressed in Secretary of State Powell’s letter 

transmitting the POPs Convention to the President, where he explained that “[t]he United 

States has already taken strict measures to regulate PCBs” and that “[e]xisting statutory 

authority allows the United States to implement each of these obligations [applicable to 

PCBs], nearly all of which are currently addressed under existing PCB regulations.” See 

Message from the President of the United States Transmitting Stockholm Convention on 

Persistent Organic Pollutants, With Annexes, Done at Stockholm, May 22-23, 2001, 

Treaty Doc. 107-5, 107th Congress, 2d Session, at XX (emphasis added). In light of the 

above, USWAG fully agrees that H.R. 4800 properly removes PCBs from the 

legislation's prohibition on POP chemicals because existing regulatory controls already 

meet the Convention's objectives for PCBs. 
126

RESPONSE FOR THE RECORD BY BROOKS B. YEAGER, VISITING FELLOW, THE H. JOHN 

HEINZ III CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT

April 5, 2006 

Hon. Paul Gillmor 

Chairman 

Subcommittee on Environment and Hazardous Materials 

2125 Rayburn House Office Building 

Washington, D.C., 20515-6115 

Re: March 2, 2006 Hearing on Legislation to Implement the POPs, PIC, and 

LRTAP POPs Agreements: Answers to questions from Members of the 

Subcommittee 

Dear Chairman Gillmor, 

Thank you for your request for responses to questions from members of the 

subcommittee regarding my testimony at the March 2 hearing. I apologize for the delay 

in submitting my answers; I have been on extended travel for the past several weeks. I 

trust my responses will still be timely. I have interpolated my responses after each of the 

questions as presented to me. 

Sincerely, 

Brooks B. Yeager 

Environmental Consultant 

10608 Woodsdale Dr. 

Silver Spring, MD, 20901 

The Honorable Paul E. Gillmor

1. I am concerned about your misinterpretation of the standard of “reasonable 

balance”. The language is not directing the EPA to strike a reasonable balance 

between the costs of the regulation to chemical companies, and the benefits of 

protecting women, children and Native Americans. Instead, the balance must be 

struck between the benefits of protecting all humans and the environment and the 

cost to U.S. society in terms of jobs, American competitiveness, our standard of 

living, as well as the cost of alternatives that may turn out to be worse than the 

original chemical. Do you agree that these costs are impacts worthy of 

consideration by U.S. elected officials and regulators in addition to the international 

body? 

(A) I don’t believe my testimony gave any particular definition to the 

‘reasonable balance’ standard, except to note that it represents a different standard 

for the regulation of POPs from the standard(s) contained in the Stockholm 

Convention, which are contained in the Convention text and in the annexes to which 

particular chemicals would be added. Holding a different standard may present the 

problem I alluded to in my testimony – that we would agree to a listing decision but 

be unable to implement it fully, and therefore unable to meet our national obligation 
127

under the Convention. I don’t disagree that U.S. officials should consider economic 

costs and other consequences of control, but I believe the appropriate point to do so 

is in considering available control strategies prior to taking a position on a listing 

decision (i.e. in parallel with the Convention process). 

2. Wasn’t it a goal of the environmental NGOs in the U.S. who had been supportive of 

quick ratification of POPS Convention to seek a targeted approach to implementing 

legislation that avoided larger reforms which could bog down ratification and 

implementation efforts? 

(A) The NGOs involved would be best able to articulate their intentions at the 

time. However, the goal of achieving a targeted approach to necessary 

implementing legislation was one that was shared by members of the U.S. 

delegation. 

3. Your testimony regarding H.R. 4800 refers to the required regulatory action EPA 

must take upon listing, but that it preserves the independent regulatory decision 

process. At the same time, you claim H.R. 4591 encourages duplicative efforts and 

creates a burdensome regulatory process. I have a couple of questions: 

A. First, how does a regulatory standard that completely defers to the 

international listing criteria and does not allow other any other 

considerations in the process create an “independent regulatory process” 

other than in name only? 

(A) I believe the independence of the U.S. regulatory process 

comes from the fact that U.S. officials would make an independent 

review of information provided by U.S. civil society, including the 

private sector, as well as of any scientific questions. That review 

would then inform the U.S. agencies in making decisions as to the 

U.S. position on any issue of listing, etc., considered by the 

Convention. The fact that the review undertaken by the U.S. 

works with the basic process and standards set out in the 

Convention does not prejudge the result in any way; however, it 

does ensure, that if the U.S. reaches a regulatory decision that 

allows it to support a listing, our regulatory actions will be in 

conformance with the Convention’s standards. 

B. Second, the requirement of regulatory action by the EPA under H.R. 4800 

is triggered by the listing of the chemical by the international body. So 

even though the U.S. may choose not to opt-in, the EPA is still required to 

continue a regulatory process defined in H.R. 4800. Isn’t this requirement 

a potential source of wasting resources, energy, time, money, and people 

on a regulatory path if the U.S. has no intention of opting in? Would you 

not consider this a waste of finite Federal resources and the potential data 

call-ups required under H.R. 4800 a regulatory burden? 

(A) It’s important to remember that the POPs Convention is 

designed to capture only the most problematic chemicals, that pose 

a significant threat of adverse effects to the environment and health 

that require management at the global level. I think if the 

Convention concludes that a chemical merits listing under what 

most observers would agree is a very rigorous test, the chemical 
128

would warrant the kind of review in the U.S. contemplated by HR 

4800. 

4. As you know, a treaty is a pact between parties that are not likely to otherwise 

agree. As one of the principle U.S. negotiators for the POPS treaty, wasn’t one of 

the U.S. interests to be able to domestically implement the treaty according to 

current national laws? Since the term negotiate implies compromise, I would expect 

that the international treaty, while reflecting some of the U.S. interests, does not 

reflect them all. In order to implement this treaty within the boundaries of the U.S. 

isn’t it necessary to consider all U.S. interests? As long as the U.S. complies with 

the intent of the treaty and meets all its obligations, why shouldn’t the U.S. 

implement the treaty in manner best suited to its needs? 

(A) I think the bulk of my testimony addresses this point. My view is that 

the Convention represents a balance of interests in which the U.S. successfully 

achieved its negotiating objectives, and that the result fully accommodates the 

national need to consider the full range of U.S. interests and to make an 

independent, informed decision regarding future listings. 

5. Is your objection to cost-benefit analysis based on the idea that there is a better way 

to make decision other than comparing one effect to another, or is it because of the 

difficulty in assigning value to the expected benefits like good health and avoidance 

of child development problems? 

(A) My concern is two-fold: first, cost-benefit calculations have difficulty 

assigning specific values to expected benefits of the kind you describe, while at 

the same time often attributing high specific costs to potential changes in 

regulatory practice, and therefore often undervalue benefits; and second, 

enshrining a cost-benefit approach in the decision-making process as to how to 

regulate a listed chemical poses the real threat of having the U.S. agree to a 

listing decision undr the Convention that it is unable to fully implement. 

6. As the lead negotiator for the United States under the Clinton Administration, you 

were responsible for promoting and securing the “opt-in” process. Is that correct? 

When you negotiated the “opt-in” provisions were you expecting that Congress 

would propose language to automatically defer to the listing criteria used by the 

POP RoC? Actually, if that was the case, why would we need to “opt-in,” wouldn’t 

it be better if we “opted-out?” Does the fact that we pushed for an “opt-in” mean 

that we wanted to preserve as much sovereignty and decision making for ourselves 

as opposed to the international body? 

(A) Securing the option to automatically “opt out” of future listings upon 

ratification, and thus of having a new listing only apply to the U.S. if and when 

we “opt in” was considered an important goal by negotiators, and in effect a 

form of insurance that the U.S. would have full and sovereign discretion with 

regard to any new listing, and could not be pressured to accept a listing with 

which our regulatory authorities disagreed. I don’t believe the negotiating team 

had any particular assumption in mind regarding whether the U.S. regulatory 

process would be based on the Convention’s criteria, though we did, in 

negotiating the criteria and standards in the Convention, try to assure that they 

were consistent with the thrust of applicable U.S. regulations. 
129

7. Why is it not appropriate for the United States to have its own process that is distinct 

and separate from the POPS Treaty for regulatory purposes? 

(A) I believe it is appropriate for the U.S. to have its own process, and to 

use its independent review to inform its decision on listing matters under the 

Convention. I think, as I said in my testimony, that unnecessary difficulties 

arise when the U.S. process is bases on standards that are substantially different 

than those in the Convention. 

The Honorable John D. Dingell and the Honorable Hilda L. Solis

1. Does H.R. 4800 preserve the negotiated Stockholm Convention provision which 

provides the United States with complete discretion in deciding whether to accept or 

reject the listing of any new chemical, once the POPs Convention reaches a decision 

on them? 

(A) Yes, I believe it does. At every point in the process, U.S. regulators 

will have the ability to make an independent decision, which is responsive to 

the U.S. situation, and which can then be used as guidance by U.S. 

representatives to the Convention. 

2. As the chief negotiator for the United States of the POPs Convention, do you agree 

that H.R. 4800 allows EPA to make an independent regulatory decision that either 

implements the Convention's listing decision, or rejects its application to the United 

States? 

(A) Yes, I believe HR 4800 fully preserves the U.S. sovereign right to 

make an independent decision on any and all issues coming before the 

Convention. 

3. As the chief U.S. negotiator, can you comment on whether Annex F contains 

"proposed rulemaking standards" and whether Annex F or the Convention body text 

contain either an implicit or explicit suggestion that Convention parties must 

"balance" these items against each other when determining what the control 

measures for a POP chemical should be? 

 (A) I believe Annex F contains guidance to parties, and to the POPROC 

and the COP, regarding the evaluation of possible control strategies for 

chemicals which the Convention is considering listing. In that respect, it is 

structured as a typology of considerations that could or should be applied at this 

stage of the process. I do not believe that it contains ‘proposed rulemaking 

standards’ for new chemicals. 

 The Convention’s basic standards for the regulation of chemicals are 

contained in its text, and most importantly in the text of the appropriate article 

and annex under which a new chemical would be listed. So, for a chemical 

listed in Annex A under Article 3, the basic regulatory standard is “...to take 

the legal/administrative measures necessary to eliminate.. production and 

use...[and] import and export [of the chemical],” subject to the specific 

exemptions and general notes contained in Annex A. There is no notion in the 

text of a ‘balancing’ as such, though the listing process does assume some 

consideration of risk, costs and alternative control strategies under Annex E and 

F. 
130

RESPONSE FOR THE RECORD BY LYNN R. GOLDMAN, MD, MPH, PROFESSOR,

ENVIRONMENTAL HEALTH SCIENCES, BLOOMBERG SCHOOL OF PUBLIC HEALTH, JOHNS 

HOPKINS UNIVERSITY

March 30, 2006 

Paul E. Gillmor, Chairman 

Subcommittee on Environment and Hazardous Materials 

Washington, DC 20515-6115 

Re: Response to Questions to Witness March 17, 2006 

“Legislation to Implement the POPs, PIC, and LRTAP Agreements” 

Dear Chairman Gillmor: 

Thank you for your letter of March 17, 2006 requesting my responses to questions from 

Members of your Committee arising from the testimony that I gave at the Subcommittee 

hearing on POPs, PIC and LRTAP. I am pleased to provide my views on these issues. 

The Honorable Paul E. Gillmor

1. In your oral testimony, you stated the standard proposed in H.R. 4591 would be 

ripe for litigatory challenges because it introduces new legal terms, 

notwithstanding the use of “protect human health and the environment” in 

Section 3004(a) of the Solid Waste Disposal Act. That aside, wouldn’t new 

litigation also result from the introduction of any new terms into TSCA, 

including the regulatory standard in H.R, 4800? 

Of course, any provision of any law is likely to be litigated. However, language 

such as the language proposed in H.R. 4800, has been interpreted in the context of other 

statutes, is less likely to tie up the courts and the agency than the standard in H.R. 4591. 

Certainly the term “protect human health and the environment” is included in many 

statutes. But what is novel to H.R. 4591, and of concern to me, is the standard for action 

which is: “the Administrator may issue rules to prohibit or restrict the manufacture, 

processing, distribution in commerce for export, use, or disposal of the additional 

chemical substance or mixture to the extent necessary to protect human health and the 

environment in a manner that achieves a reasonable balance of social, environmental, 

and economic costs and benefits.” The language which I believe to be troublesome is 

highlighted in italics. What is meant by “to the extent necessary?” What is a “reasonable 

balance?” What is encompassed by terms like “social” costs? Are environmental but not 

health costs and benefits to be “balanced”? 

2. H.R. 4800 uses one of the listing criteria for the POPRC as the domestic 

regulatory standard. Considering that Mexico is proposing to eliminate the use 

of lindane, a chemical that is both approved and effective in the treatment of 

head lice in the United States, what would be the impact on public health for 

the United States under H.R. 4800, if the POPRC were to list lindane, but the 

POPS Conference of the Parties were to recommend less stringent control 

measures? 

First, in my opinion as a pediatrician even though lindane continues to be marketed 

for head lice treatment in the U.S. it has been shown to be less efficacious than far less 

toxic products and I do not recommend its use for treatment of head lice, especially for 
131

children (and most cases of head lice occur among children). That is, even though I 

would agree that lindane is approved for use in the US it is less effective than safer 

alternatives and I see no reason for prescribing it in this day and age. Second, I have no 

idea what is the regulatory status of lindane as a pharmaceutical agent in Mexico, that is, 

I do not know that it is unavailable as a treatment for head lice. But, third, the provisions 

of the POPS convention do not prevent parties from taking more stringent measures to 

protect health and the environment in their countries. 

3. North Korea and Iran have both ratified the POP’s treaty. Are you concerned 

that the standard for regulation under POP’s that you advocate in your 

testimony is influenced by countries who have hostile positions towards our 

nation and its interests? 

No. Given that nearly every nation in the world is a party to this convention this is 

not a likely scenario and thus I do not share this concern. 

4. By only granting a straight up “yes” or “no” decision on accepting POP’s 

regulations, the so called “opt – in” option, which I assume is implied in HR. 

4800, denies the United States the ability to forge a compromise in determining 

how it will implement decisions. This feature would be available to our nation 

in H.R. 4591. Does the all or none approach of H.R. 4800 make it less likely 

America will agree to POP’s decisions? By giving no leeway in the decision 

making process, no other option besides “yes” or “no,” what damage does 

H.R. 4800 do to full realization of the dynamic nature of the POP’s treaty? 

None at all. Even if the US government were to decide not to “opt-in” to a decision 

it would still have ample authority under existing statutes to take other regulatory 

actions.. 

5. Is not the very existence of the “opt-in” imply a tacit acknowledgement of the 

important role domestic government institutions play in environmental 

regulation and that they should be able to exercise it outside of the framework 

of international conventions? If the POP’s Treaty recognizes the right of 

sovereign nations in the developed world to self – regulate chemicals, why 

would you now suggest we sacrifice that right? 

I make no such suggestion. While at the EPA, I was part of the process that 

developed the US government’s position on the POPs convention. Then, and now, I was 

supportive of the provisions of the POPs convention including the recognition of the right 

of sovereign nations to regulate chemicals. 

6. You testify that the domestic regime of regulation established under H.R. 4591 

impairs the “international presumption” that decisions made by the Stockholm 

will be implemented. But the Treaty already gives countries the discretion to 

“opt – in” to these very decisions. Does this “opt – in” component you support 

also diminish the presumption of implementation? How can you argue against 

the concept of domestic regulation on the grounds of international presumption 

when you mention in your testimony a portion of the Treaty that, by your 

argument, has the same effect? 

No. As in any international agreement, the “opt-in” provision was very carefully 

negotiated and balanced against other provisions of the treaty so that, at the end of the 

day, the treaty was acceptable to the US government as well as to other governments who 
132

negotiated the agreement. It is not I but rather the proposed legislation H.R. 4591 that 

attempts to tilt the carefully negotiated balance of the treaty by asserting a presumption 

that the U.S. generally will not implement agreements under this convention. The 

manner in which this is done (establishing regulatory hurdles that EPA never will be able 

to jump) is less important than the effect of H.R. 4591. 

The Honorable John D. Dingell and the Honorable Hilda L. Solis

1. What are the criteria that the Environmental Protection Agency should use to 

determine whether proposed legislation allows the United States to effectively 

and efficiently implement the listing decisions and control measures of the 

POPs Convention? 

I was surprised by the US EPA testimony to the effect that the sole criterion for 

evaluation of legislation should be that the US government can ratify the convention and 

participate as part of the Conference of Parties. This is necessary but not sufficient. EPA 

should also evaluate proposed legislation to assure that it will give it the authority to 

carry out its mission, the protection of health and the environment. In the case of H.R. 

4591 such authority would actually be weakened. This is too high of a price to pay for 

admission to the POPs convention and should be rejected by the EPA and Congress alike. 

Very truly yours, 

Lynn R. Goldman, M.D., M.P.H. 

Professor, Environmental Health Sciences 

RESPONSE FOR THE RECORD BY STEVEN GOLDBERG, VICE PRESIDENT AND ASSOCIATE 

GENERAL COUNSEL, REGULATORY LAW & GOVERNMENT AFFAIRS, CROPLIFE AMERICA

TO: The Honorable Paul Gillmor 

Chairman, Subcommittee on Environmental and Hazardous 

Materials 

FROM: Steven Goldberg, on behalf of CropLife America 

DATE: April 5, 2006 

RE: Response to supplemental questions on legislation to implement 

POPs, LRTAP and PIC Conventions 

As the national trade association representing the developers, manufacturers, formulators 

and distributors of plant science solutions for agriculture and pest management in the 

United States, CropLife America appreciated the opportunity to testify before the 

Subcommittee on Environment and Hazardous Materials on legislation to implement the 

Stockholm (POPs), Long-range Transboundary Air Pollution (LRTAP POPs) and 

Rotterdam (PIC) Conventions. We support these Conventions, and strongly encourage 
133

Congress and the Administration to implement and ratify these important agreements as 

quickly as possible. 

The United States has the strongest and most emulated pesticide regulatory system in the 

world. Congress saw the need to for a separate statute regulating pesticides in order to 

provide for extensive health and safety testing when it passed the Federal Insecticide, 

Fungicide and Rodenticide Act (FIFRA) in 1947. Through four subsequent major 

revisions to FIFRA and the passage of the Food Quality and Protection Act (1996), 

Congress has provided for an increasingly comprehensive pesticide regulatory system as 

the basis for EPA pesticide decisions. 

Given Congress’ specific and recurrent decisions on pesticide law over the years, we 

believe FIFRA provides the necessary statutory framework to implement the Conventions 

without adding pesticide provisions to the Toxic Substances Control Act. We understand 

that it is this Subcommittee’s intent to maintain the existing jurisdictional split between 

FIFRA and TSCA, and we look forward to working with the Committee to ensure this 

separation continues. 

We applaud Chairman Gillmor’s leadership in drafting strong implementing legislation, 

holding a hearing with participation from a wide array of interested stakeholders, and 

continuing to work with all interested parties to fine tune this bill. We appreciate that our 

continued involvement in these efforts has been solicited through the Committee’s 

Supplemental Questions and hope that our responses are constructive towards the swift 

passage of this legislation. 

Follow-up Questions to POPs/PIC Hearing 

The Honorable Paul E. Gillmor: 

1. Can you explain how Ms. Solis proposed regulatory standard, “protect against 

significant adverse human health and environmental effects” would allow, if at 

all, your industry to properly balance the benefits to people and the 

environment you discuss in your testimony, such as controlling outbreaks of 

crop damaging diseases, insect infestations, and ensuring abundant and 

affordable food and fiber while protecting people, animals, and our homes? Is 

this standard anywhere else in U.S. domestic law? Are you concerned? 

H.R. 4800 would create a new regulatory standard under the Toxic Substances 

Control Act (TSCA) to “protect against significant adverse human health and 

environmental effects” caused by chemical substances or mixtures. However, 

it remains unclear what protocol would be used in making the ‘significant 

adverse effects’ determination. The Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA), the law governing domestic pesticide use, already 

contains a regulatory standard that protects the environment against 

unreasonable adverse effects. This provision is clearly defined to include “any 

unreasonable risk to man or the environment, taking into account the economic, 

social, and environmental costs and benefits of the use of any pesticide”. 

Under this provision the EPA Administrator “shall consider the risks and 

benefits of public health pesticides separate from the risks and benefits of other 

pesticides. In weighing any regulatory action concerning a public health 

pesticide under this Act, the Administrator shall weigh any risks of the 

pesticide against the health risks such as the diseases transmitted by the vector 

to be controlled by the pesticide.” The pesticide community supports the 
134

risk/benefit component under FIFRA and believes that it provides a clear 

framework for evaluating pesticide use while also considering the benefits that 

such use would provide to society. The regulatory standard as proposed in H.R. 

4800 does not clearly address the nature of “significant adverse effects” nor 

does it weigh the benefits of a particular use against any risks that may or may 

not be associated with that use. 

2. Can you explain whether H.R. 4800 recognizes the risk-benefit standards or 

judicial review standards of FIFRA? Why are you concerned that it doesn’t? 

As mentioned above, it is our opinion that H.R. 4800 does not recognize the 

risk/benefit component as defined by FIFRA. With respect to the judicial 

review provisions, both TSCA and FIFRA provide for appellate review of 

significant agency actions terminating rights to distribute or manufacture 

products under the standard requiring a court to uphold such agency actions “if 

supported by substantial evidence when considered on the record as a whole.” 

H.R. 4800 provides for judicial review on a much looser standard, requiring a 

court to uphold the law unless the action was “arbitrary or capricious.” We are 

troubled by this provision. In the context of the POPs listing process, this 

standard would allow the Agency virtually to ignore substantial evidence on 

health, security and economic benefits and even ignore contrary scientific 

evidence with little judicial scrutiny. 

3. A number of your fellow panelists here have mentioned in their testimony that 

they believe the chemical industry should bear a greater burden in developing 

and providing data on chemicals to EPA before these chemicals can go to 

market. In light of the expense and length of time it takes a chemical company 

like yours to go from the lab to the factory, could you please explain the impact 

this would have on your industry and whether you agree with their premise 

about this regulatory burden? 

Chemicals represent the most regulated products in the U.S. In the last several 

decades, Congress has passed legislation to increase federal agencies’ ability to 

determine the health and environmental risks associated with toxic chemicals 

and to address such risks. Some of these laws, such as the Clean Air Act; the 

Clean Water Act; the Federal Food, Drug and Cosmetic Act; and the Federal 

Insecticide, Fungicide, and Rodenticide Act; authorize the control of hazardous 

chemicals in, among other things, the air, water, soil, food, drugs, and 

pesticides. Other laws, such as the Occupational Safety and Health Act and the 

Consumer Product Safety Act, can be used to protect workers and consumers 

from unsafe exposures to chemicals in the workplace and the home. 

TSCA provides EPA with the authority, upon making certain determinations, to 

collect information about the hazards posed by chemical substances and to take 

action to control unreasonable risks by either preventing dangerous chemicals 

from making their way into commerce or otherwise regulating them, such as by 

placing restrictions on those already in the marketplace or requiring specific 

testing. TSCA allows EPA to control the entire life cycle of chemicals from 

their production and distribution to their use and disposal. 

As for the approval and registration of pesticides, EPA requires up to 142 

separate scientific safety tests to ensure that a product, when used properly, 

does not present health or environmental concerns. On average, only one in 
135

139,000 chemicals make it from the chemist’s laboratory to the farmer’s field. 

Pesticide development, testing and EPA approval takes 8 to 10 years and costs 

manufacturers up to $200 million for each product. Additional regulatory 

requirements on new chemicals would add significant costs and additional time 

delays for manufacturers who dedicate years to research and development 

before even considering bringing a new product to market. Additional 

requirements would reduce incentives for both large and small companies to 

discover new products that may significantly benefit certain areas of agriculture 

production or protect human health from continually emerging diseases. 

CropLife America believes the current regulatory framework afforded to EPA 

is more than adequate to protect human health and the environment from new 

chemical products. 

4. As your industry knows, particularly in light of the battle over the use of 

methyl bromide and genetically modified organisms, sometimes the struggle to 

protect the global environment can have specific economic and trade 

consequences for certain countries. Noting the comments in your testimony 

about the ways that previous global environmental treaties became the base for 

future environmental agreements, is this something we should be worried about 

concerning POPs? 

The U.S. has the strongest most emulated pesticide regulatory system in the 

world. CropLife believes any new revisions to current law should adhere to the 

highest scientific information available and include a risk/benefit component 

that considers the benefits a particular product provides to human health and 

the environment. 

Both CropLife members and the agricultural community realize the effects of 

conflicting environmental policies on a regular basis particularly as it relates to 

our international trading partners. For example, as the case with methyl 

bromide, while currently banned in the U.S., except under special conditions, 

our international trading partners continue to use in agricultural production. 

Some of these crops are later imported into the U.S. and marketed as 

organically grown. 

Crop Life America supports the POPs Convention and believes that U.S. 

presence in the Convention is mandatory to insuring that the Convention does 

not become a short circuit around good science, nor permit countries to erect 

articifical trade barriers. We reiterate as well that implementation in the U.S. 

must be based upon sound science, and take into account the environmental, 

health, security and economic considerations that are built into H.R. 4591. 

5. You mention that POPs Convention and the LRTAP POPs Protocol support a 

transparent, science-based approach, that considers health and socio=economic 

impacts in its decision and allows countries to opt-in or out of these decisions. 

Many of your panelists have criticized H.R. 4591 for addressing these features. 

Do you believe H.R. 4591 should include these features and if so does the bill 

properly track these features with the agreements? 

The purpose and language of H.R. 4591 are intended to make sure that 

decisions on implementation in the U.S. are based upon transparent, sound 

science, and reflect consideration of health, security and economic 

considerations. This is consistent both with the listing process under the 
136

Convention and Protocol, and, as well, with the provisions authorizing 

individual countries to opt-out of particular listing decisions. We strongly 

support these elements of H.R. 4591, which are consistent with the intent of the 

Convention and Protocol. 

6. In the hearing on July 13, 2004, Mr. Yeager, Mr. Wiser, and Dr. Goldman all 

agreed with the view that the treaty relies on countries to choose their own 

appropriate means of implementation and the adding process. Therefore, it is 

up to the individual country’s legislative body, which would be the Congress, to 

establish a process. H.R. 4591 proposes a standard that provides EPA with 

sufficient authority, that EPA has stated on the record gives them sufficient 

authority, and that several industry and trade groups have testified they are 

comfortable with. The rulemaking standard in the bill is “to protect human 

health and the environment” while the manner in which it does so is the 

balancing of social, environmental, and economic costs and benefits. However 

the standard itself remains to protect human health, all humans, women and 

children, not just manufacturing interests, as some allege. Why then, as 

proposed under H.R. 4800, does the U.S., need to jump to the conclusion of the 

international COP, even while the COP doesn’t require us to implement in the 

same manner? In other words, is it not inherent in this country’s domestic 

process to properly vet each proposal through the same regulatory standards of 

domestic law before we chose to sign up for it? While this instance may have its 

genesis from a treaty, in the end aren’t we talking about U.S. laws and U.S. 

persons that we are regulating and shouldn’t they have the same process they 

are guaranteed if the proposal didn’t have its genesis from an international 

proposal? 

CropLife America agrees that the U.S. sovereignty under the international 

agreements must remain in place when considering any new proposals. Any 

new proposals must meet the standards of U.S. law before implementation of 

the decision of an internal body. And we note that H.R. 4591 implements the 

Convention and Protocol under a standard, protection of human health, 

consistent with the Convention. 

TO: The Honorable Hilda L. Solis 

FROM: Steven Goldberg, on behalf of CropLife America 

DATE: April 5, 2006 

RE: Response to supplemental questions on legislation to implement 

POPs, LRTAP and PIC Conventions 

As the national trade association representing the developers, manufacturers, formulators 

and distributors of plant science solutions for agriculture and pest management in the 

United States, CropLife America appreciated the opportunity to testify before the 

Subcommittee on Environment and Hazardous Materials on legislation to implement the 

Stockholm (POPs), Long-range Transboundary Air Pollution (LRTAP POPs) and 

Rotterdam (PIC) Conventions. We support these Conventions, and strongly encourage 

Congress and the Administration to implement and ratify these important agreements as 

quickly as possible. 

The United States has the strongest and most emulated pesticide regulatory system in the 

world. Congress saw the need to for a separate statute regulating pesticides in order to 
137

provide for extensive health and safety testing when it passed the Federal Insecticide, 

Fungicide and Rodenticide Act (FIFRA) in 1947. Through four subsequent major 

revisions to FIFRA and the passage of the Food Quality and Protection Act (1996), 

Congress has provided for an increasingly comprehensive pesticide regulatory system as 

the basis for EPA pesticide decisions. 

Given Congress’ specific and recurrent decisions on pesticide law over the years, we 

believe FIFRA provides the necessary statutory framework to implement the Conventions 

without adding pesticide provisions to the Toxic Substances Control Act. We understand 

that it is this Subcommittee’s intent to maintain the existing jurisdictional split between 

FIFRA and TSCA, and we look forward to working with the Committee to ensure this 

separation continues. 

We applaud the Subcommittee’s leadership in holding a hearing with participation from a 

wide array of interested stakeholders, and continuing to work with all interested parties to 

fine tune the language. We appreciate that our continued involvement in these efforts has 

been solicited through the Committee’s Supplemental Questions and hope that our 

responses are constructive towards the swift passage of implementing legislation. 

The Honorable Hilda L. Solis:

1. Is it correct that some of the leading member companies of CropLife 

International such as BASF, Bayer Crop Science, Dow AgroScience, 

DuPont, FMC, Monsanto and Sunitomo are also members of the American 

Chemistry Council? How does CropLife International’s representation of 

these corporate members differ from the American Chemistry Council’s 

representation? 

Some, but not all, of these companies share membership with CropLife 

America, Crop Life International and the American Chemistry Council. Many 

of the listed companies offer chemical divisions, as well as, crop protection 

divisions whose products are regulated primarily by FIFRA. In general, 

CropLife represents the interests of companies manufacturing or distributing 

products for crop protection. 

2. If the POPs Convention decided to make a listing decision for the pesticide 

uses of lindane such as the six seed treatment uses, are you recommending 

that U.S. regulatory action be taken under implementing amendments to 

the Toxic Substances Control Act or under the provisions of the Federal 

Insecticide, Fungicide, and Rodenticide Act? 

Lindane is a registered pesticide and therefore any additional U.S. regulatory 

action would have to be under FIFRA. It is important to note that lindane 

represents a key example of a chemical that is currently being considered by 

the Conference of the Parties to be potentially banned or further restricted in 

use. Lindane is a valuable pesticide that is currently used in the U.S under 

specific conditions by agricultural producers as a seed treatment with no viable 

alternatives for many of its uses. Without official U.S. representation, as a 

party, to the treaties, products such as lindane could be banned from use 

without consideration of the needs for this product. 
138

TO: The Honorable John D. Dingell 

FROM: Steven Goldberg, on behalf of CropLife America 

DATE: April 5, 2006 

RE: Response to supplemental questions on legislation to implement 

POPs, LRTAP and PIC Conventions 

As the national trade association representing the developers, manufacturers, formulators 

and distributors of plant science solutions for agriculture and pest management in the 

United States, CropLife America appreciated the opportunity to testify before the 

Subcommittee on Environment and Hazardous Materials on legislation to implement the 

Stockholm (POPs), Long-range Transboundary Air Pollution (LRTAP POPs) and 

Rotterdam (PIC) Conventions. We support these Conventions, and strongly encourage 

Congress and the Administration to implement and ratify these important agreements as 

quickly as possible. 

The United States has the strongest and most emulated pesticide regulatory system in the 

world. Congress saw the need to for a separate statute regulating pesticides in order to 

provide for extensive health and safety testing when it passed the Federal Insecticide, 

Fungicide and Rodenticide Act (FIFRA) in 1947. Through four subsequent major 

revisions to FIFRA and the passage of the Food Quality and Protection Act (1996), 

Congress has provided for an increasingly comprehensive pesticide regulatory system as 

the basis for EPA pesticide decisions. 

Given Congress’ specific and recurrent decisions on pesticide law over the years, we 

believe FIFRA provides the necessary statutory framework to implement the Conventions 

without adding pesticide provisions to the Toxic Substances Control Act. We understand 

that it is this Subcommittee’s intent to maintain the existing jurisdictional split between 

FIFRA and TSCA, and we look forward to working with the Committee to ensure this 

separation continues. 

We applaud the Subcommittee’s leadership in holding a hearing with participation from a 

wide array of interested stakeholders, and continuing to work with all interested parties to 

fine tune the language. We appreciate that our continued involvement in these efforts has 

been solicited through the Committee’s Supplemental Questions and hope that our 

responses are constructive towards the swift passage of implementing legislation. 

The Honorable John D. Dingell:

1. Is it correct that some of the leading member companies of CropLife 

International such as BASF, Bayer Crop Science, Dow AgroScience, 

DuPont, FMC, Monsanto and Sunitomo are also members of the American 

Chemistry Council? How does CropLife International’s representation of 

these corporate members differ from the American Chemistry Council’s 

representation? 

Some, but not all, of these companies share membership with CropLife 

America, Crop Life International and the American Chemistry Council. Many 

of the listed companies offer chemical divisions, as well as, crop protection 

divisions whose products are regulated primarily by FIFRA. In general, 

CropLife represents the interests of companies manufacturing or distributing 

products for crop protection. 
139

2. If the POPs Convention decided to make a listing decision for the pesticide 

uses of lindane such as the six seed treatment uses, are you recommending 

that U.S. regulatory action be taken under implementing amendments to 

the Toxic Substances Control Act or under the provisions of the Federal 

Insecticide, Fungicide, and Rodenticide Act? 

Lindane is a registered pesticide and therefore any additional U.S. regulatory 

action would have to be under FIFRA. It is important to note that lindane 

represents a key example of a chemical that is currently being considered by 

the Conference of the Parties to be potentially banned or further restricted in 

use. Lindane is a valuable pesticide that is currently used in the U.S under 

specific conditions by agricultural producers as a seed treatment with no viable 

alternatives for many of its uses. Without official U.S. representation, as a 

party, to the treaties, products such as lindane could be banned from use 

without consideration of the needs for this product. 
140

RESPONSE FOR THE RECORD BY MICHAEL P. WALLS, MANAGING DIRECTOR, REGULATORY 

AND TECHNICAL AFFAIRS DEPARTMENT, AMERICAN CHEMISTRY COUNCIL

April 4, 2006 

Mr. Peter Kielty 

Legislative Clerk 

House Committee on Energy and Commerce 

2125 Rayburn House Office Building 

U.S. House of Representatives 

Washington, D.C. 20515 

VIA Email to: Peter.Kielty@mail.house.gov 

Dear Mr. Kielty: 

 I have attached a copy of the American Chemistry Council’s responses to the 

additional questions from the Subcommittee on Environment and Hazardous Materials 

from the hearing on legislation to implement the POPs, PIC and LRTAP POPs 

Agreements. 

 A hard copy of these responses will be delivered to your office on April l5, 2006. 

 If you have any questions concerning these responses, please contact me at 703 741 

5167, or by email at mike_walls@americanchemistry.com. 

 Sincerely, 

 Michael P. Walls 

 Managing Director 

 Regulatory & Technical Affairs 

Attachment 

cc: J. Couri 

 R. Flagg 

 R. Simon 
141

American Chemistry Council

Follow-up Questions to POPs/PIC Hearing 

The Honorable Paul E. Gillmor: 

1. What interests or other organizations besides those represented at the witness 

table for our hearing support H.R. 4591 or the principles enshrined in it? 

The following organizations have also expressed support for H.R. 4591 or the principles 

that it represents: 

U.S. Council for International Business 

Council of Great Lakes Industries 

North American Metals Council 

Electronic Industries Association 

Semiconductor Industry Association 

The Chlorine Chemistry Council 

The Alliance for Responsible Chlorine Chemistry 

The Vinyl Institute 

2. Mr. Walls: Could you please explain where in H.R. 4800 there is a requirement 

for the public to comment regarding U.S. interests and concerns once the COP 

has accepted the proposal to take action? 

There is no requirement in H.R. 4800 for public notice and comment following a decision 

by the Conference of the Parties (COP) on a new chemical listing under the Stockholm 

Convention. In Section 502(h) of H.R. 4800, the public has no opportunity to provide 

comment to EPA on whether or not the United States should adopt a COP decision. 

3. Is it reasonable to set the precedent of having other nations decide our 

environmental policy for us when they themselves have difficulty following 

through on their environmental treaty commitments, like the EU with Kyoto? 

The American Chemistry Council believes that H.R. 4591 recognizes the inherent 

difficulty and uncertainty of how international agreements are implemented. The United 

States government has been justifiably proud of how rigorously it implements 

international agreements – and H.R. 4591 commits the United States to a process and 

decision-making standard that will ensure that when the government agrees to adopt an 

international standard, we will be able to meet our treaty obligations in full. 

4. A number of your fellow panelists here have mentioned in their testimony that 

they believe the chemical industry should bear a greater burden in developing 

and providing data on chemicals to EPA before these chemicals can go to 

market. In light of the expense and length of time it takes a chemical company 

like yours to go from the lab to the factory, could you please explain the impact 

this would have on your industry and whether you agree with their premise 

about this regulatory burden? 

The comments made by several other panel members on the responsibility of the 

chemical industry to provide data before a chemical can be marketed unfortunately 

demonstrates a telling ignorance of what is actually required under the Toxic Substances 

Control Act and the Federal Insecticide, Rodenticide and Fungicide Act. In the case of 

persistent organic pollutants (POPs), for example, EPA has long implemented a Pre-
142

Manufacturing Notice (PMN) policy with respect to chemicals that have persistent and 

bioaccumulative characteristics. The application of that policy has worked to require that 

any new chemical application for such chemicals be supported by considerable hazard, 

use and exposure information. Moreover, it is our understanding that EPA has approved 

no new chemical applications for substances representing the most serious persistent and 

bioaccumulative concerns. 

TSCA provides EPA with the authority, upon making certain determinations, to collect 

information about the hazards posed by chemical substances and to take action to control 

unreasonable risks by either preventing dangerous chemicals from making their way into 

commerce or otherwise regulating them, such as by placing restrictions on those already 

in the marketplace or requiring specific testing. TSCA allows EPA to control the entire 

life cycle of chemicals from their production and distribution to their use and disposal. 

H.R. 4591 complements that authority by extending EPA’s regulatory authority to the 

chemicals addressed by the Stockholm, LRTAP and Rotterdam agreements. 

5. Sometimes the struggle to protect the global environment can have specific 

economic and trade consequences for certain countries. Is this something we 

should be worried about concerning POPs since other countries have already 

ratified the treaty, like China, the EU, Iran, etc.? 

The treaties which are the subject of H.R. 4591 all provide considerable flexibility to 

Parties to evaluate the economic and competitive consequences of actions under the 

agreements, in making decisions about whether and how to adopt the international 

decision. The fact that a particular government has ratified the agreements does not in 

itself tell us what actions or activities that government will take in implementing its 

responsibilities. Moreover, the possible economic and competitive consequences should 

be evaluated as one of the several factors that underpin a national implementation 

decision. H.R. 4591 preserves the sovereign right of the United States to make such a 

determination, while preserving the ultimate objective of health and environmental 

protection. 

6. A number of your fellow panelists believe that the science process within the 

international body is rigorous enough and that the United States should not 

engage in another scientific review. Do you share this opinion? 

H.R. 4591 provides flexibility to the United States in deciding whether the science 

supporting the international decision process is rigorous enough, and does not require that 

the United States engage in another scientific review. In those instances where the 

international science does not meet well-accepted standards for scientific rigor (a concept 

already contained in several U.S. environmental statutes) the United States will have the 

opportunity to ascertain the state of the science. 

 

7. Some of your fellow panelists have characterized the cost-benefit standard in 

TSCA as placing chemical company profits above the need of protecting health. 

Are you aware of any regulation, pursuant to a cost-benefit standard, that has 

tried to value company profits at all when trying to regulate a chemical? 

The American Chemistry Council is not aware of any regulation based on a cost-benefit 

standard that has valued company profits in attempting to regulate a chemical. Section 6 

of TSCA requires EPA to do what Congress has directed: to balance the effects and 

magnitude of effects of a chemical substance on health and the environment with the 

benefits of a substance (and possible substitutes) and the reasonably ascertainable 
143

economic and social consequences of a regulation. H.R. 4591 requires nothing more, and 

does not put company profits ahead of health or environmental considerations. 

8. In the hearing on July 13, 2004, Mr. Yeager, Mr. Wiser, and Dr. Goldman all 

agreed with the view that the treaty relies on countries to choose their own 

appropriate means of implementation and the adding process. Therefore, it is 

up to the individual country’s legislative body, which would be the Congress, to 

establish a process. H.R. 4591 proposes a standard that provides EPA with 

sufficient authority, that EPA has stated on the record gives them sufficient 

authority, and that several industry and trade groups have testified they are 

comfortable with. The rulemaking standard in the bill is “to protect human 

health and the environment” while the manner in which it does so is the 

balancing of social, environmental, and economic costs and benefits. However 

the standard itself remains to protect human health, all humans, women and 

children, not just manufacturing interests, as some allege. Why then, as 

proposed under H.R. 4800, does the U.S. need to jump to the conclusion of the 

international COP, even while the COP doesn’t require us to implement in the 

same manner? In other words, is it not inherent in this country’s domestic 

process to properly vet each proposal through the same regulatory standards of 

domestic law before we chose to sign up for it? While this instance may have its 

genesis from a treaty, in the end aren’t we talking about U.S. laws and U.S. 

persons that we are regulating and shouldn’t they have the same process they 

are guaranteed if the proposal didn’t have its genesis from an international 

proposal? 

The American Chemistry Council believes that H.R. 4591 provides all the tools necessary 

for the United States to meet its obligations under the treaties. We agree that the standard 

contained in H.R. 4591 requires an appropriate balancing of interests, with the underlying 

goal of protecting public health and the environment. A significant advantage of the 

process and decision-making standard contained in H.R. 4591 is that it provides a vehicle 

for an express consideration of the impacts on health and the environment in the 

United States – a factor that may, but may not, be considered in decisions at the 

international level. 
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RESPONSE FOR THE RECORD BY GLENN M. WISER, SENIOR ATTORNEY, CENTER FOR 

INTERNATIONAL AND ENVIRONMENTAL LAW

CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW 

March 31, 2006 

Hon. Paul E. Gillmor 

Chairman 

Subcommittee on Environment and Hazardous Materials 

2125 Rayburn House Office Building 

Washington, DC 20515-6115 

Re: March 2, 2006 Hearing on Legislation to Implement the POPs, PIC, and 

LRTAP POPs Agreements: Answers to questions from Members of the 

Subcommittee 

Dear Chairman Gillmor: 

Thank you for your request for responses to your questions stemming from my testimony 

at the March 2 Subcommittee hearing entitled, “Legislation to Implement the POPs, PIC, 

and LRTAP POPs Agreements.” All of my responses below are provided within the 

context of the Stockholm Convention on Persistent Organic Pollutants (POPs). For ease 

of presentation, I have reproduced your questions in their entirety, and inserted my 

answers directly after each question or sub-question. 

Sincerely, 

Glenn Wiser 

Senior Attorney 
145

1. You have stated in your testimony that you believe the “reasonable balance” 

standard required by H.R. 4591 would be a substantially weaker standard compared 

with the standard employed by the international body and H.R. 4800. I would like 

to understand the source of this concern, particularly since this standard does not go 

into effect until the United States opts-in to a specific chemical, implicitly declaring 

that the POPS Treaty standard is the reason why the U.S. wants to regulate the 

chemical. 

A. Do you agree that all the domestic notice and comment periods required in 

H.R. 4591 that occur throughout the international community’s deliberations do 

not include or ask for a cost-benefit analysis to be conducted? 

ANSWER: Yes. 

B. Do you agree that the “reasonable balance” test only occurs when the U.S. is 

undertaking a rulemaking? 

ANSWER: Yes. However, EPA’s perception of the workability of 

that test may affect whether or not it ever initiates a rulemaking. 

Please see my response to (G) below. 

C. Do you agree that in H.R. 4591, any domestic regulations resulting from the 

rulemaking can only be put into force when the U.S. consents to be bound by 

the treaty for the new chemical? 

ANSWER: Yes. 

D. Do agree [sic] that information used by the U.S. to make the consent decision is 

based on the data that was requested and received during the notice and 

comment periods that I described before, which does not include the 

“reasonable balance” test? 

ANSWER: No. By “consent decision,” I understand you to mean a 

decision of the United States to deposit its instrument of ratification 

or acceptance for a new-listing amendment and thus to be legally 

bound by that amendment. Such a decision will be made by the 

President under her or his foreign affairs/treaty making powers. 

Under the separation of powers doctrine, it would not be appropriate 

for Congress to try to require the President to make that decision on 

the basis of information obtained through the notice and comment 

periods in H.R. 4591; as I understand H.R. 4591, the bill does not try 

to establish such a requirement. The President may or may not base 

the U.S. “consent decision” upon some or all of the data requested 

and received during the notice and comment periods, but the extent to 

which she or he will base the decision upon that information is not 

dictated by any part of H.R. 4591. Because none of H.R. 4591’s 

provisions can directly establish requirements for the President’s 

“consent decision,” I cannot agree with a statement “that information 

used by the U.S. to make the consent decision is based on the data 

that was requested and received during the notice and comment 

periods.” 
146

E. Do you agree that when the U.S. consents to be bound by the international 

community’s decision on a new chemical, that the consent decision is based on 

the environmental and health-based standard? 

ANSWER: As I imply in my answer to (D) above, I do not presume 

to know what the President’s consent decision will be based upon. I 

do not believe it is spelled out by any part of H.R. 4591. 

F. Do you agree that there is a distinction between whether or not to take an action 

and how to take an action? 

ANSWER: Yes. However, your line of questioning here suggests 

that it may be helpful to clarify precisely what action is being 

contemplated. There are two distinct, primary actions. One is the 

EPA Administrator’s decision whether or not to initiate a rulemaking 

in respect to a POP that has been added to the Stockholm 

Convention. The other action is a decision by the President whether 

or not the United States should “opt in” to a new-listing amendment 

to the Convention and thus be bound by that amendment. The 

statutory authority contemplated under H.R. 4591 goes to the first 

action (EPA rulemaking), but not to the second (President’s opt-in 

decision). 

Although these two actions are distinct, how H.R. 4591 instructs EPA 

to take its action can have a direct bearing on whether the President 

may bind the United States to a treaty amendment for a newly listed 

POP. That is because Congress can effectively prevent the President 

from exercising her or his treaty making powers by failing to give 

EPA adequate authority to ban or restrict the newly listed POP. The 

President should not bind the United States to a new listing 

amendment until our domestic implementing regulations for the 

amendment are in place, because to do otherwise, the President 

would put U.S. compliance with the treaty amendment at risk, 

thereby calling into question the President’s ability to “take care that 

the laws be faithfully executed.” (U.S. Const. art. II, § 3). Thus, 

while there is certainly a distinction between whether or not to take 

these actions and how to take them, how they may be taken can have 

a direct correlation with whether they can be taken. 

G. So, do you agree that the “reasonable balance” standard is only used when 

determining how to implement the treaty, which becomes effective only after 

the U.S. consents to be bound in the first place? 

ANSWER: No. As I suggest above, and as I have stated in my 

testimony, the “reasonable balance” standard, coupled with H.R. 

4591’s standard of review, could make it difficult or impossible for 

EPA to implement a new POPs listing decision, and thus could 

jeopardize the ability of the United States to join the rest of the world 

in accepting decisions to add dangerous POPs chemicals to the 

Stockholm Convention. Because H.R. 4591 could make it 

exceedingly difficult or impossible for EPA to successfully 

promulgate a rule that would be strong enough to permit the United 

States to comply with a new-listing amendment, we anticipate that 
147

H.R. 4591 would have—and indeed, may be intended to have⎯the 

effect of prohibiting the President from opting in to future Stockholm 

amendments. 

2. Am I correct to say that one of your objections to H.R. 4591 is the use of a costbenefit analysis in the rule-making procedure? 

ANSWER: Yes. 

Do you believe that when the international community conducts a cost-benefit 

analysis, it is able to adequately account for all U.S. costs and all U.S. benefits 

and include them in their evaluation? 

ANSWER: I assume your intent is not to ask this as a general or 

hypothetical question, but rather to ask it within the context of the 

Stockholm Convention’s Article 8 procedures for evaluating and 

adding other POPs to the treaty. If my assumption is correct, the 

premise of the question is nonsensical, because the Stockholm 

Convention’s listing procedures for additional POPs do not include 

any reference to cost-benefit analysis. 

More generally, in the context of environmental health regulation, 

cost-benefit analyses do not adequately account for all costs and 

benefits. Thus, they are inherently flawed and inappropriate as a rule 

of decision. 

Isn’t standard practice in any U.S. decision-making process to conduct a costbenefit analysis unless specifically prohibited by law? 

ANSWER: I am not aware of such a sweeping “standard practice” 

for U.S. decision-making. 

How does this reliance on the international community to ensure American 

interests are preserved maintain the sovereignty of U.S. decision-making? 

ANSWER: The sovereignty of U.S. decision-making is fully 

maintained by the existence in the Stockholm Convention of Article 

25.4, which provides that a new-listing amendment “shall enter into 

force [for the United States] only upon the deposit of its instrument of 

ratification, acceptance, approval or accession.” This “opt-in” right 

ensures that the United States can never be bound by a Stockholm 

Convention new-listing decision against its will. However, if the 

United States concludes that the results of the international listing 

process—in which it will have actively participated—serve American 

interests, then the United States should be able to promptly and 

effectively adopt and implement the new listing amendment. If it 

were to become law, H.R. 4591 would likely prevent that from 

happening. 

Given our nation’s problems with our “allies” that manifest themselves in the 

“Oil-for-Food” scandal, is it not in the interest of the U.S. to conduct its own 

evaluation in the event that the international community does not include all 

U.S. costs and benefits of regulation? 
148

ANSWER: While the Stockholm Convention is administered as part 

of the United Nations system, it is a fully autonomous and distinct 

legal entity that is answerable exclusively to the will of its states 

party. Thus, I do not understand what relevance the “Oil-for-Food” 

scandal may have to an evaluation of this treaty and whether its 

processes, rights, and obligations may serve U.S. interests. I suggest 

it would be more appropriate to look to the performance of other 

multilateral environmental agreements, which, to the best of my 

knowledge, have functioned free of scandal. Alternatively, one may 

find enlightenment by examining whether there is any relationship 

between U.S. interests, this legislative process, and the vote-selling 

and influence-peddling scandals that have recently roiled the 

Congress. There is no reason to tar all international processes with 

the problems of the Oil-for-Food program, just as there is no reason 

to tar all U.S. lawmakers with the problems of Jack Abramoff and 

former Congressman Cunningham. 

3. Where in H.R. 4591 is the specific language that prohibits the United States from 

meeting the minimum control measures in the POPS Treaty? 

ANSWER: I am not aware of any provision within H.R. 4591 that contains 

“specific language that prohibits the United States from meeting the minimum 

control measures in the POPS [sic] Treaty.” Similarly, I am not aware (as I 

believe your question implies) of any instance in which anyone has alleged that 

H.R. 4591 contains “specific language that prohibits the United States from 

meeting the minimum control measures in the POPS [sic] Treaty.” Rather, the 

point I have made repeatedly in my testimony, and which I reiterate in these 

answers, is that the “reasonable balance” standard, coupled with H.R. 4591’s 

standard of review, could make it exceedingly difficult or impossible for EPA 

to successfully promulgate a rule that would be strong enough to permit the 

United States to comply with a new-listing amendment. 

4. I think we both support elimination of the “dirty dozen” and a process for addressing 

additional chemicals in the future – a concern raised by several environmental 

NGOs in the 107th Congress. Certainly, though, nothing approaching our desire to 

see additional extremely dangerous chemicals addressed would be accomplished if 

the United States were to remain in “observer status” – the same status that your 

group currently enjoys at the meetings of the full POPs parties. Since you consider 

having a seat at the table a lesser goal, does that conversely mean that you also 

believe that your government should have no more say in the POPs Convention than 

your group? 

ANSWER: Your question is predicated on your assertion that I “consider 

having a seat at the table a lesser goal.” I do not believe I have ever made such 

a statement; in fact, I have repeatedly said in public that it is very important for 

the United States to participate actively and constructively in the Stockholm 

Convention as one of the states party. 

 

5. H.R. 4800 takes the main criteria for considering a chemical by the POPs 

Conference of the Parties and makes it our domestic regulatory standard for these 

chemicals. H.R. 4800, however, also allows the use of other domestic 

environmental laws for compliance with the POPs Convention. This sets up a 
149

potential confrontation between existing environmental law and the mandate in the 

Solis legislation to use one of the Treaty’s listing criteria. If we seek full 

compliance with the treaty, when US law and the treaty are in conflict, which should 

prevail: domestic law or the treaty? 

ANSWER: Because this question is very difficult to understand, I will parse 

the sentences: 

“H.R. 4800 . . . allows the use of other domestic environmental laws 

for compliance with the POPs Convention. This sets up a potential 

confrontation between existing environmental law and the mandate in 

the Solis legislation to use one of the Treaty’s listing criteria.” 

The purpose of H.R. 4800 § 502(h) is to provide EPA with the statutory 

authority to regulate in a timely manner POPs substances that have been added 

to the Stockholm Convention, so that the United States can reliably opt-in to a 

new-listing amendment if it chooses to do so. However, H.R. 4800 accurately 

recognizes that “industrial chemicals”—which typically fall within the scope of 

TSCA—may not be the only kind of POPs that are added to the treaty. For 

example, a POP may be unintentionally caused by combustion with a release to 

the air, it may be related to releases from stockpiles and wastes, or it may be a 

pesticide. 

H.R. 4800 instructs the Administrator to initiate a rulemaking under § 502(h) 

unless the Administrator determines that (1) the chemical is not likely to lead to 

significant adverse human health or environmental effects, (2) the chemical is 

already regulated in the United States in a manner that would allow us to 

comply with the Stockholm amendment in question, or (3) a rule is being 

promulgated under another section of the U.S. Code (e.g., FIFRA, RCRA, 

CERCLA, the Clean Air Act, etc.) that similarly would allow us to comply with 

the Stockholm amendment. This latter exception makes simple, common 

sense, because it allows the United States to regulate the POP under whatever 

statutory authority represents the most expedient, efficient, and effective way to 

do so. 

It is not apparent to me why you would say that H.R. 4800’s choice-of-law 

provision “sets up a potential confrontation between existing environmental 

law and the mandate in the Solis legislation to use one of the Treaty’s listing 

criteria.” Perhaps you are trying to suggest that H.R. 4800⎯rather than serving 

as U.S. implementing legislation for a non-self executing treaty⎯is somehow 

trying to force EPA to regulate directly from the text of some disembodied 

international agreement. However, such a suggestion would misconstrue the 

purpose of U.S. implementing legislation for a treaty; confuse the relationship 

between U.S. statutes, regulations, and treaties to which we are party; and 

require a misreading of H.R. 4800. 

Nowhere in H.R. 4800 does there appear a mandate to EPA “to use one of the 

Treaty’s listing criteria.” As I explained above, the mandate is to regulate a 

POP in a manner that will allow the United States to comply with a new-listing 

amendment, unless EPA determines that the chemical is not likely to lead to 

significant adverse human health or environmental effects. 
150

“If we seek full compliance with the treaty, when US law and the 

treaty are in conflict, which should prevail: domestic law or the 

treaty?” 

This sentence establishes a false dichotomy between “US law” and “the treaty.” 

As you know, the “Constitution, and the laws of the United States which shall 

be made in pursuance thereof; and all treaties made, or which shall be made, 

under the authority of the United States, shall be the supreme law of the land . . 

.” (U.S. Const. art. VI, cl. 2). That is why, for those treaties such as the 

Stockholm Convention that are not self-executing, it is essential that the United 

States have in place adequate legal authority to ensure that we can comply with 

the treaty before we ratify it. It is also the reason why I have emphasized that if 

the Congress enacts implementing legislation that makes it difficult or 

impossible for EPA to promulgate rules that allow the United States to comply 

with a Stockholm Convention new-listing amendment, then the President will 

not be able to opt in to such an amendment, because to do so would jeopardize 

her or his ability to ensure that the laws are faithfully executed. Our concern is 

not that H.R. 4591 would establish a conflict between U.S. legal obligations. 

Rather, it is that, in some or even most cases, the only way the United States 

could avoid such a conflict were H.R. 4591 enacted would be to refrain from 

adopting Stockholm Convention amendments that regulate additional POPs. 

I would like to make an additional observation regarding the regulatory 

standard in H.R. 4800. You have attacked that standard because it is derived 

from the text of the Stockholm Convention, and apparently because that fact 

somehow suggests to you that it is perhaps un-scientific or even an affront to 

U.S. sovereignty. However, in the Message from President Bush to the Senate 

transmitting the Stockholm Convention, the following statement appears as part 

of the Letter of Submittal from then-Secretary of States Colin Powell: 

[Under Article 8 of the Convention, the Persistent Organic 

Pollutants Review Committee] must still determine that the 

chemical is “likely as a result of its long-range 

environmental transport to lead to significant adverse 

human health and/or environmental effects.” This 

formulation is consistent with risk-based decision-making 

by chemical regulators under existing U.S. law (emphasis 

added). S. Treaty Doc. No. 107-5, at xiv (2002). 

This formulation is, of course, the same one from which is derived the H.R. 

4800 standard to protect “against significant adverse human health and 

environmental effects.” I do not understand why a formulation that the 

Secretary of State and the President said “is consistent with risk-based decisionmaking by chemical regulators under existing U.S. law” would be acceptable 

when the Stockholm Convention was presented to the U.S. Senate for its advice 

and consent, but would not be acceptable for inclusion in the implementing 

legislation intended to implement the Convention. 

6. Your testimony from both the July 13, 2004 hearing before our panel and the one on 

March 2, 2006 make clear that you do not support the creation of a domestic 

regulatory standard that departs from the treaty review processes. However, I 

noticed that the website for your group, the Center for International Environmental 

Law, contains a July 16, 1999 Technical Statement by United States Environmental 
151

Organizations – 14 in total including CIEL – that raised concerns about U.S. 

involvement in the World Trade Organization when it stated: 

“We are pleased to learn that the Administration now seems to agree that ad 

hoc dispute settlement decisions alone are not a solution to the impact that 

WTO rules as currently interpreted may have on measures to protect the 

environment. United States leadership...is needed to ensure that WTO forums 

— including the Dispute Settlement Body — and WTO rules consistently defer 

to regulations and other measures adopted by international and national 

institutions.” 

How do you square your organization’s position with the need for the protection of 

distinct and separate domestic processes from international frameworks with your 

support for the selective, treaty-dependent regime in H.R. 4800? 

ANSWER: First, I do not agree that my testimonies “make clear that [I] 

do not support the creation of a domestic regulatory standard that departs 

from the treaty review processes.” The more accurate characterization of 

my views is that I do not support creation of a domestic regulatory process 

that would make it more difficult or impossible for the United States ever 

to opt in to Stockholm Convention amendments for additional POPs. 

As to your question, it seems to be based on the faulty syllogism that if my 

organization supports U.S. ratification and full implementation of the 

Stockholm Convention, we must necessarily support U.S. subservience to 

all multilateral agreements and institutions. CIEL is dedicated to using 

international law and institutions to protect the environment, promote 

human health, and ensure a just and sustainable society. We support U.S. 

ratification and full implementation of the Stockholm Convention because 

we think the treaty is a good agreement that lives up to both America’s 

and CIEL’s ideals, and because we are convinced it will serve U.S. 

interests by helping to protect the health and well being of Americans and 

people throughout the world, especially our children, grandchildren, and 

unborn generations. 

We do not share the same enthusiasm for some aspects of the World Trade 

Organization and its underlying agreements, because we believe that in 

some ways they do not contribute to achievement of a just and sustainable 

society, nor do they serve the interests of most Americans. We have been 

consistent in this respect for many years by supporting active, constructive 

involvement by the United States in sound multilateral agreements; 

opposing U.S. obstruction to such agreements when it has occurred; and 

trying to convince the United States Government to use its considerable 

influence to demand reforms and improvements in those agreements and 

institutions, such as the WTO, that we believe have serious flaws. 

7. You state that, with the exception of DDT, all Annex A chemicals should be banned 

but posit that a risk-based standard would jeopardize the ability to ban these 

chemicals. I have two (2) questions: first, H.R. 4591 does not apply a risk-based 

standard to the existing 12. Actually, doesn’t H.R. 4591 ban all 11 of the “dirty 

dozen” that are already part of Annex A as well as place a restrictive, domestic legal 

construct on PCBs? 
152

ANSWER: To the best of my knowledge, I have never stated that DDT is an 

Annex A chemical. DDT is an Annex B chemical, meaning that it is not 

targeted for elimination under the Stockholm Convention, but instead is subject 

to restriction. 

H.R. 4591, like H.R. 4800, bans outright all of the intentionally produced POPs 

that are presently listed in the Stockholm Convention, with the exception of 

PCBs, which are subject to a more extended phase-out. Accordingly, neither 

bill delegates rulemaking authority to EPA for the purpose of banning the 

existing 12. 

Second, you acknowledge that a chemical, like DDT, should not be banned. 

Doesn’t this mean that you contradict your very interest in requiring all chemicals be 

banned as per CIEL’s statement on its web page that chemicals should be guilty 

until proven innocent? 

ANSWER: I am unaware of any organization, let alone CIEL, that has “an 

interest in requiring all chemicals be banned.” The position would be 

preposterous on its face if it were made by anyone. I assume that the intent 

behind that phrase was to say that CIEL has “an interest in requiring all POPs

be banned.” 

As we have stated previously, we do believe all anthropogenic chemicals that 

exhibit characteristics of persistence, toxicity, and the ability to bioaccumulate 

and travel long distances should be phased out and eliminated from the global 

environment. However, we recognize that some chemicals with those qualities 

(DDT being the prominent example) may serve important public health 

purposes, and that eliminating the use of such chemicals before affordable, 

effective alternatives are widely available could cause serious problems, 

especially in developing countries. That is why we support restriction of DDT 

to disease vector control in accordance with the terms of Annex B, and why we 

support dramatically increased public and private funding to combat malaria 

and to develop and make available affordable, effective alternatives to DDT as 

soon as feasible. 

As to the putative statement on CIEL’s website “that chemicals should be 

guilty until proven innocent,” I would appreciate your telling me precisely 

where on our website that statement can be found, because I would like to 

correct it immediately if it is there. However, I assume that you have, in fact, 

misquoted us, and you were actually referring to one of our frequent criticisms 

of TSCA § 6 and the traditional U.S. approach to regulating chemicals, which 

we say fail in part because they are based on an outmoded assumption that all 

chemicals are innocent unless they are proven guilty. 

8. You state that criteria not considered by the POP COP should be reinserted as part 

of a domestic regulatory process designed to implement and satisfy our obligations 

to this treaty. Since the POP-RoC is not charged with worrying about any of our 

nation’s interests, does that mean you support not having the United States assess its 

own implementation in terms of impacts on U.S. jobs, U.S. standard of living, or 

national defense concerns? 
153

ANSWER: I am not familiar with any institution called the “POP COP.” I 

assume you mean the Persistent Organic Pollutants Review Committee, or 

POPRC. 

If some members of this Subcommittee and the Congress ever decide to drop 

their insistence on using this implementing legislation to score ideological 

points, and if they thereby allow the United States to proceed with ratification, I 

predict the United States will immediately have significant influence on the 

POPRC and will soon be a member of it. The nature of the Stockholm Article 

8 procedures—which reflect the design characteristics insisted upon the U.S. 

Government during the treaty’s negotiation—are such that they provide 

significant opportunities for the United States to present information relevant to 

our economic, security, and other domestic needs, and to insist that such 

information be used to shape the ultimate outcome of the POPRC’s 

recommendation for the chemical in question. To suggest, as I understand your 

question implicitly does, that the other members of the POPRC will decide to 

ignore or even deny serious interests and needs of the United States during the 

listing process presupposes, in my view, that the process has significantly 

broken down. Moreover, it presupposes that no other countries will share any 

of the same interests and needs in respect to a persistent organic pollutant, or 

that members of the global community will spite themselves in order to spite 

the United States. In any event, if one of these scenarios came to pass, then the 

United States would have the ready safeguard of Article 22.4, which ensures 

that the amendment shall not enter into force for the United States unless and 

until we agree to be bound by it. 

Also, if the POP COP [sic] dismisses certain “scientific” findings as unsubstantiated 

or unsupportable, do you believe that the United States should be compelled to 

consider or accept them as part of a rulemaking record? 

ANSWER: We do not believe that this legislation should place restrictions on 

EPA as to what scientific information it may or may not consider during the 

rulemaking process. Rather, EPA should have the discretion to be guided by its 

own expertise, subject to the requirements of Executive Order 12866, in 

determining what scientific resources it will consult and the weight it will give 

to them. H.R. 4800 recognizes the value of giving EPA this discretion. In 

contrast, H.R. 4591 contains language that tries to second guess EPA’s ability 

to weigh the value of scientific information. This “sound science” language 

would provide producers and users of POPs chemicals—or anyone else who 

wants to delay instituting a covered regulation protecting human health and the 

environment⎯with an additional opportunity to sue EPA, or to create a 

“chilling effect” that will lessen EPA’s inclination to initiate a POPs-related 

rulemaking. 

9. For the generation of a risk profile, Annex E states “The purpose of the review is to 

evaluate whether the chemical is likely, as a result of its long-range environmental 

transport, to lead to significant adverse human health and/or environmental effects, 

such that global action is warranted.” Do you agree that this is the standard in H.R. 

4800? 

ANSWER: No. The standard in H.R. 4800, found in § 502(h)(1)(B)(i) reads as 

follows: 
154

[The Administrator shall publish a final rule] to prohibit or 

restrict the domestic manufacture, processing, distribution 

in commerce for export, use, or disposal of the additional 

chemical substance or mixture, that protects against 

significant adverse human health and environmental effects 

from such domestic manufacture, processing, distribution 

in commerce for export, use, or disposal associated with the 

chemical substance or mixture (including, as the 

Administrator considers appropriate, effects from longrange environmental transport), which at a minimum 

implements the control measures specified for the chemical 

substance or mixture in Annex A and B of the POPs 

Convention and Annex I and II to the LRTAP POPs 

Protocol 

The “significant adverse human health and environmental effects” part of the 

H.R. 4800 standard is derived from Stockholm Article 8.7(a), which is similar 

to the language you quote from Annex E. 

Is it correct to say that based on the information requirements listed in only Annex 

E, no additional chemical would be placed in Annex B? 

ANSWER: No. Annex E lists information requirements for the risk profile 

required by Art. 8.6. Thus it pertains to the POPRC decision of whether a 

chemical should be considered a POP. Annex E does not go to control 

measures, which are to be proposed in response to the risk management 

evaluation required under Art. 8.7. It is through the risk management 

evaluation and determination of control measures that a chemical could 

ultimately be placed in Annex A, B, or C. 

Isn’t it true that the cost-benefit analysis conducted in Annex F reveals the cost to 

human health in addition to the benefits in banning a chemical like DDT? 

ANSWER: No. Annex F contains nothing about cost-benefit analysis. 

Instead, it provides an indicative list of factors that the POPRC should consider 

in preparing the risk management evaluation. There are no provisions for costbenefit analysis anywhere in the Stockholm Convention. 

If there were a chemical proposed for listing that had beneficial uses like DDT, and 

using only the standard as outlined in Annex E and H.R. 4800, isn’t it true that if a 

chemical causes significant adverse human health and/or environmental effects, it 

would be placed in Annex A regardless of the life-saving uses it may have? 

ANSWER: No. As I have explained above, focusing solely on Annex E does 

not reveal anything about what the control measures for a POP will be. Annex 

E is used to inform development of the risk profile, which in turn is used to 

determine whether the chemical in question is a POP and warrants global 

action. What that global action will be (i.e., what the control measures will be) 

is determined through development of the risk management evaluation and 

through the decision-making processes of the Conference of the Parties. That 

is why the rulemaking mandate of H.R. 4800 quoted above contains language 

related to the determination of whether a chemical is a POP that causes 
155

significant adverse human health and environmental effects, as well as 

language related to control measures. 

If any considerations other than the significant adverse human health and/or 

environmental effects are included, doesn’t that mean that this standard was not 

meant to be the regulatory standard, but the threshold by which the international 

community is compelled to act, not how they act? 

ANSWER: Please refer to my answer above, which responds to this question. 

However, I would like to add that your question seems to indicate confusion 

about precisely what one means by “regulatory standard.” Generally speaking, 

the operative section of a U.S. environmental health law will contain a standard 

by which EPA should or must make a determination to act, and then 

instructions for what EPA should or must do after such a determination is 

made. For example, TSCA § 6(a) contains the standard of “unreasonable risk 

of injury to health or the environment,” which is followed by the various “least 

burdensome means” responses EPA may apply (the Corrosion Proof Fittings

court’s interpretation of how EPA may apply these “least burdensome means” 

responses is widely viewed as the reason why § 6(a) is dysfunctional). An 

example from the U.S. Code that is more analogous to POPs implementing 

legislation is § 602 of the Clean Air Act, which implements the Montreal 

Protocol on Ozone Depleting Substances, a multilateral environmental 

agreement like the Stockholm Convention. Section 602 contains the standards 

“causes or contributes significantly to harmful effects on the stratospheric 

ozone layer” and “cause or contribute to harmful effects on the stratospheric 

ozone layer.” After finding that one of these standards is met, the 

Administrator must add the chemical in question to one of the lists of ozonedepleting substances. The chemical is then subject to the timed phase-out 

required by Congress in either § 604 or § 605. 

Like these and other U.S. environmental health laws, H.R. 4800 contains a 

standard for action (production, use, distribution, etc. of the chemical is likely 

to lead to significant adverse human health and environmental effects) and 

instructions from Congress for the required action (implement the control 

measures specified for the chemical in Annex A, B, or C of the Stockholm 

Convention). 
156

RESPONSE FOR THE RECORD BY HON. CLAUDIA A. MCMURRAY, ASSISTANT SECRETARY 

FOR OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS, U.S.

DEPARTMENT OF STATE

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#1) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

What countries are on the review panels and what kind of working relationship do we 

have with these countries? How similar are their environmental and economic interests to 

our own? 

Answer:

The countries represented on the POPs Review Committee during 2006 are: Armenia, 

Australia, Brazil, Burkina Faso, Canada, Chad, China, Czech Republic, Ecuador, 

Ethiopia, Fiji, Germany, Ivory Coast, Japan, Jordan, Mauritius, Mexico, Morocco, 

Norway, Philippines, Qatar, Sierra Leone, Slovenia, South Africa, Spain, Sweden, 

Thailand, Trinidad and Tobago, United Kingdom, Uruguay and Yemen. 

The countries represented on the PIC Chemical Review Committee during 2006 are: 

Argentina, Australia, Brazil, Canada, Ecuador, Finland, France, Gabon, Ghana, Hungary, 

Jamaica, Jordan, Kyrgyzstan, Italy, Libya, Malaysia, Netherlands, Nigeria, Oman, 

Rwanda, Samoa, Senegal, Slovenia, South Africa, Republic of Korea, Switzerland, 

Syrian Arab Republic, Thailand, Ukraine, United Republic of Tanzania and Uruguay. 

We have a productive working relationship with the vast majority of the countries listed 

above, and are actively engaged with many of them. The environmental and economic 

interests of countries on the committee vary widely. As a general matter, developed 

country economies share broad similarities, and most have well-developed chemical 

regulatory systems that have been in place for some time. We generally find that our 

interests are most closely aligned with countries such as Australia, Canada, Japan, and 

South Korea of the countries listed above. 

Developing country economies are drastically different than developed economies, and 

the level of environmental protection varies widely. Our environmental and economic 

interests are therefore often different, though not necessarily incompatible with those of 

developing countries. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#2) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

There has been much made of our nation’s need to participate as full partners in the 

POPS Convention, LRTAP POPS Protocol and the PIC Convention. North Korea and 

Iran have both ratified the POP’s treaty. Are you concerned that these countries have 

hostile positions towards our nation and its interests but would be able to have greater 

influence in the POPS COP than the US? 
157

Answer:

We are concerned that we are unable to take a role as a full member at technical 

committees and at the Conference of the Parties to these agreements. One hundred 

twenty countries, including those you identified above, have ratified the Stockholm 

Convention on POPs. Many of these countries have significantly different priorities, 

concerns, and national interests than the United States. By joining these agreements, 

these countries have enhanced their influence within these agreements, while U.S. 

influence is seriously undermined by our role as a non-Party. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#3) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question: 

In a written submission to follow-up questions from Chairman Gillmor resulting from the 

July 13, 2004 hearing, both EPA and the State Department stated: “We believe that a 

decision taken by the Stockholm Convention’s Conference of the Parties (COP) to 

add a chemical and the information that serves as a basis for such a decision should be 

given appropriate consideration in EPA’s rulemaking. We do not believe, however, that 

the guidance from the COP or from the POPs Review Committee should be mandatory 

for U.S. regulations.” Is that correct and is that still your position? 

Answer:

The Administration continues to believe that a COP decision to add a chemical should 

not become mandatory for U.S. regulations, but rather should be given appropriate 

consideration as part of EPA’s deliberative rulemaking process. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#4) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

Are you aware of any Federal environmental regulatory standard that is drawn directly 

from a treaty? 

Answer:

There are federal environmental statutes that implement or incorporate standards 

contained in treaties. Following are a few examples, though this list is not intended to be 

exhaustive. The Endangered Species Act states that it is a violation to engage in "trade in 

any specimens contrary to the provisions of the Convention [on Trade in Endangered 

Species], or to possess any specimens traded contrary to the provisions of the 

Convention." 16 U.S.C. 1538(c)(1). Another example is the Marine Protection, Research 

and Sanctuaries Act, which provides that, "to the extent that he may do so without 

relaxing the requirements of this subchapter, the Administrator, in establishing or 

revising criteria [for reviewing and evaluating permit applications for ocean dumping], 

shall apply the standards and criteria binding upon the United States under the 

Convention [on the Prevention of Marine Pollution by Dumping of Wastes and Other 
158

Matter]." 33 U.S.C. 1412 (a). Similarly, the Act to Prevent Pollution from Ships prohibits 

activities inconsistent with Annex V of MARPOL and Annex IV of the Antarctic 

Protocol, and requires reporting in "the manner prescribed" by the London Convention. 

33 U.S.C. 1902; 1905(e); 1906(b); 1907(a). 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#5) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

Does a determination by the POPRC (or international review panel) precede a final vote 

by the COP? 

Answer:

Yes. After the POPRC has completed its evaluation of a chemical it may make a 

recommendation to the COP as to whether that chemical should be listed for control 

measures. It is then up to the COP to decide whether the chemical should actually be 

listed. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#6) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

Is the POPS COP bound in any way to accept or adopt recommended control measures of 

the POPRC? 

Answer:

No. Under the Convention, the COP must “tak[e] due account of the recommendations 

of the Committee,” but it is not bound in any way to follow those recommendations. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Chairman Paul Gillmor (#7) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

Are there constitutional concerns with putting a mandatory duty on EPA to make a 

decision to act through either a rule or order etc that is triggered by the international 

listing process? (HR 4800 pg 37 lines 4-9) How does this not tie the hands of the 

Executive branch regarding its treaty powers into forcing them to decide whether to 

utilize the opt in within one year or not? 
159

Answer:

The Administration has expressed the view that the triggering of domestic processes must 

be a matter of domestic discretion. In any event, once the United States has declared in 

its instrument of ratification that Annex A, B, or C amendments will enter into force only 

upon the deposit of a further instrument, the Executive Branch would no longer be faced 

with any restrictive time-frame for making a decision as to whether to join an Annex A, 

B, or C amendment.

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Representatives John D. Dingell and Hilda L. Solis (#1) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

Does the Administration of President Bush support specific “advice and consent” by the 

U.S. Senate for each new chemical listed by the Conference of the Parties pursuant to the 

POPs convention? If so, please explain why. 

Answer:

The Administration supports consultations with the Senate in determining whether 

specific “advice and consent” for each new chemical would be required. The Department 

historically has considered the following eight factors in making a judgment as to 

whether a particular amendment requires the advice and consent of the Senate: 

The degree of commitment or risk for the entire Nation; 

Whether the agreement is intended to affect state laws; 

Whether the agreement requires enabling legislation; 

Past U.S. practice; 

The preference of Congress; 

The degree of formality desired; 

The proposed duration and need for prompt conclusion; and 

General international practice on similar agreements. 

 This analysis takes into account the Senate’s constitutional role in advising and 

consenting to an amendment. We plan to work with the Senate Foreign Relations 

Committee to address this issue. 

Questions for the Record Submitted to

Assistant Secretary Claudia McMurray by 

Representatives John D. Dingell and Hilda L. Solis (#2) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 3, 2006 

Questions:

Has any official from the Department of State had any written or oral communication 

with Members or staff of the Senate Foreign Relations Committee with respect to 

whether there should be “advice and consent” for each new chemical listed by the 

Conference of Parties under the POPs Convention? If so, please describe any advice, 

representations, or recommendations provided by officials of the Department of State to 

Members or staff of the Senate Foreign Relations Committee relating to the issue of 

specific “advice and consent” for each newly listed POPs chemical.
160

Answers:

I have not had any written or oral communication with any Member or staff of the Senate 

Foreign Relations Committee with respect to whether there should be “advice and 

consent” for each new chemical listed by the Conference of Parties under the POPs 

Convention. To the best of my knowledge, in past years, there have been only informal 

staff-level consultations with the Senate Foreign Relations Committee. These discussions 

did not result in any formal advice, representations, or recommendations, but were 

consistent with the position expressed in our answer to the previous question. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Representatives John D. Dingell and Hilda L. Solis (#3) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

You have testified that the “POPs Convention creates a science-based procedure to 

govern the addition of chemicals to the Convention beyond the current twelve 

substances.”

Do you agree with others who have indicated that the international process is likely to 

take a minimum of five years from the time a proposal to list a chemical is submitted to 

the Secretariat until the time the Conference of Parties may decide to list the chemical 

and specify its related control measures? If you do not agree, please explain why.

Answer:

The Stockholm Convention sets out the procedures by which new chemicals can be 

proposed, considered by the POPs Review Committee, and a final decision on an 

amendment ultimately taken by the Conference of the Parties (COP). While the COP 

itself may set out specific timelines with respect to how work is anticipated to progress in 

the POPs Review Committee over a certain period of time, the Convention itself does not 

specify a timetable for proposals to proceed. We believe it is likely to take approximately 

five years for a party submitting a proposal to list a chemical to advance to a COP 

decision to add a chemical to the Annex A, B, or C. During this process, both the 

POPRC and the COP would take important decisions on the progress of the chemical 

through the technical review process prior to the final decision on its addition to the 

Convention. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Representatives John D. Dingell and Hilda L. Solis (#4) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question: 

H.R. 4800 clearly provides that no final rule can take effect unless the United States has 

consented to be bound by the listing of the chemical substance or mixture with respect to 

which the final rule applies (Section 502(h)(1)). In addition, H.R. 4800 allows the 

Administrator of the Environmental Protection Agency (EPA) to make a proposed 

decision and issue a final decision not to regulate a listed POPs chemical if the 
161

Administrator decides that a chemical is not likely to lead to significant adverse human 

health or environmental effects from domestic manufacture, processing... use or disposal 

(Section 502(h)(1)). Under H.R. 4800 the EPA Administrator's decision could only be 

set aside if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law" -- the traditional standard of review under the Federal 

Administrative Procedure Act (Section 502(h)(2)(E)). 

In view of these provisions which give the President complete discretion to opt-in and the 

Administrator authority to decide not to regulate, do you agree that H.R. 4800 does not 

require the United States to automatically adopt decisions of the Conference of the 

Parties of the POPs Convention with respect to newly listed chemicals? 

Answer:

While we would agree that H.R. 4800 would not require automatic adoption of decisions 

of the COP, it would require EPA to automatically undertake a domestic rulemaking 

when the Conference of the Parties has decided to list a chemical. We remain concerned 

that this requirement would enable the Parties to the Convention to trigger a U.S. 

domestic process. 

Questions for the Record Submitted to 

Assistant Secretary Claudia McMurray by 

Representatives John D. Dingell and Hilda L. Solis (#5) 

House Committee on Energy and Commerce 

Subcommittee on Environment and Hazardous Materials 

March 2, 2006 

Question:

Do you also agree that neither H.R. 4800 nor H.R. 4591 delegates regulatory powers to 

the United Nations? 

Answer:

We agree that neither bill delegates regulatory powers to the United Nations. 
162

RESPONSE FOR THE RECORD BY SUSAN B. HAZEN, PRINCIPAL DEPUTY ASSISTANT 

ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES, U.S.

ENVIRONMENTAL PROTECTION AGENCY

THE HONORABLE PAUL E. GILLMOR

1. Ms. Hazen, you testified before our subcommittee on July 13, 2004 regarding a 

discussion draft -- which became the basis for H.R. 4591 -- that I had 

circulated as well as the importance of the POPS Convention and our need to 

be a party to it. I have a series of questions that I would like to ask you to 

make sure your position on items to which you testified to during the July 13, 

2004 hearing has not changed. A simple “yes” or “no” is all that is required to 

answer the question. 

A. On July 13, 2004, you testified before this subcommittee that the legislative 

language now contained in H.R. 4591 allows EPA, when issuing rules, to 

look at achieving a reasonable balance of social, environmental, and 

economic costs and benefits. Is this still your position? 

Yes. 

B. In a written submission to follow-up questions from Chairman Gillmor 

resulting from the July 13, 2004 hearing, both EPA and the State 

Department stated: “We believe that a decision taken by the Stockholm 

Convention’s Conference of the Parties (COP) to add a chemical and 

the information that serves as a basis for such a decision should be given 

appropriate consideration in EPA’s rulemaking. We do not believe, 

however, that the guidance from the COP or from the POPs Review 

Committee should be mandatory for U.S. regulations.” Is that correct and 

is that still your position? 

Yes. 

C. On July 13, 2004, you testified that you believed the legislative language 

now in H.R. 4591 provided the United States with the regulatory authority 

necessary to take action when the United States Government is in 

agreement with an international decision to list a chemical under the POPs 

Treaty. Is that still your position? 

Yes. I believe that the legislative language in H.R. 4591 would allow the 

Administration to begin the domestic regulatory process with respect to a 

substance that has been agreed to by the POPs Conference of the Parties and for 

which the United States is interested in depositing an instrument of ratification, 

acceptance, or approval. 

D. On July 13, 2004, you testified that the legislative language now in H.R. 

4591 allowed the use of “objective scientific practices” and “best scientific 

information, including peer reviewed studies to be used for the domestic 

rulemakings record.” Is that still your position? 

 

Yes. 
163

E. On July 13, 2004, you testified that the legislative language in H.R. 4591 

allowed the United States to consider the information that was gathered 

and evaluated as part of the international process. Is that still your 

position? 

Yes. 

F. On July 13, 2004, you testified that the legislative language now in H.R. 

4591 allows the United States, when weighing costs, benefits, and risks; to 

consider domestic production, export and the use of chemical as well as the 

national and international consequences that will arise as a result of 

regulatory action on that particular chemical. Is that still your position? 

Yes. 

G. You testified before this subcommittee on July 13, 2001 that even though 

the word “precaution” is not printed anywhere in the language, of what 

is now H.R. 4591, that you believed the provisions “built in” many 

important features, including transparency in the domestic process, 

opportunities for public comment and public participation in the 

broadest sense, and the “social and environmental cost consideration 

component” that “bring in this concept of precaution.” Do you stand by 

your earlier comments about H.R. 4591’s built in precautionary features? 

Yes. 

2. Ms. Hazen, I have a series of questions that try to understand the differences 

between TSCA and what proposed in H.R. 4591. Again, these questions only 

require a “yes” or “no” answer. 

A. Under TSCA Section 6, EPA may not regulate until it finds a chemical 

poses an “unreasonable risk,” the proposed regulatory authority in H.R. 

4591 would be “to the extent necessary to protect human health and the 

environment.” Is the standard in H.R. 4591 a difficult standard to meet for 

regulatory purposes? Is this standard more burdensome that current 

TSCA’s standard? 

How difficult the standard is to meet will, of course, depend on the related 

science and the other information available with respect to the relevant 

chemical substance or mixture. I do not believe the standard in H.R. 4591 is 

more burdensome than the current TSCA standard. 

B. TSCA section 6 requires EPA to select the “least burdensome 

requirement” to address “unreasonable risk”. By contrast, H.R. 4591 

would protect human health and the environment “in a manner that 

achieves a reasonable balance of social, environmental, and economic costs 

and benefits.” Does H.R. 4591 require the specific language of TSCA 

Section 6’s regulatory test of “least burdensome requirement” to address 

“unreasonable risk” to be met in order to regulate a chemical for POPs 

compliance? On paper, does the “reasonable balance” test of H.R. 4591 

appear to be more deferential? 
164

H.R. 4591 does not contain the specific language on “least burdensome” that 

currently appears in TSCA Section 6. On paper, I would say that yes, the 

“reasonable balance” test seems to be more deferential to Agency decisions. 

C. Our committee has received testimony from people who believe TSCA 

Section 6 can be a time consuming process when it comes to regulating 

chemical substances and mixtures. H.R. 4591 is intended, only for specific 

chemical substances and mixtures for which the U.S. wants to join the 

POPS Treaty or the LRTAP POPS Protocol, to help truncate the TSCA 

section 6 process, including the provision of informal hearings with the 

opportunity to cross-examine witnesses. The rulemaking authority in 

H.R. 4591 would not contain this requirement. By removing that 

requirement, does that make the regulatory process for POPS chemical 

substances or mixtures move more quickly? 

Yes, we would expect it to have that effect. 

D. Again, H.R. 4591 is intended, only for specific chemical substances and 

mixtures for which the U.S. wants to join the POPS Treaty or the LRTAP 

POPS Protocol, to help truncate the TSCA section 6 process, including the 

specific TSCA section 6 requirement on the Administrator to make a 

comparison of the estimated costs of complying with actions taken under 

TSCA and other laws and the relevant efficiencies of those laws. H.R. 

4591’s regulatory authority does not require this. By removing that 

requirement, does that make the regulatory process for POPS chemical 

substances or mixtures move more quickly? 

There is no general requirement under TSCA for such an analysis. This analysis 

is required only when the Administrator determines that a risk of injury to 

health or the environment could be eliminated or reduced to a sufficient extent 

by actions taken under another Federal law administered in whole or in part by 

the Administrator, but notwithstanding, the Administrator finds it in the public 

interest to regulate under TSCA. 

Finally, here are a few other “yes” or “no” questions for you: 

3. Is one of the criteria for listing a chemical by the POPS Review Committee: 

“whether a chemical is likely to result of its long-range transport to lead to 

significant adverse human health and/or environmental effects?” 

Yes. As part of its review process, the POPRC considers whether a chemical is 

likely, as a result of its long-range environmental transport, to lead to significant 

adverse human health and/or environmental effects such that global action is 

warranted. Importantly, the POPRC does not list a chemical but, after further 

evaluation, it may recommend to the COP that the chemical be added to the 

Convention. 

4. Does a recommendation by the POPRC (or international review panel) precede 

a final vote by the COP? 

Yes. 
165

5. Is the regulatory standard in H.R. 4800: “protects against significant adverse 

human health and environmental effects from such domestic manufacture, 

processing, distribution in commerce for export, use, or disposal associated 

with the chemical substance or mixture (including, as the Administrator 

considers appropriate, effects from long-range environmental transport).“ 

Yes. 

6. Are you aware of the any Federal environmental regulatory standard that is 

drawn directly from a treaty? 

There are federal environmental statutes that implement or incorporate standards 

contained in treaties. Following are a few examples, though this list is not intended 

to be exhaustive. The Endangered Species Act states that it is a violation to engage 

in "trade in any specimens contrary to the provisions of the Convention [on Trade in 

Endangered Species], or to possess any specimens traded contrary to the provisions 

of the Convention."16 U.S.C. 1538(c)(1). Another example is the Marine 

Protection, Research and Sanctuaries Act, which provides that, "to the extent that he 

may do so without relaxing the requirements of this subchapter, the Administrator, 

in establishing or revising criteria for reviewing and evaluating permit applications 

for ocean dumping, shall apply the standards and criteria binding upon the United 

States under the Convention [on the Prevention of Marine Pollution by Dumping of 

Wastes and Other Matter]." 33 U.S.C. 1412(a). Similarly, the Act to Prevent 

Pollution from Ships prohibits activities inconsistent with Annex V of MARPOL 

and Annex IV of the Antarctic Protocol, and requires reporting in "the manner 

prescribed" by the London Convention.33 U.S.C. 1902; 1905(e); 1906(b); 1907(a). 

 

7. On its face, does the standard in H.R. 4800 allow for any specific consideration 

by EPA of domestic security concerns? 

No. H.R. 4800 does not explicitly address this issue. 

8. On its face, does the standard in H.R. 4800 allow for any specific consideration 

by EPA of the impact on jobs or the U.S. economy due to the loss of a 

chemical? 

No. H.R. 4800 does not explicitly address these issues. 

9. Is the POPS COP bound in any way to accept or adopt recommendations of 

the POPRC? 

No. 

 

THE HONORABLE JOHN D. DINGELL AND THE HONORABLE BART STUPAK

1. The original United States Canadian Bilateral Agreement Concerning the 

Transboundary Movement of Hazardous Waste (Bilateral Agreement) was 

entered into in 1986 and amended in 1992 to cover municipal solid waste. At a 

Subcommittee on Environmental and Hazardous Materials hearing on July 23, 

2003, the Environmental Protection Agency (EPA) witness, Mr. Robert 

Springer, stated that with respect to implementing legislative proposals to 

allow EPA to enforce the Bilateral Agreement “we will bring those forward 

shortly.” 
166

Almost three years have elapsed since Mr. Springer’s testimony and 14 years since 

municipal solid waste was covered by the Bilateral Agreement and the 

Administration has failed to send up the legislative proposals necessary for the EPA 

to enforce this important international Bilateral Agreement with Canada. Why has 

the Administration not submitted legislative proposals to Congress that would allow 

EPA to fully enforce the Bilateral Agreement? 

The Administration has resolved all major issues and is finalizing clearance of draft 

Basel legislation that would authorize implementation of the municipal solid waste 

provisions of the Bilateral Agreement. The Administration did not want to divert 

attention from legislation previously forwarded to Congress that would allow the 

United States to ratify the Stockholm Convention on Persistent Organic Pollutants 

(POPs). Once progress is made on the POPs legislation, we expect the 

Administration to submit the draft Basel legislation to Congress for consideration. 

2. In the absence of any sense of urgency from the Administration, the 

Committee on Energy and Commerce in a unanimous and bipartisan fashion 

on September 27, 2005, reported H.R. 2491, the International Solid Waste 

Importation and Management Act of 2005. It provides all necessary authority 

to allow the United States to enforce the Bilateral Agreement. Does EPA and 

the Bush Administration support H.R. 2491, as passed unanimously by this 

Committee? If not, please specify why not. 

The Administration is continuing to review the complex issues in the International 

Solid Waste Importation and Management Act (H.R. 2491) and has no position on 

the bill at this time. 

3. Is it correct that Canada has notified EPA officials, formally or informally, 

that it will have all of its implementing regulations for the Bilateral Agreement 

in effect and operational this year, 2006? 

On February 20, 2006, Environment Canada notified EPA in writing that it had 

launched its public consultation process on proposed regulations for the export, 

import and transit of non-hazardous waste destined for final disposal. Environment 

Canada anticipates publishing proposed regulations in either 2007 or 2008. These 

regulations would not become operational until they became final sometime in 2008 

or 2009. 

4. What is the EPA projected timeline for when the United States implementing 

regulations for the Bilateral Agreement will be in effect and operational? 

Until Congress provides EPA with the additional statutory authority needed to 

implement fully the 1992 Amendments to the Bilateral Agreement, we cannot 

implement the municipal solid waste provisions under the Bilateral Agreement. 

5. With respect to the more than 400 trucks a day crossing the border to bring 

municipal solid waste from Toronto, Canada to Michigan, the Committee on 

Energy and Commerce House Report (No. 109-235) found that “the significant 

amount of municipal solid waste imports is having deleterious effects on the 

environment and public safety, while also eroding support for state and local 

recycling programs.” 
167

Recently the Department of Homeland Security (DHS) Office of the Inspector 

General found that the Customs and Border Patrol Bureau is not able to 

properly screen and inspect the 350 truckloads of municipal solid waste 

entering the United States daily through Detroit and Port Huron. Is EPA 

aware of the Inspector General’s Report documenting security concerns with 

the trash shipments into Michigan? 

Yes, EPA is aware of the report. 

6. Has EPA also obtained and reviewed the classified version of the DHS 

Inspector General's report relating to trucks carrying Canadian municipal 

solid waste? 

Yes, EPA is aware of the existence of the classified version of the report, but we 

have not been asked by DHS to review the classified report that we understand 

deals solely with security issues. EPA’s review of a document is normally only 

requested by other agencies when soliciting comments on environmental issues. 

THE HONORABLE JOHN D. DINGELL AND THE HONORABLE HILDA L. SOLIS

1. Does any provision in the Stockholm Convention on Persistent Organic 

Pollutants require preemption or preclusion of stricter State standards with 

respect to a chemical substance or mixture? 

The Stockholm Convention does not preclude such standards. 

2. In the 30 year history of the Toxic Substances Control Act (TSCA), how many 

State petitions or applications under Section 18(b) have been granted by the 

Environmental Protection Agency (EPA) after a rulemaking to allow a more 

stringent State law to be enacted or continue in effect? If any, please identify 

the date of any petition or application and provide any rules that EPA has 

issued under Section 18(b) of the Toxic Substances Control Act. 

In the past 30 years, EPA has received only one application from a State under 

section 18(b). The request was received from the state of Connecticut, asking the 

Agency to allow it to require the registration of PCB transformers with the State’s 

Department of Environmental Protection. EPA responded to Connecticut by 

adopting a nationwide uniform registration program for PCB transformers, thus 

effectively denying the petition by Connecticut to operate a state registration 

program by implementing a national program. 

3. Are there any deadlines for EPA to conduct the rulemaking required by 

Section 18(b) of the Toxic Substances Control Act after receiving a State 

petition to allow a more stringent State law to be enacted or continue in effect? 

TSCA does not contain any deadlines for conducting a rulemaking under section 

18(b). 

4. Is it correct that under H.R. 4591, a more stringent State law is preempted or 

precluded at the time a POPs chemical substance or mixture that is listed 

under Annex A or B of the POPs Convention has entered into force for the 

United States? 
168

It is our understanding that Mr. Gillmor is revising the current text of H.R. 4591. 

However, under the current bill dated Dec. 16, 2005, such a State law would be 

subject to section 18 of TSCA as proposed to be amended by the bill, and thus 

would be preempted. 

5. Further, is it correct that H.R. 4591, would preempt or preclude more 

stringent State laws until the time the EPA grants an exemption by rule under 

Section 18(b) of the Toxic Substances Control Act? 

As indicated above, under the December 16, 2005 version of the Gillmor bill, a 

State law regarding a POPs chemical substance or mixture would be subject to the 

provisions and procedures of TSCA Section 18. Under that provision, a State law 

regarding such a substance or mixture is preempted until EPA grants an exemption 

pursuant to the standards set forth in the law. 

 

6. A State petition for an exemption pursuant to Section 18(b) is only permitted 

to be granted by rule if the EPA Administrator determines that the State 

requirement provides (1) a significantly higher degree of protection and (2) 

does not, through difficulties in marketing, distribution, or other factors, 

unduly burden interstate commerce. 

Has the EPA issued guidance setting forth the criteria by which the agency 

would determine whether a State law does not “unduly burden interstate 

commerce”? If so, please provide it. Has the EPA ever made such a 

determination? If so, please describe the circumstances and provide a copy of 

the determination. 

EPA has not issued guidance interpreting TSCA section 18(b), nor has EPA made 

such determinations. 

7. Are there any other statutes that EPA administers where it is responsible for 

determining whether a State law unduly burdens interstate commerce? If so, 

please identify the specific statutory provisions. 

Section 3006(b) of the Resource Conservation and Recovery Act requires, in part, 

that authorized state hazardous waste programs be "consistent" with the federal 

program and other approved state programs. EPA has defined this "consistency" 

element at 40 CFR § 271.4. In order to be "consistent," a State program, among 

other things, cannot unreasonably restrict, impede or ban the movement of 

hazardous waste across the state border. 

8. Is it correct that the Clean Water Act, the Resource Conservation and 

Recovery Act, and the Safe Drinking Water Act all specifically allow States to 

enact more stringent State requirements and do not require States to petition 

the EPA and do not require subsequent EPA approval by rule for more 

stringent requirements to continue in effect or be enacted? 

In these statutes, Congress did specifically allow states to enact more stringent 

requirements, and it did not impose a petition and approval process for more 

stringent state requirements. Although this is different from the approach Congress 

took in TSCA, it nonetheless bears emphasis that the schemes established by 

Congress in these other statutes do in effect impose limitations on the scope of more 

stringent state requirements that can become part of a federally authorized program. 
169

For example, as discussed in response to question 7, under section 3006(b) of 

RCRA, as interpreted in EPA regulations, a state may not maintain a requirement as 

part of a federally authorized hazardous waste program, even if the requirement is 

more stringent than applicable federal requirements, if the requirement 

unreasonably restricts, impedes or bans the interstate movement of hazardous waste. 

In addition, under RCRA, the Clean Water Act, and the Safe Drinking Water Act 

Underground Injection Control program, state requirements that are broader in 

scope than applicable federal requirements are not considered part of a state’s 

authorized program, even though states may maintain them as a matter of state law. 

See 40 CFR 271.1(i)(2) (RCRA); 40 CFR 123.1(i)(2) (Clean Water Act); 40 CFR 

145.1(g)(2) (Safe Drinking Water Act UIC program). 

9. Under the provisions of H.R. 4591, can a State regulate any chemical that is 

not being regulated by EPA in the absence of a State application and EPA 

approval by rule pursuant to Section 18(b) of the Toxic Substances Control 

Act? 

H.R. 4591 does not change the current rights of a state under TSCA to regulate a 

chemical in the absence of EPA regulation of that chemical unless that chemical is a 

listed POPs chemical that meets the definition of a POPs chemical substance or 

mixture or a LRTAP POPs chemical substance or mixture in Section 501 of that bill 

and the listing has entered into force for the United States (except as permitted in 

Sec. 116 of the Clean Air Act). 

10. Under the provisions of H.R. 4591, can a State impose an outright prohibition 

on the use of any EPA-regulated substance within the State in the absence of a 

State application and EPA approval by rule pursuant to Section 18(b) of the 

Toxic Substances Control Act? 

As noted above, it is our understanding that Mr. Gillmor is revising these provisions 

of the December 16, 2005 version of the bill. Under the current version of that bill, 

a State could prohibit the use of an EPA-regulated substance unless that substance 

meets the definition of a POPs chemical substance or mixture or a LRTAP POPs 

chemical substance or mixture in Section 501 and the listing has entered into force 

for the United States (except as permitted in Sec. 116 of the Clean Air Act). 

However, a State would need to petition EPA under TSCA section 18(b) to grant 

approval to establish or continue in effect any State prohibition on the use of a 

POPs chemical substance or mixture or a LRTAP POPs chemical substance or 

mixture (as defined in Section 501) once the listing for the chemical substance or 

mixture has entered into force for the United States (except as permitted in Sec. 116 

of the Clean Air Act). 

11. Under the provisions of H.R. 4591, can a State establish or retain any State 

regulation of a TSCA-regulated chemical if the State regulation is adopted 

pursuant to the Resource Conservation and Recovery Act, the Clean Water 

Act, and the Safe Drinking Water Act, in the absence of a State application and 

EPA approval by rule pursuant to Section 18(b) of the Toxic Substances 

Control Act? 

As indicated above, it is our understanding that Mr. Gillmor is revising the current 

pre-emption text of H.R. 4591. However, under the current bill dated Dec. 16, 

2005, it appears that the answer is yes, unless the substance meets the definition of a 

POPs chemical substance or mixture or a LRTAP POPs chemical substance or 
170

mixture in Section 501 of the bill and the listing has entered into force for the 

United States (except as permitted in Sec. 116 of the Clean Air Act), in which case 

a state can request an exemption from the Administrator. 

 

12. Do you agree that H.R. 4800 provides for a transparent rulemaking process 

under the Administrative Procedure Act for any EPA regulation, and that the 

rulemaking process would provide interested persons an opportunity to 

participate in the rulemaking through submission of written data, views, or 

arguments? 

Yes, as currently written section 502 (h) of H.R. 4800 provides for a rulemaking 

process under the Administrative Procedure Act that allows interested persons an 

opportunity to participate. 

13. Do you agree that H.R. 4800 will ensure transparency in public notification 

within the United States so that the public will have notice and opportunity to 

comment on a decision by the POPs Review Committee or Conference that 

screening criteria are met under the POPs Convention [see Section 502(e)]? If 

not, please provide any specific changes EPA is seeking with respect to 

transparency in public notification within the United States so EPA can obtain 

necessary and crucial information. 

Yes, as currently written section 502(e) of H.R. 4800 provides that the public will 

have notice and an opportunity to comment on a decision by the POPs Review 

Committee or Conference that screening criteria are met under the POPs 

Convention. 

14. Does H.R. 4800 provide a transparent framework that would allow the public, 

including industry, the environmental community, and other stakeholders to 

engage in the process to see exactly where EPA is and provide an opportunity 

to provide any information EPA does not have and comment on information 

EPA does have? 

Yes, as currently written section 502 of H.R. 4800 provides a framework that would 

allow the public, including industry, the environmental community, and other 

stakeholders to engage in the process. 

15. Do you agree that H.R. 4800 ensures transparency in public notification within 

the United States so that the public will have notice and opportunity to 

comment on a decision by the POPs Review Committee or the Executive Body 

that global action is warranted under the POPs Convention (see Section 

502(f))? 

 

While H.R. 4800 ensures that the public will have notice and opportunity to 

comment on a decision by the POPs Review Committee or the Executive Body that 

global action is warranted under the POPs Convention, please note that under the 

LRTAP POPs Protocol, there is not a step where the Executive Body determines 

whether “global action” is warranted. Rather, the Executive Body is to ensure that 

“one or more technical reviews of the proposals are conducted” if it determines that 

“further consideration of a substance is determined to be warranted” - - where a 

technical review would include an evaluation of “whether sufficient information 

exists to suggest that the substance is likely to have significant adverse human 
171

health and/or environmental effects as a result of its long-range transboundary 

atmospheric transport.” 

16. Is EPA currently required to assess potential impacts on the domestic 

economies of other countries in deciding whether action should be taken to 

regulate under the Toxic Substances Control Act? 

No. TSCA does not direct EPA to consider potential impacts on the economies of 

other countries. 

17. At the Subcommittee hearing you testified that for pentabromodiphenylether 

(penta-BDE), chlordecone (kepone) and hexabromobiphenyl (HBB), there is no 

manufacturing in the United States and that EPA has followed up “with a 

regulatory backstop to assure that no new manufacturer or import could 

begin.” 

For these three chemicals or substances please describe the environmental and 

health concerns that led EPA to impose a regulatory backstop to ensure the 

end of manufacturing or import into the United States. For each of the 

chemicals or substances, describe the regulatory backstop that prevents 

manufacture or import into the U.S. and the date it was finalized. Is there any 

current use of any these three chemicals or substances in the United States? 

Penta-BDE. With respect to health and environmental concerns, there are only 

limited available studies. However, those studies show that Penta-BDE is persistent 

in the environment and bioaccumulates in organisms, and toxicity test data indicate 

the potential for adverse effects in humans. The major findings from the limited 

toxicity studies in rodents are effects on the liver and the thyroid. Furthermore, the 

effects on the thyroid have raised concerns for the potential for adverse effects on 

nervous system development. Environmental monitoring programs in Europe, Asia, 

North America, and the Arctic have detected Penta-BDE in human breast milk, fish, 

aquatic birds, and elsewhere in the environment. There are limited data suggesting 

that Penta-BDE can cause adverse effects in aquatic species. 

The Great Lakes Corporation (now “Chemtura”) voluntarily agreed to phase out 

production of penta-BDE as of December 31, 2004. According to the information 

currently available to EPA, Great Lakes was the sole U.S. manufacturer of 

commercial penta-BDE. EPA also believes that currently there is no import of 

penta-BDE into the United States. On December 6, 2004, EPA proposed a TSCA 

Section 5 Significant New Use Rule (SNUR) covering penta-BDE and certain other 

polybrominated diphenylether (PBDE) congeners. The SNUR, when finalized, 

would require manufacturers and importers to notify EPA 90 days before 

commencing the manufacture or import of the subject substances on or after 

January 1, 2005, for any use. The final rule is currently under development. EPA 

believes that manufacturers of end products have switched to alternatives to pentaBDE. Products that contain the substance (e.g., foam in furniture) are still in use. 

Chlordecone (kepone). Pursuant to section 6 (b) of the Federal Insecticide, 

Fungicide and Rodenticide Act, EPA issued a series of Federal Register notices in 

1976 and 1977 to cancel all chlordecone-containing products because of cancer 

concerns. This means that chlordecone can no longer be lawfully distributed, sold, 

or used as a pesticide in the United States. 
172

For hexabromobiphenyl (HBB). EPA’s hazard assessment of polybrominated 

biphenyls (PBBs) in 1979 indicated that HBBs are teratogenic, embryotoxic, and 

immunosuppressive in mice and rats, and carcinogenic in rats. PBBs are persistent, 

accumulate in the environment, and should show similar toxicity to polychlorinated 

biphenyls (PCBs) due to the fact that PBBs and PCBs have similar chemical 

structures. Production of PBBs, including HBB, has been phased out. EPA 

published a SNUR on January 26, 1987, designating “any use” of HBB as a 

significant new use. Persons must submit a notice to EPA at least 90 days before 

they manufacture, import, or process the chemical substance for any use. EPA has 

never received such a notice for HBB. It is possible that some of the materials that 

incorporated HBB prior to its phase out in United States commerce are still in use. 

What action would EPA take if a company attempted to manufacture or 

import one of these chemicals or substances into the United States? 

For HBB and penta-BDE (once a SNUR is finalized), if EPA receives a SNUR 

notice, EPA would consider all the available information, including that in the 

notice, and would take action, if appropriate, under TSCA section 5(e), 5(f), 6, or 7 

to control the activities for which it has received the SNUR notice. For 

chlordecone, because there are no registered uses of the pesticide, distribution of the 

pesticide is prohibited, unless it is for export. 

18. You also testified that there is no domestic production of the chemical 

perfluoroctane sulfonate (PFOS). For this chemical please answer the 

following questions: 

(a) Has EPA issued a significant new use rule for PFOS? If so, please indicate 

when it was finalized. 

On March 11, 2002, EPA promulgated a SNUR under TSCA for 13 PFOSrelated chemicals, including polymers. These chemicals were predominantly 

PFOS-based, but included a range of higher and lower homologues – chemicals 

with different carbon chain length structures – as well. These related chemicals, 

including PFOS and its higher and lower homologues, are collectively referred 

to as perfluoroalkyl sulfonates, or PFAS. The SNUR designated any 

manufacture or import of these chemicals for any use on or after January 1, 

2002 as a “significant new use.” 

On December 9, 2002, EPA promulgated a final SNUR for 75 additional PFAS 

substances. This SNUR excluded from regulation four specific uses of these 

chemicals, including semiconductor manufacture, aviation hydraulics, certain 

imaging uses, and the use as an intermediate to produce other chemicals for the 

aforementioned uses, but designated any manufacture or import for any other 

use of these chemicals on or after January 1, 2003 as significant new use. 

On March 10, 2006, EPA proposed a SNUR for 183 PFAS chemicals on the 

TSCA section 8(b) Inventory of existing chemical substances. The proposed 

“significant new use” for these chemicals is any manufacture or import for any 

use with the exception of the uses excluded from regulation in prior PFAS 

SNURs. 

(b) What were the environmental and health concerns that led EPA to issue a 

significant new use rule? 
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PFOS had been detected at low levels in the blood of humans and wildlife 

throughout the United States and elsewhere, providing clear evidence of 

widespread exposure to the chemical. PFOS is persistent in the environment, 

and has a half-life in humans measured in years, indicating a potential for 

bioaccumulation. Animal studies demonstrated reproductive, developmental, 

and systemic toxicity. 

(c) Is it correct that the 3M company was the sole manufacturer of PFOS in 

the United States and it halted production in 2000 and discontinued its use 

in the product Scotchgard? What were the environmental and health 

concerns that led the 3M Company to discontinue the manufacture and use 

of PFOS? 

3M was the sole U.S. manufacturer of PFOS, and the principal manufacturer 

worldwide. In 2000, 3M voluntarily committed to discontinue the production 

of PFOS by the end of 2002. 3M discontinued about 80% of PFOS production 

by the end of 2000, including all PFOS manufacture in the United States and 

terminated global production by the end of 2002. 3M reformulated its 

Scotchgard® products to eliminate the presence of PFOS during that phase-out 

period. 3M indicated in their press release and correspondence that they made 

their decision to phase out the manufacture and use of PFOS “in light of the 

persistence of certain fluorochemicals and their detection at extremely low 

levels in the blood of the general population and wildlife.” 

(d) Is it correct that toxicology data show that rat and monkey exposure to 

high doses of PFOS can result in death, while low doses can cause 

gastrointestinal lesions and weight loss? 

Yes, although it is important to take note of the specifics of that assessment 

with respect to factors such as exposure, age, and bioaccumulation. 

 

(e) Is it correct that PFOS has been shown to be moderately toxic in fish and 

acquatic organisms? 

 Studies on PFOS do generally indicate moderate toxicity to environmental 

species (fish, aquatic plants and invertebrates, amphibians and birds), although 

in the case of honey bees, high toxicity was observed. 

19. It is our understanding that Sweden has proposed perflurooctone sulfonate 

(PFOS) for listing under the POPs Convention, but in your testimony you used 

the term PFAS. Are they the same chemical or a different chemical? Do you 

agree that PFOS is the chemical being proposed by Sweden? 

PFAS chemicals are a more general group that includes PFOS chemicals. PFOS 

chemicals are perfluoroalkyl sulfonate (PFAS) chemicals characterized 

predominantly by an eight-carbon chain length. Many PFAS chemicals comprise a 

range of carbon chain lengths, including eight-carbon structures as well as both 

higher and lower homologues. EPA uses the generic term PFAS to encompass this 

entire family of perfluorinated compounds, which includes those with eight carbons 

as well as those with shorter and longer carbon chain lengths. The Agency uses the 

term PFOS to represent only those PFAS chemical substances that are 

predominantly eight carbons in length. We agree that PFOS is a chemical being 
174

proposed by Sweden, although Sweden also proposed 96 additional PFAS 

chemicals for listing consideration. 

20. In your testimony you indicated there are several low volume uses of PFAS. 

Please describe these uses and identify where the PFAS is manufactured if 

there is no domestic production. 

In the final SNUR on 75 PFAS chemicals published December 9, 2002 and the 

proposed SNUR on 183 additional PFAS chemicals published March 10, 2006, 

EPA included four exclusions: (i) use as an anti-erosion additive in fire-resistant 

phosphate ester aviation hydraulic fluids; (ii) use as a component of a photoresist 

substance, including a photo acid generator or surfactant, or as a component of an 

anti-reflective coating, used in a photomicrolithography process to produce 

semiconductors or similar components of electronic or other miniaturized devices; 

(iii) use in coatings for surface tension, static discharge, and adhesion control for 

analog and digital imaging films, papers, and printing plates, or as a surfactant in 

mixtures used to process imaging film; and (iv) use as an intermediate only to 

produce other chemical substances to be used solely for the uses listed in i., ii., or 

iii. 

Although these PFAS chemicals are not currently manufactured in the United 

States, some of these chemicals are still manufactured by companies in Germany, 

Italy, Korea, and Japan, and may also be produced in China and Russia. Companies 

using these PFAS chemicals in these applications may be importing the chemicals, 

or may have stockpiled these PFAS chemicals while they were still being produced 

in the United States. Each of these uses is characterized by very low volume, low 

exposure potential, and low release to the environment, and viable alternatives to 

PFAS in these specific technical uses are not presently available. 

Are there any uses of PFOS in the United States? If so, please identify any 

such uses and identity the quantities being imported, the name and location of 

the manufacturer, and the name of the companies that are using PFOS in the 

United States. 

EPA is currently unaware of any uses of PFOS in the United States beyond the 

limited volume used in the four exclusions provided for in the December, 2002 final 

rule. Some old PFOS-based products may still be in use, including fire fighting 

foams produced prior to the phase-out. 

21. Is it correct that all lindane manufacturing in the U.S. ceased in 1977? 

Yes, all lindane manufacturing in the United States ceased in 1977. 

22. Is it correct that the sole supplier of lindane to the U.S. is Inquinosa, a Spanish 

company? Is it also correct that the lindane imported into the U.S. is from a 

Romanian plant owned by Inquinosa? 

Yes, Inquinosa is the sole supplier of lindane to the United States at this time. They 

manufacture it at the OLTCHIM facility under a joint venture in Valcea, Romania. 

23. Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA 

in 2002 allowed six agricultural uses of lindane for seed treatment subject to 

the Agency’s ability “to establish all required tolerances for lindane residues 
175

on food." Has EPA established all required tolerances for lindane residues on 

food? If so, when were such tolerances established? 

EPA has not established tolerances for potential lindane residues on food resulting 

from the seed treatment uses but plans to make a decision by August, 2006. On 

February 8, 2006 EPA published a revised risk assessment for lindane and the other 

hexachlorocyclohexane (HCH) isomers, which are byproducts of the lindane 

manufacturing process. The revised risk assessment indicates potential risks from 

dietary exposure, not to lindane from seed treatment but to the alpha and beta HCH 

isomers, to communities in Alaska and others in the circumpolar Arctic region who 

depend on subsistence food. EPA is reviewing the data that has been submitted and 

will consider the public comments on the revised risk assessment. 

24. In the Technical Review Report on lindane under the UNECE POPs Protocol 

prepared by the Federal Environment Agency of Austria and published in 

August 2004, there is an assertion that, in response to a 2004 questionnaire, 

only the United States “reported the use of lindane for seed treatment to be 

relevant.” The report further stated that “all other countries are in the stage 

of prohibition or had already interdicted all authorization and use of lindane 

containing plant protection products.” Are these statements accurate and do 

they reflect the results of the 2004 questionnaire? If not, please explain why? 

These statements are accurate and reflect the results of the 2004 questionnaire. 

25. Is it correct that 16 countries reported available and well known alternatives to 

lindane in 2004? Please describe the alternatives. 

16 countries have reported on available alternatives for the use of lindane. 

According to the Technical Review Report on Lindane, prepared by Austria for the 

UNECE POPs Protocol, the following alternatives were reported to be used in the 

UNECE region: pyrethroids, imidacloprid, fipronil, isofenphos, thiamethoxan, 

clothianidin benfuracarb, furathiocarb, carbosulfan, aldicarb, terbufos, carbofuran, 

fenitrothion, tefluthrin, chlorpyrifos, diazinon, alpha cypermethrin, beta cyfluthrin, 

methiocarb, chloronicotinyls, permethrin, tetramethrin, pyrethrins, d phenothrin, 

malathion, diazinon, fenitrothion, bendiocarb, crotamiton, ivermectin, benzyl 

benzoates, deltamethrin, neonicotinoides, and bactoculicidum. 

In the United States, EPA has registered alternatives for all of the six seed treatment 

uses of lindane. For the pharmaceutical uses of lindane, FDA has alternatives 

available for both head lice and scabies treatments. 

26. Does EPA consider lindane to be toxic to humans and mobile in the 

environment with the potential to bioaccumulate? 

EPA conducted a human health risk assessment to support the 2002 Re-registration 

Eligibility Decision for lindane. Based on EPA’s assessment of dietary and 

drinking water risk associated with use of lindane as a pre-plant seed treatment, 

both acute and chronic aggregate dietary and drinking water risks from lindane are 

below EPA’s level of concern. Based on the Agency's assessment, on-farm 

handling of the lindane dust formulation to mix/load and plant treated seed resulted 

in risks of concern. However, required mitigation including use of a lower seed 

planting rate and additional personal protective equipment reduced these risks to 

below EPA’s level of concern for on-farm handlers. Estimates of risk from 
176

commercial seed treatment were below EPA’s level of concern with no risk 

mitigation required. Also, the Agency’s assessment indicated no risk concerns for 

post-application exposures to agricultural workers. 

Lindane is persistent and moderately mobile in the environment, with an estimated 

aerobic soil half-life of 2.6 years. Lindane bioconcentrates appreciably, but 

depurates rapidly. Lindane can bio-accumulate easily in the food chain due to its 

high lipid solubility and can bio-concentrate rapidly in microrganisms, 

invertebrates, fish, birds and mammals; however, bio-transformation and 

elimination are relatively rapid when exposure is discontinued. 

27. Does EPA consider lindane to be a possible human carcinogen? 

Based on all available data received through 2001, EPA has classified lindane in the 

category entitled “Suggestive evidence of carcinogenicity, but not sufficient to 

assess human carcinogenic potential”, based on an increased incidence of benign 

lung tumors in female mice only. The Center for Disease Control’s Agency for 

Toxic Substances and Disease Registry concurs with EPA's classification. 

28. Has lindane been found to cause neurotoxic effects and does it also appear to 

cause kidney and liver toxicity? 

Lindane primarily affects the nervous system. At high doses, in acute, subchronic, 

and developmental neurotoxicity studies and chronic toxicity/oncogenicity studies, 

lindane was found to cause neurotoxic effects. Lindane also appears to cause renal 

and hepatic toxicity. 

29. Is it correct that the U.S. has cancelled the use of lindane as an aerial 

application and that the North American Free Trade Agreement (NAFTA) has 

restricted the use of lindane, prohibiting all aerial application of the pesticide? 

What were the reasons that led the U.S. and NAFTA to take restrictive 

measures and prohibit aerial application? 

The EPA cancellation decision for the aerial application of lindane was made in 

1983, more than 10 years before NAFTA and its related side agreements. The 

concern was for risk to aquatic organisms from spray drift. Lindane is acutely toxic 

to fish, so eliminating spray drift from aerial application was one way to cut back on 

the risks from drift. This action was based on the Federal Insecticide, Fungicide and 

Rodenticide Act (FIFRA). 

30. If the POPs Convention listed lindane with minimum control measures, would 

EPA use the Federal Insecticide, Fungicide and Rodenticide Act or the Toxic 

Substance Control Act to effectuate the lindane listing decision of the POPs 

Convention? 

 If the United States was interested in opting-in to the listing, we would use the 

appropriate statute or statutes to meet the control measures, consistent with our 

domestic authorities and decision-making process. While FIFRA is the 

predominant statute for regulating pesticides, lindane is listed on the TSCA 

Inventory (although we are aware of no recent production for TSCA uses) and has 

uses that are regulated under the Federal Food, Drug, and Cosmetic Act. 

 
177

31. Would the provisions of H.R. 4800 or H.R. 4591 be applicable in effecting a 

POPs Convention listing decision for lindane? If so, please explain how the 

authorities of H.R. 4800 or H.R. 4591 would be applicable. 

As a general matter, the provisions of H.R. 4800 or H.R. 4591are applicable to a 

chemical substance or mixture, not a pesticide product. However, if the lindane 

decision at hand is about a chemical substance or mixture issue, then the authorities 

given in the legislation would, for example, allow the United States to be informed 

by the bills' public information provisions before the chemical is considered by the 

Conference of the Parties. This information could then be used by the United States 

in evaluating any proposed listing decision. 

32. Is it correct that under the NAFTA, lindane is undergoing a joint reregistration review between the U.S. and Canada? What is the current status 

of this review? What position is Canada taking with respect to the use of 

lindane? 

The United States is not conducting a joint re-registration review with Canada. 

However, we would note that since 2000, EPA and the Canadian Pest Management 

Regulatory Agency (PMRA) have had a data review sharing agreement. Based on 

the March, 2006 draft of the Lindane North American Regional Action Plan 

(NARAP), lindane is no longer registered in Canada for agricultural pest control 

uses, including veterinary uses, as of January 1, 2005. Lindane is still approved for 

lice and scabies treatment in Canada as a non-prescription drug with four 

commercial products containing 1% lindane in solution, currently marketed by two 

companies. 

33. Is it also correct that under the NAFTA environmental side agreement, the 

U.S., Canada, and Mexico committed, beginning in 2002, to develop a North 

American Regional Action Plan (NARAP) on lindane? 

Please describe the results to date of the actions taken by the three countries to 

develop a NARAP on lindane. 

In 2002 the Council of Ministers for the Commission for Economic Cooperation 

(CEC) issued Resolution 02-07 directing the Sound Management of Chemicals 

Working Group to develop a NARAP on lindane, with EPA chairing the Lindane 

Task Force. 

The initial draft of the Lindane NARAP was developed in September 2004. The 

draft has gone through intra- and inter-agency review in all three countries and 

through a public comment period that ended in November 2005. The final intraand inter-agency review ended in February 2006. The goal is to have the NARAP 

finalized by early May 2006 so that it can be transmitted to the CEC Council for 

approval in June 2006. 

34. At the Subcommittee hearing you indicated that there was one other use for 

lindane, a pharmaceutical use. Is it correct that lindane has been approved by 

the FDA as a prescription drug to treat lice and scabies? 

Lindane use, with the appropriate FDA box warning, is approved by the FDA for 

pediculosis (lice) and scabies treatment and has been marketed as a pharmaceutical 

product since 1951. In 2003, as a result of the reassessment of lindane risk factors, 
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FDA took action to increase hazard warnings and to reduce the maximum package 

size to minimize the possibility of overuse. FDA issued a Public Health Advisory 

concerning the use of topical formulations of lindane lotion and lindane shampoo 

for the treatment of scabies and lice. The boxed warning emphasizes that lindane is 

a second-line treatment, updates information about its potential risks, especially in 

children and adults weighing less than 110 pounds, and reminds practitioners that 

reapplication of lindane lotion or lindane shampoo is not the appropriate treatment 

if itching continues after the single treatment. 

35. Is it correct that EPA stated in 2002 that, based on blood-level analysis, it 

cannot conclude at this time with reasonable certainty that exposure to lindane 

through scabies treatment will not result in unacceptable exposure and risk? 

EPA did state in 2002 that, based on blood-level analysis, it “cannot conclude at this 

time with reasonable certainty that exposure to lindane through scabies treatment 

will not result in unacceptable exposure and risk.” However, EPA defers to FDA as 

the lead U.S. Agency on human ectoparasite products and the FDA concluded that 

risk from exposure to lindane as a second-line use product, when other products 

failed or were not tolerated, was reasonable, considering the benefit. 

36. What studies or scientific assessments has the EPA conducted since 2002 to 

determine whether exposure to lindane through scabies treatment will result in 

unacceptable exposure and risk? Please provide any such studies or 

assessments. 

EPA has not conducted any studies or scientific assessments since 2002 on the 

exposure to lindane for scabies treatment. EPA defers to FDA as the lead U.S. 

Agency on human ectoparasite products. 

37. Is it correct that in 2000 the State of California banned the use or sale of 

lindane for use on humans in the treatment of lice and scabies? 

At a public meeting of the Lindane Task Force, Ann Heil of the County Sanitation 

Districts of Los Angeles County stated that California AB 2318 Chapter 236 banned 

the use or sale of lindane for use on humans in the treatment of lice and scabies. 

38. Is it correct that an anecdotal survey of medical and public health authorities 

conducted by the Los Angeles County Sanitation Districts noted no difficulties 

or concerns that were raised by the California ban after over two years in a 

population of 30 million? 

It is our understanding that this anecdotal information was followed up with 

additional data collection that was provided to the Lindane Task Force in October 

2005 by Mr. Stan Husted, Manager, Head Lice Prevention and Control Program, 

California Department of Health Services. 

39. Is it also correct that lindane concentrations in wastewater exiting the Los 

Angeles County Sanitation Districts treatment plants have declined from nonattainment of the 19 ppt goal to negligible following the 2002 institution of the 

ban in California on pharmaceutical sales of lindane? 
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According to the information provided to the Lindane Task Force by Ann Heil of 

the County Sanitation Districts of Los Angeles County at the public meeting held in 

Anchorage, Alaska, February 11-12, 2004, this is correct. 

40. Is it correct that there are no remaining allowable uses for lindane in 

agricultural products in Canada? 

It is our understanding that as of January 1, 2005, lindane is no longer registered for 

agricultural pest control uses in Canada, including veterinary uses. This 

information was provided by the Canadian representatives to the Lindane Task 

Force to be included in the March 2006 draft of the Lindane North American 

Regional Action Plan (NARAP). For additional information about this document, 

see question 33 above. 

41. Is it correct that Mexico has agreed to eliminate all agricultural, veterinary, 

and pharmaceutical uses of lindane through a phased-out approach? 

This is correct pursuant to information provided by the Mexican representatives to 

the Lindane Task Force to be included in the March 2006 draft of the Lindane 

North American Regional Action Plan (NARAP). For additional information about 

this document, see question 33 above. 

42. Are you aware of other States that have banned the use or sale of lindane for 

use on humans in the treatment of lice or scabies or have similar legislation 

introduced? If so, please identify any such State. 

To our knowledge, New York and Illinois have introduced similar legislation. (New 

York Bill A08628 introduced on February 5, 2004 but it did not pass; another bill, 

A04162, was reintroduced but it was defeated in the health committee on May 31, 

2005. ) (Illinois Bill HB 1362 was introduced on April 8, 2005 but was re-referred 

to the rules committee on May 6, 2005.) 

 

43. If the Conference of the Parties determines that lindane should be listed in 

Annex A for elimination and the President consents to opt-in, under what 

statutory authority would the U.S. eliminate the pharmaceutical use of lindane 

as a prescription drug to treat lice and scabies? 

If lindane were listed in Annex A for elimination without an exemption for the 

pharmaceutical use, the United States would not opt-in to the listing until the 

domestic controls were in place to assure compliance with the listing. 

Pharmaceuticals are regulated by FDA under the Federal Food, Drug, and Cosmetic 

Act. 

44. If the Conference of the Parties were to list a chemical in Annex A for 

elimination without providing for any production or use exemptions, and 

assuming the President consents to opt-in, under H.R. 4591 how would the 

Administrator ensure that the U.S. could eliminate the chemical given that he 

must meet the cost-benefit balancing test (i.e. a reasonable balance of social, 

environmental, and economic costs and benefits) under Section 503(e)? 
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The United States would not opt-in to the listing of a chemical in Annex A for 

elimination until the domestic controls were in place to assure compliance with that 

listing. 

45. Please list the types of rulemakings under EPA's jurisdiction that use an 

"arbitrary and capricious" standard for judicial review. 

The standard of judicial review in the Administrative Procedure Act (“APA”),at 5 

U.S.C. 706, generally applies to EPA rulemakings, except in cases where a statute 

expressly supersedes or modifies the standard. Section 706(2)(A) provides that the 

reviewing court shall "hold unlawful and set aside agency action, findings, and 

conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” Most EPA rulemakings are subject to this 

standard, with some exceptions (e.g., rulemakings under Clean Water Act section 

307 to establish effluent limitations for certain toxic pollutants, which are governed 

by the “substantial evidence” standard; and rulemakings under sections 4(a), 

5(b)(4), 6(a) and 6(e) of the Toxic Substances Control Act, which are governed by 

the “substantial evidence” standard (TSCA Section 19(c)). Review of some 

rulemakings under the Clean Air Act is governed by section 307(d)(9) of that 

statute, rather than the APA, but that provision incorporates the same standard of 

review as the APA. 

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