```

[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]

 
  POPS, PIC, AND LRTAP: THE ROLE OF THE U.S. AND DRAFT LEGISLATION TO 
               IMPLEMENT THESE INTERNATIONAL CONVENTIONS

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

                                HEARING

                               before the

          SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 13, 2004

                               __________

                           Serial No. 108-112

                               __________

      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

95-454                 WASHINGTON : 2004
_________________________________________________________________
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

                    COMMITTEE ON ENERGY AND COMMERCE

                      JOE BARTON, Texas, Chairman

W.J. ``BILLY'' TAUZIN, Louisiana     JOHN D. DINGELL, Michigan
RALPH M. HALL, Texas                   Ranking Member
MICHAEL BILIRAKIS, Florida           HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio                EDOLPHUS TOWNS, New York
JAMES C. GREENWOOD, Pennsylvania     FRANK PALLONE, Jr., New Jersey
CHRISTOPHER COX, California          SHERROD BROWN, Ohio
NATHAN DEAL, Georgia                 BART GORDON, Tennessee
RICHARD BURR, North Carolina         PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia             ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming               BART STUPAK, Michigan
JOHN SHIMKUS, Illinois               ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico           ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona             GENE GREEN, Texas
CHARLES W. ``CHIP'' PICKERING,       KAREN McCARTHY, Missouri
Mississippi, Vice Chairman           TED STRICKLAND, Ohio
VITO FOSSELLA, New York              DIANA DeGETTE, Colorado
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       CHRISTOPHER JOHN, Louisiana
JOSEPH R. PITTS, Pennsylvania        TOM ALLEN, Maine
MARY BONO, California                JIM DAVIS, Florida
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
LEE TERRY, Nebraska                  HILDA L. SOLIS, California
MIKE FERGUSON, New Jersey            CHARLES A. GONZALEZ, Texas
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho
JOHN SULLIVAN, Oklahoma

                      Bud Albright, Staff Director
                   James D. Barnette, General Counsel
      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Environment and Hazardous Materials

                    PAUL E. GILLMOR, Ohio, Chairman

RALPH M. HALL, Texas                 HILDA L. SOLIS, California
JAMES C. GREENWOOD, Pennsylvania       Ranking Member
HEATHER WILSON, New Mexico           FRANK PALLONE, Jr., New Jersey
VITO FOSSELLA, New York              ALBERT R. WYNN, Maryland
  (Vice Chairman)                    LOIS CAPPS, California
STEVE BUYER, Indiana                 MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California        TOM ALLEN, Maine
CHARLES F. BASS, New Hampshire       JANICE D. SCHAKOWSKY, Illinois
JOSEPH R. PITTS, Pennsylvania        CHARLES A. GONZALEZ, Texas
MARY BONO, California                PETER DEUTSCH, Florida
LEE TERRY, Nebraska                  BOBBY L. RUSH, Illinois
MIKE ROGERS, Michigan                BART STUPAK, Michigan
DARRELL E. ISSA, California          GENE GREEN, Texas
C.L. ``BUTCH'' OTTER, Idaho          JOHN D. DINGELL, Michigan,
JOHN SULLIVAN, Oklahoma                (Ex Officio)
JOE BARTON, Texas,
  (Ex Officio)

                                  (ii)

                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Goldberg, Steven, Croplife America...........................    38
    Goldman, Lynn, Professor of the Environmental Health 
      Sciences, Bloomberg School of Public Health, Johns Hopkins 
      University.................................................    42
    Hazen, Susan B., Principal Deputy Assistant Administrator, 
      Office of Prevention Pesticides and Toxic Substances, U.S. 
      Environmental Protection Agency............................    17
    Heinzerling, Lisa, Professor of Law, Georgetown University 
      Law Center.................................................    61
    McMurray, Claudia, Deputy Assistant Secretary for 
      Environment, Bureau of Oceans and International 
      Environmental and Scientific Affairs, U.S. Department of 
      State......................................................    12
    Roewer, James R., Executive Director, Utility Solid Waste 
      Activities Group...........................................    86
    Slesinger, Scott, Vice President, Governmental Affairs, 
      Environmental Technology Council...........................    81
    Walls, Michael P., Senior Counsel, The American Chemistry 
      Council....................................................    33
    Wiser, Glenn M., Senior Attorney and Intern Coordinator, 
      Center of International and Environmental Law..............    73
    Yeager, Brooks P., Vice President of Global Threats, World 
      Wildlife Fund..............................................    52
Material submitted for the record by:
    Goldberg, Steven, Croplife America, response for the record..   125
    Goldman, Lynn, Professor of the Environmental Health 
      Sciences, Bloomberg School of Public Health, Johns Hopkins 
      University, response for the record........................   118
    Hazen, Susan B., Principal Deputy Assistant Administrator, 
      Office of Prevention Pesticides and Toxic Substances, U.S. 
      Environmental Protection Agency, response for the record...   110
    Heinzerling, Lisa, Professor of Law, Georgetown University 
      Law Center, response for the record........................   122
    Roewer, James R., Executive Director, Utility Solid Waste 
      Activities Group, response for the record..................   123
    U.S. Environmental Protection Agency and U.S. Department of 
      State, response for the record.............................   126
    Walls, Michael P., Senior Counsel, The American Chemistry 
      Council, letter dated September 10, 2004, enclosing 
      response for the record....................................   106
    Wiser, Glenn M., Senior Attorney and Intern Coordinator, 
      Center of International and Environmental Law, response for 
      the record.................................................   113
    Yeager, Brooks P., Vice President of Global Threats, World 
      Wildlife Fund, response for the record.....................   105

                                 (iii)

  

  POPS, PIC, AND LRTAP: THE ROLE OF THE U.S. AND DRAFT LEGISLATION TO 
               IMPLEMENT THESE INTERNATIONAL CONVENTIONS

                              ----------                              

                         TUESDAY, JULY 13, 2004

              House of Representatives,    
              Committee on Energy and Commerce,    
                           Subcommittee on Environment,    
                                   and Hazardous Materials,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 1:08 p.m., in 
room 2123, Rayburn House Office Building, Hon. Paul E. Gillmor 
(chairman) presiding.
    Members present: Representatives Gillmor, Pitts, Terry, 
Rogers, Issa, Otter, Barton (ex officio), Solis, Capps, Allen, 
Gonzalez, Rush, Stupak, Green, and Dingell (ex officio).
    Staff present: Mark Menezes, majority counsel; Jerry Couri, 
majority policy coordinator; Nandan Kenkeremath, majority 
counsel; Tom Hassenboehler, majority counsel; Michael Abraham, 
legislative clerk; Michael Goo, minority counsel; and Richard 
Frandsen, minority counsel.
    Mr. Gillmor. The subcommittee will now come to order. And 
before the recognizes himself for the purpose an opening 
statement, I would like to thank the members and our panelists 
for their attendance, and their participation.
    And I would also like to advise everyone that some of our 
witnesses do have official obligations that will require them 
to travel later today. And in order for the members to have 
ample opportunity to ask questions, I would appreciate the 
indulgence of the members in being mindful of those 
obligations.
    And now I recognize myself for the purpose of an opening 
statement.
    In April 2001, the Bush Administration pledged the 
commitment of the United States to join the Stockholm 
Convention on Persistent Organic Pollutants. This pledge 
punctuated a 10 year period of bipartisan cooperation and 
leadership concerning global protection of the environment and 
public health. These efforts included the RS Protocol on long 
range transbounding air population of POPs and the Rotterdam 
Convention on prior informed consent, and also persistent 
organic pollutants.
    Today our subcommittee is meeting to review a discussion 
draft that I released 3 weeks ago. This draft, in my opinion, 
reasonably implements the POP and the PIC Conventions, and the 
LRTAP Protocol. And I am interested in constructive suggestions 
from this hearing.
    To date I have received a number of useful comments on this 
draft, and we have identified a few places where improvements 
can be made. I look forward to our testimony today, and any new 
constructive suggestions that may come forth.
    The most important thing is that our committee will be in a 
position to move this legislation and U.S. leadership forward. 
And while I realize that the other body has yet to provide 
advise and consent on POPs and PIC, I have not heard any reason 
why they would not do this. And, in fact, may be waiting for us 
before doing so. Therefore, if moving a legislative product is 
what is necessary to convince the other body that they must act 
now, then our committee should show that leadership.
    If the United States is to remain a leader in the global 
environmental debate, it must have legislation that fully 
implements these treaties. The meetings are where important 
decisions will be made regarding future activity under these 
agreements, and those meetings are about to occur. We as a 
country cannot make a meaningful difference if we do not have a 
legitimate role in that debate.
    The discussion draft will allow us to implement these 
treaties and become a full partner in them. It was assembled in 
a few categories and based upon a few important principles.
    The first category includes provisions, those that fulfill 
the regulatory prohibitions and restrictions necessary to 
address chemicals that are already listed in the treaties. And 
while I believe that there may be technical drafting issues, I 
am not sure that there are many fundamental policy decisions on 
the objectives of those provisions.
    The second set of issues concerns a process by which the 
United States participates in decisions involving the potential 
addition of new chemicals to the lists and the treaties. I do 
not believe that the United States should simply defer to the 
decisions of an international body with respect to the U.S. 
position on such additions. This seems to be the clear intent 
of the opt-in provisions negotiated heavily by officials in the 
Clinton Administration. And I also do not believe U.S. courts 
should determine what actions the United States should take 
regarding future amendments to the treaties.
    The discussion draft allows the public to be fully informed 
and to provide comment to the executive branch about potential 
actions under the agreements.
    A third set of issues concerning possible additional 
tailored EPA rulemaking authority for new chemicals that might 
be added to the treaty lists. Currently the U.S. has addressed 
a regulation of chemicals under these treaties through a range 
of regulatory authorities. It's hard to predict the future 
decisions of the international body. It may very well be that 
the same authorities will be both sufficient and appropriate to 
address amendments to the treaties. However, let me be clear: I 
am proposing additional authority only for chemical substances 
or mixtures added to these treaties and not as a means of 
generally expanding EPA regulatory authority over manufacturing 
use or distribution in commerce of chemicals.
    The potential to regulate manufacturing, use and 
distribution in commerce is a sweeping power and should not be 
delegated from Congress to a bureaucracy lightly.
    I am satisfied, however, that the provisions I have 
proposed provide sound principles to both protecting human 
health in the environment and to consider the costs and 
benefits of alternative means of protecting human health in the 
environment.
    I look forward to the testimony of our witnesses on these 
agreements, and on the draft legislative language. Together we 
can and we should make a positive difference for a global 
environment, economy and health.
    And the Chair is now pleased to recognize the--ah, the 
distinguished ranking member has come in, and I would be 
pleased to first recognize the gentleman from Michigan, Mr. 
Dingell.
    Mr. Dingell. Mr. Chairman, I thank you for the recognition.
    I thank my dear friend and colleague Ms. Solis.
    Over 3 years ago the President announced that the United 
States would sign the Stockholm Convention on Persistent 
Organic Pollutants called POPs. Since then 151 nations have 
signed the POPs treaty. Over 70 countries have ratified it, and 
the treaty went into effect on May 17, 2004. Today this 
subcommittee is holding its first hearing on this matter.
    Mr. Chairman, I want to make it clear out of respect for 
you and affection for you, it is our intention to try and be as 
helpful as we can, and that this statement is intended to be a 
friendly one. But I think you will observe that there is some 
dissatisfaction on this side of the aisle on the way this 
matter has been handled.
    All 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 
bioaccumulate and that are resistent 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 the agency to promptly 
implement the control measures recommended by the Conference of 
the Parties for a new chemical, the 13th POP if you wish. The 
implementing legislation must allow the agency 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.
    We have had little time to review the majority discussion 
draft, which I understand comes on the heels of numerous 
meetings with the administration to which I would note, with 
more than a little distress, Democratic members and our staff 
were not invited. If this legislation is to be considered in a 
bipartisan fashion, then I would assume that consultation with 
the minority was very much in order, and would be consistent 
with the attitudes of my friend the chairman.
    Also, the administration has yet to submit a legislative 
proposal for implementing the treaty. And I will observe then 
that I have significant concerns about the process so far. I am 
willing to work with the Chair both on substance and to come up 
with a more acceptable process.
    I also have serious concerns that the rulemaking standard 
and the criteria contained in the discussion draft do not allow 
the EPA to act in an efficient manner on realistic and 
expeditious timeframe. Moreover, that standard appears nowhere 
in the treaty or in existing United States law. This I find to 
be difficult to accept, and it poses an opportunity for 
litigation and years of delay. It may not properly account for 
public health benefits or recognize the work of science-based 
international processes.
    Our ability to regulate additional extremely dangerous 
substances is not clear. We must be mindful of a recent 
example: EPA's experience with asbestos, a known carcinogen. 
The Nation saw the EPA spend 10 years from 1979 to 1989 doing 
analyses and assessments to support regulation that bans 
certain uses of asbestos. I should note that the final rule was 
struck down by the courts. If we cannot regulate a substance as 
dangerous as asbestos, our ability to regulate a 13th POP also 
appears to be inadequate and should be the matter of both 
consideration in the legislation, but also in discussions with 
the minority.
    It has been suggested that there is insufficient control by 
the United States over this listing process. I do not believe 
that is the case, although I am willing to listen to statements 
which would so indicate. The United States will participate 
fully in any amendment process. In addition, I understand the 
President intends to require an affirmative opt-in by the U.S. 
Government for each new chemical listed, on top of the United 
States rulemaking process.
    Administration officials have also indicated that they 
would not oppose separate advice and consent by the U.S. Senate 
for each new chemical added by the Convention. Passage of solid 
implementing legislation for the POPs treaty appears to be 
highly desirable, and also readily doable. But I would remind 
the Chair that this will only be in the context of a full, fair 
and bipartisan process. This committee has always addressed 
problems related to the environment in a bipartisan fashion, 
and the result of that has been not only better legislation, 
but an easier process which was happier as it went forward, and 
I think happier in its conclusion. This hearing is a somewhat 
belated first step.
    And I look forward to the testimony of our witnesses and I 
thank you for your courtesy to me.
    Mr. Gillmor. The Chair recognizes the gentlewoman from 
California, who is the ranking member of the subcommittee, Ms. 
Solis.
    Ms. Solis. Thank you very much, Mr. Chairman, for holding 
this hearing this afternoon. It is a very important topic that 
brings us all here today, and I am very pleased to see a good 
number of our colleagues here with us at this subcommittee 
hearing.
    I want to thank all the witnesses for being here today, as 
well. Today we are taking the first step as a committee to 
better understand the Stockholm Convention on POPs and the PIC 
and the LRTAP POPs. These are complex treaties that deserve our 
time to fully understand. Not only do these treaties have an 
impact on laws of the U.S. and other countries, but they also 
have the potential of having a profound effect on our public 
health.
    Persistent organic pollutants are highly toxic chemicals 
that have adverse effects on public health and the environment. 
These pollutants impact public health in the United States and 
around the world. It is my understanding that the United States 
played a large role in negotiating of this treaty initially, 
and that there is general agreement between the government, 
industry, Republicans and Democrats alike about the need to 
regulate the dirty dozen pollutants.
    I believe that the United States should continue to be a 
world leader. We were a leader not only on the negotiation and 
regulation of the first 12 pollutants already identified, but 
we should also remain No. 1 when addressing the 13th, 14th and 
15th POP.
    I have been extremely disturbed and dismayed at the Bush 
Administration's desire to act unilaterally on so many issues, 
and hope that the United States can use this as an opportunity 
to work together with our allies to protect our public health. 
But the process by which we have come together today as a 
committee may make achieving ratification difficult.
    Three weeks ago on June 22 staff was notified of the 
chairman's bill and of the process that the majority had gone 
through to develop this legislation. A week later, with less 
than 30 legislative days left in session, we heard personally 
for the first time in 3 years that ratification of the treaty 
was an administration priority.
    So we come to this discussion today having been left out of 
what, in my opinion, needs to be a bipartisan effort. The 
United States and the world would have benefited had we been 
included from the get-go. But that is not the route the 
majority chose. The majority chose to go it alone and here we 
are today trying to understand these issues.
    I have questions and concerns about the majority's draft, 
and about its impact on public health, and the ability of the 
United States to be a world leader. Specifically I am concerned 
about the standard established by the EPA to regulate the next 
internationally agreed upon pollutant. I am concerned about the 
authority the EPA had been given to act to protect public 
health. And I am concerned about what impact these new 
regulations that we adopt will have on our ability to consider 
future U.S. regulations for pollutants as necessary.
    The language that we choose to define how the United States 
abides by the treaty must preserve the intent of the treaty or 
the United States will not be viewed as a world leader, but 
instead as undermining the treaty. The legislation we are 
discussing today is key because it will determine how we deal 
with the next POP, the next pollutant that is found to 
adversely effect our public health. The road that we choose for 
domestic regulation will show whether the U.S. is really a 
world leader or if it is just all talk.
    We should not sacrifice the intent of the treaty for an 
ideology that does not protect our public health globally.
    Mr. Chairman, I hope we can air these questions today. 
While we may not resolve them, at least let us have a 
discussion.
    Yield back.
    Mr. Gillmor. I thank the gentlelady. And let me make one 
comment regarding part of the gentlelady's opening statement, 
also that of the ranking member that somehow the minority was 
excluded.
    I have been here in the majority, I have been here in the 
minority. And when the current minority was in the majority, I 
mean you are coming up with a new rule now. Nobody in that 
majority ever thought they had to go to the minority to draft a 
discussion draft. So we are using basically the same procedure 
you did.
    Second, 3 weeks notice of a discussion draft strikes me as 
being more than ample time.
    The gentleman from Chicago, Mr. Rush.
    Mr. Rush. Thank you, Mr. Chairman. And I thank you for 
holding this hearing.
    Given the complexity of this issue, I hope that this only 
the first in a series of comprehensive, deliberative and 
bipartisan hearings.
    On that note, Mr. Chairman, I want to join my colleagues in 
the minority to stress that this should be a deliberative and 
bipartisan approach. While I comment your efforts on the 
discussion draft that is before us today, I am also disturbed 
by the fact that no Democratic members were involved in this 
drafting. Given the international dimension and given that that 
the purported urgency of passing and implementing legislation, 
I do not see why the majority would not sit down with us and 
craft a bipartisan, noncontroversial bill that could easily 
pass the House and be reconciled with the Senate.
    At the very least, I hope that this discussion draft is 
just that; a draft for discussion and that the Chairman will 
encourage and welcome constructive input from Democratic 
members of this subcommittee.
    Having said that, I will briefly say that after an initial 
review of the discussion draft I find it cumbersome and loaded 
with needless regulatory hurdles. The discussion draft looks 
less like implementing legislation and more like a deliberate 
attempt to thwart domestic regulations stemming from 
international agreements, international agreements that are 
supposed to be painstakingly brokered by the executive branch.
    POPs are some of the most deadliest chemicals on the plant, 
and we should not take them lightly. In order for the U.S. to 
add new POPs to the existing list of banned POPs, the 
administration must opt-in and affirmatively agree to banning 
or regulating a new chemical.
    In addition, under the terms of the treaty, this opt-in 
process only takes place after exhaustive scientific studies 
most likely led by our country. Given that this process will 
take 5 years by itself, it is curious why the discussion draft 
would want to bog the process down further with so called 
implementing legislation by creating additional regulatory 
hurdles.
    To use section 6 of the Toxic Substance Control Law makes 
little sense if the Chairman and if other members of the 
majority is interested in simply implementing the terms of the 
international agreement. As everyone knows, section 6 has been 
a complete failure and hasn't resulted in the regulation of one 
toxic substance. Simply put, if the EPA can't even use its 
authority to regulate asbestos, I do not see how it will be 
able to regulate additional POPs as mandated by an 
international treaty.
    So I look forward to the discussion today. And I welcome 
the guests. And I hope they will shed some light on a very, 
very complicated issues.
    And I thank you, Mr. Chairman.
    I yield back the balance of my time.
    Mr. Gillmor. The gentleman yields back.
    The gentleman from Maine.
    Mr. Allen. Thank you, Mr. Chairman.
    We do legislation to enable the United States to become a 
party to three international agreements that ban the use of the 
world's most dangerous and persistent pollutants, including the 
persistent organic pollutants or POPs treaty. These chemicals 
should be banned abroad as they are banned in this country.
    The Clinton Administration negotiated these agreements and 
the Bush Administration embraced them. But, unfortunately, the 
legislation we have before us reflects a profound hostility to 
using international organizations to deal with global problems. 
The debate is about a simple difference in approach: Will the 
United States work within international bodies or act 
unilaterally. Over the last 4 years this Nation has gone from a 
world leader to a world piraya in the eyes of many around the 
world.
    The U.S. helped draft the POPs treaty establishing an 
international science-based process to access future persistent 
organic pollutants. The U.S. should work within that process to 
determine if chemicals should be regulated as POPs in the 
future. But the majority's working draft implementing 
legislation rejects the international standard and process for 
declaring POPs, apparently because it grants decisionmaking 
authority to an international institution. Under this 
legislation EPA would ignore the years of international 
analysis that led the community of nations to act. Instead, EPA 
would have to come to its own conclusions using an entirely 
separate set of criteria on the necessity of regulation. This 
threatens to undermine the treaty established to regulate 
promptly the most dangerous chemicals we can identify.
    Moreover, this legislation is impractical as drafted. It 
proposed to use cost benefit analysis as the standard for 
determining whether a POP should be regulated. There are 
fundamental challenges to assessing the benefits of banning 
international pollutants with long term impacts that economists 
do not know how to qualify. What is the dollar value of a 2. IQ 
reduction in future generations of children? Can we value the 
loss of our bald eagle populations once decimated by DDT?
    Natural resource and human health damage assessment has 
come away, but resource economists are at least a generation 
away from this kind of valuation.
    But even more concerning is the international nature of the 
impacts. Benefits analysis of environmental regulation in the 
United States rests heavily on what is known as the value of 
statistical life, a relative simple quantification of 
Americans' willingness to pay to avoid deadly risk. EPA basis 
its $6.4 million value on studies of Americans because people 
in developing countries do not have the equal means to value 
risk avoidance. The six major evaluation studies performed in 
the developing world reveal the value of statistical life less 
than $1 million. So what do we? Do we take the U.S. value and 
discount it? Do we find Americans to be more valuable than 
people in other countries? We cannot afford to use such an 
imperfect standard on chemicals as dangerous as DDT and PCBs. 
The established health base standard established by the POPs 
treaty itself is sound policy. We ought for once to work with 
international organizations to cope with the global problem. 
This should be an opportunity for us to recover some respect 
around the world.
    I thank you.
    Mr. Gillmor. The gentlelady from California?
    Ms. Capps. Thank you, Mr. Chairman. And I am pleased with 
the subcommittee's interest in the Persistent Organic 
Pollutants Treaty. In signing this treaty our country went on 
record that identified toxic substances 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 this treaty which has wide 
spread support. However, 3 years after signing we have yet to 
act or consider implementing legislation on this historic 
treaty. In the meantime, creation of manufacturing of toxic 
substances goes on unabated.
    The treaty eliminates, or significantly reduces the global 
production and use and release of the 12 worst polluting 
substances, already tightly controlled in our country. It also 
establishes a science-based process for adding other persistent 
organic pollutants to the list in the future. These identified 
toxic substances persist for years in the environment, travel 
great distances on wind and in water currents and accumulate in 
food chains. Everyday Americans are exposed to POPs through 
fish and dairy products. And because they collect in body fat, 
women can transfer these toxic substances to their offspring 
and to infants during breast feeding.
    Even at extremely low levels these substances can cause 
irreversible damage. Scientific evidence has definitely linked 
persistent organic pollutants to decreased birth weights, 
cancers and learning and reproductive disorders.
    As a Public Health nurse I value the giant step forward the 
treaty takes in reducing human exposures to these toxic 
substances. But, unfortunately, this draft of implementing 
legislation takes a giant step backward.
    First, it would severely slow down any future attempt to 
eliminate toxic chemicals and pesticides. It would require EPA 
to undergo unnecessary analysis in the event it chooses to 
regulate a new polluting substance. As a party to the treaty we 
will already be participating in a thorough scientific 
investigation of additional substances before they are added to 
the treaty. And with all due respect, this draft would ignore 
these results. Instead, it could force EPA to start additional 
time consuming and costly studies. Even worse, this draft 
contains no requirement that EPA even do anything after an 
international decision to add a new persistent organic 
pollutant.
    There is no time line for EPA to act, no obligation for 
them to say why not and no citizens petition process to 
challenge EPA.
    I am concerned also with the draft's proposed regulatory 
standard for considering additional POPs. If EPA decided to 
regulate it could only do so if it finds a reasonable balance 
between human health and the economic costs in regulation.
    I am running out of time, so I am just going to defer to 
what my colleague so eloquently stated when he talked about the 
cost analyses. It is such a disservice to what the value of 
human life to try to equate the value of life, whether plant or 
animal or human to economic standards. We have to find a 
different way of adding value.
    So, I support the treaty, but not this draft legislation.
    And I yield back.
    Mr. Gillmor. The gentleman from Michigan. Needs some oil on 
his microphone.
    Mr. Stupak. Yes, I think so.
    Thank you, Mr. Chairman.
    I look forward to hearing from our panels today as we 
discuss the U.S. role in implementing these important 
international conventions and the draft proposal Mr. Gillmor 
has prepared.
    The Stockholm Convention which bans or severely restricts 
12 of the most dangerous chemicals called persistent organic 
pollutants, POP, has wide support including that of industry, 
labor and environment and health groups.
    The United States was heavily involved in the negotiations 
leading to the convention and insisted the treaty contain a 
science-based process under which governments may nominate 
suspected POPs in the future. Because of the 12 current POPs 
are already banned or severely regulated in the United States, 
the primary issue which discussing implementing legislation is 
the regulation of future hazardous chemicals that may be added 
to the treaty's list.
    The proposed draft before us to implement these 
international conventions creates a separate standard for the 
United States when adding additional POPs. The U.S. already 
negotiated for an international standard that every country 
including the U.S. must follow under this treaty. But now this 
proposal, which is filled with a new cost benefit standard, 
sets a different standard for the U.S.
    Over the past 3 years we have continued to alienate the 
world by having our own ``play by our rules'' type of attitude.
    Another issue that concerns me is the sudden sense of 
urgency with this legislation when the administration has not 
set implementing legislation in this Congress to our committee. 
It has been over 3 years now since the administration signed 
the POPs Treaty. It took the President an entire year after 
signing the POPs Convention to send it to the Senate for advice 
and consent. The treaty has now been in force for 2 months.
    This is a complicated issue that deals with implementing 3 
treaties that are designed to protect public health and our 
environment. With the public interest and health at stake, this 
is not time to shut out a bipartisan process and ram flawed 
legislation through the waning days of this Congress. We should 
be enacting bipartisan legislation that we can be sure to pass 
through this committee or any other committee. With minimal 
legislative days left in this session we should not try to 
stampede legislation through this committee.
    Let us begin with priorities. I am still extremely 
disappointed that this committee and the administration 
continues to ignore what should be a priority of implementing 
the U.S./Canadian agreement concerning the transboundary 
movement of hazardous waste to protect the citizens of Michigan 
from unwanted trash imports. A year ago at a hearing held by 
this subcommittee, the administration said we could expect 
legislation to be sent up shortly to allow this important 
agreement to be enforced. Nothing has been submitted to 
Congress yet. Nothing.
    On top of that, the administration refuses to take a 
position on H.R. 411 or H.R. 1730 bipartisan bills which I and 
many members of this committee have cosponsored that would 
provide the necessary authority. The citizens of Michigan and 
the Great Lake States deserve better.
    Mr. Chairman, this committee should act on interstate waste 
legislation as a matter of priority before we recess for the 
summer.
    I look forward to the testimony of our witnesses.
    Mr. Gillmor. The gentleman from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman, for holding the hearing 
on these international agreements. And I am going to 
specifically talk about the POPs Convention, which is the most 
potential impact on the economy.
    The POPs Convention dealing with DDT and PCBs and dioxin 
and other controlled chemicals is uncontroversial. It is 
important to the American chemical industry that this 
convention goes into force and that America is a party to this 
convention. To do so we must have implementing legislation in 
time for the U.S. to be part of it in February 2005. I think 
it's a reality in this closely divided Congress that we have a 
consensus and bipartisan implementing legislation. Most 
importantly, I believe we must protect the opt-in nature of the 
convention. Our government and our industries should not be 
forced to regulate additional POPs solely based on 
international decisions.
    Opt-in is needed to ensure that the POPs Convention does 
not become a tool for other country's industries to seek 
competitive advantage against ours under the guise of 
environmental regulations. It is my understanding that all 
sides, both industry and environmental organizations, agree to 
the opt-in approach, but for the POPs Convention to work as 
industry and environmental groups intended, the Convention must 
be implemented soon.
    Giving the few legislative days remaining between now and 
the deadline, I would like to see consensus and bipartisan 
implementing of this legislation. And I am not going to go into 
details but understand, Mr. Chairman, your draft of the 
legislation, our panelists will talk about that very well. But 
I am concerned if this turns into a partisan philosophical and 
ideological battle; nobody is going to get what they want 
except perhaps the Europeans who will be making the decisions 
in the Convention instead of us.
    It is my understanding that the Gillmor legislation was not 
developed in a consensus bipartisan matter, but I would hope 
from this day forward we will be able to put that together.
    Mr. Chairman, again, bipartisan practical compromised 
legislation done on POPs and all sides can postpone our 
ideological debates or battles until we have some other issue. 
But I think this is important because otherwise will hinder 
another industry in our country to be competitive or be at the 
table at the international conference.
    I yield back my time.
    Mr. Gillmor. The gentleman yields back.
    The other gentleman from Texas, Mr. Gonzalez.
    Mr. Gonzalez. Yes, Mr. Chairman. I will submit my statement 
in writing. Thank you.
    [Additional statements submitted for the record follows:]
  Prepared Statement of Hon. Charles A. Gonzalez, a Representative in 
                    Congress from the State of Texas
    Thank you Mr. Chairman.
    Welcome to all nine witnesses. You share a breadth of expertise 
that will provide us and our staffs with valuable perspectives about 
the complex treaties, collectively known as the ``POPs Treaties'' that 
internationally regulate the most toxic chemicals known to man.
    I have been very pleased to learn that the three international 
agreements we are examining today--the 2001 Stockholm Convention on 
Persistent Organic Pollutants (POPs); the 1998 Aarhus Protocol to the 
Convention on Long-Range Transboundary Air Pollution (LRTAP); and the 
1998 Rotterdam Convention on the Prior Informed Consent (PIC) Procedure 
for Certain Hazardous Chemicals and Pesticides--were all negotiated in 
an inclusive manner. Representatives from the chemical and pesticide 
industries, scientists, environmentalists and government experts were 
all heavily involved. The net result was that the Stockholm Convention 
was embraced by all sides. I don't doubt that each side started with 
their own idea of how the convention should have taken shape, and so I 
think that all the parties involved deserve credit for reaching the 
agreement they struck.
    In that same spirit, the Senate acted on a bipartisan basis last 
year when the Environment and Public Works Committee reported a bill 
that would implement those provisions of the POPs Treaties related to 
the Toxic Substances Control Act.
    Mr. Chairman, as this subcommittee does its part to craft 
legislation to implement the international agreements on persistent 
organic pollutants, I would hope that we also work in a cooperative 
bipartisan manner. After all, at the end of the day, this issue will be 
back in the Senate's hands, which must ratify these agreements by a 
two-thirds vote. By working in a bipartisan manner in this 
subcommittee, we ensure that implementing legislation can easily reach 
and pass a ratification vote in the other body. I look forward to 
working with you, Ranking Member Hilda Solis and all the members of the 
subcommittee to reach a bipartisan agreement on moving forward with 
implementing the POPs Treaties.
                                 ______
                                 
 Prepared Statement of 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. The 
Stockholm Convention on Persistent Organic Pollutants (POPs), the 
Aarhus Protocol on Long Range Transboundary Air Pollution (LRTAP), and 
the Rotterdam Convention on Prior Informed Consent (PIC), all center 
around the banning or severe restriction of chemicals known as 
persistent organic pollutants. These chemicals, which are exceedingly 
toxic and take years to break down in the environment, have been 
brought to the attention of the global community because of their 
lasting effects on human health and the environment and their ability 
for long-range transport, respecting no national boundaries.
    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 also 
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 authoring this discussion draft and making 
efforts to move this process forward.
    The 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.
    We cannot move forward if the Administration will not forcefully 
and effectively communicate the need for this bill and our 
participation. With these assurances, it is my sincere 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.

    Mr. Gillmor. Thank you very much.
    We will now proceed to our first panel, which consists of 
Claudia McMurray, who is the Deputy Assistant Secretary for 
Environment, the Bureau of Oceans and International 
Environmental and Scientific Affairs with the U.S. Department 
of State. And Ms. Susan Hazen, who is the principal Deputy 
Assistant Administrator, the Office of Prevention Pesticides 
and Toxic Substances of the U.S. EPA.
    And Ms. McMurray, if you would like to proceed. Is that 
order satisfactory with the two of you, or it does not matter? 
Okay.

STATEMENTS OF CLAUDIA McMURRAY, DEPUTY ASSISTANT SECRETARY FOR 
 ENVIRONMENT, BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL 
AND SCIENTIFIC AFFAIRS, U.S. DEPARTMENT OF STATE; AND SUSAN B. 
HAZEN, PRINCIPAL DEPUTY ASSISTANT ADMINISTRATOR, THE OFFICE OF 
PREVENTION PESTICIDES AND TOXIC SUBSTANCES, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Ms. McMurray. Mr. Chairman, I would like to thank you and 
the members of this subcommittee for holding this hearing on 
legislation that would allow the United States to join three 
international agreements to control dangerous toxic chemicals 
and pesticides. The three treaties that have already been 
mentioned here are the Stockholm Convention on Persistent 
Organic Pollutants, the Protocol On Persistent Organic 
Pollutants of the Convention on Long Range Transboundary Air 
Pollution or LRTAP, and the Rotterdam Convention on the Prior 
Informed Consent Procedure for Certain Hazardous Chemicals and 
Pesticides in International Trade.
    Mr. Chairman, I have a long statement that I would like to 
submit for the record with your permission.
    Mr. Gillmor. Without objection, so ordered.
    Ms. McMurray. Thank you.
    Mr. Chairman, swift approval of implementing legislation 
would demonstrate bipartisan support for these agreements and 
the benefits to public health and the environment that they 
provide. 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, Secretary Powell and former EPA Administrator Whitman 
also highlighted the benefits of the Stockholm Convention and 
the need for continued U.S. leadership in the field of 
persistent organic pollutants.
    It is particularly crucial that the U.S. join these 
agreements now. All three have entered into force and the 
parties will begin making crucial decisions as soon as 6 weeks 
from now.
    The Stockholm Convention, which was concluded in 2001 aims 
to protect human health and the environment from 12 chemicals 
that are of particular concern. These chemicals all 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 resistent to natural 
breakdown, and obviously most important in the international 
context, they can be transported over long distances through 
the atmosphere and oceans.
    The Stockholm Convention deals with intentionally produced 
chemicals such as DDT or PCBs, unintentionally produced 
substances such as dioxins and furans and wastes from those 
substances. The Convention creates a science-based procedure to 
govern the addition of chemicals to the Convention beyond the 
current list of 12 substances.
    The Convention's Conference of Parties will make decisions 
about whether to add chemicals to the Convention's coverage. If 
a chemical is added through an amendment, the United States can 
decide whether we want to become party to that amendment. At 
the time of ratification we intend to declare, consistent with 
our ability to do so under the treaty, that any amendment shall 
enter into force for the United States only upon our deposit of 
an instrument of ratification indicating acceptance or approval 
of that amendment.
    Utilization of this so-called opt-in procedure for becoming 
party to the amendments will ensure that decisions made by the 
Conference of the Parties do not prejudge our domestic 
decisionmaking process.
    The Stockholm Convention will hold its first Conference of 
Parties next spring. At that meeting, important decisions will 
be made such as the composition of the technical review 
committee that will consider new chemicals that are proposed 
for addition. Also rules of procedure will be considered. 
Unless legislation is enacted during the current session of 
Congress and as soon as possible, the United States will be 
sitting on the sidelines of this meeting.
    Two additional international agreements dealing with toxic 
chemicals and pesticides are covered in the Chairman's draft 
implementing legislation.
    The first agreement closely related to the Stockholm 
Convention, is the POPs Protocol to the Long Range 
Transboundary Air Pollution Convention. The obligations in 
LRTAP are somewhat similar in nature and scope to those in the 
Stockholm Convention. The LRTAP Executive Body will hold its 
next meeting 5 months from now. It will also make decisions 
such as establishing procedures for the conduct of technical 
reviews of substances proposed for addition to the protocol at 
that time.
    The other agreement covered in the implementing legislation 
is the Rotterdam Convention on Prior Informed Consent. This 
agreement is designed to promote fully informed decisionmaking 
by both exporting and importing countries in order to promote 
decisions that appropriately protect human health and the 
environment. The Rotterdam Convention's, First Conference of 
Parties will be held 2 months from now. Among the key decisions 
at this meeting will be the membership of the new review 
committee that will consider possible new chemicals for 
addition to the Convention.
    In summary, Mr. Chairman, together these three treaties 
address a number of critical chemical management problems faced 
by the international community. These treaties enjoy broad 
support from the public, from environmental groups and industry 
groups as well, and as we have heard today, from many Members 
of Congress. 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 in 
this multilateral forum, but at the head of the table. In 
short, these issues are too important for the United States to 
sit on the sidelines as an observer.
    I look forward to working with both sides of the aisle to 
expedite U.S. ratification of these important treaties.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions that you or other members of the subcommittee may 
have.
    [The prepared statement of Claudia McMurray follows:]
 Prepared Statement of Claudia McMurray, Deputy Assistant Secretary of 
    State for Oceans and International Environmental and Scientific 
               Affairs, United States Department of State
    Mr. Chairman, I would like to thank you and the members of the 
Subcommittee for holding this hearing on your draft implementing 
legislation that would allow the United States to join three 
international agreements to control dangerous toxic chemicals and 
pesticides. The three treaties are the Stockholm Convention on 
Persistent Organic Pollutants (the ``Stockholm Convention''), the 
Protocol on Persistent Organic Pollutants of the Convention on Long-
Range Transboundary Air Pollution (``LRTAP''), and the Rotterdam 
Convention on the Prior Informed Consent Procedure for Certain 
Hazardous Chemicals and Pesticides in International Trade (the 
``Rotterdam Convention''). The Administration strongly supports 
ratification of these agreements and therefore urges the Committee to 
approve implementing legislation as soon as possible.
    Mr. Chairman and members of the Subcommittee, I would respectfully 
suggest to you that your swift approval of implementing legislation 
would demonstrate bipartisan support for these agreements and the 
benefits to public health and the environment that they provide. 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, 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 the 
first country to begin addressing the human health and environmental 
threats posed by pesticides and other toxic substances. Our expertise 
in this field is continually sought out by other countries seeking to 
establish 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 already entered into force. Over 
the course of the next months, the governing bodies of each of these 
agreements will meet for the first time and will begin making decisions 
on the future of their respective accords. As the recognized leader in 
the field of toxic chemicals management, it is important the United 
States be present to help shape the development of each treaty.
    The Stockholm Convention, which was completed in 2001, aims to 
protect human health and the environment from twelve 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 
twelve persistent organic pollutants (``POPs'') 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. The twelve 
chemicals covered by the Stockholm Convention have been banned, 
severely restricted, or controlled in the United States, but they are 
still in widespread use abroad, particularly in developing countries. 
As a result, they can 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, 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. Some of the POPs, such as DDT, are known 
to have negative impacts on wildlife. 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 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 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 
environmentally-sound manner.
    Recognizing the needs of developing countries in managing POPs, the 
Convention includes a flexible system of financial and technical 
assistance through which developed countries will help these countries 
meet their obligations. In fact, the United States has already spent 
over $20 million assisting several developing countries in building 
capacity in this area. The Global Environment Facility will serve as 
the interim funding mechanism for the Convention and has already set up 
a program to support treaty-related projects. Because the majority of 
POPs releases occur in developing countries, funding to expedite the 
phase out of these substances is particularly important.
    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 such criteria as 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 a determination is made that a chemical is likely to lead to 
significant adverse effects, the review procedure then will consider 
information on socio-economic considerations. This includes the 
technical and economic feasibility of control measures to meet risk 
reduction goals, availability of alternatives, and other socio-economic 
factors. Based on the risk profile and risk management information 
gathered through the steps described above, a recommendation can be 
made on whether a chemical should be considered for addition to the 
Convention.
    The Convention's Conference of Parties will make final decisions 
about whether to add chemicals. Once they are added 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 amendment shall enter into force for the United States 
only upon our deposit of the 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 70 
countries, entered into force on May 17, 2004 and will hold its first 
Conference of Parties (COP) next spring. At that meeting, important 
decisions will be made on the future course of the Convention. One of 
the key issues before the COP will be the membership and composition of 
the technical review committee that will consider new chemicals that 
are proposed for addition to the Convention's control regime. The COP 
will also agree upon rules of procedure, including voting rules, 
financial rules, and the location of the Convention Secretariat. These 
are all important issues for the United States, but we will not be able 
to participate as a Party in these deliberations unless legislation is 
enacted during the current session of Congress, and as soon as 
possible, since the United States will not become Party to the 
agreement until 90 days after depositing its instrument of 
ratification.
    The implementing legislation drafted by this Committee would also 
permit the United States to implement and become a Party to two 
additional international agreements dealing with toxic chemicals and 
pesticides. The first agreement--closely related to the Stockholm 
Convention--is the POPs Protocol to the Long-Range Transboundary Air 
Pollution Convention. 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 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 entered into force on October 23, 2003. The LRTAP Executive 
Body (EB), which serves as the governing body for all LRTAP Protocols, 
will hold its next meeting from November 29-December 3, 2004--only five 
months from now. The EB will make decisions on the specific procedures 
under which the LRTAP POPs Task Force, which was set up last year, and 
will conduct technical reviews of substances proposed for addition to 
the Protocol. It will also adopt guidance for an overall review by the 
Task Force of the Protocol's sufficiency and effectiveness.
    The other agreement covered in the implementing legislation 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, 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. 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.
    The Rotterdam Convention, which has to date been ratified by 73 
countries, entered into force on February 24, 2004. The Convention's 
first Conference of Parties (COP) will be held in September 2004, less 
than two months from now. Among the key decisions for deliberation at 
the COP meeting will be the membership of the new review committee that 
will consider possible new chemicals for addition to Convention. The 
COP will also decide whether to formally add about 14 substances, which 
have been reviewed by the Convention's interim body over the past two 
years, to the list of chemicals covered by the Convention. In addition, 
the COP will also finalize its rules of procedure and financial rules 
and decide on the location of the Convention Secretariat.
    In summary, Mr. Chairman, together these three treaties 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 for the first time 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, in the less than 30 days of the legislative session 
remaining, the Congress pass implementing legislation that will allow 
us to ratify these agreements and participate as Parties in these 
upcoming meetings. I look forward to working with both sides of the 
aisle to expedite U.S. ratification of these important treaties.
    Thank you, Mr. Chairman. I would be happy to answer any questions 
that the Subcommittee members may have.

    Mr. Gillmor. Thank you, Ms. McMurray.
    Ms. Hazen?

                   STATEMENT OF SUSAN B. HAZEN

    Ms. Hazen. Thank you, Mr. Chairman, Congresswoman Solis and 
members of the committee.
    As was said earlier, my name is Susan Hazen. I am currently 
serving as the Principal Deputy Assistant Administrator for the 
Office of Prevention, Pesticides and Toxic Substances at EPA.
    I have a longer prepared testimony, which I would like to 
be entered into the record.
    The U.S. has been a very active player in each of these 
treaties. We have been part of their inspiration, their 
direction, and a major part of their negotiation. And the 
administration now seeks implementing legislation that would 
allow the United States to take that final step and join these 
three important environment agreements this year.
    I would like to thank you, Mr. Chairman, for the 
opportunity to testify and for your commitment to developing 
implementing legislation. We have welcomed the opportunity to 
provide technical assistance to your staff as this proposal has 
been developed.
    As we have provided technical assistance, we have attempted 
to remain focused on one fundamental issue: Would the draft 
legislation provide the legal authority necessary for the 
United States to fully implement all of the Toxic Substance 
Control Act-related obligations of the three agreements, 
thereby helping to ensure that the United States remains in the 
forefront of worldwide efforts to reduce or eliminate 
production, use, or release of persistent organic pollutants, 
or POPs. We believe this proposal would accomplish this 
objective.
    We look forward to working with you as the process 
continues.
    I am also pleased to have the opportunity to address our 
domestic and international activities to effectively manage the 
currently listed pesticides and chemicals. We think it is 
vitally important from the outset that we continue to share our 
expertise with the rest of the world as each of these treaties 
contributes in its own way, not only to a healthier global 
environment, but to a healthier America.
    In the United States, these agreements are of special 
importance for selected populations and environments which can 
be particularly impacted by POPs transported by air and water 
from outside sources. By joining with the rest of the world to 
phaseout or reduce these toxic pollutants, we protect the 
health and the environment not only of our fellow Americans, 
but of all those who share our plant.
    EPA continues to take measures that promote the objectives 
of all three of these treaties, including providing technical 
assistance and financial assistance to developing countries and 
countries with economies in transition. For example, we are 
currently working with Russia and China to identify and develop 
strategies that would eliminate stockpiles of POPs pesticides 
and PCBs. We are supporting an international effort to destroy 
stockpiles of POPs pesticides in Africa in an environmentally 
sound manner. And we have also provided technical assistance to 
develop tools and guidance to help other countries meet their 
obligations under the Stockholm Convention.
    The United States already has the authority to meet most of 
the Toxic Substance Control Act-related obligations of these 
treaties. We believe that the bill drafted by this committee, 
if enacted, would enable the U.S. to comply with and to 
effectively implement the obligations of the treaties.
    The administration is fully committed to participate in the 
procedures set up for the listing of additional chemicals to 
the POPs agreements and to assure that the robust scientific 
process to do so works as intended during the negotiations. 
Chairman Gillmore's discussion draft would enable the United 
States to join future convention amendments that are consistent 
with U.S. law and policy, and this is a very important element 
of the legislation for the administration. We appreciate 
efforts that went into its development.
    In addition, the information collection provisions in this 
legislation provide the opportunity to help ensure that the 
United States is appropriately informed as to the risks, 
benefits, production, uses and other pertinent factors 
concerning candidate chemicals when it is participating in 
negotiations determining the possible addition of chemicals.
    Early last year the administration identified six guiding 
principles for taking domestic action on the listing of new 
chemicals, which we will take into consideration as your 
legislative process moves forward. Very briefly, these 
principles are:
    First, that the United States should have the ability, when 
appropriate, to take domestic regulatory action on the addition 
of future chemicals to the Convention; Second, that the goal of 
taking regulatory action is to achieve a high degree of public 
health and environmental protection; Third, that the United 
States should make an explicit domestic determination as to 
whether the best available scientific information supports the 
listing, and whether the specific regulatory measures included 
in the international listing are necessary and adequate; 
Fourth, during its domestic process, the U.S. should consider 
the information taken into account at the international level, 
with emphasis on information that is reviewed, valid and 
replicable; and Fifth, the United States should compare the 
international decisions to measures that are more or less 
stringent, thereby facilitating the identification of control 
options that reflect the most reasonable balance of benefits, 
risks and cost. And finally, in finding that balance the United 
States should consider domestic production, export, and use of 
the chemical, and any national and international consequences 
that are likely to arise as a result of domestic regulatory 
action.
    The administration is seeking swift enactment of 
implementing legislation for these agreements. All three of 
these treaties have entered into force over the course of the 
last 9 months. And, as noted earlier, it is imperative that the 
U.S. be a party to these agreements at the outset or as early 
as possible.
    The administration is proud of the leadership role of the 
United States on these very important environmental treaties, 
all of which illustrate how effectively global action can be 
accomplished when nations are driven by common environmental 
objectives.
    After ratification, we hope to continue to work with 
Congress along with industry, environmental organizations and 
others, as we implement these agreements.
    Thank you for the opportunity to discuss these important 
international environmental agreements today. Enacting 
legislation this year is an important priority. As we continue 
to review this draft, and as the committee continues its 
deliberations, we will appreciate the opportunity to work with 
the committee and its members on legislative refinements that 
would be consistent with the President's agenda and budget.
    Again, thank you for the support and leadership, and we 
want to assure you that this administration is looking forward 
to working with the committee to advance these important 
agreements by finalizing the necessary implementation 
legislation.
    Thank you. And I, too, would be pleased to answer any 
questions.
    [The prepared statement of Susan B. Hazen follows:]
   Prepared Statement of Susan B. Hazen, Principal Deputy Assistant 
Administrator, Office of Prevention, Pesticides, and Toxic Substances, 
                  U.S. Environmental Protection Agency
                            i. introduction
    Mr. Chairman and Members of the Committee, thank you for the 
invitation to appear before you today to discuss the legislation 
necessary to implement three very important international environmental 
agreements: the Stockholm Convention on Persistent Organic Pollutants 
(POPs), the Rotterdam Convention on the Prior Informed Consent 
Procedure for Certain Hazardous Chemicals and Pesticides in 
International Trade (PIC), and the Protocol on Persistent Organic 
Pollutants, negotiated under the United Nations Economic Commission for 
Europe's Convention on Long Range Transboundary Air Pollution (LRTAP 
POPs Protocol).
    The United States has been an active player in each of these three 
treaties. We have been part of their inspiration, direction, and 
negotiation. The Administration now seeks implementing legislation that 
would allow the United States to take the final step and join these 
three important environmental agreements this year. Towards that end, I 
would like to thank Chairman Gillmor and his staff for developing a 
draft bill that would allow the United States to join these 
international agreements which seek to promote the global reduction, if 
not virtual elimination, of some of the world's most persistent and 
toxic substances. Recently, at your request, my staff has been 
providing technical assistance during the development of this proposal. 
I want to thank you for that courtesy and commend your staff for their 
professionalism in this process. While the current legislative draft 
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, we look 
forward to further refining this draft as it is considered by the 
Committee.
    The Administration is committed to working closely with all the 
members of this Committee to facilitate swift enactment of implementing 
legislation that provides appropriate legal authority to implement the 
obligations in the three treaties. As President Bush has stated, the 
risks from these pollutants are great, and the need for swift action is 
clear. Becoming Party to these treaties will help ensure that the 
United States retains its current position as an international leader 
in the industrial chemical and pesticide arena. Our leadership in these 
treaties is essential.
    I appreciate this opportunity to discuss this important effort. The 
Administration supports a targeted approach to the legislation and 
believes that it is imperative that this legislative process moves 
forward as quickly as possible. As we have provided technical 
assistance to your staff, we have attempted to remain focused on the 
fundamental issue: would the draft legislation provide the legal 
authority necessary for the United States to implement fully all of the 
Toxic Substances Control Act related obligations of the three 
agreements, thereby helping to ensure that the United States remains in 
the forefront of worldwide efforts to reduce or eliminate production 
and use of persistent organic pollutants? We believe that this proposal 
would accomplish this objective, and look forward to working with 
members of this subcommittee as the process continues.
                             ii. background
    I would like to take a minute to identify what the Administration 
sees as the value of these three treaties, and thus the importance of 
acting to pass implementing legislation. Each of these treaties 
contributes, in its own way, to a healthier global environment and to a 
healthier America. The Stockholm Convention, called the POPs 
Convention, prohibits or restricts the production, use, or release of 
twelve chemicals that are toxic, persist in the environment for long 
periods of time, and bioaccumulate as they move up through the food 
chain. These substances are also capable of traveling thousands of 
miles by wind and water, far from the sources where they are released, 
and can cause an array of adverse effects in humans and on the 
ecosystem. The reduction or elimination of these POPs sources will have 
significant benefit to the United States by reducing exposures that 
affect human health and the environment.
    The POPs Protocol to the Long Range Transboundary Air Pollution 
Convention (the LRTAP POPs Protocol) is similar to the POPs treaty, 
except that it covers four additional substances and is regional in 
nature. The agreement covers the 55 Member States of the United Nations 
Economic Commission for Europe, which includes, among others, the 
United States, Canada, Russia, parts of the former Soviet Union, and 
Eastern Europe. The Rotterdam PIC Convention was developed to promote 
information exchange and informed riskbased decisionmaking in the 
global movement of hazardous chemicals and pesticides. The Convention 
requires the exchange of certain health and safety information related 
to the covered chemicals and pesticides, which empowers governments and 
citizens to make their own domestic science and riskbased decisions in 
an informed manner. The Convention also ensures that the parties 
monitor not only which substances come into their borders, but also 
provides a notification mechanism to monitor what goes out of their 
borders. This notification mechanism facilitates informed trade in the 
PIC listed substances as well as provides an additional opportunity for 
the exporting party to comply with the importing decisions of another 
party, which is particularly helpful and important to developing 
countries that may lack the capacity to enforce their own regulatory 
decisions.
             iii. the u.s. role as an international leader
    I am pleased to have the opportunity to address our domestic and 
international activities to effectively manage the currently listed 
pesticides and chemicals and to explain the kinds of legislative 
provisions that will be necessary to effectively implement these 
agreements.
    Here in the United States, we have already taken extensive steps to 
address risks posed by the substances covered by the global POPs 
Convention and the LRTAP POPs Protocol. We take the threats posed by 
these pesticides and chemicals to our environment and public health 
very seriously. The United States was the first country to begin a 
thorough scientific reassessment program for pesticides and, I believe, 
is still the only nation that is looking at the cumulative risks posed 
by similar groups of pesticides. We started cancelling pesticide 
registrations or prohibiting production and use of some of these 
substances in the 1960's. Because of these types of actions, the levels 
of most of these substances in the United States have stabilized or 
declined. Other countries look to the United States to provide strong 
leadership to address hazardous substances, including those that are 
persistent and may bioaccumulate. EPA is internationally recognized for 
its sciencebased risk assessments and regulatory decisionmaking. Our 
actions are respected and frequently adopted in other countries across 
the globe.
    But standalone action by any one country is not enough. We think it 
is vitally important, from the outset, that we continue to share our 
expertise with the rest of the world and continue our role as a world 
leader in decisionmaking related to controlling the production, use, 
and release of these types of chemicals. These chemicals continue to 
pose real health risks to U.S. citizens and to people around the world 
due to the inherent nature of the substances themselves: their 
persistence, their toxicity, their bioaccumulation, and their potential 
for long range environmental transport. In the United States, these 
agreements are of special importance for selected populations and 
environments which are particularly impacted by POPs transported by air 
and water from outside sources. This is particularly true for those 
populations whose diets traditionally rely heavily on fish and 
wildlife, such as in Alaska and around the Great Lakes. By joining with 
the rest of the world to phase out or reduce these toxic pollutants, we 
protect the health and the environment, not only of our fellow 
Americans, but of all those who share our planet.
    EPA continues to take measures that promote the objectives of all 
three of these treaties, including providing technical and financial 
assistance to developing countries and countries with economies in 
transition to help them comply with their international obligations. 
The United States is committed to working globally to provide such 
assistance, and has already taken some steps to do so. For example, we 
are helping Russia and China identify and develop strategies to 
eliminate stockpiles of POPs pesticides and PCBs. We are supporting an 
international effort to destroy stockpiles of POPs pesticides in Africa 
in an environmentally sound manner. The United States has also provided 
its technical expertise to develop tools and guidance to help countries 
meet their obligations under the Stockholm Convention.
  iv. legislative changes necessary to implement pops, pic, and lrtap
    While the United States already has authority to meet most of the 
Toxic Substances Control Act (or TSCA)related obligations of the three 
treaties, the proposed legislation would allow us to meet all the TSCA 
related obligations of the treaties. For the POPs and LRTAP substances, 
implementing legislation needs to contain language to prohibit any 
manufacturing, use, processing, distribution in commerce for export, 
and disposal consistent with the obligations of the treaties. We 
believe that this draft bill would enable the United States to comply 
with the obligations in the POPs treaties to prohibit or restrict the 
production, use, import, export, or release of the substances covered 
by TSCA.
    To effectively implement the PIC Convention, the Administration 
agreed that any legislative language should also track obligations in 
the Convention relating to notice of control action, export 
notification, export controls and labeling. Again, we believe that this 
draft legislation does that by, for example, providing EPA with the 
authority to issue notices that would communicate to our own domestic 
producers and exporters the importing decisions of other countries with 
respect to the PIClisted chemicals and pesticides.
    The Administration is fully committed to participate in the 
procedures set up for the listing of additional chemicals to the POPs 
agreements and to ensure that the robust scientific process to do so 
works as intended during the negotiations. The information collection 
provisions in this legislation provide the opportunity to help ensure 
that the United States is appropriately informed as to the risks, 
benefits, production, uses, and other pertinent factors concerning 
candidate chemicals when it is participating in negotiations concerning 
the possible addition of chemicals. The proposed draft legislation 
would enable the United States to join future convention amendments 
that are consistent with U.S. law and policy. This is a very important 
element of the legislation for the Administration, and we appreciate 
the effort that went into its development. Early last year, the 
Administration identified six ``guiding principles'' for taking 
domestic action on the listing of new chemicals, which we will continue 
to take into consideration as your legislative process moves forward. 
These principles are:

1) The United States should be able to take domestic regulatory action 
        on additional chemicals when the U.S. Government is in 
        agreement with an international decision to list the chemical 
        under the POPs Treaty;
2) The goal of taking regulatory action is to achieve a high degree of 
        public health and environmental protection;
3) In determining whether domestic action with respect to a chemical 
        that has been listed in the Convention is appropriate, the 
        United States should make an explicit determination as to: (a) 
        whether the best available scientific information (e.g., data 
        on persistence, bioaccumulation, toxicity, long range 
        environmental transport, and the risk profile) supports the 
        listing, and (b) whether the specific domestic regulatory 
        measures (prohibitions or restrictions) included in the 
        international listing are necessary and adequate for the 
        chemical in its various uses;
4) In determining whether the best available scientific information 
        supports the international listing, the United States should 
        consider the information considered in the international 
        listing process, with emphasis on information that is 
        peerreviewed, valid in its research design and methods, and 
        replicable by qualified scientists;
5) In determining whether the domestic regulatory measures are 
        necessary and adequate, the United States should compare the 
        international decision to measures that are more and less 
        stringent, thereby facilitating a riskmanagement decision as to 
        which measure(s) provide(s) the most reasonable balance of 
        benefits, risks and costs for specific uses; and
6) In weighing benefits, risks and costs, the United States should 
        consider domestic production, export and use of the chemical, 
        and any national and international consequences that are likely 
        to arise as a result of domestic regulatory action, including 
        consequences that cannot be quantified and including 
        consideration of the possible consequences of using likely 
        substitute chemicals.
    The processes set forth in Article 8 of the POPs Convention and the 
LRTAP Executive Body Decision 1998/2 for listing future chemicals are 
rigorous and sciencebased, and we fully support those processes. We are 
confident that they can identify strongest candidates for listing based 
on a scientific risk assessment and can efficiently eliminate those 
that fail to meet the POPs criteria or for which global action is not 
warranted. The Administration is firmly committed to maintaining the 
high degree of analytical and scientific rigor in the POPs process that 
has led to international recognition of the United States for its 
strong scientific risk assessments and regulatory decisionmaking.
                    v. a call for swift ratification
    The Administration is seeking swift enactment of implementing 
legislation for these Agreements. All three of these treaties entered 
into force over the course of the last nine months. As noted earlier, 
it is important that the United States be a party to these Agreements 
at the outset or as early as possible to enable the U.S. to play a 
strong role from the start in the implementation of these three 
treaties. Furthermore, the United States would like to demonstrate its 
ongoing commitment to the goals of these important treaties, and, by 
our example, encourage other countries to ratify these Conventions.
                vi. ratification is in the u.s. interest
    The Administration is very proud of the leadership role of the 
United States on these very important environmental treaties, which 
provide excellent examples of how industry and environmental interests 
can work together to address serious environmental issues. These three 
agreements 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 the 
industry, environmental organizations, and others as we implement these 
agreements. We are committed to work together with our domestic 
stakeholders and the international community to address these chemicals 
globally. In order to do so, it is necessary for the United States to 
be a party. Important decisions will be made early in the process, and 
the United States should be there to help shape those decisions, based 
on both domestic and international priorities.
                            vii. conclusion
    Thank you for the opportunity to discuss these important 
international environmental agreements today. Enacting legislation this 
year is an important priority for the Administration, as it is firmly 
committed to becoming a party to the global POPs Convention, the PIC 
Convention, and the regional LRTAP POPs Protocol. As we continue to 
review this draft, and the committee continues its deliberations, we 
appreciate the opportunity to continue to work with Chairman Gillmor 
and other members on legislative refinements that would be consistent 
with the President's agenda and budget. Again, I want to thank you for 
your support and leadership and assure you that this Administration is 
looking forward to working with the Committee to advance these 
important agreements by finalizing the implementing legislation 
necessary for the United States to meet our obligations under the 
agreements.
    I will be pleased to answer any questions.

    Mr. Gillmor. Thank you very much.
    And we will proceed to our first round of questions.
    And if I might direct my questions actually to both of you. 
Do you believe that the discussion draft provides the United 
States with the authority to implement the convention?
    Ms. McMurray. Mr. Chairman, yes we do. I can answer for 
both of us, I think.
    Mr. Gillmor. Okay. Like my wife, she answers for me all the 
time, and better.
    Do you believe this discussion draft provides the United 
States the authority to take regulatory action when the U.S. 
Government is in agreement with an international decision to 
list a chemical under the POPs treaty?
    Ms. Hazen. Yes, Mr. Chairman, we do.
    Mr. Gillmor. And does the discussion draft allow the best 
available scientific information to be used in supporting the 
listing and to justify the regulation of new chemicals?
    Ms. Hazen. Mr. Chairman, the discussion draft requires that 
the Administrator use sound and objective scientific practices 
and to determine the weight of scientific evidence concerning 
such risks or effects based on the best scientific information, 
including peer reviewed studies in the rulemaking record.
    Mr. Gillmor. Thank you.
    Does the discussion draft allow the U.S. to consider the 
information that is gathered and evaluated as a part of the 
international listing process?
    Ms. McMurray. Yes, Mr. Chairman, it does.
    Mr. Gillmor. And does the discussion draft allow the United 
States to make risk management decisions that provide a 
reasonable balance of benefits, risk and cost for the 
evaluation of new chemicals?
    Ms. Hazen. Mr. Chairman, the draft includes as part of its 
rulemaking authority that the Administrator, when issuing 
rules, would in fact look to achieve a reasonable balance of 
social, environmental and economic costs and benefits. It is 
specifically in the language.
    Mr. Gillmor. Thank you.
    And does the discussion draft allow the United States in 
weighing benefits, risks and costs to consider domestic 
production, export, and use of the chemical as well as national 
and international consequences that will arise as a result of 
the regulatory action?
    Ms. Hazen. Yes, Mr. Chairman, it does.
    Mr. Gillmor. And in light of these answers and also in 
light of the testimony which states that the current 
legislative draft reflects the element that this administration 
believes are needed to move forward domestically, thus allowing 
the United States to become a full party to the agreements the 
discussion draft contemplates, would you support this draft as 
a way of moving the process forward through the House?
    Ms. McMurray. Mr. Chairman, while I am unable to express 
the administration's support for this legislation or, indeed, 
any legislation that has come before either body to this point, 
I can say as you heard in my testimony that we are quite 
anxious to move this process forward and become party to all 
three of these agreements. So if indeed you were to schedule 
action on this bill, we would be supportive of that as a way to 
move the process forward.
    Mr. Gillmor. Thank you.
    And let me also ask you whether at this point, and I 
presume this will be done at the first round of meetings, but I 
just want to clarify this, whether the decision has been made 
as to what countries would be on the review panels or how those 
countries would be selected? IS that process not yet developed 
and is likely to be developed at these meetings?
    Ms. McMurray. That is a process that will be engaged in at 
the first conference of the parties. And it is our hope that 
the United States would have the opportunity to be on that 
committee.
    Mr. Gillmor. Okay. Thank you.
    Gentlelady from California, Ms. Solis for opening 
questions.
    Ms. Solis. Thank you, Mr. Chairman.
    First of all, I would like to ask both of you has the 
administration taken a position on endorsing this draft 
legislation that has been introduced by Mr. Gillmor or the 
Senate legislation, Senate Bill 1486?
    Ms. McMurray. Congresswoman Solis, I indicated in my prior 
answer that we have, as an administration, not taken a position 
on either the Chairman's draft proposal or the bill that was 
considered by the Senate Environment and Public Works 
Committee.
    Ms. Solis. Would the Senate proposed legislation in your 
opinion also be ready to be actually implemented? Would it meet 
the standards?
    Ms. McMurray. We actually gave the Senate committee that 
response when they asked. Yes, it enables us to fulfill our 
obligations under the treaty.
    Ms. Solis. So you have two bills right now that you are 
telling me that could possibly move forward, and the 
administration has not taken a position on either?
    Ms. McMurray. Not on the particular substance of either 
bill. But we want to provide enough guidance so that you will 
have confidence that we will be able to implement these 
treaties. And we believe that both of these bills do that.
    Ms. Solis. What is the urgency for having this treaty 
implemented in such a shortened period of time when we have had 
3 years now that it was officially agreed upon by the 
administration; why now?
    Ms. McMurray. Well, while this committee has just begun its 
activity, there have been a number of other fora where we have 
been working with other parts of the Congress to try and get 
implementing legislation moving forward.
    As you know, there are two other committees in addition to 
the Senate Environment Committee and this committee who have 
jurisdiction over portions of the subject matter here. The 
House Agriculture Committee and the Senate Agriculture 
Committee as well.
    Ms. Solis. When did you start working with them?
    Ms. McMurray. It has been at least a year, I would say.
    Ms. Solis. A year? And on the draft language that we have 
before us, I understand you provided technical assistance to 
Mr. Gillmor. When did you begin in that process to actually 
craft the legislation?
    Ms. McMurray. Well, I would have to ask the Chairman when 
he first put forward this legislation. But if I were to venture 
a guess here, I would say it has been a couple of months we 
have been working.
    Ms. Solis. A couple of months?
    Ms. McMurray. Yes.
    Ms. Solis. More than two?
    Ms. McMurray. It might be slightly more than two, but I do 
not think it has been that long.
    Ms. Solis. Just another question. I had heard that OMB was 
also involved in this process. This legislation was actually 
approved by them. I mean, it went all the way up, I guess, 
leaving your agency up the chain of command now. Is that true?
    Ms. McMurray. Well, Congresswoman, we have a standard 
process for reviewing legislation of any subject matter through 
the administration. And OMB provides in general a coordinating 
function. Especially if agencies disagree on particular issues, 
they'll bring all of us together and figure out a way to 
develop a comprehensive administrative position, so----
    Ms. Solis. So this has had to take a good amount of time if 
it went to that level, and obviously there were differing 
points of view.
    Ms. McMurray. Yes.
    Ms. Solis. What I am amazed at is that, and I do not mean 
to be rude, but it just sounds to me that the process if we 
really want to achieve a bipartisan effort here, that we could 
have been involved in some way or at least given knowledge that 
this was in the works. I think we all agree that there has to 
be a standard, a set standard to help regulate the POPs and 
what have you. And I really believe that there are members on 
this side of aisle who really want to achieve that. I am just 
concerned that we were not allowed to be a part of the process.
    And in our conversation last week we spoke also regarding 
your input on potential draft legislation that I could share 
with you. And I got word from your office late yesterday that 
you could not at that time provide me with any assistance for 
such a turnaround.
    Ms. McMurray. Yes. If I could clarify. First of all, we 
would be most willing to provide the same amount of technical 
assistance that we provided to the majority staff on this 
committee and also to the Environment and Public Works 
Committee on both sides of the aisles.
    In addition, I can tell you that while we have taken a 
preliminary look at other legislation other than what is 
offered by the chairman here, we do have a process that 
requires clearance by every agency effected by the legislation. 
And I would be happy to make sure that that process is 
expedited on your behalf.
    Ms. Solis. Okay.
    I have no further questions at this time.
    Mr. Gillmor. Thank you very much.
    We have a series of three votes which have been called.
    Let us break at this point. It is impossible to estimate on 
how long these things take. They are three votes and we are 
about 10 minutes into this vote. Probably about 25 minutes when 
members would be able to get back.
    We stand in recess.
    [Brief recess.]
    Mr. Gillmor. The committee will come to order.
    I might advise you that the 3 votes took longer than we 
anticipated because of the process of the first vote. The 
voting machine broke down, so they had to reboot it and we had 
to do all those votes over again. So that is why it took so 
long.
    I would like to recognize----
    Mr. Otter. Mr. Chairman, is that just today's vote or do we 
get to go all the way back to last week?
    Mr. Gillmor. I do not know.
    I recognize the gentlelady from California.
    Ms. Solis. Thank you, Mr. Chairman.
    Mr. Chairman, I understand that as we were away voting that 
we were notified that the official from the State Department 
left without apparently giving us notification. And, as you 
know, under House rules each committee shall apply up to 5 
minute rule during the questioning of witnesses and hearing 
until such time as each member of the subcommittee who desires 
has had an opportunity to question a question. And my inquiry 
is to how was she able to leave without giving us notification?
    Mr. Gillmor. You remember in my opening statement I 
mentioned that some of the witnesses had planes to catch and 
asked the members be mindful of that in their questioning.
    I was called and told that because of this vote she was 
going to have to leave. I asked staff to inquire if she would 
answer questions in writing, I do not feel like it was 
appropriate for us to make her miss her plane after she had 
told us in advance she had one.
    Plus, we do not have any power to hold a witness here 
anyway. They can thumb their nose at us and walk out whenever 
they want, once we subpoena, which we have not done.
    Ms. Solis. Mr. Chairman, with all due respect, it is a rule 
of the committee. And I would just ask that we at least allow 
for members who did show up be given the opportunity to ask 
questions and submit them in writing.
    Mr. Gillmor. Yes, we have already done that. I have already 
done that. And the witness has agreed to answer questions----
    Ms. Solis. In writing.
    Mr. Gillmor. [continuing] that any members might submit.
    Let us see if there are further questions of the witness. I 
believe we go to Mr. Otter? No questions?
    Mr. Otter. I do not have any questions.
    Mr. Gillmor. Ms. Capps, gentlelady from California.
    Ms. Capps. Thank you.
    Well, I did have a question for Ms. McMurray, panel 1. But 
I will express it to you, Ms. Hazen, if I may. It has to do 
with polybromated diphenyl ethers, PBDEs. And these are 
chemicals that are used as flame retardants on plastic. These 
chemicals have been shown to disrupt thyroid functions and 
cause developmental problems in unborn or fetuses. And in the 
State of California, my State, there is a ban for several forms 
of PBDEs with a phaseout to occur the year 2008. If PBDEs are 
recommended to be added to the treaty, will California law be 
allowed to stand no matter what action EPA takes, or could the 
California law be preempted under this discussion draft?
    Ms. Hazen. Congresswoman, I will take an attempt at 
answering that with Claudia not being here.
    Ms. Capps. Sure.
    Ms. Hazen. As you said, California has a ban that will 
phase in up until year 2008. Currently in the U.S., most of the 
production and use of PBDEs is in the process of being 
regulated. The one manufacturer of most of them has voluntarily 
agreed to discontinue its production, and that will be covered 
by an action from EPA, a significant new use rule, which would 
prohibit further production without prior notification. It 
would make sure that future production notifications would have 
to come to the agency.
    The reason I mention that is because, obviously then there 
will be no domestic manufacture, therefore no domestic use in 
the U.S. The significant new use rule that I mentioned will 
also cover imports. Therefore, the U.S. will not be importing 
any of these flame retardants for use in products. So that, 
too, is the next stop gap for their use in products in the 
United States.
    The answer to your question, which gets to States' issues 
regarding Federal regulations, is as follows. As you know, 
States, the interpretation as I understand it and again I am 
perhaps a little over my head here, but States are always able 
to regulate more stringently than the Federal Government. In 
that case, I do not believe there is an issue.
    I would be happy to take this question back, however, and 
make sure that the answer I have given you is correct. And if 
there is any inaccuracy in my statement, we will get back to 
you with that.
    Ms. Capps. Well, your statement is, of course, something I 
would like to hear.
    Ms. Hazen. I understand.
    Ms. Capps. Because we are not only talking about domestic 
use, but importing and also then that means whether or not this 
chemical is not allowed to be imported to our country, whether 
or not it is part of the ban, part of the POPs then there would 
be a chilling effect. However, on page 60 and I understand you 
were just speaking generally, but this is the question that I 
have which relates not only to PBDEs, but I used it as an 
example, page 60 of the discussion draft, line 20 states which 
I think contradicts what you said. And that is what I would 
like to see clarified if not today, but you personally. And I 
do not want to put you on the spot. But if we could have follow 
up in writing.
    This is the quote from page 60: ``No State or political 
subdivision may establish or continue in effect any requirement 
that is applicable to a POPs chemical substance or mixture.'' 
And then that would follow to me that California law would be 
preempted. And that is a great concern. Not just with this 
particular chemical, but with any future chemical that might be 
proposed as being part of the POPs ban during that time that 
this draft is asking us to study further prolonging the time of 
use of what a State has considered to be a dangerous substance, 
you see, then it really does violate State rights.
    What if EPA action is less stringent than the California 
law? Would California law or any State law be allowed to stand 
under this discussion draft? That is my question. And if you 
want to consult with staff, that is fine.
    Ms. Hazen. Congresswoman, what I would like to do is take 
this back and make sure we get you a response for the record. I 
do have a copy here of the relevant provision of TSCA. But 
rather than try to read and respond to you at the same time, 
let us take this back so that we get you accurate information.
    Ms. Capps. Okay. I guess I am just about out of time.
    I had another topic, which I will just lay out, but I am 
very concerned about this draft. Maybe somebody else will 
follow up, which is the precautionary approach that is set 
forth in principle 15 of the Rio Declaration of Environment and 
Development, the objective of the convention being to protect 
human and environment from persistent organic pollutants, but 
where does this discussion draft specifically include the 
precautionary approach as a principle consideration for 
regulation, to reflect the primary goal of the treaty? And that 
could be another 5 minutes. But I am very concerned that we do 
justice to the previous convention with respect to the value of 
human life.
    Thank you.
    I yield back.
    Ms. Hazen. Thank you.
    Mr. Gillmor. The Chair would recognize Ms. Solis for 
another 5 minutes, second round.
    Ms. Solis. Thank you, Mr. Chairman. I probably will not 
take all of the five. But I did have a question for Ms. 
McMurray, but she has left. But I wanted to ask Ms. Hazen if 
she had seen the letter that Mr. Dingell and I had sent the 
State Department that at the last meeting we had she was going 
to respond to? And in that letter what I wanted to ask is 
whether or not the State Department described an extensive 
science-based process used to decide whether to regulate a 
pollutant according to section 8 of the convention, and you 
believe this process allows parties and observers to bring all 
appropriate scientific and alternative information necessary to 
make a credible listing decision?
    Ms. Hazen. Congresswoman Solis, I have seen the response 
that the State Department provided. The process laid out in 
that particular section of the treaty allows for a fairly 
robust opportunity for all countries to bring to the table any 
information that they believe is relevant to the decision.
    Ms. Solis. So you agree then?
    Ms. Hazen. I agree that the treaty provides an opportunity 
for any country who is a party to bring any piece of relevant 
information to the table, yes.
    Ms. Solis. Okay. My next question is the House Republican 
bill in my opinion establishes a new regulatory cost benefit 
standard with criteria that go beyond existing law and imposes 
a new analysis and assessment on EPA. Do you agree with the 
U.S. process to decide to regulate, and how should that be 
constructed to allow the U.S. to act promptly and efficiently 
to regulate, if necessary?
    Ms. Hazen. Congresswoman, if I understand your questions 
correctly, the domestic statute, TSCA, is a cost benefit 
statute, and it does provide for cost benefit analysis as does 
FIFRA, for example, for nonfood uses of pesticides.
    Ms. Solis. But, ma'am, that is a standard that has not been 
effectively use to regulate asbestos.
    Ms. Hazen. That standard, the cost benefit standard and the 
related least burdensome approach provision of TSCA, were the 
two issues that the court brought into question, yes.
    Ms. Solis. ``Least burdensome,'' those are critical here.
    Ms. Hazen. With respect to the least burdensome approach, 
the court specifically referenced that the agency had not taken 
that into consideration in the asbestos issue.
    Ms. Solis. So in my opinion that standard is not sufficient 
then to be used?
    Ms. Hazen. The combination of cost-benefit and least 
burdensome approach, the combination of the two, provided the 
basis for the court's decision in asbestos.
    The draft discussion bill, while it envisions discussion 
and consideration of a balance of environmental and economic 
costs and benefits, does not bring into play the issue of the 
least burdensome approach. That is not----
    Ms. Solis. But the term using ``balance,'' that does not 
show up in the legislation. So, you are making your own 
interpretation here. That is not in the law.
    Ms. Hazen. I'm sorry, which----
    Ms. Solis. You just said ``balanced.''
    Ms. Hazen. A reasonable balance of social, environmental 
and economic costs I believe is the language in the discussion 
bill, is that not correct?
    Ms. Solis. I mean in the current print law.
    Ms. Hazen. Current?
    Ms. Solis. No.
    Ms. Hazen. TSCA talks about cost benefit and least 
burdensome, you are correct.
    Ms. Solis. I have no further questions, Mr. Chair.
    Mr. Gillmor. The Chair would recognize the gentleman from 
Michigan for 5 minutes.
    Mr. Stupak. Thank you, Mr. Chairman.
    Ms. Hazen, I appreciate you urging us to move as quickly as 
possible, to move this legislation. But this bill has been 
sitting--I should say treaty has been sitting for 3 years after 
the President announced that the U.S. would become a party to 
the Stockholm Convention.
    As I mentioned in my opening statement, I have another 
concern though, another important agreement does not seems to 
be a priority with the administration, and the U.S./Canadian 
Transboundary Movement of Hazardous Waste to protect the 
citizens from Michigan from unwanted trash and possible 
hazardous waste material.
    A year ago at a hearing held by this subcommittee I asked 
the administration when could we expect legislation to be sent 
up to allow this important agreement to be enforced, and they 
said shortly. It has been a year ago, nothing has been sent up. 
Do you have any idea where that proposed legislation would be?
    Ms. Hazen. Congressman, I apologize, but I will have to 
take that question for the record. That is not a piece of 
legislation that I have been involved in.
    Mr. Stupak. Well, can you explain to me what ``shortly'' 
means then for the EPA? I asked the same question in 1994. In 
1994 the EPA said it would be shortly. I asked the same 
question in 2003. The EPA said it would be shortly. Here we are 
in 2004 and if all these agreements, especially international 
agreements are such a priority, I would think after 10 years 
shortly would become a reliability and we would get some kind 
of direction from the administration.
    Ms. Hazen. Congressman, I can certainly understand the 
frustration with the amount of time you cite as having waited. 
And I will, as I say, go back and get answers for you for the 
record.
    Mr. Stupak. And would you also ask them then, ask the Bush 
administration then if they would take a position on H.R. 411 
and H.R. 1730 bipartisan pieces of legislation which again 
deals with the movement of Canadian trash in Michigan and Ohio, 
and other States, would you ask them to do that for us? That 
has been a over on that legislation also?
    Ms. Hazen. I will certainly address those.
    Mr. Stupak. Okay. Ms. Hazen, Dr. Goldman who was the 
assistant administrator of your office for 6 years in the 
1990's stated the following about the regulatory standard in 
Gillmor, what we have been calling the discussion draft here 
this afternoon. And in her prepared testimony she says ``These 
proposed standards are actually worse than the provisions of 
current law and would render the EPA's efforts completely 
ineffective.''
    Has the EPA made any effort in the past few months to work 
with knowledgeable officials like Dr. Goldman in the public 
health community in an effort to forge a broad consensus for 
implementing this legislation?
    Ms. Hazen. Congressman, the agency has provided technical 
assistance for those committees who have come to the agency 
asking for technical assistance. We have also made ourselves 
available to meet with any groups that have asked to meet with 
us. I personally have attended two meetings with members of the 
environmental community, we have had meetings with others. If 
one were to look at----
    Mr. Stupak. I guess I am not looking for groups. I am 
looking for legislators. Have you worked with any legislators 
other than Mr. Gillmor to get a broad consensus for just 
implementing the legislation? If I heard Ms. McMurray testify, 
in 6 weeks is sort of a critical time line we had this 
legislation that this side of the aisle has not been consulted 
with, we have grave concerns. So how do you forge a broad 
consensus for implementing legislation? If we are on this fast 
track to get this thing done, I would think you would want to 
work with everybody up here so we could get it done and get it 
passed. And not only our committee, I am sure other committees 
want jurisdiction on this legislation, too. So I would think 
you would want to do a broad consensus.
    So my question was really what groups form that broad 
consensus?
    Ms. Hazen. In August 2003 and October 2003 we met with full 
committee staff of the Energy and Commerce Committee. What we 
presented at that time was the SEPW draft that had been worked 
on and the provisions of that draft. And at that time expressed 
the administration's desire to move as rapidly as possible. At 
that time we did invite anyone who was interested in working 
with us to provide us their thoughts or ask us for our thoughts 
or technical assistance. We made ourselves available to them.
    Mr. Stupak. If it was October 2003, why are we waiting then 
with like 20 days left in this sessions then to put forth 
legislation?
    Ms. Hazen. Congressman, all I can say is that we made folks 
aware that we were putting POPs forward as a priority, offered 
up our technical assistance where we could, and provided it 
whenever requested.
    Mr. Stupak. It sounds like the Chairman has taken the EPA's 
definition of shortly then. Just a joke.
    What other outside groups have you worked with on this? 
Have you worked with some of the environmental groups, and some 
of the business groups to try to develop this legislation? Once 
you get the legislation, would you sit down any of the groups; 
let me ask it like that. Once you got the Chairman's discussion 
draft were you able to sit down with any of the groups to try 
to solicit support for implementing legislation?
    Ms. Hazen. We have not specifically done so with this 
particular draft, but we have sat down with many groups to hear 
their thoughts and ideas, their concerns on how this treaty 
should be implemented and enforced. In fact, we have met with 
folks who were instrumental in the actual development of the 
treaty itself.
    Mr. Stupak. Yes. But since the legislation you have not met 
with any groups yet?
    Ms. Hazen. No, we have not.
    Mr. Stupak. Okay.
    Mr. Rogers [presiding]. Mr. Stupak, your time is up.
    Mr. Stupak. Thank you, Mr. Chair.
    Mr. Rogers. I'm going to give Ms. Capps of California 
another 3 or 4 minutes.
    Ms. Capps. I do appreciate your staying for this 
opportunity for a second round.
    I brought up this topic just at the end of my last 5 
minutes with you, and it is to follow on what the ranking 
member has brought up, because I think it is so important.
    As you know, Ms. Hazen, the substances regulated under the 
Persistent Organic Pollutants Treaty are some of the most 
dangerous persistent and well traveled substances known to man 
with potentially widespread and long term effects on human 
health and the environment. Because of this, the very first 
thing the treaty says in article 1, and I am quoting now and 
the emphasis is on precautionary approach: ``Mindful of the 
precautionary approach as set forth in principle 15 of the Rio 
Declaration of Environment and Development, the objective of 
this Convention is to protect human health and the environment 
from persistent organic pollutants.'' Precaution including 
transparency and public participation is a guiding approach 
throughout this treaty.
    Yet I cannot find anything in this draft that resembles 
such a precautionary approach. So my question is where does the 
discussion draft specifically include the precautionary 
approach as a principle consideration for regulation to reflect 
the primary goal of the treaty.
    Ms. Hazen. Congresswoman, if you are looking for a specific 
reference to the word ``precautionary approach,'' they will not 
be there. What has been built in, as I have been able to read 
through it, is a number of things that I think are important.
    In terms of transparency, there are multiple opportunities 
during the process envisioned in the bill to engage the public, 
the public in its broadest possible sense, in understanding 
what is happening in terms of chemicals that are being 
considered, chemicals where the U.S. is trying to negotiate or 
put forward a position. So there are multiple opportunities to 
bring the broad public in in terms of stakeholder involvement.
    As I said earlier, I think it is critical to involve our 
stakeholders because the U.S. has probably the most robust data 
base in the world to bring to the table the information that 
will allow us to be--if you put quotes around the word 
``precaution'' in the sense that I think what we bring to the 
table is the most robust source of information which allows----
    Ms. Capps. I do not mean to interrupt you, but I do want to 
make this point clear. Then why was not the precautionary 
approach, which is so central to the treaty, why is it 
deliberately omitted even though you are talking about a lot of 
things that surround it. It is a guiding principle of the 
treaty. Instead what I hear and the language that I see in this 
drift is being substituted by the phrase ``reasonable 
balance.'' And that, I think is such a difference from the 
treaty to how we are disguising it now. It is as though you 
have a scale and on one side you put fetal deformatives, you 
put increases in cancer, you put mental retardation. And on the 
other side you put business cost. And somewhere we are trying 
to draft legislation with all this data, which we do have, but 
we are talking about value of life. I am begging for a 
affirmation of a precautionary principle which does justice to 
this goal. And maybe you can find something else. But to me 
this draft does not rise to the level that the treaty asks for.
    Ms. Hazen. Congresswoman, I hear exactly what you are 
saying. I do not think you will find the term precautionary 
approach in any of the various bills that have been put 
forward. What I can say, and I----
    Ms. Capps. Can you tell me why?
    Ms. Hazen. Let me----
    Ms. Capps. Okay. You are going to tell me why? Go ahead.
    Ms. Hazen. Well, I am going to explain at least my 
perception of it.
    Ms. Capps. Good.
    Ms. Hazen. I think to get specific answers probably we need 
to discuss the issue with the drafters themselves.
    But I think the term ``reasonable balance'' of social, 
environmental and economic costs, and I understand your concern 
with the balance issue; my understanding of the ``social and 
environmental'' cost component of that would certainly bring in 
this concept of precaution. As I say, it is not a term of art 
that has been any of the bills that have been drafted. But I 
think the consideration of social costs, the very issues that 
you raise and they are obviously of concern, have the ability 
to be brought in here and be part of the equation.
    Ms. Capps. Right.
    Well, Mr. Chairman, I know I have used my time. But I just 
want to go on record as saying I think it is quite remarkable 
that the language that is so prominent in the treaty of 
precautionary approach is absolutely missing from any of the 
bills that have to do with its ratification.
    Mr. Rogers. The gentlelady's time is up.
    We do have another panel of eight folks. I thank the first 
panel, Ms. Hazen, and you can excused. And we would invite the 
second panel to come forward.
    Ms. Hazen. Thank you.
    Mr. Rogers. We have: Michael P. Walls the Senior Counsel of 
the American Chemistry Council; Steven Goldberg, CropLife 
America; Jim Roewer, Executive Director Utility Solid Waste 
Activities Group; Mr. Scott Slesinger, Vice President, 
Governmental Affairs, Environmental Technology Council; Brooks 
P. Yeager, the Vice President of Global Threats World Wildlife 
Fund; Dr. Lynn Goldman, the Professor of the Environmental 
Health Sciences, Bloomberg School of Public Health, Johns 
Hopkins University; Ms. Lisa Heinzerling, Professor of Law, 
Georgetown University Law Center, and; Mr. Glenn Wiser, Senior 
Attorney and Intern Coordinator for the Center for 
International and Environmental Law.
    I would say up front that your entire statements if you 
want to abbreviate them, will be submitted for the record.
    We would like you to stay within the 5 minute time limit.
    We will go ahead and start with Mr. Walls.

 STATEMENTS OF MICHAEL P. WALLS, SENIOR COUNSEL, THE AMERICAN 
  CHEMISTRY COUNCIL; STEVEN GOLDBERG, CROPLIFE AMERICA; LYNN 
   GOLDMAN, PROFESSOR OF THE ENVIRONMENTAL HEALTH SCIENCES, 
 BLOOMBERG SCHOOL OF PUBLIC HEALTH, JOHNS HOPKINS UNIVERSITY; 
   BROOKS P. YEAGER, VICE PRESIDENT OF GLOBAL THREATS WORLD 
 WILDLIFE FUND; LISA HEINZERLING, PROFESSOR OF LAW, GEORGETOWN 
  UNIVERSITY LAW CENTER; GLENN M. WISER, SENIOR ATTORNEY AND 
 INTERN COORDINATOR, CENTER OF INTERNATIONAL AND ENVIRONMENTAL 
  LAW; SCOTT SLESINGER, VICE PRESIDENT, GOVERNMENTAL AFFAIRS, 
    ENVIRONMENTAL TECHNOLOGY COUNCIL; AND JAMES R. ROEWER, 
    EXECUTIVE DIRECTOR UTILITY SOLID WASTE ACTIVITIES GROUP

    Mr. Walls. Thank you, Mr. Chairman. Good afternoon.
    I am Michael Walls, I am Senior Counsel at the American 
Chemistry Council. And we appreciate the opportunity to be here 
today to reiterate the chemical industry's support, not only 
for the treaties that are the subject of this hearing, but also 
our support for the draft legislation that has been put forward 
for consideration. In our view these agreements are an 
important step in achieving appropriate harmonized controls on 
the small side of chemicals that pose global and environmental 
risks.
    We also believe that the draft amendment developed by the 
subcommittee is an important step in assuring that the United 
States will be able to continue its leadership role in the 
international implementation of these agreements. And we urge 
the subcommittee to act on that legislation as soon as 
possible.
    Now, we believe that the draft legislation provides all the 
statutory authority necessary for the United States to fulfill 
its obligations under the agreements. TSCA already provides EPA 
with consideration authority to regulate in a manner consistent 
with the convention. There are some modest amendments that are 
absolutely required as part of the legal obligations that the 
U.S. would exceed to under these agreements. But let me focus 
specifically on the question of additions to the list of 
chemicals, the list of POPs in particular.
    Strictly speaking, the POPs agreements do not obligate the 
parties to establish a domestic mechanism to address the treaty 
amendment. In our view, however, it would it be prudent for the 
Congress to consider such an adding mechanism as part of the 
implementing legislation.
    Now under the treaty process a chemical is nominated as a 
POPs. That nomination is considered by a review committee along 
with information on the hazards, uses, exposures, risks and 
social economic consideration attendant that listing, and a 
decision is made by the parties to the agreement. Now, there 
are two major aspects to that additions process that merit 
comment with respect to U.S. implementation.
    First, ACC believes it is important that the United States 
have an opportunity to take an independent look at a proposed 
listing before regulating domestically. There may be any number 
of reasons why; a listing agreed under the treaties does not 
warrant U.S. action or regulatory response.
    Second, the POPs agreements themselves adopt a process for 
additions that are grounded in science, risk and cost benefit 
considerations. The governments that negotiated the POPs 
agreements did not say that hazard alone was the basis for 
regulation. They explicitly called for the consideration of 
scientific evidence, risk analyses and cost benefit 
considerations to inform their decisions.
    Annex D and E to the Stockholm Convention, for example, 
established the information requirements for nominated 
chemicals. The purpose of this information is to establish that 
as a result of its long range transport a particular substance 
is likely to cause significant health and environmental impacts 
such that action under these agreements is warranted.
    The review committees are consider, as I said, hazard 
information, production use and exposure information, data on 
environmental fate and transport, risk assessments and 
evaluations, even those conducted at the national and 
international level.
    Annex F to the Stockholm Convention goes even further and 
says that the parties will consider a series of cost 
considerations in considering a new listings. These include the 
cost of possible control measures in meeting the risk reduction 
goals, the cost of alternative products and processes, the 
positive or negative impact on society, the control measures 
and even the costs of waste and disposal implications for those 
POPs.
    In short, the agreements adopt a risk based science 
justified approach to listing new substances supported by cost 
benefit information. That international process is intended to 
achieve a decision that balances environmental health, social 
and economic impacts. The process adopted in the agreements is 
exactly the same process adopted in the draft legislation that 
has been put before the subcommittee.
    Decisions under the Stockholm Convention, as various 
members had mentioned, are to be taken in a precautionary 
manner. But even that precautionary approach referred to in the 
convention anticipates a similar balancing of social, economic, 
environmental and health considerations.
    In short, Mr. Chairman, this approach is consistent not 
only with the agreements but also with longstanding U.S. law 
and practice. It allows for an independent U.S. judgment on 
proposed additions and provides a basis for risk-based 
regulatory decisions.
    Mr. Chairman, I will conclude my remarks there and will be 
happy to answer any questions later.
    Thank you.
    [The prepared statement of Michael P. Walls follows:]
   Prepared Statement of Michael P. Walls, American Chemistry Council
                            i. introduction
    The American Chemistry Council (ACC) has been a consistent 
supporter of 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). 
ACC and its members believe that the Subcommittee's draft amendment to 
the Toxic Substances Control Act (TSCA) represents an important step 
forward in assuring that the United States can continue its 
international leadership role under these agreements. We urge the 
Subcommittee to act on the draft legislation as soon as possible.
    ACC is the national trade association whose member companies 
represent more than 90 percent of the productive capacity for basic 
industrial chemicals in the United States. ACC members represent an 
industry on the cutting-edge of technological innovation and progress, 
whose products provide significant benefits to every sector of the 
global economy. The chemical industry has been engaged in the 
international discussions on POPs and PIC for many years. The three 
agreements currently under consideration are an important step in 
achieving appropriate, harmonized controls on the small set of 
chemicals that pose potential global health and environmental risks.
    The chemical industry's support for the agreements and their 
reasonable implementation into U.S. law is based on some fundamental 
considerations.

 The industry's commitment to product stewardship, including the goal 
        of preventing health and environmental damage in the 
        manufacture and use of chemical products. Our industry's 
        product stewardship commitment is an integral part of our 
        Responsible Care ' program, which is now being 
        implemented by the chemical industry in more than 42 countries.
 The agreements adopt processes for additions to the list of covered 
        chemicals that are grounded in science, risk, and cost-benefit 
        considerations. These are approaches that are entirely 
        consistent with long-standing U.S. law and practice, and that 
        will lead to appropriate global controls on priority chemicals.
 The participation of the United States is essential in assuring the 
        effective and efficient implementation of the agreements at the 
        international level.
ii. the chemical industry supports the agreements and their reasonable 
                     implementation into u.s. law.
    The U.S. chemical industry's work on the POPs issue began shortly 
after the Rio Summit on Environment and Development, in 1992. We worked 
with the Intergovernmental Forum on Chemical Safety (IFCS) in its 
effort to map the best approaches to dealing with POPs, particularly in 
discussions on criteria for identifying potential POPs substances and 
the decision-making process on those substances. The industry was a 
visible and positive contributor to the negotiations on the LRTAP POPs 
Protocol and the Stockholm Convention. Similarly, the industry worked 
closely with the U.N. Environment Programme to develop and implement 
the international program for government information exchange that 
ultimately led to the adoption of the Rotterdam PIC Convention.
    As the Subcommittee is aware, the LRTAP POPs Protocol, the 
Stockholm Convention and the PIC Convention are all in force. The first 
meeting of the Parties under the Rotterdam Convention will be held in 
September 2004, the first meeting of the Parties under the Stockholm 
Convention is scheduled for May 2005, and the first formal meeting of 
the Parties to the POPs Protocol will be held in December 2005. At 
these meetings, decisions critical to the future implementation of the 
agreements will be taken. For example, the Stockholm Parties will 
consider the rules of procedure for the review committees that will 
consider candidate POPs substances. Parties to the LRTAP POPs Protocol 
will make initial decisions concerning additional chemicals. The 
ability of the United States to lead and appropriately influence the 
decisions that have long-term consequences for the operation of the 
agreements is significantly reduced when our government is not a Party.
    The United States cannot be a full Party, however, until the Senate 
provides advice and consent to ratification. Although there is 
precedent for Senate action on a treaty before the Congress has 
addressed the necessary implementing legislation, the clear preference 
is that the legislation comes before the treaty vote. In the case of 
the POPs, LRTAP POPs and PIC agreements, amendments to the Toxic 
Substances Control Act (TSCA) and the Federal Insecticide, Fungicide 
and Rodenticide Act (FIFRA) are necessary in order to assure that the 
United States can meet its obligations. In ACC's view, the TSCA 
amendment outlined in Mr. Gillmor's draft legislation ensures full and 
effective implementation of all U.S. obligations under the treaties.
 iii. the subcommittee's draft addresses all obligations of the united 
                      states under the agreements.
    Mr. Gillmor's draft implementing legislation addresses all of the 
necessary changes to TSCA required to ensure that the United States can 
meet its obligations under the treaties. The modest statutory changes 
required 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.
    Although the POPs agreements do not obligate the Parties to 
establish mechanisms to address treaty amendments, the treaties 
contemplate the possibility that chemicals will be added to the list of 
covered substances in the future. ACC believes it is prudent to 
recognize the possibility of amendments in the implementing 
legislation, and establish a domestic process and EPA authority to 
prohibit or restrict the manufacture, use, or export of POPs substances 
listed by future decisions under the treaties.
    Under the Stockholm Convention, for example, a new chemical will be 
added to the list through the following process:

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.
    Mr. Gillmor's draft legislation 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.
    It is important to note that 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. 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.
    Mr. Gillmor's draft addresses the issue of future amendments by 
establishing a domestic regulatory process for new POPs substances that 
mirrors the procedural and substantive decisions under the Stockholm 
Convention and the LRTAP POPs Protocol. When EPA regulates newly listed 
substances, it is to regulate ``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.
 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 ensure that relevant social, economic, environmental and 
health information is considered in reaching a decision to list a new 
chemical; the draft legislation 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 record to consider in reaching a domestic regulatory decision--
and a sufficient opportunity to ensure that the record supports its 
subsequent decisions. The bottom line is that a domestic regulatory 
decision is necessary to implement any new treaty obligations for added 
chemicals, particularly to outline permitted uses or exemptions.
    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.
    Mr. Gillmor's draft legislation does no less, and provides the 
means by which the United States can address future amendments to the 
treaties. ACC and its members believe it is critical to assure that 
science and risk considerations inform decisions. The risk-based, 
science-justified standard adopted in the draft legislation is 
consistent with the Safe Drinking Water Act, the report of the 
President's Commission on Risk Assessment and Risk Management, and the 
efforts of both the Clinton and Bush Administrations (contained in 
Executive Order 12866, for example) to support the use of analytical 
tools such as risk assessment and cost/benefit analysis.
    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 
draft legislation 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.
    The regulatory authority established in Mr. Gillmor's draft is 
narrowly drawn for the purpose of implementing U.S. obligations under 
the Stockholm Convention and LRTAP POPs Protocol. Even so, the 
authority to prohibit or restrict the manufacture, processing, use, 
distribution or disposal of a substance is very broad. In ACC's view, 
that broad grant of authority must be exercised very carefully--and the 
careful exercise of that authority warrants EPA consideration of 
scientific evidence, risk considerations and cost/benefit analyses.
    Notably, Mr. Gillmor's draft does not prevent EPA from regulating 
POPs substances under its existing statutory authority, including TSCA. 
The United States regulated the 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 the draft simply adapts existing requirements in a 
manner that ensures the United States can meets its international 
obligations.
    Mr. Gillmor's draft relies on existing provisions of TSCA to 
complement the treaty-specific provisions. TSCA Section 19 is expanded 
to ensure that all persons have the right to seek review of EPA's 
decisions on treaty-related matters. EPA's enforcement and seizure 
authority under TSCA Sections 11, 15 and 17 are extended to include 
possible violations of the POPs and PIC agreements. The export 
notification requirements of TSCA Section 12 are amended to include 
export notices required under the PIC Convention, and where 
appropriate, integrated to ensure that export notices to importing 
countries have their intended effect.
    In ACC's view, Mr. Gillmor's draft 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 that pose priority 
global risks. 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 should 
become a Party to the agreements as soon as possible.
    The draft legislation before the Subcommittee fully implements U.S. 
obligations under the three agreements into TSCA. The draft 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.
    ACC strongly supports the draft legislation. We urge the 
Subcommittee to take quick action to ensure that the United States can 
become a Party to the agreements.

    Mr. Gillmor. Thank you very much, Mr. Walls.
    And we will go to Mr. Goldberg.

                  STATEMENT OF STEVEN GOLDBERG

    Mr. Goldberg. Thank you, Mr. Chairman, members of the 
subcommittee. Again, I am Steve Goldberg. I am Vice President, 
Associate General Counsel for Product and Trade Regulation at 
BASF Corporation. And I am here today representing CropLife 
America.
    CropLife America is the trade association representing 
developers, manufacturers, formulators and distributors of 
plant science solutions for agriculture and pest management in 
the United States. Our members companies develop, produce, 
distribute and sell virtually all of the crop protection and 
biotechnology products used by American farmers.
    CropLife America and its members support the POPs and PIC 
international agreements. Our member companies are committed to 
the spirit and letter of those agreements and welcome the 
opportunity to make recommendations about their integration 
into U.S. law. The United States has the strongest and most 
emulated pesticide regulatory system in the world through the 
Federal Insecticide, Fungicide and Rodenticide Act, FIFRA, and 
the Food Quality Protection Act Congress has provided for an 
increasingly comprehensive pesticide regulatory system as the 
basis for EPA pesticide decisions.
    For example, FIFRA's strict provisions for bringing 
pesticides to market require registrants to perform up to 120 
separate scientific safety tests to ensure that a product when 
used properly does not present health or environmental 
concerns.
    FQPA and the recently enacted Pesticide Registration 
Improvement Act are designed to ensure that EPA in fact reviews 
new and old pesticides to ensure that they meet the rigorous 
scientific standards that EPA imposes.
    We commend subcommittee Chair Gillmor and the entire 
Committee on Energy and Commerce for providing leadership on 
this complex issue. And we support the discussion draft bill as 
a positive step toward implementing the POP and PIC agreements.
    At the same time, however, we believe there are some 
provisions that blur the jurisdictional lines between TSCA and 
FIFRA. We believe that FIFRA provides the necessary statutory 
framework to implement the conventions without adding pesticide 
provisions to TSCA. We believe, in fact, that is the 
subcommittee's intent to maintain that jurisdictional split, 
and we look forward to working with the committee to ensure 
that this separation is clear.
    FIFRA with its protective health and safety provisions 
should be the basis for U.S. pesticide provisions under 
implementing legislation for POPs and PIC. At the same time we 
support the provisions in this proposal that provide notice and 
comment after each step in the international decisionmaking 
process regarding proposals for listing additional chemicals.
    Consultation with stakeholders and soliciting broad 
stakeholder input will ensure full consideration of potential 
impacts of the proposed listing and provide broad input into 
EPA decisionmaking.
    Ultimately the POPs Convention recognizes that beneficial 
uses of POPs chemical still exist. For example, with regard to 
developing countries. Those are reflected in specific 
exemptions and annexes to both POPs and PIC agreements. Thus, 
with regard to domestic use exemptions, any change should be 
effectuated through FIFRA section 6 process.
    The draft legislation implements these provisions where the 
POPs treaty had called for a reasonable evaluation of risks, 
including uses and benefits of the chemicals listed. Thus, we 
support the provisions of this bill that ensure that the U.S. 
Government will use and consider the best scientific 
information available.
    Our industry is concerned with the timing of passage of 
legislation implementing the POPs and PIC treaties. Expeditious 
U.S. ratification and implementation of these treaties is 
vital. Prior witnesses have talked about the various meetings 
upcoming. And all of these meetings will impact the U.S. 
including U.S. business. And it is imperative that the U.S. 
have a seat at the table. The U.S. cannot participate in a 
meaningful way unless ratification is complete and implementing 
legislation is signed into law before the end of this 
legislative session.
    In conclusion, we support this legislation with 
clarifications that FIFRA remains the sole statute under which 
crop protection products are regulated. We urge the committee 
and Congress to enable the U.S. to have an active presence 
before the international bodies making important decisions. 
This can only be accomplished by passing implementing 
legislation before the close of this session.
    We thank you for the opportunity to share our views with 
the committee, and we look forward to working the Chairman and 
members to ensure that POPs and PIC are properly implemented to 
meet the global health and environmental goals set forth in 
this agreement.
    And we will take questions when appropriate.
    [The prepared statement of Steven Goldberg follows:]
  Prepared Statement of Steven Goldberg on Behalf of 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 and biotechnology 
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 providing leadership on this complex issue. 
I appreciate the opportunity to testify before you this morning on the 
legislative proposal 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).
    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 address U.S. decisionmaking 
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 
impact on the availability of abundant and affordable food and fiber 
while also protecting people, animals, and our homes and businesses 
from disease-carrying pests. Pesticides control outbreaks of crop-
damaging fungus, insect infestation and noxious weeds to enhance U.S. 
food and fiber production. Pesticides are also used to combat damaging 
and health-threatening pests and insects. Pesticides control and 
eliminate vector borne illness caused by rats, mosquitoes (West Nile 
virus and other encephalitis) and ticks (lyme disease), among others. 
They combat cockroaches and mold/mildew in housing, restrooms, 
cafeterias and elsewhere, reducing known allergens causing 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 
producing 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 wild 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. ``Growing more crops and trees per 
acre leaves more land for nature,'' according to Nobel Peace Prize 
winner Norman Borlaug. Former U.S. Senator George McGovern 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 120 separate scientific safety tests to ensure that a 
product, when used properly, does not present health or environmental 
concerns. On average, only one in 20,000 chemicals makes it from the 
chemist's laboratory to the farmer's field. Pesticide development, 
testing and EPA approval takes eight to 10 years and costs 
manufacturers $75 million to $100 million for each product.
    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 believe 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.
    CropLife America supports the sovereign right of individual 
countries to decide which pesticides they will permit to be used 
domestically and allow to be brought into their country. Importantly, 
the POPs and PIC Conventions recognize this and include provisions 
providing for each nation's right to implement the agreements within 
their 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 the future. Health and 
environmental protections afforded 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 
used for agriculture, public health protection and other purposes. The 
agreements should not become vehicles 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.
    We believe that the expedient U.S. ratification and implementation 
of these treaties is vital to protect our country's interests. There 
are several international meetings occurring in the near term where it 
will be important to have U.S. representation present in an active 
role: the first meeting of the Conference of the Parties to the 
Rotterdam Convention will be held in September, 2004; LRTAP POPs 
Protocol countries will be meeting in December 2004 regarding potential 
additions of eight chemicals; and in May 2005 the POPs Review Committee 
will meet to organize and complete guidance and requirement principles 
for specific industry sectors on management of POPs byproducts. All of 
these meetings will impact U.S. businesses and markets. It is 
imperative that the U.S. have a seat at the table and a voice in making 
these important decisions. The U.S. will be excluded from these 
meetings unless implementing legislation and ratification of the 
treaties is signed into law 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. 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 or to ``opt-in'' or ``opt-out'' of the 
        international POPs listing based on their 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.
    We agree with the findings of the Conventions regarding POPs 
pesticides, and recognize that beneficial uses still exist, for example 
in developing countries, as reflected in the specific exemptions in 
annexes of both agreements.
    Companies represented by CropLife International, our industry's 
global association, have been working with the United Nations Food and 
Agriculture Organization on the safe collection and disposal of 
obsolete crop protection product stocks in Africa, Asia and Latin 
America. Through partnering and cost-share arrangements with donor 
agencies, governments and other stakeholders, this effort has resulted 
in the disposal of over 3,000 tons of obsolete pesticide stocks, 
including 800 tons of POPs pesticides. In 2003 alone, 1500 tons of 
obsolete pesticides were incinerated in Ethiopia and approximately 307 
tons were successfully retrieved from Senegal. Our commitment and work 
on such disposal projects will continue.
             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 non-governmental 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 that direct the Administration to provide notice and comment 
after 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 decision-making. It is important that these 
provisions remain through any further alterations to the bill
       recommendations for pops and pic implementing legislation
    Our industry looks forward to the opportunity to fully support 
implementing legislation to accompany the POPs and PIC agreements. We 
are committed to work with this Subcommittee to ensure that these 
agreements are fully implemented, without unintended consequences, and 
offer the following recommendations:
EPA
 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.
 With regards to modifying existing domestic use exemptions for banned 
        pesticides, any change must be effectuated through the existing 
        FIFRA Section 6 process.
                                summary
    Our industry is committed to the improvement and building of 
regulatory capacity, especially in the developing world. We have been 
active participants in the OECD and NAFTA international forums to 
harmonize pesticide registration processes for the past 10 years. 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. participation in 
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.
    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.

    Mr. Gillmor. Thank you very much, Mr. Goldberg.
    We will now go to Dr. Lynn Goldman of the Bloomberg School 
of Public Health at Johns Hopkins University.

                  STATEMENT OF LYNN R. GOLDMAN

    Ms. Goldman. Mr. Chairman and members of the subcommittee, 
it is an honor to testify before you today on draft 
legislation.
    I am going to summarize my written comments, which have 
been submitted to you for the record with your consent.
    As you know, I served between 1993 and 1998 as Assistant 
Administrator for Prevention, Pesticides and Toxic Substances 
at the U.S. EPA. But the views I present today are my own.
    I am going to first talk a little bit about PIC. Obviously, 
while trade in chemicals is associated with great economic 
progress worldwide, there can be serious adverse consequences. 
In most of the countries in the world today there is no system 
in place for regulating the commerce in chemicals. And, in 
fact, most governments do not even know which chemicals are on 
the market in their countries. And so the Rotterdam Convention 
on the prior informed consent procedure for certain hazardous 
chemicals and pesticides in international trade does fill a gap 
that is very important for developing countries. And so it is 
quite urgent that Congress should enact domestic implementing 
legislation that would give EPA clear authority to carry out 
all of the provisions of the PIC in a prompt and expeditious 
manner, including that the United States may want to notify the 
international authority that we do not want to receive a 
particular PIC listed chemical. Unfortunately, the June 17 
discussion draft does not do this, nor have we seen any sign 
from the administration that they asking for that particular 
authority.
    When it comes to POPs, I know that you are aware that these 
are persistent chemicals that are very toxic and can be 
associated with numerous types of health problems, especially 
for children. As a pediatrician I am most aware of how these 
chemicals are passed from the mother to the fetus in utero, and 
to the baby via breast milk. And I think of the POPs Convention 
as a convention that is there for protecting the fetus and 
protecting infants globally.
    The LRTAP POPs is a very important regional agreement. I 
think it is especially important as kind of a breeding ground, 
if you may, for policies that end up being perhaps exported 
into the global POPs Convention.
    The Stockholm Convention on Persistent Organic Pollutants 
initially targets 12 POPs, but of course it does have a 
provision for adding new POPs and opt-in or opt-out provisions. 
The convention, it is important to recognize, did enter into 
force on May 17 of this year.
    I have reviewed the June 17 discussion draft and find that 
it does fall short in a number of ways. And I should say that 
these comments are intended to be offered in a constructive 
manner. Even though I am critical, I am very hopeful as well 
that there is an openness to the feedback that we have.
    First, I think that the bill needs to be a clean bill. As 
currently drafted it imposes new standards on the EPA, 
standards that EPA would opt-in only ``to the extent necessary 
to prevent protecting and helping the environment in a manner 
that achieves a reasonable balance of social, environmental and 
economic costs and benefits.''
    In addition, the discussion draft contains new ``sound 
science'' requirements that I think are problematic.
    Second, the discussion draft does not presume that the EPA 
will implement the POPs conventions. I think that instead of a 
burden on EPA to prove that a listed chemical should be further 
regulated, there needs to be a burden on EPA for why we don't 
take a POPs listing seriously and implement it. In other words, 
there should be a presumption that we will adopt the decision 
of the conventions.
    Third, the discussion draft does undermine the U.S. 
leadership role that we have held for decades in this area. It 
states that EPA should not take action that is more stringent 
than the action that is prescribed in the convention. It 
actually encourages a practice that is very much against our 
best interests, which would be the export of POPs chemicals 
that we have determined to be too risky in the U.S. It also 
specifies that every single available exemption would be taken 
by us. I do not understand why we would want any of those 
provisions, quite frankly.
    Fourth, the decision standard in the discussion craft is 
not in alignment with the current standard in the POPs 
convention, which is ``to protect against significant adverse 
human health and environmental effects associated with the 
chemical substance or mixture.''
    And there is weak authority for information collection. I 
think it is very important that there is transparency and 
opportunity for notice and comment. Such an opportunity should 
be front loaded into the process, not after an action is taken 
globally. Because regardless of whether we opt-in or opt-out, 
we are affected by the actions that are taken by the rest of 
the world.
    I should conclude by saying in numerous places that I have 
mentioned this proposed language is actually weaker than the 
provisions of the current law, and I think would render the 
EPA's efforts ineffective.
    In conclusion, the U.S. should assume its share of the 
responsibility to assuring global chemical safety. As draft 
legislation is considered we must keep foremost the purpose of 
such legislation, which is the protection of health and the 
environment from highly toxic and persistent chemicals. I am 
encouraged to hear that the Chairman and committee members are 
open to our comments about this discussion draft, and I hope 
that you will receive these comments in the constructive spirit 
in which they are intended.
    Thank you very much.
    [The prepared statement of Lynn R. Goldman follows:]
Prepared Statement of Lynn R. Goldman, Professor, Environmental Health 
 Sciences, Johns Hopkins University, Bloomberg School of Public Health
    Mr. Chairman and members of the Subcommittee on Environmental and 
Hazardous Materials, it is my honor to testify today on proposed 
legislation to implement the POPs, PIC, and LRTAP agreements. I am a 
board-certified pediatrician and an environmental epidemiologist. 
Between 1985 and 1993 I served in various positions in the California 
Department of Health Services, most recently as Chief of the Division 
of Environmental and Occupational Disease Control. From 1993-98, I 
served as Assistant Administrator for Prevention, Pesticides and Toxic 
Substances at the U.S. Environmental Protection Agency (EPA). While 
serving in that position I was involved with the regulation of 
chemicals and pesticides and with efforts related to the development of 
the POPs, PIC and LRTAP PIC agreements. In January 1999 I left the EPA 
and joined the Johns Hopkins University where I presently am a 
Professor of Environmental Health Sciences at the Bloomberg School of 
Public Health. This testimony reflects my views and not necessarily 
those of any of the above organizations.
    As a physician and an advocate for public health protection, I 
firmly support U.S. ratification of these three agreements coupled with 
domestic implementation that is faithful to the letter and spirit of 
the underlying agreements. As a former federal regulator, I believe 
that it is in the long-term interest of the United States, its citizens 
and environment, its industry, and the entire global community for the 
United States to be a full participant in these important international 
processes. That said, I believe that implementing legislation must be 
developed carefully and not considered hastily. With my testimony today 
I will present some important background information for Congress to 
consider. I will also present with my views on a set of principles that 
should guide the development of sound implementing legislation, and why 
I believe that the current draft bill circulating in this subcommittee 
does not meet this test.
            international context for chemicals conventions
    In 1992 the United States and other countries met for the United 
Nations Conference on Environment and Development (UNCED) and developed 
a document called Agenda 21, which is a blueprint for protection of the 
global environment. Agenda 21 Chapter 19, ``Environmentally Sound 
Management of Toxic Chemicals, Including Prevention of Illegal 
International Traffic in Toxic and Dangerous Products'' established an 
ambitious international agenda for industrial chemicals. Six program 
areas were established, with a number of specific targets under each 
area: (1) expanding and accelerating the international assessment of 
chemical risks; (2) harmonizing classification and labeling of 
chemicals; (3) increasing information exchange on toxic chemicals and 
chemical risks; (4) establishing new risk reduction programs; (5) 
strengthening national capabilities and capacities for management of 
chemicals; and (6) preventing illegal international traffic in toxic 
and dangerous products. Together, the three intergovernmental 
agreements we are discussing today represent a major step forward 
toward these goals.
    It must be said that the United States is a long-time leader in 
international chemicals policy and regulation. Most chemicals in the 
world are manufactured by large multinational corporations based in the 
U.S. and other industrialized nations. The U.S. is arguably home to the 
strongest and most advanced cadre of toxicology, chemical engineering, 
and industrial science expertise in the world, providing the technical 
capacity needed to achieve international goals. So it should come as no 
surprise to Congress that the United States has been very involved in 
international chemicals policy efforts. However, self interest is 
involved as well. Pollution can cross boundaries, whether via air and 
water or via products. The health of our people and the health of the 
environment can be negatively impacted by transboundary pollution. Less 
obviously, the U.S. has a national economic interest in being a major 
player, in that global actions will likely have an affect on commerce 
and trade while the chemical and pesticide industry continues to play a 
key role in the U.S. economy. Thus, there are many reasons for the U.S. 
to be a participant in the development of global approaches to chemical 
management, and very little reason to sit on the sidelines.
                    the toxic substances control act
    Historically in the U.S., regulation of chemicals lagged 
significantly behind the growth and development of the industry. Until 
1976, there were no laws in the United States specifically related to 
the introduction of chemicals into commerce and the control of hazards 
of existing chemicals. Up to that point regulation of chemicals was 
limited to food additives, cosmetics, and pharmaceuticals by the Food 
and Drug Administration (FDA) and pesticides (initially by the USDA and 
the FDA and in 1972 by the newly created EPA). By 1976, it is estimated 
that there were 60,000 chemical substances in commerce in the U.S.; 
however, the government did not have an inventory of chemicals 
manufactured and imported into the country. Congress identified a need 
for a comprehensive framework for the prevention of risks that might be 
posed by those chemicals. In 1976, Congress enacted the TSCA to address 
three major concerns:1
---------------------------------------------------------------------------
    \1\ Toxic Substances Control Act, in U.S.C. 1976.

 Those who manufacture and process chemical substances and mixtures 
        should develop adequate data with respect to the effect of 
        chemical substances and mixtures on health and the environment;
 The government should have adequate authority to regulate chemical 
        substances and mixtures which present ``an unreasonable risk of 
        injury to health or the environment, and to take action with 
        respect to chemical substances and mixtures which are imminent 
        hazards''; and
 Government's authority over chemical substances and mixtures should 
        be exercised ``in such a manner as not to impede unduly or 
        create unnecessary economic barriers to technological 
        innovation'' while assuring that such substances and mixtures 
        do not present ``an unreasonable risk of injury to health or 
        the environment.''
    Further, Congress made clear its intention that government ``shall 
consider the environmental, economic, and social impact of any action 
the Administrator takes or proposes to take under this chapter.'' Most 
of the regulatory authority for TSCA is delegated to the EPA's Office 
of Prevention, Pesticides and Toxic Substances, the office I led during 
my years at the EPA. Over the years, the core 1976 TSCA legislation has 
never been reauthorized or amended, but new titles have been added to 
specifically regulate asbestos (1986, Title II), radon (1988, Title 
III), and lead (1992, Title IV) and the original legislation contained 
specific requirements with regards to polychlorinated biphenyls (PCBs). 
The radon program is located in EPA's Office of Air and Radiation.
    TSCA provides the authority for EPA to assess and control chemicals 
in commerce or new chemicals. These provisions broadly direct the EPA 
to assure that the public will be protected from ``unreasonable risks'' 
to health and the environment. The statute did not clearly define 
``unreasonable risk'', however, this has come to be interpreted as 
including aspects of both risk analysis (the severity and magnitude of 
health and environmental effects) and economic analysis (the economic 
benefits of the use of the substance as well as the availability and 
costs of switching to alternatives.) In the case of PCBs, asbestos, 
radon and lead, Congress saw fit to identify that unreasonable risks 
did indeed exist and gave the EPA very specific direction for how to 
address those risks. In essence, the TSCA framework treats existing and 
new chemicals very differently. The presumption for an existing 
chemical is that it is safe unless EPA makes a regulatory finding to 
the contrary. However, new chemicals must be reviewed by EPA prior to 
manufacture. Although this review is not very extensive, it nonetheless 
provides some additional safety for new chemicals.
    Regulation of existing chemicals under TSCA has been modest, to say 
the least. The GAO in 1994 concluded that the EPA regulates few 
chemicals under TSCA, listing only five (PCBs, chlorofluorocarbons, 
dioxin, asbestos and hexavalent chromium) and noted that the act itself 
required the regulation of one of the five, PCBs. In only two cases, 
for PCBs and asbestos, did the EPA take a comprehensive approach to the 
regulation of chemicals and in one of these cases, asbestos, the rule 
was essentially overturned by the courts.\2\. The failure of EPA to 
prevail in the asbestos phase-out has been widely recognized as a clear 
indication that the heavy burden imposed on the EPA to prove that 
asbestos would meet the TSCA standard of ``an unreasonable risk of 
injury to health and environment'' is too onerous to provide an 
effective means for the EPA to regulate any chemicals, including POPs. 
If the EPA cannot make such a finding for asbestos, a known human 
carcinogen which has caused at least 200,000 deaths in the U.S., then 
the situation for other agents is impossible as well. The case of PCBs 
is instructive because this is the only class of chemicals named in the 
1976 law for which Congress specified that manufacture shall cease, 
imports and exports banned (with a provision for exceptions by rule 
making), and continued use be carefully controlled. So in the case of 
PCBs EPA was not required to make any finding of ``unreasonable risk'' 
and in consequence more protective actions have been taken. Yet, 
compared with developing countries, the United States has made 
remarkable progress.
---------------------------------------------------------------------------
    \2\ Corrosion Proof Fittings v. EPA. 1991, 5th Circuit. p. 1201.
---------------------------------------------------------------------------
          rotterdam convention on prior informed consent (pic)
    As should be clear from the proceeding, in my opinion TSCA is an 
outdated statute that does not give the EPA sufficient authority in a 
number of areas. Yet, compared with developing countries, the U.S. has 
made remarkable progress. Under TSCA we have 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 
international 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 should notify importing countries prior to 
shipping a chemical that is ``banned or severely restricted.'' In the 
1990s, developing countries pressured for a legally binding 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 U.S. 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 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 will be held 
this 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 U.S. 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. As 
obvious as this should seem, at this point there seem to be no plans by 
the U.S. government to put such a process in place.
                     persistent organic pollutants
    Persistent organic pollutants (POPs) 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, 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 that are 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. POPs are 
transferred from a mother to her 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. Additionally, POPs are among the areas where 
Chapter 19 of Agenda 21 called for specific attention to risk 
reduction.
    In addition to actions taken on individual POP chemicals and 
pesticides, the EPA has established 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 ecosystems.3 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 environment.4 The EPA also developed 
and tested a software program they call the ``PBT Profiler'', which is 
used to predict whether new chemical structures are above thresholds 
for PBT chemicals. EPA made this software available to industry so they 
can predict in advance whether chemicals are likely to trigger concerns 
under this policy.
---------------------------------------------------------------------------
    \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.
    \4\ U.S. Environmental Protection Agency, 2000 PBT Accomplishments. 
2001, EPA: Washington, DC. p. 28.
---------------------------------------------------------------------------
    In 1999, EPA also lowered the reporting threshold for several of 
the most persistent bioaccumulative chemicals under the Toxics Release 
Inventory (TRI): 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.5 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. These lower 
thresholds for reporting were in effect as of calendar year 2000, 
except for lead and lead compounds, which began in calendar year 2001, 
after a decision in February 2001 to delay the effective date of the 
rule 6. Thus, EPA has taken steps to increase the public 
access to information on PBTs in the U.S.
---------------------------------------------------------------------------
    \5\ 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.
    \6\ U.S. Environmental Protection Agency, Lead and Lead Compounds; 
Lowering of Reporting Thresholds; Community Right-to-Know Toxic 
Chemical Release Reporting: Delay of Effective Date. Federal Register, 
2001. 66(33): p. 10585.
---------------------------------------------------------------------------
    Unfortunately, EPA's efforts under TSCA and TRI have not prevented 
the discovery of new persistent toxic chemicals among the chemicals 
that are already on the market. In the 1990's, two new classes of 
persistent substances have risen to greater levels of concern, namely 
polybrominated diphenyl ethers or PBDEs (flame retardants) and 
perfluorinated chemicals (PFCs), which are used in many products 
including stain repellants and coatings. In October 2000 EPA proposed a 
``significant new use rule'' to limit the introduction of new uses of 
PFCs; this rule has not been made final. It is evident that, although 
most of the chemicals in commerce are probably safe, there are new 
categories of persistent chemicals that we are still discovering.
    On the international front, the U.S. Government first took 
multilateral action on POPs in the context of the North American 
region. One vitally important environmental resource is the Great 
Lakes. Shared by the U.S. and Canada, the Great Lakes system contains 
one-fifth of the world's supply of fresh water. To protect the shared 
resource, the U.S. and Canada established the Boundary Waters Agreement 
of 1909; in 1978 the two countries signed the first 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 In 
1993, the U.S. signed the North American Free Trade Agreement (NAFTA); 
under the ``environmental side agreement'' to NAFTA the North American 
Commission for Environmental Cooperation (CEC) was formed. One of the 
activities under the CEC is called ``Sound Management of Chemicals'' 
(SMOC) and it should come as no surprise that an early priority for 
joint efforts by the U.S., Canada and Mexico was POPs. In 1998 the EPA 
issued an action plan for twelve of the most toxic persistent 
chemicals: aldrin/dieldrin, alkyl lead, benzo (a) pyrene, camphechlor 
(toxaphene), DDT (Dichlorodiphenyltrichloroethane) and DDD/DDE, 
dioxins/furans, hexachloro-benzene, mercury and mercury compounds, 
mirex, octachlorostyrene, and PCB's.7 These action plans 
were issued in alignment with both the Binational Toxics Strategy and 
the CEC action plans.
---------------------------------------------------------------------------
    \7\ U.S. Environmental Protection Agency, Draft Multimedia Strategy 
for Priority Persistent, Bioaccumulative, and Toxic (PBT) Pollutants. 
1998, EPA: Washington, DC. p. 29.
---------------------------------------------------------------------------
                  lrtap and stockholm pops agreements
    The LRTAP (Convention on Long-range Transboundary Air Pollution) 
POPs agreement came next. In place since 1983, the LRTAP is under the 
UN Economic Commission for Europe and has been ratified by virtually 
every nation in Europe, the U.S., Canada, and the European Commission. 
The LRTAP includes protocols on a number of pollutants and adopted the 
POPs protocol in 1998. The LRTAP POPs protocol initially targets 16 
POPs, banning the production and use of aldrin, chlordane, chlordecone, 
dieldrin, endrin, hexabromobiphenyl, mirex and toxaphene; phasing out 
production of DDT, heptachlor, hexaclorobenzene, and PCBs; severely 
restricting the use of DDT, HCH (including lindane) and PCBs; reducing 
emissions of dioxins, furans, PAHs and HCB; and setting limit values 
for emissions from municipal, hazardous, and medical waste 
incinerators. This protocol came into force in October 2003, but the 
United States has not yet been ratified by the U.S. (although we have 
ratified the overarching LRTAP convention). Actions taken by countries 
in the LRTAP POPs context are important regionally and as a precedent 
for actions under the global POPs convention.
    Negotiated between 1998 and late 2000, the Stockholm Convention on 
Persistent Organic Pollutants (POPs) was signed by a number of nations 
including the United States in May 2001. The treaty initially targets 
12 POPs, eliminating the pesticides aldrin, chlordane, dieldrin, 
endrin, heptachlor, hexachlorobenzene (HCB), mirex and toxaphene, as 
well as the industrial chemical polychlorinated biphenyls (PCBs); 
restricting of use of the pesticide DDT to disease vector control until 
safe, affordable, and effective alternatives are in place; mandating 
removal of PCB equipment; and encouraging minimization of unintentional 
release of dioxins and furans. Importantly, like the LRTAP POPs 
protocol, it includes provisions to consider and add other POPs to the 
treaty and prevent the introduction of new POPs into commerce. It also 
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. Assuming the United States 
takes advantage of the treaty's so-called ``opt-in'' provision upon 
ratification (which is expected given that the U.S. was the primary 
advocate for this provision), an amendment to add a chemical to the 
Stockholm Convention can only apply to the United States only if our 
government affirmatively opts in. Alternatively, the U.S. can choose to 
``opt out'' of a POPs chemical listing. It is important to note that 
the universe of potential additional POPs is not large, and the Bush 
Administration estimates that it will typically take about five years 
for a chemical to be nominated, clear the science-based review process, 
and be 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.
    After achieving the necessary 50 ratifications last February, the 
Stockholm Convention entered into force on May 17, 2004, and the first 
Conference of the Parties will meet in May 2005. This agreement is 
expected to address one of the risk reduction actions of Chapter 19 of 
Agenda 21.
                principles for implementing legislation
    The problem today is that while the U.S. has delayed ratification 
of the Rotterdam PIC, LRTAP POPs and Stockholm POPs conventions, these 
agreements are coming into force, and work will continue 
internationally without the direct involvement of the U.S. government. 
While the parties to these agreements will certainly provide a forum 
for the U.S. to give input to the ongoing work, the fact remains that 
the U.S. will not be a full voting member unless and until it ratifies 
these conventions. Further, whether or not the U.S. participates, our 
environment and our industry will be affected in profound ways by 
decisions that are made by this convention. But ratification requires 
that EPA be given the appropriate regulatory authority to fully and 
faithfully implement these agreements.
    While the three agreements have been bundled legislatively, it is 
clear that there are few controversies standing in the way of U.S. 
ratification of the PIC convention. Certainly there is a need to 
harmonize the approaches for the PIC and the POPs conventions. However, 
the Congress could choose to ratify PIC first and hold off the 
ratification of the POPs agreements while continuing to develop 
legislative approaches.
    With regard to the POPs and LRTAP POPs agreements, there are a 
number of principles that I believe must serve as a framework for any 
sound implementing legislation:

1. ``Clean bill'': First and foremost, the legislation must respect the 
        negotiation process that occurred in the context of the 
        Stockholm POPs Convention in particular. Both the State 
        Department and EPA utilized open and transparent processes that 
        brought in industry, health and environmental groups to assure 
        that the language in the POPs convention would be widely 
        supported in the U.S. U.S. negotiators won large concessions 
        from other countries to accept scientific risk assessment as a 
        guiding principle for adding new chemicals to the Convention, 
        as well as full consideration of ``risk-risk'' tradeoffs, 
        socioeconomic considerations, and other factors (see Annex F of 
        the convention). Therefore, implementing legislation should be 
        ``clean'' and should not attempt to impose new layers of 
        standards onto domestic implementation of the POPs agreements.
2. Open, transparent processes: Any enabling legislation needs to 
        guarantee that there will be open and transparent processes for 
        development of U.S. positions within the POPs agreements. Such 
        processes need to include notices in the federal register and 
        open meetings with stakeholders as well as with the EPA and the 
        State Department.
3. Meaningful public involvement: Whenever possible, public 
        participation in the deliberations of the Stockholm convention 
        needs to occur prior to the expert meetings, negotiations and 
        decision making by the convention. This is particularly 
        critical since, whether or not the U.S. chooses to ``opt in'' 
        to a listing under the Convention, there are likely to be major 
        consequences internationally for any decisions that are made.
4. Presumption of implementation: Congress needs to establish a 
        presumption that the EPA will implement decisions made by the 
        Stockholm Convention, including amendments adding chemicals. 
        Presumably, the U.S. Government will agree with most of the 
        decisions of the convention if it has fully participated in the 
        process and for that reason it is preferable for the Congress 
        to give the EPA the option either to take the ``opt out'' or 
        the ``opt in'' road for implementation. To facilitate the 
        decision with regards to listing decisions with which the U.S. 
        might disagree, the Congress can establish a mechanism for 
        parties to provide information to the EPA (or for the EPA 
        itself) to rebut the presumption of implementation. This kind 
        of rebuttable presumption will provide a safety mechanism such 
        that the U.S. government would not be required to implement any 
        decisions with which it disagrees. At the same time, the 
        rebuttable presumption shifts the burden to the EPA to 
        establish why not to further control a newly listed POPs 
        chemical rather than burdening the EPA, in every case, with 
        making a case for control of the chemical. Congress should also 
        give EPA clear statutory deadlines for rulemaking or for a 
        decision to opt out.
5. U.S. leadership: As it has in the past, the U.S. government needs to 
        continue to lead the way toward identifying and eliminating 
        persistent toxic chemicals from the environment, and from the 
        bodies of infants and children. Where exemptions are available, 
        the U.S. generally should be reluctant to take advantage of 
        them. In fact, in every case possible, the U.S. should strive 
        to go beyond the lowest common denominator for the world, given 
        the relative advantage we hold with superior technology and the 
        most innovative chemical industry in the world. Where the U.S. 
        has banned or severely restricted POPs substances already, we 
        should do what we can to prevent U.S. companies from 
        manufacturing and exporting those substances to other 
        countries, even when they have exemptions. This is because the 
        use of such substances anywhere will contaminate the global 
        environment, including ours. Likewise, implementing legislation 
        for PIC 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. The US should use the opportunity these conventions 
        provide to assert our position as producer of the best and 
        safest technologies in the world; this is what gives us a 
        competitive advantage in the world market for chemicals. It is 
        also because the U.S. needs to maintain its competitive 
        advantage in the world market as a producer of the best and 
        safest technologies in the world, rather than losing that 
        position to other countries, who are more willing to lead in 
        this arena.
6. Consistent and health protective decision standard: It is critical 
        that the decision standard for implementation of the Stockholm 
        and LRTAP agreements be protective of the environment and 
        health, especially the health of vulnerable populations and age 
        groups like infants and children. In this regard, the existing 
        TSCA section 6 ``unreasonable risk'' 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. It is also important that the 
        standard be consistent with the language negotiated in the POPs 
        conventions, that is, to ``protect against significant adverse 
        human health and environmental effects associated with the 
        chemical substance or mixture.'' Further, the bill should not 
        be 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, but rather 
        to increase the burden to EPA as well as opening opportunities 
        for litigation over the minor process issues.
7. Full package of information for deliberations: Currently, under 
        TSCA, EPA has the authority to require those who manufacture, 
        process or otherwise use chemicals to report information about 
        those chemicals. In practice these provisions are overly 
        burdensome for EPA to utilize and would not be workable in the 
        context of a real-time negotiation within the Stockholm 
        Convention. To be truly competitive in such a process, the EPA 
        needs to be required to issue a call in for core data items 
        that will be necessary to fulfill the criteria for listing 
        under the convention (see especially annexes E ``Risk Profile'' 
        and F ``Socioeconomic Considerations'' of the Stockholm 
        convention.) It is the U.S. government (informed by industry) 
        which insisted on such science-based and information-intensive 
        criteria for decision makers. We cannot expect that our 
        negotiators will be able to do a good job in the first place 
        unless they have a full set of information to inform decisions 
        under these annexes. And, as noted earlier, it is important 
        that a full set of information be made available to the U.S. 
        EPA prior to negotiations, and not just at the time of an ``opt 
        in'' decision. Congress can assure this by including a mandate 
        for information collection.
                     june 17, 2004 discussion draft
    Having established some principles for implementing legislation it 
is useful to examine current drafts that are under discussion. I have 
carefully reviewed the June 17, 2004 discussion draft and find that it 
falls short in a number of ways.

 First, the discussion draft is not ``clean''. It would impose a new 
        standard under which EPA would decide to ``opt in'' 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.'' In 
        addition the discussion draft contains new ``sound science'' 
        requirements that really are invitations to litigation and 
        would not provide any improvement of scientific processes. 
        These proposed standards are actually worse than the provisions 
        of current law and would render the EPA's efforts completely 
        ineffective.
 Second, although the discussion draft provides for a number of 
        opportunities for open and transparent processes, these 
        processes need to be front-loaded. It is important to assure a 
        full range of involvement before a new substance is listed by 
        the convention.
 Third, the discussion draft does not presume that the EPA will 
        actually implement of the Stockholm and LRTAP conventions nor 
        does it fully implement the PIC convention. The burden should 
        be placed on the EPA to show why a listed chemical should not 
        be controlled by the U.S., rather than the reverse. The 
        language in this regards is worse than current law and again 
        would render EPA ineffective.
 Fourth, the discussion draft does not promote U.S. leadership. It 
        ties the hands of the EPA when it comes to taking action more 
        stringent or in advance of action taken under the Conventions. 
        It specifies that the U.S. will take advantage of every single 
        exemption that is available to every single country in the 
        world. Again, these provisions are much worse than current law. 
        Further, it is completely against our interest, in terms of 
        protection of health and the environment, to allow the export 
        POPs chemicals that we have determined to be too risky to use 
        in the U.S. Also, in terms of protecting the health and 
        environment of the U.S., the PIC implementation legislation 
        does not provide authority for the U.S. to reject the 
        importation of PIC chemicals.
 Fifth, the decision standard in the discussion draft is not in 
        alignment with the standard that we agreed to in the POPs 
        Convention. It is worse than current law and is an additional 
        provision that would make EPA implementation ineffective. 
        Finally, the draft does not include any provision for 
        collection of information to support negotiation and ``opt in'' 
        decisions. Given the weak authority for information collection 
        under TSCA, it is incumbent on Congress to require that the EPA 
        collect such information.
                               conclusion
    In closing, the U.S. needs to step up to the plate to assume its 
share of the responsibilities for assuring global chemical safety. The 
U.S. could ratify the PIC convention today. In the best of all possible 
worlds we would be a member of the LRTAP POPs and Stockholm Conventions 
from the beginning. As draft legislation is considered, we must keep 
foremost the purpose of such legislation, which is protection of health 
and the environment from toxic chemicals.

    Mr. Gillmor. Thank you, Dr. Goldman.
    And we will go to Brooks Yeager, who is Vice President of 
Global Threats for the World Wildlife Fund.

                 STATEMENT OF BROOKS B. YEAGER

    Mr. Yeager. Thank you, Mr. Chairman and Congresswoman 
Solis. I am honored to be invited to testify before you today.
    My name is Brooks Yeager. You have given my title. I will 
not repeat it. I hope that my longer testimony can be included 
for the record.
    Mr. Gillmor. Without objection it will be.
    Mr. Yeager. Let me just say, before joining WWF 3\1/2\ 
years ago I served in the position that Ms. McMurray now holds 
at the State Department as Deputy Assistant Secretary for 
Environment and Development. And in that capacity I was the 
head of delegation and the lead negotiator for the Stockholm 
POPs Convention.
    The focus of my testimony today will be the international 
process for adding new chemicals to the convention and the 
corresponding U.S. regulatory process set out in the 
implementing legislation. I think other witnesses, and the 
statements have covered many of the important aspects of the 
convention and the desirability of having it ratified.
    The point I would like to make is that many protections for 
the U.S. national interest were written into the convention at 
the insistence of the U.S. delegation itself, and that at least 
in my view they make many of the further extraordinary 
regulatory protections in some of the legislative efforts 
somewhat superfluous and perhaps unnecessary.
    WWF supports U.S. ratification of the treaty, Mr. Chairman. 
We think it is very important for the reasons stated by many 
here today, and we urge the administration to become a party. 
But we cannot support ratification at the expense of defective 
implementing legislation that may set unfortunate precedents 
for U.S. environmental regulation in the future.
    Mr. Chairman, this treaty reflects a careful balance of 
interests achieved through negotiation and compromise. The 
fundamental U.S. interest as we articulated 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 and consistent with the fundamental structure of a 
national approach to chemical regulation.
    We felt at the end of that process that we had achieved 
that result. The process of balancing interests and finding a 
unified way forward was critical in particular to developing a 
consensus as to how add 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 conventions 
already on the list. All parties recognized and stated that the 
convention was intended to be dynamic rather than static.
    For the United States it was critical that this process be 
scientifically driven and not subject to political whim. For 
some in EU countries and elsewhere, it was critical that the 
process for adding chemicals not be subject to endless 
procedural roadblocks. This concern reflected an anxiety that 
effected industries or governments might use procedural 
challenges to block the addition of chemicals that will 
legitimately qualify for the list on scientific grounds.
    The procedure for adding new chemicals that was finally 
adopted is a genuine compromise but which fully protects the 
U.S. interests.
    First, it requires scientific criteria according to which a 
nominated chemical would be evaluated. And these criteria are 
contained in Annex D.
    Second, we negotiated a process through which these 
criteria would be applied by a scientific screening committee.
    Finally, we negotiated the terms under which the POPs 
Review Committee would review the recommendations of the 
scientific group.
    It is worth noting, Mr. Chairman, that at each stage of 
this process the agreement sets a high standard for the 
addition of chemicals. The chemical must meet the scientific 
screening criteria for bioaccumulation, potential for long 
range transport and adverse effects. It must be found by the 
review committee to fit the risk profile in Annex E, that is 
that it is likely as a result of its long range environmental 
transport to lead to significant adverse human health and/or 
environmental effects even to be recommended. And based on the 
scientific review conducted by the review committee, which the 
United States fully intends to be a member of, we believe, the 
conference of the parties must act preferably by consensus or 
at the very least by a three-quarters majority to add the 
chemicals to the list. And even at that point, individual 
parties including the United States can prevent the entry into 
force of the new obligation by opting out or refusing to opt-
in, as stated by Deputy Assistant Secretary McMurray.
    The point that we would like to make or that I would like 
to make, Mr. Chairman, is that given these protections written 
for the U.S. into the treaty, we need to balance those careful 
protections against the clear intent of all the governments who 
negotiated the convention to assure that chemicals meeting the 
POPs criteria are regulated with great precaution. This is the 
point that Congresswoman Capps was making so eloquently.
    Once chemicals have been deemed to warrant global action 
under the convention, the clear intent is that they be 
eliminated or at the very least highly restricted by all the 
parties to the convention. And considering how this balance 
should be reflected in U.S. implementing legislation, we 
believe we should look very carefully at the standards set in 
the regulatory process in the U.S. for achieving that balance.
    I would only echo here, because my time is coming to an 
end, but the points made by Ms. Goldman and others that will be 
made later that we believe the standards in the draft 
legislative draft are problematical in that respect. The 
legislation sets up a new standard that has no presumption that 
the EPA would regulate a newly listed POP, even if the United 
States supported the listing. But if EPA decided to regulate, 
it would do so only to achieve a reasonable balance of social, 
environmental and economical costs and benefits. In our view 
this standard fails to reflect the intent of the Stockholm 
Convention that new chemicals found to have the characteristics 
of POPs and to warrant global action and global concern be 
regulated with great precaution.
    Mr. Chairman, I have made a number of other points in my 
testimony regarding the draft. I would be glad to discuss them 
in a question and answer period.
    I see that my time is at an end. And I want to thank you 
very much for the opportunity to testify.
    If in fact, I can offer the committee members any 
assistance in understanding the negotiating setting of the 
treaty, I would be happy to do that. I think we as WWF would be 
pleased to work with the committee staff to see if we can, in 
fact, achieve an implementing language that tracks the 
convention process, supports the precautionary intent of the 
convention and allows the U.S. to achieve its responsibilities 
without setting unfortunate precedents for domestic law.
    Thank you.
    [The prepared statement of Brooks B. Yeager follows:]
   Prepared Statement of Brooks B. Yeager, Vice President for Global 
                      Threats, World Wildlife Fund
    Mr. Chairman and Members of the Committee: On behalf of World 
Wildlife Fund's 1.2 million members, thank you for the opportunity to 
testify on the implementing legislation for the Stockholm Convention on 
Persistent Organic Pollutants (POPs). Known worldwide by its panda 
logo, World Wildlife Fund (WWF) is dedicated to protecting the rich 
biological diversity on which the prosperity and survival of human 
societies depends. As the leading privately supported international 
conservation organization in the world, WWF has sponsored a wide range 
of conservation activities in more than 100 countries since 1961.
    For the record, I am Brooks Yeager, Vice President for Global 
Threats at WWF, where I supervise programs to conserve global forest 
and ocean resources, to avert damage to the global environment from 
climate change and toxic pollution, and to ensure the environmental 
sustainability of global commerce. Before joining WWF, I served as 
Deputy Assistant Secretary for Environment and Development at the U.S. 
State Department. At State I was responsible for the development and 
negotiation of U.S. Government policy in a range of bilateral and 
global environmental discussions and undertakings.
    In my capacity at State, I served as the United States' lead 
negotiator for the Stockholm POPs Convention. We are here today to 
discuss the implementing legislation for this ground-breaking treaty. I 
hope I can offer insights today both from my position as U.S. lead 
negotiator and in my current role at WWF. The focus of my testimony, 
which has been at the center of the Committee's interest, is the 
international process for adding new chemicals to the Convention, and 
the corresponding U.S. regulatory process set out in the implementing 
legislation.
    First I would like to offer some background on the treaty itself. 
The Stockholm POPs 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.
    Persistent organic pollutants are a threat to human health, 
wildlife, and marine and terrestrial ecosystems in the United States 
and around the world. From Alaska to the Great Lakes to Florida, 
Americans face an insidious but largely invisible threat from POPs 
chemicals. Despite more than two decades of U.S. efforts to control 
domestic sources of POPs pollution, POPs used and released in other 
countries--often thousands of miles from our borders--continue to 
contaminate our lands and waterways, the food we eat, and the air we 
breathe. WWF's recent report, ``Causes for Concern: Chemicals and 
Wildlife'' (January 2004), highlights a number of these emerging 
chemical threats, some of which may be candidates for Stockholm 
Convention annexes in the future. (http://www.panda.org/detox).
    Our government made a concerted effort, starting not long after the 
publication of Rachel Carson's pathbreaking Silent Spring, to eliminate 
the production and use of known POPs chemicals in the United States--
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. A global mechanism to reduce these 
``chemical travelers without passports'' is urgent, and very much in 
our national interest.
    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. Development of the U.S. 
position was accomplished through a thorough, not to say exhaustive, 
domestic process involving regular consultations with seven domestic 
agencies, industry, the environmental and public health communities, 
Native American representatives, and various interested state 
governments, including the State of Alaska.
    This careful process of developing the U.S. negotiating position is 
one of the reasons, I believe, that President Bush's decision to sign 
the Stockholm Convention in April 2001 received such broad support. WWF 
and many others--including the chemical industry, environmental and 
public health organizations and members of Congress on both sides of 
the aisle--applauded the President's Rose Garden announcement. We were 
pleased that the President had decided to send the treaty package to 
the Senate for ratification.
    In fact, both industry and environmental representatives made 
important contributions to the final product. I would like to note in 
particular the constructive roles played by Mr. Michael Walls and Mr. 
Paul Hagen of the American Chemistry Council (ACC). A letter to 
Governor Whitman on February 26, 2002, from Mr. Frederick Webber, ACC's 
President and CEO at that time, noted that,
          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.
    Seventy countries have now ratified the Convention, but the United 
States has not, due to the complexity of the negotiations on 
implementing legislation in the Congress and, I believe the Bush 
Administration's repeated efforts to use proposed implementing 
legislation for the treaty as a vehicle to advance its overall effort 
to weaken domestic environmental, health, and safety protections. WWF 
supports U.S. ratification of this important treaty and we urge the 
Administration to become a party as soon as possible. But we do not 
support ratification at the expense of defective implementing 
legislation that sets U.S. environmental law on the wrong track, as we 
will discuss shortly.
    The POPs treaty represents a significant and innovative 
breakthrough in global chemicals management, calling for concrete steps 
to restrict or phase out dangerous chemicals rather than relying on 
expensive, end-of-pipe measures such as pollution scrubbers and 
filters. The treaty's ambitious control obligations were developed with 
enough flexibility that they can be accomplished largely within the 
established U.S. statutory and regulatory structure. Only limited 
adjustments are needed to the Toxic Substances Control Act (TSCA) and 
to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to 
allow full U.S. implementation.
Overview of the Stockholm POPs Convention
    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 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, 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 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, the 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 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 process which emerged is described in more detail in our 
substantive discussion of the new chemicals provisions. Let me just say 
here that the final agreement 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.
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.
    In so doing, I would like to note that WWF appreciates the efforts 
of Chairman Gillmor and staff in developing and distributing a 
discussion draft bill in mid-June. Chairman Gillmor's ``Stockholm and 
Rotterdam Toxics Treaty Act of 2004'' 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. My comments will address primarily the implementing 
legislation for the Stockholm Convention.
    Before I go into specific aspects of the bill, I'd like to offer a 
few further background points about the way in which the negotiators 
considered these issues. The international community envisioned a 
dynamic instrument that could take into account emerging scientific 
knowledge about chemicals beyond the initial 12. Integral to the treaty 
is a process for nomination, science-based assessment (including risk 
profiles and risk assessments), and decision-making that involves both 
the subsidiary POPs Review Committee and the Conference of Parties 
before a substance can be added to the treaty's annexes. Unless this 
element of the treaty is considered to be self-executing, the legal 
mechanism to eliminate the production, use, and export of new POPs must 
be reflected in the implementing legislation.
    In our view, as I have already mentioned, the Convention as 
negotiated provides the U.S. with a great deal of flexibility in 
deciding whether and how to take domestic action against future POPs:

 The international selection process involves input from all countries 
        that are Parties to the Convention: Article 8 of the Convention 
        provides for the evaluation and addition of chemicals beyond 
        the initial 12. Upon entry into force, the Conference of the 
        Parties (COP) will establish a Persistent Organic Pollutants 
        Review Committee (POPRC). Parties will submit chemical 
        nominations to the POPRC, which will evaluate them based on 
        agreed scientific criteria including persistence, 
        bioaccumulation, long-range transport, and toxicity. The POPRC 
        must prepare a draft risk profile in accordance with Annex E, 
        to be made available for input from all Parties and observers. 
        The POPRC will then make recommendations that must be approved 
        by the entire Conference of the Parties before a nominated 
        chemical can be added to the treaty as a binding amendment.
 The Convention does not automatically obligate the U.S. to eliminate 
        each new POP that is added internationally: 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. The State Department has 
        indicated that the U.S. will take advantage of the ``opt in'' 
        provision, enabling the Senate to give its advice and consent 
        to the addition of each new POP in the future.
    Including these and other safeguards in the POPs treaty was a major 
objective of U.S. negotiators, one which I believe was fully achieved. 
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.
    I would also like to reference the views that national 
environmental and public health organizations have developed on this 
issue. The perspectives of WWF and 17 other national environmental and 
public health organizations were recently summarized in a letter 
stating three core principles to the Chair and Ranking Members of the 
House and Senate Agriculture Committees.1 While the focus of 
the agriculture committees is the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA), rather than the Toxic Substances Control Act 
(TSCA) which this Committee oversees, the principles for effective 
implementing legislation are essentially the same. I am re-stating 
those principles here in the context of TSCA:
---------------------------------------------------------------------------
    \1\ The 18 organizations are: American Rivers, Center for 
International Environmental Law, Defenders of Wildlife, Environmental 
Defense, Environmental Working Group, Friends of the Earth, Greenpeace, 
League of Conservation Voters, National Environmental Trust, National 
Wildlife Federation, Natural Resources Council, Oceana, The Ocean 
Conservancy, Pesticide Action Network North America, Physicians for 
Social Responsibility, Sierra Club, U.S. Public Interest Research 
Group, and World Wildlife Fund.

 The implementing legislation must require EPA to use an environment/
        health based standard to regulate POPs and other persistent, 
        bio-accumulative, toxic substances. This approach would ensure 
        consistency with the Convention's Article 8(7)(a) mandate that 
        candidate substances be put forward for listing by the Parties 
        if their long-range environmental transport is likely to lead 
        to ``significant adverse human health and/or environmental 
        effects such that global action is warranted.''
 The Stockholm Convention decisions supported by the United States 
        should provide the starting point for domestic regulation of 
        POPs--there is no need to start from scratch. Because the 
        international process to ban additional POPs will be a 
        painstaking, multi-year, science-based one in which the United 
        States will fully participate, decisions by the Stockholm 
        Conference of the Parties to ban or severely restrict 
        additional POPs should provide the initial basis for U.S. 
        domestic regulation; and
 The U.S. regulatory process must parallel the international decision-
        making process. The TSCA amendments should facilitate 
        transparency and public participation in the international 
        listing process. They should give EPA a clear mandate to obtain 
        information at key stages of the international process, and to 
        solicit public comments on proposed international actions and 
        their possible implications for domestic policy.
Chairman Gillmor's Draft Bill
    I would like to mention that in certain respects, such as the 
tracking of international regulatory steps, Chairman Gillmor's draft 
does a solid job, although we believe these information input 
provisions should be mandatory rather than voluntary. Making those 
linkages with the Convention's requirements for considering new POPs is 
very important.
    Unfortunately, WWF believes that the draft as currently presented 
includes several major shortcomings that would make it extremely 
difficult to regulate POPs in the United States. It is also our view 
that the inclusion of these seriously flawed provisions would 
jeopardize U.S. participation in the Convention and injure the 
credibility of the United States in this context. It would establish 
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 
meticulous science-based process and will remain a key player in those 
deliberations as a party to the Convention. Finally, it would set 
damaging and unacceptable precedents for domestic management of 
chemicals.
    Over the past couple of weeks, WWF, CIEL, Physicians for Social 
Responsibility, U.S. PIRG, Oceana, National Environmental Trust, and 
other environmental and public health groups put together a brief 
outline of some of the key concerns with Chairman Gillmor's draft bill. 
Restated here, in part, six issues deserve further attention:
1. The proposed regulatory standard for considering additional POPs is 
        not acceptable and would set troubling precedents.
 Under the Discussion Draft, EPA would have complete discretion to 
        decide whether or not it should prohibit or restrict an 
        additional POP. But if it decided to regulate, it could 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 new 
        term of art bound to result in years of litigation and judicial 
        interpretation.
 By contrast, under the Stockholm Convention, governments (including 
        the United States) must decide upon additional POPs ``in a 
        precautionary manner.'' Yet the Discussion Draft 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.
 The language 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.
2. In weighing scientific information, EPA would have to apply new, 
        onerous ``sound science''-type requirements that would, in 
        practice provide litigation fodder rather than improve the 
        quality of EPA's decision making.
 The modern regulatory catch phrase of ``sound science'' was developed 
        by the tobacco companies as a way to confuse the public, thwart 
        attempts at regulation, and obfuscate the fact that their 
        products are among the most dangerous items legally sold. Under 
        the guise of ``sound science,'' industry groups have 
        systematically tried to discredit or cull high quality research 
        in an effort to roll back environmental and public health 
        protections. The ``sound science''-type provisions in the 
        discussion draft offer unnecessary, new opportunities for 
        industry to challenge the scientific basis for decision-
        making., and, again, would likely result in years of 
        litigation.
3. While the Discussion Draft would make it very difficult or 
        impossible for EPA to implement a Stockholm Convention new 
        listing decision, the Draft would simultaneously establish a 
        regulatory ceiling by prohibiting EPA from regulating more 
        strictly than minimum Convention standards.
 Even if EPA decided to regulate an additional POP, the Discussion 
        Draft would prohibit it from regulating any production or use 
        of the substance if an exemption were available under the 
        Convention. Although the Convention's exemptions process was 
        designed to take account of a variety of national 
        circumstances, the basic idea of these exemptions is that 
        developing countries needing flexibility can phase out a 
        prohibited chemical over time. For our law to require us to 
        take these exemptions--whether or not they are justified in the 
        U.S. context--would represent a perverse abdication of U.S. 
        leadership in international chemicals management.
 EPA could be prohibited from using its existing authority under TSCA 
         6(e) to strengthen the regulation of PCBs, because the 
        Discussion Draft would allow EPA to do so only as ``necessary 
        for the United States to comply with its obligations under the 
        POPs Convention.''
4. The Discussion Draft decouples the international process and the 
        domestic regulatory process.
 Although the Discussion Draft tracks the international process rather 
        well, it contains 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.
 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.
5. The Draft 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 the Discussion Draft 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.
6. The Discussion Draft oversteps by attempting to constrain the 
        President's constitutional power to conduct international 
        negotiations.
 Despite multiple safeguards that ensure U.S. decision-making 
        autonomy, the Discussion Draft would require the United States 
        to take the Stockholm Convention ``opt in'' election, which 
        provides that an additional chemical amendment will only bind 
        the United States if it affirmatively ``opts in'' to it. We do 
        not believe it is appropriate for the Congress to legislate a 
        requirement as to which option the President may choose.
    In summary, the Chairman's draft adds considerable regulatory 
baggage, including cost benefit and ``sound science'' requirements, to 
a piece of domestic environmental legislation that is already anemic 
and largely ineffectual (TSCA has not even been able to regulate 
asbestos), virtually ensuring that no chemical will surmount the 
bureaucratic hurdles. Even though this small subset of chemicals have 
been determined to be among the world's most dangerous, the draft 
applies an economic cost-benefit standard instead of one centered on 
protecting human health and the environment. At the same time, the 
draft bill goes out of its way to divorce domestic regulatory action 
from the international treaty process, and there is no requirement that 
EPA do anything after an international decision to add a POP to the 
Convention, even when the United States supports the international 
decision. From the point of view of one who negotiated the treaty, 
these provisions appear ill-advised and unnecessary. From the point of 
view of their broader and precedential impact on U.S. chemical 
regulation, they are unacceptable.
LRTAP POPs Protocol
    WWF also supports the inclusion of implementing legislation for the 
Economic Commission for Europe's Long-Range Transboundary Air Pollution 
(LRTAP) POPs Protocol. An outgrowth of scientific findings linking 
sulfur emissions in continental Europe to acid deposition in 
Scandinavian lakes, LRTAP was the first legally-binding agreement to 
address air pollution problems on a broad regional basis. Parties to 
LRTAP include the United States, Canada, and Western and Eastern 
European countries including Russia.
    The LRTAP POPs Protocol--the first legally-binding multi-lateral 
instrument on POPs--was added in 1998. It targets 16 substances 
including the 12 POPs chemicals plus chlordecone, hexabromobiphenyl, 
and hexachlorocyclohexane (including lindane). It also includes 
obligations to reduce emissions of polycyclic aromatic hydrocarbons 
(PAHs) which--as with other byproduct chemicals--do not require changes 
to TSCA or FIFRA. Although the LRTAP POPs Protocol includes more 
chemicals than the POPs treaty, it is not a replacement. LRTAP deals 
with transmission of POPs through only a single medium (air); confines 
its reach to northern, largely European countries; and does not address 
many of the issues involving developing countries.
    To date, twenty countries have ratified the LRTAP POPs Protocol, 
which entered into force on October 23, 2003. WWF would welcome U.S. 
participation in these regional efforts. Given POPs' global reach, 
however, a realistic and comprehensive solution needs to include 
developing countries as well. The United States and other donor 
countries must assist the developing world in coming to grips with the 
POPs problem--and the global POPs treaty is the ideal vehicle through 
which to do this.
Rotterdam Convention on Prior Informed Consent
    We are pleased to see that Chairman Gillmor's draft has bundled the 
Rotterdam PIC Convention in its implementing legislation alongside the 
POPs treaty and the LRTAP POPs Protocol. The PIC treaty alerts 
governments as to what chemicals are banned or severely restricted, by 
which governments, and for what reasons. The cornerstone of the treaty 
is prior informed consent, a procedure that enables Parties to review 
basic health and environmental data on specified chemicals and to 
permit or refuse any incoming shipments of those chemicals. Each 
Party's decisions are disseminated widely, allowing those countries 
with less advanced regulatory systems to benefit from the assessments 
of those with more sophisticated facilities. Instituting PIC is a 
critical first step in the process of improving chemical management 
capacity. The Rotterdam Convention replaces the voluntary PIC 
procedure, which has been operated by UNEP and FAO since 1989.
    The PIC treaty includes provisions for:

 alerting countries when there is an impending import of a chemical 
        which has been banned or severely restricted in the exporting 
        country;
 labeling hazards to human health or the environment; and
 exchanging information about toxicological findings and domestic 
        regulatory action.
    The Rotterdam Convention entered into force on 24 February 2004 and 
by now has 73 Parties. The treaty makes an important contribution to 
global chemicals management by drawing attention to those substances 
causing the greatest harm, disseminating that information, and 
facilitating national decision-making on chemical imports.
    Many of the POPs-, LRTAP-, and PIC-related legislative provisions 
are inter-related. WWF would be happy to work with Energy and Commerce 
staff to help ensure that the implementing legislation facilitates 
rather than hinders the efficient working of U.S. environmental laws.
    In closing, we wish to thank the subcommittee Members and staff for 
the hard work and initiative that went into preparing the draft bill. 
More work, though, is needed to strike an effective balance between our 
domestic and international responsibilities. Full implementation of the 
POPs, PIC, and LRTAP agreements is essential to protecting the American 
people and the global community from the threat of POPs and other toxic 
substances.
    Thank you for the opportunity to testify today. I would be happy to 
answer any questions.

    Mr. Gillmor. Thank you very much.
    And we will go to Lisa Heinzerling, Professor of Law, 
Georgetown University Law Center.

                  STATEMENT OF LISA HEINZERLING

    Ms. Heinzerling. Thank you. And thank you for the 
opportunity to testify before you today. In these remarks I 
wish to make two basic points. As currently interpreted the 
Toxic Substances Control Act is not an adequate mechanism for 
regulating toxic substances in this country. Thus, the 
implementation of international agreements on POPs is of 
critical importance in ensuring the adequacy of future controls 
on toxic substances.
    Second, the analytical procedures contemplated by the so 
called discussion draft would virtually guarantee that no new 
toxic substances would be added to the list of substances 
regulated by international agreements on POPs.
    The Toxic Substances Control Act or TSCA appears to hold 
great promise in controlling toxic substances. Section 6 of the 
statute provides the EPA with broad authority to control toxic 
substances. Unfortunately, however, the first and only judicial 
interpretation of EPA's authority to ban a substance under 
section 5 severely limited EPA's authority under this 
provision.
    Among other things, the court held that in examining costs 
and benefits of regulatory action under TSCA, EPA was required 
to discount benefits as well as costs which in effect means 
treating regulatory benefits such as human lives saved as if 
they were a financial investment on which interest accrues. 
Discounting benefits in the context of toxic chemical controls 
places a large thumb on the scale against regulation.
    A second part of the holding was that EPA may not use 
unquantified benefits to justify regulating a harmful chemical 
except in so called close cases. But it is hard to identify a 
close case where by definition some benefits are quantified and 
some are not.
    Another part of the court's holding was that EPA may not 
exceed undefined limits on how much money it requires industry 
to spend to save a human life.
    Each of these elements of the court's decision has a 
stultifying effect on EPA's power to regulate persistent 
organic pollutants under TSCA. However, the discussion draft 
threatens to be even more paralyzing to the process of toxic 
substance control than this decision has been. If Congress 
wanted to ensure that no new harmful substances would ever be 
regulated by the U.S. under the international agreements on 
POPs, it could hardly do better than to pass the discussion 
draft bill now circulating in the House. Merely duplicating the 
already ineffective requirements of TSCA as prerequisites for 
regulating new POPs would be bad enough. The discussion draft 
goes even further and offers whole new obstacles to meaningful 
toxic substance control.
    Despite the thorough science-based review proceeding the 
international listing process, the discussion draft would 
require EPA essentially to start all over again, if it acts at 
all, in response to international recommendations.
    I discuss numerous problems with the discussion draft in my 
written statement. Here I'll focus on the shortcomings of cost 
benefit balancing.
    The discuss draft directs EPA to regulate a newly listed 
POP only if doing so achieves a so called reasonable balance of 
social, environmental and economic costs and benefits. The 
draft affords no clue, however, as to how a reasonable balance 
is to be identified.
    In addition, cost benefit analysis is notoriously and 
systematically biased against environmental protection. It is 
particularly skewed against environmental protection that 
targets pollutants like the persistent organic pollutants; 
pollutants with large but insidious and sometimes subtle 
effects spread over a vast population and reaching into the 
distant future.
    Cost benefit analysis is skewed in the following specific 
ways:
    Many of the benefits of reducing these pollutants cannot be 
qualified. In many cases avoiding cancer is the only benefit 
that can be quantified. This leaves all other causes of death 
plus all nonfatal illnesses avoided and all ecological effects 
left out of the numerical tally of costs and benefits.
    Two, the costs of regulating environmental risks are often 
overstated and often by a large amount.
    Three, even when benefits can be quantified, the process of 
fitting values like human lives and health into a cost benefit 
balance is fraught with difficulty. Attaching monetary values 
to benefits such as human lives is a process that is filled 
with questionable assumptions and rests on an exceptionally 
problematic premise; that is that human life can be 
meaningfully translated into dollar terms.
    Five, the technique of discounting belittles desires to 
protect this and future generations against long term and 
persistent risk, yet protection of the future for our 
generation, our children's generation and generations yet to 
come is one of the basic principles animating a document like 
the POPs treaty.
    Thank you.
    [The prepared statement of Lisa Heinzerling follows:]
 Prepared Statement of Lisa Heinzerling, Professor of Law, Georgetown 
     University Law Center, Member Scholar, Center for Progressive 
                               Regulation
    Thank you for the opportunity to testify before you today. My name 
is Lisa Heinzerling. I am a Professor of Law at the Georgetown 
University Law Center. I have also been a visiting professor at the 
Harvard and Yale Law Schools. I am a graduate of the University of 
Chicago Law School, where I served as editor-in-chief of the University 
of Chicago Law Review. After law school I clerked for Judge Richard 
Posner on the U.S. Court of Appeals for the Seventh Circuit, and then 
for Justice William Brennan of the U.S. Supreme Court. I was an 
Assistant Attorney General in the Environmental Protection Division of 
the Massachusetts Attorney General's Office for three years before 
coming to Georgetown in 1993. My expertise is in environmental and 
administrative law. I am also a Member Scholar of the Center for 
Progressive Regulation.
    The Center for Progressive Regulation is a nonprofit research and 
educational organization of university-affiliated academics with 
expertise in the legal, economic, and scientific issues related to 
regulation of health, safety, and the environment. CPR supports 
regulatory action to protect health, safety, and the environment, and 
rejects the conservative view that government's only function is to 
increase the economic efficiency of private markets. Through research 
and commentary, CPR seeks to inform policy debates, critique anti-
regulatory research, enhance public understanding of the issues, and 
open the regulatory process to public scrutiny.
    My testimony today concerns U.S. legislation designed to implement 
international conventions on persistent organic pollutants (``POPs''). 
I will make three basic points in this testimony:

1. As currently interpreted, the Toxic Substances Control Act is not an 
        adequate mechanism for regulating toxic substances. Thus the 
        implementation of international agreements on POPs is of 
        critical importance in ensuring the adequacy of future controls 
        on toxic substances.
2. The paralyzing procedures contemplated by the ``Gillmor Discussion 
        Draft'' [hereinafter ``Discussion Draft''] circulating in the 
        House would virtually guarantee that no new toxic substances 
        would be added to the list of substances regulated by 
        international agreements on POPs.
3. Recent assertions by the Executive Branch concerning supposed 
        constitutional limits on using international decisions to 
        trigger domestic obligations, and on requiring public notice-
        and-comment procedures based on such international decisions, 
        are without merit.
  i. the inadequacy of the toxic substances control act in regulating 
                            toxic substances
    The Toxic Substances Control Act (``TSCA''), 15 U.S.C.  2601 et 
seq., appears to hold great promise in controlling toxic substances. 
However, in reality, TSCA has delivered very little in the way of such 
control. As explained below, one problematic but influential appeals 
court decision significantly narrowed the scope of TSCA's most 
ambitious program for regulating toxic substances.
    Section 6 of TSCA provides the Environmental Protection Agency 
(EPA) with broad authority to control the manufacture, processing, 
distribution in commerce, use, and disposal of chemical substances and 
mixtures. Section 6(a) gives the agency a wide-ranging menu of options 
for controlling harmful chemicals, including everything from requiring 
labeling for such chemicals to banning them altogether. Section 6(a) of 
TSCA requires EPA--through the use of the mandatory ``shall''--to 
regulate a chemical substance when the agency finds there is a 
``reasonable basis'' to conclude that it poses an ``unreasonable risk 
of injury'' to human health or the environment. 15 U.S.C.  2605(a). 
This provision requires the agency to regulate such a substance ``to 
the extent necessary to protect adequately against such risk using the 
least burdensome requirements.'' Id. Section 6(c)(1) instructs the 
agency, when issuing a rule under section 6(a), to ``consider and 
publish a statement with respect to'' the effects of a chemical on 
human health and the environment, the magnitude of exposures to such 
chemical, the benefits of the chemical for ``various uses and the 
availability of substitutes for such uses,'' and ``the reasonably 
ascertainable economic consequences of the rule, after consideration of 
the effect on the national economy, small business, technological 
innovation, the environment, and public health.'' 15 U.S.C.  
2605(c)(1).
    TSCA's section 6 is unique among the federal environmental laws in 
the extent to which it allows EPA to regulate harmful substances across 
exposure contexts (e.g., workplace and environmental) and across whole 
industries, thus giving the agency the opportunity to control 
essentially all of the important risks from a harmful chemical at once. 
As noted, moreover, the statute also provides the agency with a virtual 
smorgasbord of regulatory options for controlling harmful chemicals. As 
enacted, therefore, TSCA's section 6 offered a good deal of promise in 
the ongoing effort to reduce the harmful effects of chemicals in our 
society. Ultimately, however, the law's rather vague injunction to 
protect against ``unreasonable risks,'' and its directive to EPA to 
undertake a cost-benefit balancing under section 6, contributed to a 
judicial decision which all but doomed the law to oblivion.
    The first and only judicial interpretation of EPA's authority to 
ban a substance under section 6(a) so limited EPA's authority under 
this provision that section 6 has not played a significant role in 
limiting toxic chemicals in this country. The interpretation came in 
the context of a challenge to EPA's ban on virtually all manufacturing, 
processing, distribution in commerce, and use of asbestos, the agency's 
first and only such ban under TSCA.
    In 1979, EPA began looking into the possibility of banning asbestos 
under section 6 of TSCA.1 The agency acted in response to 
increasing concerns about the harms to human health caused by asbestos. 
Ten years and a 45,000-page record later,2 EPA produced a 
final rule banning virtually all uses of asbestos in several 
phases.3 The agency found that asbestos posed an 
unreasonable risk to human health in all stages of its production and 
use, and that the substance was thus an appropriate candidate for the 
kind of comprehensive regulation offered by TSCA's section 
6.4
---------------------------------------------------------------------------
    \1\ Commercial and Industrial Use of Asbestos Fibers, 44 Fed. Reg. 
60,061.
    \2\ Percival et al., Environmental Regulation: Law, Science, and 
Policy at 409 (Aspen, 4th ed. 2003).
    \3\ EPA, Asbestos: Manufacture, Importation, Processing, and 
Distribution in Commerce Prohibitions, 54 Fed. Reg. 29,460 (1989).
    \4\ Id. at 29,461.
---------------------------------------------------------------------------
    The inevitable legal challenge ensued, and in 1991, the U.S. Court 
of Appeals for the Fifth Circuit struck down EPA's ban on asbestos in 
what remains the only judicial treatment of the basic parameters of 
section 6(a) of TSCA. The court's decision in Corrosion Proof Fittings 
v. EPA, 947 F.2d 1201 (5th Cir. 1991), included, among others, the 
following holdings:

1. In order to regulate under section 6(a) of TSCA, EPA must begin by 
        examining the least intrusive regulatory alternative (such as 
        labeling), considering the costs and benefits of such 
        alternative. EPA may consider a more intrusive regulatory 
        option only if ``unreasonable risks'' are predicted to remain 
        under the less onerous alternative. In order to justify a ban--
        like the asbestos ban--EPA would have to examine the costs and 
        benefits of numerous less onerous regulatory alternatives, and 
        conclude that each would allow unreasonable risks to remain 
        unaddressed.
2. In examining costs and benefits under section 6(c) of TSCA, EPA was 
        required to ``discount'' benefits as well as costs--which, in 
        effect, means treating regulatory benefits such as lives saved 
        as if they were a financial investment. Discounting benefits in 
        the context of toxic chemical control places a large thumb on 
        the scale--against regulation.
3. EPA may not use unquantified benefits to justify regulating a 
        harmful chemical, except in close cases.
4. EPA may not exceed undefined limits on how much money it requires 
        industry to spend to save a human life.
    I examine each of these elements of the court's decision, and its 
paralyzing effect on EPA's power to regulate persistent organic 
pollutants under TSCA's section 6, in turn.
Detailed Analysis of Less Burdensome Alternatives
    In deciding to ban virtually all uses of asbestos, EPA had 
concluded that less onerous regulation would not eliminate the 
unreasonable risks of asbestos. The agency considered several 
regulatory alternatives short of a ban, but concluded that these 
options would not adequately reduce the relevant risks. The agency did 
not conduct a separate analysis of costs and benefits for each of the 
less restrictive alternatives it considered.
    The court of appeals hearing the challenge to EPA's rule held that 
EPA should have considered each regulatory alternative in detail, 
beginning with the least burdensome one and continuing on to more 
burdensome alternatives only if, at any given stage, the alternative 
under consideration did not reduce risks to a reasonable level. At each 
stage, moreover, the agency was required to assess the costs and 
benefits of the option under consideration. As the court put it:
          Upon an initial showing of product danger, the proper course 
        for the EPA to follow is to consider each regulatory option, 
        beginning with the least burdensome, and the costs and benefits 
        of regulation under each option. The EPA cannot simply skip 
        several rungs, as it did in this case, for in doing so, it may 
        skip a less-burdensome alternative mandated by TSCA. Here, 
        although the EPA mentions the problems posed by intermediate 
        levels of regulation, it takes no steps to calculate the costs 
        and benefits of these intermediate levels. Without doing this 
        it is impossible, both for the EPA and for this court on 
        review, to know that none of these alternatives was less 
        burdensome than the ban in fact chosen by the agency.
947 F.2d at 1217 (citation omitted). The court justified the imposition 
of this heavy procedural burden on the agency by reference to the 
language of TSCA, which, the court concluded, offered regulatory 
options in an order proceeding from most to least stringent. Id. at 
1215-16. In fact, however, the regulatory options identified in TSCA  
6 are not arranged in the tidy order the court perceived.5 
Moreover, even if they were, nothing in TSCA suggests that EPA is bound 
to follow the rigid and onerous procedure required by the court in 
Corrosion Proof Fittings. Indeed, where, as EPA did with respect to 
asbestos, the agency finds that a substance poses unreasonable risks 
throughout its industrial life cycle, then the agency is bound by the 
terms of the statute to protect against ``such risk.'' 15 U.S.C.  
2605(a). In those circumstances, a product ban happens to be the 
``least burdensome'' method available to protect against ``such risk.''
---------------------------------------------------------------------------
    \5\ For a critique of the court of appeals' decision on this ground 
and others, see Thomas O. McGarity, The Courts and the Ossification of 
Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525, 
541-49 (1997).
---------------------------------------------------------------------------
    Nevertheless, unless the decision is overturned by either the 
courts or Congress, Corrosion Proof Fittings remains the definitive 
statement of what is required to ban a substance under TSCA. And what 
is required is unreasonably and unrealistically onerous. In banning 
asbestos, as I have mentioned, EPA spent ten years and produced a 
45,000-page record. Yet it compiled detailed cost and benefit 
information only on the alternative of banning asbestos. Imagine the 
time, resources, and analysis required under the court of appeals' 
approach, which requires EPA to conduct a detailed cost-benefit 
analysis of every regulatory option available under TSCA section 6.
    Such a process is not merely onerous; it may well be impossible. In 
analyzing the costs and benefits of a ban of asbestos, EPA was faced 
with the difficult but not impossible task of trying to identify the 
risks that would be avoided if asbestos were no longer used or produced 
(with very limited exceptions). Even so, the task was complicated and 
time-consuming, and many of the benefits of EPA's ban--including the 
prevention of nonfatal illnesses associated with asbestos, and the 
prevention of death from any disease other than cancer--remained 
unquantified by the agency. Under the court of appeals' approach, 
however, EPA would be forced to figure out how many lives would be 
saved by, for example, a particular labeling requirement; how many 
saved by a particular disposal requirement; and so forth. The 
analytical demands imposed by the court of appeals' decision are 
positively paralyzing.
Discounting Benefits
    In evaluating the costs and benefits of banning asbestos, EPA did 
not engage in formal cost-benefit analysis, which would have involved 
translating regulatory benefits--such as human lives saved--into 
monetary terms. Instead, EPA estimated the economic costs and life-
saving benefits of the rule, and compared the costs and benefits 
without use of the common metric of dollars. However, EPA did employ a 
separate technique distinctive to formal cost-benefit analysis: it 
``discounted'' the future life-saving benefits of its rule by 3 percent 
per year from the year in which the benefits would accrue. EPA thought 
that the regulatory benefits of its rule would accrue as soon as the 
risks from asbestos were reduced, and so it discounted these benefits 
from the (quite near-term) date on which exposures to asbestos would be 
reduced.
    The court of appeals upheld EPA's choice of a discount rate, but 
disagreed with EPA's choice of a date from which to discount. The court 
thought EPA should have discounted life-saving benefits from the time 
when a life-threatening illness would materialize, rather than from the 
time when exposures would be reduced. 947 F.2d at 1218. For diseases 
with long latency periods, such as the cancers caused by asbestos and 
prevented by EPA's rule, the court of appeals' approach means 
discounting future benefits for years or, more likely, decades longer 
than EPA's preferred approach would have required. Discounting future 
benefits over many years greatly reduces their apparent magnitude. To 
take one famous example, the deaths of 1 billion people 500 years from 
now, if discounted to ``present value'' at a rate of 5 percent, become 
equivalent to the death of less than one person today.
    The court in Corrosion Proof Fittings held, moreover, that EPA had 
no choice but to discount future benefits. Since EPA had chosen to 
discount the future monetary costs imposed by its rule, the court 
stated that the agency was required to discount the future benefits as 
well. Citing only an article from The Economist magazine, the court 
reasoned that discounting benefits was required to maintain an 
``apples-to-apples'' comparison between costs and benefits. 947 F.2d at 
1218.
    On the matter of discounting, too, the court of appeals' opinion in 
Corrosion Proof Fittings is deeply problematic. In an ordinary case, 
one would expect a court to defer to the agency's determination that 
benefits accrued as soon as the risk from asbestos was reduced. In 
everyday life, after all, we regard the removal of a risk as a benefit 
as soon as it happens; we don't ordinarily react to the removal of a 
carcinogen in our environment, for example, by announcing that we will 
hold off feeling relieved until the date when we might have developed 
cancer had the carcinogen not been taken away.
    Moreover, nothing in TSCA requires the discounting of future non-
monetary benefits such as lives saved. And, since under EPA's mode of 
cost-benefit balancing, lives were not translated into dollars, EPA was 
already comparing apples and oranges by considering economic costs on 
the one hand and human lives on the other. Nothing in TSCA forbids EPA 
to make such a comparison.
    Indeed, a large and growing literature challenges the notion that 
one must compare monetary costs and human lives on common terms--such 
as dollars--in order to make coherent regulatory policy. This 
literature argues, to put it simply, that to compare money and lives is 
necessarily to compare apples and oranges, no matter how elaborate the 
economic theory underlying the effort to transform lives into 
dollars.6 This literature also criticizes the technique of 
discounting itself, which renders future regulatory benefits trivial 
over any substantial discounting interval.7
---------------------------------------------------------------------------
    \6\ See, e.g., Frank Ackerman & Lisa Heinzerling, Priceless: On 
Knowing the Price of Everything and the Value of Nothing (The New Press 
2004).
    \7\ Id., ch. 8.
---------------------------------------------------------------------------
    The international agreements on POPs are aimed at phasing out 
pollutants that, among other things, cause long-latency human diseases 
such as cancer. The agreements are also aimed at phasing out pollutants 
that persist in the environment over long periods of time and thus pose 
risks to future generations. The benefits produced by the treaty are 
the very kinds of benefits trivialized through the use of discounting, 
as required by the court in Corrosion Proof Fittings. TSCA, as 
currently interpreted, is thus not an effective mechanism for 
controlling these substances.
Limited Role for Unquantified Benefits
    In seeking to ban virtually all uses of asbestos, EPA had justified 
its decision based partly on unquantified benefits. For example, the 
agency used a 13-year time horizon in its analysis of costs and 
benefits, but emphasized that the benefits of the rule--though 
unquantified beyond the 13-year horizon--would continue to occur even 
past its analytical horizon. 54 Fed. Reg. at 29,486-88. In addition, 
although the agency was able to quantify only the benefits of saving 
lives due to cancers averted, the agency also cited many other, 
unquantifiable benefits in support of its rule--including nonfatal 
illnesses, fatalities due to causes other than cancer, and ecological 
effects. Id. at 29,479, 29,498.
    The court in Corrosion Proof Fittings chastised EPA for relying too 
heavily on unquantified benefits. The court stated, cryptically, that 
while EPA could use unquantified benefits to justify a rule in close 
cases, it could not use unquantified benefits to ``effect a wholesale 
shift on the balance beam.'' 947 F.2d at 1219.
    The court's ruling, again, is problematic. Where some benefits are 
unquantifiable, how can one even determine whether the quantified part 
of the case for a rule is ``close''? Again, moreover, the court cites 
nothing in TSCA itself that requires the agency to give more respectful 
attention to quantified values than to unquantified ones.
    And, once more, the court's interpretation of TSCA makes this 
statute an especially weak tool in the context of persistent 
pollutants. The benefits of reducing such pollutants are notoriously 
difficult to quantify. In many cases, the one benefit that can be 
quantified with any precision--as in Corrosion Proof Fittings itself--
is the prevention of death from cancer. Many other serious adverse 
effects--such as endocrine disruption, neurological impairment, immune 
system impairment, ecological damage, and so forth--are not amenable to 
precise quantification at this time, in most cases. The court of 
appeals' dismissal of the importance of unquantified benefits--except 
in the ill-defined ``close cases'' category--renders TSCA an 
ineffective means of addressing the harms of POPs.
How Much to Spend to Save a Human Life
    One last aspect of the decision in Corrosion Proof Fittings that 
renders TSCA's  6 a weak mechanism for controlling toxic substances is 
the court's holding that EPA had, with the asbestos ban, required 
industry to spend too much to save a human life. The court pointed to 
cost figures per life saved, disaggregated by industry. These figures 
showed how much it would cost to save a life in, for example, the 
asbestos pipes industry vs. the asbestos shingles industry vs. the 
asbestos brakes industry. In some industries, the cost per life saved, 
when lives were discounted at 3 percent per year, reached into the tens 
of millions of dollars. 947 F.2d at 1218, 1222.
    The court thought that EPA's decision to require the asbestos 
industry to spend this much to save human lives meant that its review 
of the costs of the asbestos rule was deeply flawed: ``The EPA's 
willingness to argue that spending $ 23.7 million to save less than 
one-third of a life reveals that its economic review of its 
regulations, as required by TSCA, was meaningless.'' 947 F.2d at 1223. 
Thus the court overturned the rule on this ground as well.
    Legal scholars have expressed alarm at the court's aggressive 
review of EPA's asbestos ban.8 One example of the court's 
aggressiveness is, of course, the court's intrusion into the agency's 
basic policy choice of how much to spend to save a life. The court 
cited no statutory authority (other than the general injunction to 
consider costs) in coming to its decision, nor did it explain why 
disaggregating costs, industry by industry, was the only way to look at 
the cost imposed by the rule. Notice, for example, that at an estimated 
expense of approximately $460 million, and a savings in lives of at 
least 202, the lives ``cost'' approximately $2.3 million apiece--not a 
bad bargain as these things go. In addition, recall that many of the 
benefits of the rule could not be quantified. Or, to describe the 
asbestos rule another way, it would have cost approximately 14 cents 
for each person in the U.S.9 Described in ways other than 
the one way chosen by the court of appeals, the asbestos rule seems 
like quite a reasonable expenditure for the amount of good it would 
have done.
---------------------------------------------------------------------------
    \8\ See, e.g., Thomas O. McGarity, The Courts and the Ossification 
of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525 
(1997).
    \9\ See Lisa Heinzerling, Political Science, 62 U. Chi. L. Rev. 
449, 463-64 (1995) (reviewing Stephen Breyer, Breaking the Vicious 
Circle: Toward Effective Risk Regulation (Harvard 1993)).
---------------------------------------------------------------------------
TSCA Today
    Despite the promise suggested by the text of TSCA section 6(a), 
that promise has remained unfulfilled in the years since Corrosion 
Proof Fittings was decided. For here was a case in which the agency had 
spent a decade compiling a thorough and careful record of the harms 
caused by one of the hazardous substances about which we know the most, 
and yet the court overturned the agency's rule and required the agency 
to conduct almost impossibly detailed analysis before attempting to ban 
another substance under the statute. Perhaps it goes without saying 
that the agency has not tried again.
    TSCA's transformation from potentially powerful tool against toxic 
substances into an ineffective law is well illustrated by the next 
action EPA proposed under section 6(a): a ban on lead fishing sinkers 
used by fishermen. EPA, Lead Fishing Sinkers, 59 Fed. Reg. 11122 (Mar. 
9, 1994). Even this rather small action--in comparison to the 
nationwide, staged ban on asbestos--never became final. Likewise, EPA's 
recent suggestion that it would use TSCA  6 to ban the fuel additive 
MTBE, after MTBE had contaminated groundwater supplies all over the 
country, was dropped without ceremony by the Bush Administration. See 
Pete Yost, How the White House Shelved MTBE BAN, Associated Press, Feb. 
16, 2004.
    The plain fact is that TSCA  6 is not now a viable mechanism for 
meaningfully reducing the risks of toxic substances in this country. 
This is why effective implementation of the international agreements on 
POPs is so important. However, as I next discuss, current proposals for 
such implementation threaten to be even more paralyzing to the process 
of toxic substance control than the Corrosion Proof Fittings decision 
has been.
      ii. the paralyzing requirements of the ``discussion draft''
    If Congress wanted to ensure that no new harmful substances would 
ever be regulated by the U.S. under the international agreements on 
POPs, it could hardly do better than to pass the ``Discussion Draft'' 
bill now circulating in the House. Merely duplicating the already-
ineffective requirements of TSCA as prerequisites for regulating new 
POPs would be bad enough; the Discussion Draft goes even further and 
offers whole new obstacles to meaningful toxic substance control. 
Better, in truth, to have no mechanism at all for adding new substances 
to the list--the route originally preferred by the current 
Administration 10--than to offer this charade in place of a 
meaningful listing process.
---------------------------------------------------------------------------
    \10\ Eric Pianin, White House Move on Toxic-Chemicals Pact 
Assailed, Washington Post, Apr. 12, 2002, at A13.
---------------------------------------------------------------------------
    Before delving into the details of the Discussion Draft, it is 
worth bearing in mind the context in which EPA action under the POPs 
implementing legislation will occur. The domestic listing process 
contemplated in the Discussion Draft begins only after international 
panels have engaged in a thorough, science-based process of review and 
have concluded that a new substance warrants regulation under the 
international agreements for POPs.11
---------------------------------------------------------------------------
    \11\ For a concise and helpful discussion of the background and 
requirements of the POPs treaty, see Joel A. Mintz, Two Cheers for 
POPs: A Summary and Assessment of the Stockholm Convention on 
Persistent Organic Pollutants, 14 Geo. Int'l Envtl. L. Rev. 319 (2001).
---------------------------------------------------------------------------
    This process includes scientific findings by the so-called 
Persistent Organic Pollutants Review Committee, a group of experts in 
risk analysis designated by parties to the POPs treaty and chosen for 
their expertise and with equitable geographical distribution in mind. 
Stockholm Convention art. 19(6)(a). The Committee reviews chemicals for 
possible inclusion on the POPs list through evaluation of the chemicals 
in light of several screening criteria. Id., art. 8(3). If the 
Conference of the Parties decides that a chemical is a good candidate 
for listing, then the Committee goes back to work and conducts a 
detailed risk profile of the chemical in question. If, based on this 
analysis, the Committee determines that 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,'' id., art. 8(7)(a), then the matter 
returns to the Conference of the Parties, which decides whether to list 
the chemical based on an assessment of the scientific evidence and 
analysis of possible control measures for the chemical. Id., Annex F.
    The POPs treaty explicitly takes a protective, precautionary 
approach to regulating POPs. The preamble states: ``Mindful of the 
precautionary approach as set forth in Principle 15 of the Rio 
Declaration on Environment and Development, the objective of this 
Convention is to protect human health and the environment from 
persistent organic pollutants.'' Stockholm Convention, art. 1. Article 
8(7)(a) of the Convention specifically states that ``[l]ack of full 
scientific certainty shall not prevent the proposal [to list a new 
chemical] from proceeding,'' and Article 8(9) provides that the 
Conference of the Parties, ``taking due account of the recommendations 
of the Committee, including any scientific uncertainty, shall decide, 
in a precautionary manner, whether to list the chemical.'' In the 
fierce current debates over precautionary approaches to environmental 
policy, therefore, the POPs treaty comes down firmly on the side of 
precaution.12
---------------------------------------------------------------------------
    \12\ See generally Pep Fuller & Thomas O. McGarity, Beyond the 
Dirty Dozen: The Bush Administration's Cautious Approach to Listing New 
Persistent Organic Pollutants and the Future of the POPs Convention, 28 
Wm. & Mary Envtl. L. & Pol. Rev. 1 (2003).
---------------------------------------------------------------------------
    Despite the thorough, science-based review preceding the 
international listing process, the Discussion Draft would require EPA 
essentially to start all over again, if it acts at all in response to 
the international recommendations. The problems with the Discussion 
Draft's approach to listing new POPs include the following: excessive 
discretion on the part of EPA; duplication of scientific effort; 
unnecessary and problematic injunctions to the agency to use ``sound 
science''; and biased and paralyzing directives to undertake cost-
benefit balancing and to give economic costs particularly close 
attention. I discuss each of these problems in turn.
EPA discretion
    The Discussion Draft does not require EPA to act at all in response 
to international recommendations on listing new POPs. Instead, it 
simply states that EPA ``may'' regulate in response to such 
recommendations.  502(e)(1)(A). In addition, after international 
bodies have undertaken painstaking review of the harms caused by 
substances that are candidates for regulation, EPA has discretion 
whether even to consider those bodies' recommendations; here, too, the 
permissive ``may'' is used in the Discussion Draft.  502(e)(3). So 
little, apparently, do the Discussion Draft's authors think of the 
international scientific review process, that the findings from this 
process are labeled merely ``additional considerations'' in the Draft. 
Id.
    Moreover, even if EPA does act in response to the international 
recommendations, there is no deadline in the Discussion Draft for a 
conclusion to be reached and a regulation to issue. Finally, if EPA 
does not act, there is no ``action-forcing'' mechanism, such as the 
citizen petition process contained in TSCA  21, which would bring 
pressure to bear on EPA for its failure to act.
    The Discussion Draft, in short, leaves the decision whether to do 
anything in response to international recommendations on regulation of 
new substances completely up to EPA.
Duplication of scientific effort
    As discussed, the international scientific review committee on POPs 
will conduct a detailed analysis of the scientific case for adding a 
new chemical to the list under the POPs treaty. Remarkably, however, 
the Discussion Draft not only, as noted above, gives EPA discretion in 
deciding whether even to consider the international recommendations on 
new POPs listings, it also directs EPA to conduct entirely new 
scientific analyses of candidate chemicals. EPA is, according to the 
Discussion Draft, required to consider a scientific assessment of the 
effects of candidate chemicals on health and the environment, and to 
consider the magnitude of exposures of these chemicals experienced by 
humans and the environment.  502(e)(2)(A-B). It is unclear what is 
expected to be gained by this duplicative scientific review. 
Compounding the problem is, as I discuss next, the Discussion Draft's 
cryptic and troubling invocations of ``sound science.''
``Sound science''
    The Discussion Draft provides:
          In assessing risks and effects, the Administrator shall use 
        sound and objective scientific practices, and shall determine 
        the weight of the scientific evidence concerning such risks or 
        effects based on the best available scientific information, 
        including peer-reviewed studies, in the rulemaking record.
 502(e)(4).
    It is hard to know quite what to make of this provision. On the one 
hand, it is not unusual for federal laws regulating risks to direct the 
relevant agencies to use the ``best available evidence'' in coming to 
their decisions. See, e.g., 29 U.S.C.  655(b)(5) (regarding health 
standards under Occupational Safety and Health Act). Viewed in that 
light, the provision is a rather benign reminder to EPA to use good 
science in deciding whether to regulate additional POPs--a reminder 
that merely duplicates the Administrative Procedure Act's injunction 
against arbitrary and capricious agency decision making.
    On the other hand, ``sound . . . scientific practices,'' or ``sound 
science,'' has, in conservative circles, become a buzzword for 
skepticism about findings of risk to humans and the environment due to 
chemicals, products, industrial pollution, etc. The movement for 
``sound science,'' in fact, began with the tobacco industry's efforts 
to counter scientific evidence of the harms of their products. Thus the 
presence in this bill of references to the ill-begotten ``sound 
science'' theme raises the troubling possibility that this provision 
will be used not merely to duplicate the APA's salutary injunction 
against arbitrary and capricious agency decisions, but instead will be 
used somehow to block important scientific information from being 
considered in the process of deciding whether to regulate additional 
POPs.
    The Discussion Draft's reference to ``peer-reviewed studies'' 
raises similar possibilities. On the one hand, the bill does not limit 
EPA's consideration only to peer-reviewed studies, and thus the bill 
may be taken to mean simply that EPA should include peer-reviewed 
studies, where possible, in its scientific examinations--something the 
agency does routinely in any event. On the other hand, ``peer review,'' 
like ``sound science,'' has become a kind of rallying cry for industry 
and regulatory skeptics within the Administration, and sometimes has 
come to mean review by ``peers'' within industry is favored over review 
by other scientific experts. Here, too, therefore, the meaning of the 
provision on science is unclear, but portents of mischief abound.
Cost-benefit analysis
    The Discussion Draft would weigh down the process for listing new 
POPs with stultifying, time-consuming, resource-intensive, and 
systematically biased analytical requirements. I discuss these 
requirements below. But first, it is important to note that nothing in 
the Discussion Draft requires EPA even to publish the results of its 
detailed analysis. Whereas TSCA itself explicitly states the EPA must 
``consider and publish a statement with respect to'' costs, benefits, 
and potential substitute substances, 15 U.S.C.  2605(c)(1), the 
Discussion Draft merely requires EPA to ``consider'' the listed 
factors.  502(e)(2). The contrast between TSCA and the Discussion 
Draft is striking particularly because the language regarding 
publishing a statement comes from the part of TSCA that is otherwise 
quoted quite closely in the Discussion Draft.
    If EPA decided not to regulate a POP newly listed pursuant to the 
POPs treaty, therefore, there is no guarantee that EPA would even be 
forced to explain why it decided not to do so. This is especially so 
since the Discussion Draft provides no process for citizen petitions 
calling upon the agency to act when it has failed to act. If EPA 
decided to regulate a newly listed POPs, however, it would of course 
have to explain its decision under the APA. Thus the Discussion Draft 
in this way, too, contains an internal bias against listing new POPs.
    The problems go deeper still. The Discussion Draft allows EPA to 
regulate a newly listed POP only ``to the extent necessary to protect 
human health and the environment that achieves a reasonable balance of 
social, environmental, and economic costs and benefits.''  
502(e)(1)(A). The Draft affords no clue, however, as to how a 
``reasonable balance'' is to be identified. Although the Draft does 
provide a laundry list of factors EPA is to consider in coming to a 
decision,  502(e)(2)(A-E), it does not give EPA guidance as to how to 
figure out what a ``reasonable balance'' of costs and benefits is. 
Here, too, therefore, the Discussion Draft affords EPA a huge amount of 
discretion in making decisions on newly listed POPs. Moreover, given 
the precedent of Corrosion Proof Fittings, one must worry about the 
courts' ultimate role in policing exactly which regulatory measures 
afford a ``reasonable balance'' between costs and benefits and which do 
not.
    Quite apart from the large amount of discretion afforded by the 
ill-defined ``reasonable balance'' standard is the internal bias 
against regulation embedded in that standard. Cost-benefit balancing is 
notoriously, and systematically, biased against environmental 
regulation. It is particularly skewed against environmental regulation 
that targets pollutants like the POPs--pollutants with large but 
insidious and sometimes subtle effects, spread over a vast population 
(in this case, the whole world) and reaching into the distant 
future.13
---------------------------------------------------------------------------
    \13\ See generally Lisa Heinzerling, Environmental Law and the 
Present Future, 87 Geo. L.J. 2025 (1999).
---------------------------------------------------------------------------
    Here are some of the basic features of cost-benefit balancing that 
systematically bias it against environmental protection, particularly 
protection against pollutants like POPs: 14
---------------------------------------------------------------------------
    \14\ These arguments are elaborated in Frank Ackerman & Lisa 
Heinzerling, Priceless: On Knowing the Price of Everything and the 
Value of Nothing (The New Press 2004).

 Many of the benefits of reducing these pollutants cannot be 
        quantified. In many cases, avoiding cancer is the only benefit 
        that can be quantified. This leaves all other causes of death, 
        plus all nonfatal illnesses avoided and all ecological effects, 
        left out of the numerical tally of costs and benefits. When a 
        benefit is not quantified, its worth is typically treated as if 
        it were zero in a cost-benefit balancing.
 The costs of regulating environmental risks are often overstated, and 
        often by a large amount.15
---------------------------------------------------------------------------
    \15\ See, e.g., Thomas O. McGarity and Ruth Ruttenberg, Counting 
the Cost of Health, Safety, and Environmental Regulation, 80 Texas L. 
Rev. 1197 (2002).
---------------------------------------------------------------------------
 Even when benefits can be quantified, the process of fitting values 
        like human lives and health into a cost-benefit balance is 
        fraught with difficulty. Sometimes, monetary values are 
        attached to benefits such as human lives. These values are 
        generally based on the amount of extra income male workers in 
        the 1970s were willing to accept in exchange for increased 
        workplace risks. The monetary values arising from this context 
        not only tell us little about these workers' own values (there 
        is no evidence they actually knew the precise risks they faced, 
        or could afford to turn down a risky job even if they did 
        know), but tell us even less about the monetary values one 
        might attached to risks of cancer, risks that are involuntarily 
        imposed, risks to future generations, and so forth. They tell 
        us little, in other words, about the value of controlling the 
        risks of POPs.
 The technique of discounting--required by the court in Corrosion 
        Proof Fittings despite the absence of a statutory mandate for 
        it--belittles desires to protect this and future generations 
        against long-term and persistent risks. Discounting would 
        easily trivialize the benefits of regulating POPs. Yet 
        protection of the future--for our own generation, our 
        children's generation, and generations yet to come--is one of 
        the basic principles animating a document like the POPs treaty. 
        Discounting, through an arcane and seemingly technical process, 
        silently undermines this animating principle.16
---------------------------------------------------------------------------
    \16\ For more detailed discussion, see Lisa Heinzerling, 
Discounting Our Future, 34 Land & Water L. Rev. 39 (1999).
---------------------------------------------------------------------------
 Cost-benefit balancing typically relies on a starkly impoverished 
        view of what matters when it comes to risk. Frequently, cost-
        benefit analysis looks solely at the probability and magnitude 
        of harm, in numerical terms, rather than also at the cultural 
        and moral context in which that harm might be inflicted. Thus 
        cost-benefit analysis most often ignores the kinds of 
        considerations--an aversion to involuntary and uncontrollable 
        risks, a preference for an equitable distribution of risk, a 
        desire to avoid consequences that threaten whole communities--
        that most people take into account in judging risk.
These are, in brief, some of the most fundamental reasons why cost-
benefit balancing is a bad idea in the context of environmental 
protection. Its use in the POPs implementing legislation would 
virtually ensure that no new POPs will be regulated in this country 
pursuant to the international agreements on POPs. If this is what the 
authors of the Discussion Draft desire, they should say so directly, 
and not hide behind the seemingly objective face of cost-benefit 
balancing.
    Even if cost-benefit balancing were not systematically biased 
against regulation of POPs, the analytical requirements imposed by the 
Discussion Draft would nevertheless paralyze any effort to regulate 
POPs. The Discussion Draft goes beyond TSCA  6--which, you will 
recall, has been buried under the onerous analytical requirements 
ladled into it by the court in Corrosion Proof Fittings--and adds even 
more factors for EPA to consider in deciding whether to regulate POPs. 
In addition to all of the factors listed in TSCA's  6, the Discussion 
Draft would also require EPA to consider the risks and economic 
consequences of, plus a laundry list of other factors relating to, 
substitutes for chemical substances.  502(e)(2)(C). In addition, the 
Draft would require EPA to consider not only the costs, benefits, 
effects on the national economy, etc., of a regulatory decision, but 
also ``the degree to which the manufacture, processing, distribution in 
commerce for export, use, or disposal of the chemical substance or 
mixture is necessary to prevent significant harm to an important sector 
of the economy.  502(e)(2)(D). In other words, even if the cost-
benefit profile tilted in the direction of regulation, EPA must 
nevertheless go on to consider whether an industry would be too hard-
hit by a regulation to proceed. Finally, EPA must, according to the 
Discussion Draft, also consider not only the national, but also the 
international, consequences of a regulatory action.  502(e)(2)(E).
    This is a research agenda and analytical program to fill several 
lifetimes. Even under the relatively ``streamlined,'' pre-Corrosion 
Proof Fittings version of TSCA, it took EPA ten years and 45,000 pages 
to justify its asbestos ban. And even then the court overturned the 
rule for lack of sufficient analysis. The Discussion Draft dumps even 
more analytical requirements on EPA, with the likely result that no 
rule would ever see the light of day under this framework.
     iii. the administration's constitutional arguments regarding 
        implementation of the pops conventions are without merit
    The Bush Administration has recently voiced two different kinds of 
arguments implicating Congress's authority to enact legislation 
implementing the international agreements on POPs. Both arguments are 
without merit.
    First, the Department of Justice has argued, in a letter to Senator 
Tom Harkin dated March 25, 2004, that mandatory notice-and-comment 
procedures in POPs implementing legislation (there, the Department was 
discussing amendments to the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA)), would ``raise constitutional concerns.'' 
Letter from William Moschella, Assistant Attorney General, Office of 
Legislative Affairs, to The Honorable Tom Harkin (March 25, 2004). It 
appears that the Department was under the impression that merely 
seeking out the views of the public, while international proceedings on 
whether to add pollutants to the list of POPs were ongoing, would 
interfere with the Executive's treaty-making powers. The letter is 
exceedingly thin on legal authority, and even thinner on common sense: 
it provides no sensible reason to think that merely requiring notice 
and an opportunity for comment, without any obligation to change one's 
international negotiating position, interferes with the Executive's 
prerogatives. The letter is of a piece with the Administration's other 
recent, extravagant claims of Executive prerogatives, offered in 
contexts ranging from its refusal to make public information concerning 
Vice-President Cheney's Energy Task Force, to its arguments concerning 
the treatment of detainees in Cuba, to its alarming claims, in 
memoranda on the treatment of prisoners in the ongoing ``war on 
terror,'' regarding the Executive's immunity from the requirements of 
the Geneva Convention. A detailed and persuasive refutation of the 
Department's analysis is attached to CIEL senior attorney Glenn Wiser's 
written testimony for today's hearing. Although the Discussion Draft 
does indeed provide an opportunity for public notice and comment, the 
rebuttal to the Department of Justice's constitutional arguments is 
important to keep in mind if future implementing bills do not require 
notice and comment early in the international process.
    A second constitutional argument that has attended discussions of 
POPs implementing legislation has to do with what is sometimes known as 
the ``international nondelegation doctrine.'' The idea is that if 
Congress obligates the Executive branch to act in response to the 
decision of an international body, that is an unconstitutional 
delegation of legislative authority.
    To understand this claim, it is helpful to understand the exact 
context in which it might arise. Under the POPs treaty, new POPs may be 
added only by consensus of the parties or, failing consensus, by a 
three-quarters majority of the parties. Stockholm Convention, arts. 
22(4), 21(1-3). Parties may, in individual cases, decide not to accept 
a new POPs listing. Id., arts. 22(3)(b), 22(4). Or, in the alternative, 
parties may, at the time of ratifying the treaty itself, select the 
``opt-in'' alternative, which means that they will not be bound by any 
new pollutant listing unless they affirmatively indicate their 
intention to be bound. Id., art. 25(4).
    Thus, with respect to deciding whether to accept new pollutant 
listings under the POPs treaty, the U.S. has three options: (1) it can 
accept a decision of the Conference of the Parties to regulate a new 
pollutant; (2) it can, on a case-by-case basis, decide not to accept 
the new listing; or (3) it can, in ratifying the treaty, elect the opt-
in provision, thus requiring affirmative action to regulate a new 
pollutant in every case of a new listing.
    If the Executive chooses not to take the last route--that is, it 
does not select the opt-in option--then there would seem to no 
meritorious constitutional complaint about being bound by international 
decisions on new POPs. The Executive's assent to such decisions would 
be embedded in the original treaty itself. Likewise, if Congress 
embodied this assent in implementing legislation which required EPA to 
take action to control newly listed chemicals, there would be no 
constitutional problem. Indeed, many laws implementing international 
obligations take this general form. The Montreal Protocol on ozone-
depleting substances, for example, provides that the original standards 
of the Protocol may be strengthened by a majority vote of the parties, 
and that vote is binding on the parties. The Clean Air Act implements 
this agreement by requiring EPA to take the actions required by the 
stricter standards. 42 U.S.C.  7671e(a)(3). Similarly, the Convention 
on International Trade in Endangered Species of Wild Fauna and Flora 
(``CITES'') provides for international decisions adding endangered 
species to the list of protected species, and the Endangered Species 
Act prohibits trade in internationally listed species. 16 U.S.C.  
1538(c). Other examples may be found in the memorandum attached to 
Glenn Wiser's written testimony for this hearing.
    I am aware of no case law disputing the proposition that agencies 
may be obligated to act in response to decisions of international 
bodies where a treaty and statute require them to do so. Indeed, the 
case law I am aware of supports this proposition. In George E. Warren 
Corp. v. EPA, 159 F.3d 616 (D.C. Cir. 1998), the D.C. Circuit held that 
EPA was, in setting new rules for reformulated gasoline, justified in 
taking into account a WTO ruling against EPA's previous rule. Although 
the Clean Air Act did not specifically give EPA the authority to take 
this ruling into account in establishing its rule, the court expressed 
a desire to avoid any confrontation with U.S. treaty obligations, and 
upheld EPA's consideration of the WTO ruling. The case would have been 
even easier for EPA had the statute explicitly allowed consideration of 
the international body's decision in setting domestic regulatory 
policy.
    Thus, it appears that the U.S. could, without any constitutional 
problem, choose the ``opt-out'' option of the POPs treaty, meaning that 
it would be required to regulate any newly listed pollutants unless it 
affirmatively indicated its desire not to accept the listing of such 
pollutants.
    The other context in which the constitutional arguments that have 
floated about these issues might arise is if the U.S. selected the 
``opt-in'' option under the POPs treaty. In that case, an affirmative 
act by the U.S. would be required for any new POPs to be regulated 
here. This is the situation in which we find ourselves today, as the 
Administration has indicated that this is the option it will choose 
when the treaty is ratified.
    In this situation, the question becomes whether Congress could, in 
the legislation implementing the POPs treaty, require EPA to act in 
response to a new listing decision by the Conference of the Parties. 
Suppose, for example, that the legislation simply required EPA to make 
a decision as to whether to regulate a newly listed POP. The 
international decision to list the POP would be the trigger for 
requiring EPA to come to a decision about whether to regulate the new 
POP. This kind of regime would pose no constitutional problem. Congress 
often requires agencies to act when certain conditions are met. Indeed, 
the more precise the conditions that trigger agency action, the less 
Congress's actions even come close to running afoul of the 
constitutional prohibition reflected in the nondelegation doctrine 
(which, it must be noted, has not been found by the Supreme Court to 
have been violated in almost 70 years). Whether the trigger for agency 
consideration of a problem is an agency factual finding, a state 
decision, or an international decision, the conclusion remains the 
same: Congress is entitled to require agency action based on 
satisfaction of a condition precedent identified by Congress.

    Mr. Gillmor. Thank you very much.
    We will go to Glenn Wiser, who is Senior Attorney, Center 
for International and Environmental Law.

                   STATEMENT OF GLENN M. WISER

    Mr. Wiser. Thank you, Mr. Chairman.
    My organization, CIEL, has played a leading role in the 
efforts of environmental and health organizations in the United 
States who are working for effective U.S. implementing 
legislation for the POPs convention. The views I will express 
today have been endorsed by a number of these organizations. 
Their names are listed in my written testimony.
    My colleagues have asked me to provide you with a summary 
of the environmental and health community's views on the June 
17 discussion draft. My comments will focus on those aspects of 
the draft that deal with the Stockholm POPs Convention.
    My colleagues have asked me to clearly convey this message: 
U.S. environmental and health organizations believe the 
approach in the discussion draft is fundamentally flawed and we 
will work very hard to ensure that the approach is never 
enacted into law.
    My colleagues have also asked me to suggest legislative 
alternatives that we believe would more faithfully reflect the 
requirements of the Stockholm Convention.
    I would like to make one important point before I speak 
specifically about the discussion draft. We believe that the 
key to U.S. POPs legislation is that it must give EPA 
sufficient legal authority to implement quickly and effectively 
a Stockholm Convention decision to add a POP to the treaty. 
That said, we recognize that the terms of this treaty can never 
force the United States to regulate an additional chemical 
against its will. That is a very important point, we believe. 
It is the job of Congress through this legislation to tell EPA 
how to respond to a Stockholm new listing decision. No 
international body will have the power to make domestic U.S. 
law. Our groups understand this important distinction and we 
hope everyone else who is involved in this legislation 
understands it, too.
    Now, to the discussion draft. While the purpose of this 
legislation is to implement the POPs Convention, the draft 
seems to have a unifying theme that would do exactly the 
opposite. It seems to be intended to divorce any relationship 
between the international listing process and the domestic 
regulatory process, and to ensure that future administrations 
will never be able to implement Stockholm amendments to control 
additional POPs. There are many reasons why we conclude this, 
but we are going to focus on three right now.
    First, the discussion draft contains no requirement that 
EPA do anything after an international decision to add a POP to 
the convention even when the United States fully supports the 
international decision. There is no time line within which EPA 
must act or declare its intention not to act. There is no 
requirement for EPA to publish a statement of reasons for its 
inaction. And there is no provision such as a citizens petition 
process that would prod EPA to act if it fails to do so. We 
believe that a better approach would be for Congress to require 
EPA to decide within a fixed time after an international 
listing decision is made whether EPA will regulate the POP or 
not.
    Two: The proposed regulatory standard for considering 
additional POPs is not acceptable because it would result in 
EPA never being able to regulate an additional POP. If EPA 
decided under it's complete discretion to regulate, it could 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. 
That's a mouthful.
    As Professor Heinzerling and others have demonstrated this 
kind of cost benefit balancing nearly always results in an over 
valuation of the cost of regulation and a dramatic under 
valuation of the benefits, most of which cannot be 
realistically or fully valued in monetary terms. This applies 
especially to the kinds of problems that POPs cause.
    Cost benefit balancing rigs the system against protective 
regulation. And this standard that is in the discussion draft 
would all but insure that future administrations could never 
implement Stockholm amendments because EPA's regulatory 
authority would be too weak to do so.
    We believe that a better approach would be to use the 
regulatory standard that is already in the Convention. The law 
should require EPA to implement the control measures specified 
in the convention in a manner that protects against significant 
adverse human health or environmental effects. But if EPA 
concluded that despite the international decision to list a 
POP, the chemical was not likely to lead to significant adverse 
human health or environmental effects, then EPA would be 
required to issue a decision not to regulate.
    The third and final point I would like to make. The draft 
would require EPA to undergo unnecessary and duplicative 
analyses if it chose to regulate. As a party to the Stockholm 
Convention the United States will have already participated in 
a thorough scientific investigation of additional POPs before 
they are added to the convention. Yet the discussion draft 
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. We 
believe that a better approach would be for Congress not to 
require EPA to reinvent the wheel when conducting a rulemaking 
on an additional POP in light of the extensive scientific risk 
assessment and socio-economic analyses that were mentioned by 
my colleague Mike Walls and that are already required under the 
convention. We believe that implementing legislation should not 
shackle EPA's authority by itemizing additional criteria it 
must consider during the rulemaking.
    In closing, the environmental and health community 
enthusiastically supports the Stockholm Convention and hopes 
that the United States will soon be a party. However, we do 
not, and I repeat we do not wish to see U.S. ratification of 
this important treaty serve as a mean to introduce a radical 
regressive reshaping of that law. We believe that the approach 
taken in the June 17 discussion draft would do just that, and 
we respectfully call on this subcommittee to reject it in favor 
of an approach that will faithfully reflect the spirit and 
letter of the convention.
    Thanks, and I will be happy to answer any questions you 
might have.
    [The prepared statement of Glenn M. Wiser follows:]
 Prepared Statement of Glenn M. Wiser, Senior Attorney, The Center for 
  International Environmental Law on Behalf of National Environmental 
 Trust, Oceana, Pesticide Action Network North America, Physicians for 
 Social Responsibility, Sierra Club, and U.S. Public Interest Research 
                                 Group
                            i. introduction
    Mr. Chairman and Members of the Subcommittee: Thank you for the 
opportunity to testify on behalf of my organization, the Center for 
International Environmental Law (CIEL), and on behalf of our partners, 
including National Environmental Trust, Oceana, Pesticide Action 
Network North America, Physicians for Social Responsibility, Sierra 
Club, and U.S. Public Interest Research Group, 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 comparative 
environmental law and policy around the world.
    Much of my work at CIEL has focused on the development and 
implementation of multilateral treaties such as the Climate Convention, 
the Framework Convention on Tobacco Control, and the Stockholm POPs 
Convention. Since May, 2001, I have worked closely with numerous 
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. My organization also coordinates a network of grassroots 
and activist organizations located throughout the country who work on 
issues related to chemicals management and safety, and who strongly 
support the Stockholm Convention.
    A core group of public interest organizations, including CIEL, 
National Environmental Trust, Oceana, Physicians for Social 
Responsibility, the U.S. Public Interest Research Group, and the World 
Wildlife Fund, has worked with Congress over the last two years to help 
develop the implementing legislation for the Stockholm Convention. At 
the request of the Senate Environment and Public Works Committee (EPW), 
this group consulted extensively with industry representatives and EPW 
staff on amendments to the Toxic Substances Control Act (TSCA), which 
were eventually approved by EPW in July 2003 as the POPs, LRTAP POPs, 
and PIC Implementation Act of 2003, S. 1486. We have also participated 
in lengthy consultations with members of the Senate Committee on 
Agriculture, Nutrition, and Forestry and the House Committee on 
Agriculture to educate and assist them in the development of POPs 
implementing bills that would amend the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA).
    While our core group does not have a formal leadership structure, 
we consistently speak with a unified voice. I have frequently been the 
group's spokesman and adviser. In that capacity I have led the majority 
of our discussions(and served as our main contact(with several key 
congressional staff and representatives of the Bush Administration. I 
have also led in the preparation of our analyses and responses to the 
various draft bills that have been proposed, in the research for and 
formulation of our core group's positions and strategies, and in the 
coordination of the broader environmental and health community's 
responses to the pending legislation. For example, in April of this 
year, I coordinated the preparation of a letter to members of the 
Senate from CEOs of 18 of America's most prominent environmental 
organizations, which expressed our deep concern about POPs implementing 
amendments that had been proposed for FIFRA. [Please see attached CEO 
letter to Senators Cochran, Harkin, Goodlatte, and Stenholm dated April 
19, 2004.]
    In short, I have been heavily involved in all aspects of the public 
interest campaign for U.S. ratification of the Stockholm Convention, 
and my organization has been privileged to enjoy the confidence of our 
partners that has allowed us to work on their behalf.
    Today, I would like to provide you with a summary of the 
environmental and health community's views on draft legislation that 
would amend TSCA to implement the Stockholm POPs Convention, the LRTAP 
POPs Protocol, and the Rotterdam PIC Convention. But first, I would 
like to very briefly describe persistent organic pollutants, the 
Stockholm POPs Convention, and one of its most important provisions: 
the ``adding mechanism'' for evaluating and adding other POPs to the 
treaty.
    Second, I will comment specifically on the Discussion Draft that 
the Majority circulated among members of this Subcommittee on June 17, 
2004. I will concentrate on those aspects of the Draft that deal with 
the Stockholm Convention. However, many of my comments will also be 
relevant to the Draft's LRTAP POPs Protocol sections, which generally 
are similar to the Stockholm sections. I will also suggest alternative 
legislative approaches that the environmental and health community 
believe would more faithfully reflect the requirements of the Stockholm 
Convention than the June 17 Draft does.
    Finally, I will discuss claims by the Bush Administration that the 
U.S. Constitution should be interpreted to prohibit Congress from 
implementing the Convention in certain ways.
     ii. persistent organic pollutants and the stockholm convention
    1. Persistent Organic Pollutants (POPs). POPs are exceedingly toxic 
chemicals that take years or decades to break down in the environment, 
travel long distances on wind and water currents, and concentrate up 
the food chain to accumulate in our bodies. They include chemicals and 
pesticides like dioxin, PCBs, and DDT. They can cause cancer, 
neurological and learning disabilities, and subtle changes to human 
reproductive and immune systems. POPs used in the United States can 
harm people and wildlife thousands of miles away; similarly, POPs used 
in foreign countries can hurt Americans here at home. All of us have 
some or many of these chemicals in our bodies. We get them primarily 
through our food. Babies get them before birth through the placenta and 
later, from their mother's breast milk.
    2. The Stockholm POPs Convention. The Stockholm Convention bans or 
severely restricts 12 of the most hazardous POPs, and establishes an 
international, science-based process for adding other POPs to the 
treaty. The Convention entered into force on May 17, 2004. The 
Convention's first ``Conference of the Parties'' will meet in May, 2005 
to adopt rules of procedure and guidelines for many of the treaty 
processes and institutions, including the committee that will make 
recommendations on additional POPs. The United States can attend the 
first Conference of the Parties as an official party only if it 
ratifies the treaty no later than early February 2005 (90 days before 
the Conference). Nevertheless, it can attend that meeting as an 
observer, and may join as a full party if it ratifies at a later date.
    3. The Stockholm ``adding mechanism.'' Because the United States 
has already banned all of the intentionally produced ``dirty dozen,'' 
the most important part of the treaty to protect public health in our 
country is the part dealing with identifying and adding other POPs. At 
the insistence of U.S. negotiators, the treaty contains a rigorous, 
science-based process under which governments may nominate suspected 
POPs. 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. If the committee decides 
they are, it may recommend that the Conference of the Parties consider 
adding the chemical to the treaty. Assuming the United States takes the 
election provided in the Stockholm Convention's Article 25.4, an 
amendment to add a chemical to the Convention can only apply to the 
United States if we decide to ``opt in'' to it. We can never be bound 
by a new listing decision against our will. The environmental and 
health community believes that the key to U.S. POPs legislation is that 
it give EPA sufficient legal authority to implement a Stockholm new 
listing decision quickly and effectively.
                iii. the june 17, 2004 discussion draft
    U.S. environmental and health organizations enthusiastically 
support the Stockholm POPs Convention. We are proud of the important 
role we believe our groups played in the development of this treaty, 
and we look forward to the day when America joins the 70 other 
countries that have already ratified it.1 We are convinced 
that U.S. participation and leadership in the Convention will be 
essential for achieving our vision of elimination of persistent organic 
pollutants and other persistent toxic substances from the world's 
environment.
---------------------------------------------------------------------------
    \1\ Number of ratifications and accessions as of July 9, 2004. See 
Stockholm Convention secretariat's website at http://www.pops.int/
documents/signature/signstatus.htm.
---------------------------------------------------------------------------
    Yet our organizations are also devoted to preserving and improving 
the integrity of U.S. environmental and health law, and we do not wish 
to see U.S. ratification of this groundbreaking treaty serve as a means 
to introduce a radical, regressive reshaping of that law. Regrettably, 
we have concluded that the June 17 Discussion Draft would do just that. 
We believe that the approach in the Draft is fatally flawed and should 
be rejected, even if that means a delay in our country's ratification 
of the POPs Convention.
    The problems identified below stand out among the Draft's many 
faults.
    1. The Discussion Draft appears to go out of its way to decouple 
the international process and the domestic regulatory process. Over the 
last three years, aggressive unilateralism in U.S. international 
relations has seriously undermined the reputation of our country 
abroad. Congress should define implementation of the Stockholm 
Convention in a manner that helps return the United States to a 
responsible path of international leadership and cooperation, not in a 
way that institutionalizes the appearance of U.S. unilateralism.
A. The Discussion Draft contains no requirement that EPA do anything 
        after an international decision to add a POP to the Convention, 
        even when 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.
 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.
    A Better Approach: Congress should require EPA to decide, within a 
fixed time after an international listing decision is made, whether it 
will regulate the POP or not. Because such a duty would be non-
discretionary, the citizens' civil actions provisions of TSCA  20 
could apply, providing a safeguard in case EPA failed to act within the 
prescribed time.
B. The Draft 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 the Discussion Draft 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.
    A Better Approach: Congress should avoid trying to micro-manage the 
information that EPA may or may not consider when conducting a 
rulemaking on an additional POP. If EPA's statutory authority is overly 
complicated, it will likely prove unworkable. Considering the extensive 
scientific, risk assessment, and socio-economic analyses that are 
already required under the Convention (and which are there 
significantly due to U.S. insistence), we believe the implementing 
legislation should not itemize the criteria that EPA must consider 
during the rulemaking.
C. The Discussion Draft oversteps by attempting to constrain the 
        President's constitutional power to conduct international 
        negotiations.
 Despite multiple safeguards that ensure U.S. decision-making 
        autonomy, the Discussion Draft would require the United States 
        to take the Stockholm Convention ``opt in'' election, which 
        provides that an additional chemical amendment will only bind 
        the United States if it affirmatively ``opts in'' to it. Yet it 
        is not within the scope of this Subcommittee's powers to 
        condition the President's international negotiating powers in 
        this way.
    A Better Approach: Of the 70 countries that have ratified the 
Stockholm Convention to date, 64 have chosen the traditional ``opt-
out'' approach to additional POPs listings, while only six have taken 
the ``opt-in'' election. We acknowledge that the United States will 
likely take the opt-in election. But we reject the Discussion Draft's 
provisions that would purport to make that decision. Language requiring 
the opt-in should be excluded from the bill, and the decision should be 
left to the President, contingent on the advice and consent of the 
Senate.
    2. The Discussion Draft would favor short-term corporate interests 
at the expense of public health and the environment.
A. The proposed regulatory standard for considering additional POPs is 
        not acceptable.
 Under the Discussion Draft, EPA would have complete discretion to 
        decide whether or not it should prohibit or restrict an 
        additional POP. But if it decided to regulate, it could 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.''
 By contrast, under the Stockholm Convention, governments (including 
        the United States) must decide upon additional POPs ``in a 
        precautionary manner.'' 2 Yet the Discussion Draft 
        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 Americans from the world's most 
        dangerous chemicals.
---------------------------------------------------------------------------
    \2\ Stockholm Convention, art. 8,  9.
---------------------------------------------------------------------------
 As recent studies have demonstrated, the strict application of cost-
        benefit balancing 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.3
---------------------------------------------------------------------------
    \3\ See, e.g., Frank Ackerman and Lisa Heinzerling, Priceless: On 
Knowing the Price of Everything and the Value of Nothing (New York: The 
New Press, 2004).
---------------------------------------------------------------------------
 The main beneficiary of the Discussion Draft's cost benefit standard 
        would be the regulated industry, which would receive a potent 
        litigation tool. The standard would all but ensure that future 
        administrations could never implement Stockholm amendments 
        because EPA's regulatory authority would be too weak.
    A Better Approach: Congress should avoid a complex, de novo 
regulatory standard, and it should wholly reject a cost-benefit 
standard that may have the effect of making it impossible for the 
United States to concur with international decisions to address 
additional POPs. The most sensible standard to use in the legislation 
would be based upon the Convention, and would require EPA to implement 
the control measures specified in the Convention in a manner that 
protects against ``significant adverse human health or environmental 
effects.'' If, despite the international decision to list a POP, EPA 
concluded that the chemical was not likely to lead to significant 
adverse human health or environmental effects, then EPA could issue a 
decision not to regulate.
B. In weighing scientific information, EPA would have to apply new, 
        onerous ``sound science'' requirements that will provide grist 
        for litigation rather than improve the quality of EPA's 
        decision making.
 The environmental and health community believes that high quality, 
        objective scientific research and analysis should provide the 
        foundation for the evaluation and management of POPs and other 
        persistent toxic substances.
 The modern regulatory catch phrase of ``sound science'' was developed 
        by the tobacco companies as a way to confuse the public, thwart 
        attempts at regulation, and obfuscate the fact that their 
        products are among the most harmful products legally sold. The 
        concept has been described as ``an effort to inject . . . 
        politics into the world of science and to use the uncertainty 
        that inevitably surrounds science as an excuse to delay new 
        rules . . .'' 4 It has been roundly criticized in a 
        recent letter to the Bush Administration from 18 Nobel 
        laureates, National Medal of Science Recipients, and other 
        leading researchers.5
---------------------------------------------------------------------------
    \4\ Rick Weiss, ``Peer Review Plan Draws Criticism: Under Bush 
Proposal, OMB Would Evaluate Science Before New Rules Take Effect,'' 
Wash. Post, Jan. 15, 2004, at A19.
    \5\ See ``Preeminent Scientists Protest Bush Administration's 
Misuse of Science: Nobel Laureates, National Medal of Science 
Recipients, and Other Leading Researchers Call for End to Scientific 
Abuses,'' available at http://www.ucsusa.org/news/press--
release.cfm?newsID=381.
---------------------------------------------------------------------------
 Under the Discussion Draft, the sound science requirement would help 
        give chemical companies one of big tobacco's most effective 
        anti-health, anti-regulatory tools, while doing little, if 
        anything, to improve the quality of scientific analysis in a 
        POPs rulemaking.
    A Better Approach: In briefings on the POPs legislation, EPA has 
assured us that they already have rigorous, well-established practices 
for evaluating the quality of scientific information. In light of that, 
and the likelihood that ``sound science'' requirements in the 
Discussion Draft could be used to establish a politically motivated 
``scientific certainty'' test in a POPs rulemaking, we urge Congress to 
omit references to sound science or the quality of scientific 
information from this legislation.
C. While the Discussion Draft would make it very difficult or 
        impossible for EPA to implement a Stockholm Convention new 
        listing decision, the Draft would simultaneously establish a 
        regulatory ceiling by prohibiting EPA from regulating more 
        strictly than minimum Convention standards.
 Even if EPA decided to regulate an additional POP, the Discussion 
        Draft would prohibit it from regulating any production or use 
        of the substance if an exemption were available under the 
        Convention. The idea of these exemptions is that developing 
        countries that need flexibility can phase out a prohibited 
        chemical over time. For our law to require us to take these 
        exemptions would represent a perverse abdication of U.S. 
        leadership in international chemicals management.
    A Better Approach: Language that would have the effect of requiring 
the United States to take an exemption should not be included in the 
legislation. Instead, there should be a clear statement that ``nothing 
in this title shall be construed to require the United States to 
register for any specific exemption or acceptable purpose available to 
the United States under Annex A or B to the POPs Convention.''
 iv. bush administration arguments against implementation of the pops 
                               convention
    During the course of our environmental and health groups' work on 
POPs implementing legislation, the Bush Administration has repeatedly 
raised objections, based on constitutional grounds, to some of the 
options that have been proposed. These include objections based on the 
separation of powers doctrine and on a putative ``international non-
delegation doctrine.'' I would like to respond to these assertions, for 
the record, so that Congress will not be misled on this matter now or 
in subsequent development of the POPs legislation.
    1. The separation of powers argument. In a letter dated March 25, 
2004 from William Moschella, Assistant Attorney General, to Senator Tom 
Harkin, the Department of Justice claimed that mandatory notice and 
comment provisions tied to the international listing process of the 
Stockholm Convention would unconstitutionally infringe upon the 
President's treaty making powers. Independent analyses of that letter 
by the Congressional Research Service and by my organization, CIEL, 
demonstrated that the Administration's legal theory had no foundation 
in U.S. law and was without merit. [Please see attached CIEL Memorandum 
dated April 5, 2004.]
    We note now that the Majority's June 17 Discussion Draft contains 
mandatory notice and comment provisions, despite DOJ's 
opinion.6 Thus, we conclude either that the Bush 
Administration has withdrawn this objection, or the Subcommittee 
Majority does not accept it. While there are numerous aspects of the 
Discussion Draft's notice and comment provisions to which we strongly 
object, we support the fact that most of those provisions would be 
mandatory, not discretionary.
---------------------------------------------------------------------------
    \6\ See, e.g., June 17 Discussion Draft at page 9, line 16 (stating 
``Not later than 60 days after a decision [by the POPs Review 
Committee] is made . . . the Administrator shall . . . publish in the 
Federal Register a notice of the decision . . . (emphasis added)).
---------------------------------------------------------------------------
    2. The nondelegation doctrine applied to international relations.  
Early in the discussions between industry representatives, 
environmental and health NGOs, and Senate Environment and Public Works 
Committee staff regarding the Senate POPs amendments, we learned that 
the Bush Administration objected to the notion that Congress could 
require EPA to regulate a newly-listed POP on the grounds that such a 
requirement would impermissibly delegate lawmaking powers to 
international bodies and thus violate an ``international nondelegation 
doctrine.'' President Bush referred to such a doctrine in his signing 
statement for the Clean Diamonds Trade Act, H.R. 1584, Pub. L. No. 108-
19 (2003), when he said, ``If section 15 [of the Act] imposed a 
mandatory duty on the President to certify to the Congress whether 
either of the two specified events has occurred and whether either 
remains in effect, a serious question would exist as to whether section 
15 unconstitutionally delegated legislative power to international 
bodies.'' (emphasis added).7
---------------------------------------------------------------------------
    \7\ President's Statement on Signing the Clean Diamond Trade Act, 
39 Weekly Comp. Pres. Doc. 491 (April 25, 2003).
---------------------------------------------------------------------------
    This theory is premised on the assumption that when Congress 
delegates responsibilities to the Executive Branch and makes the 
exercise of those responsibilities contingent on the occurrence of an 
international event, then Congress has unconstitutionally given 
lawmaking powers to whatever international institution is responsible 
for the event. But the theory is fatally flawed because it confuses who 
is exercising legislative power when the United States implements 
treaties in this fashion. While decisions by the international body may 
trigger the Executive Branch's responsibility to implement the law, 
that is so only because Congress decided that the law would be 
contingent on such a decision. Congress alone has established what the 
law will be, and it has delegated the responsibility to implement the 
law to the Executive Branch. The international body has no role in 
either of these functions.
    U.S. courts have long held that such contingent delegations by 
Congress are constitutionally acceptable, so long as Congress provides 
an ``intelligible principle'' that ``sufficiently marks the field 
within which the Administrator is to act so that it may be known 
whether he has kept within it in compliance with the legislative 
will.'' 8
---------------------------------------------------------------------------
    \8\ Yakus v. United States, 321 U.S. 414, 425 (1944); see also J.W. 
Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928) (applying 
``intelligible principle'' test to sustain contingent delegation under 
the Tariff Act of 1922), Congressional Research Service, The 
Constitution of the United States of America: Analysis and 
Interpretation 85-86 (Johnny H. Killian & George A. Costello eds., 
1996) (discussing constitutional basis of contingent delegations).
---------------------------------------------------------------------------
    We are aware of no instance in which a U.S. court has overturned 
any U.S. law on the basis of an international nondelegation doctrine. 
In fact, the U.S. Code contains numerous examples in which Congress 
requires the Executive Branch to act in response to the decision or 
action of an international body. These include, inter alia:

 Clean Air Act, 42 U.S.C.  7671e, implementing the Montreal Protocol 
        on Substances that Deplete the Ozone Layer (providing that in 
        the event ``the Montreal Protocol is modified to . . . control 
        or reduce . . . any substance more rapidly [than otherwise 
        provided by law],'' the Administrator shall promulgate 
        regulations to establish a more stringent phase-out schedule).
 Tariff Act, 19 U.S.C.  1516(a)(g)(4)(A), implementing Chapter 19 of 
        the North American Free Trade Agreement (NAFTA) (providing that 
        when a Chapter 19 arbitration panel decides to refer a 
        challenged matter on anti-dumping or countervailing duties back 
        to the International Trade Commission, the ITC is bound by 
        statute to ``take action not inconsistent with the decision'' 
        of the panel).
 Chemical Weapons Convention Implementation Act, 22 U.S.C.  6725, 
        implementing the Chemical Weapons Convention (requiring the 
        United States Government (through the State Department acting 
        as the U.S. National Authority) to seek the issuance of a 
        search warrant in response to a demand from the Organization 
        for the Prohibition of Chemical Weapons (OPCW) to engage in a 
        challenge inspection of a public or private facility).
 Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 
        U.S.C.  811(d), implementing the Convention on Psychotropic 
        Substances (providing that whenever the Secretary of State 
        receives notification from the World Health Organization that a 
        listing schedule will change, Secretary of Health, Education, 
        and Welfare (now Health and Human Services) must publish the 
        notice in the Federal Register, invite comment, and prepare 
        medical and scientific evaluations).
 Federal Food, Drug, and Cosmetic Act, 21 U.S.C.  346a(b)(4) 
        (providing that the Administrator, in establishing a tolerance 
        for a pesticide chemical residue in or on a food, shall 
        determine whether a maximum residue level for the pesticide 
        chemical has been established by the Codex Alimentarius 
        Commission; if a Codex maximum residue level has been 
        established for the pesticide chemical and the Administrator 
        does not propose to adopt the Codex level, the Administrator 
        shall publish for public comment a notice explaining the 
        reasons for departing from the Codex level).
    Based on our evaluation of relevant case law and the U.S. Code, we 
conclude that nothing in the domestic laws of the United States 
prevents the United States Congress from using treaty text as a basis 
for explaining to an administrative agency what Congress's policies and 
goals are, from requiring administrative agencies to implement 
international standards in a U.S. regulatory context, or from using a 
treaty obligation as the basis for a domestic regulation.
    The Majority's Discussion Draft would give EPA discretionary (and 
exceedingly limited) authority to regulate a POP in response to a 
listing decision by the Stockholm Convention. Hence, the Draft does not 
raise the question of an ``international delegation.'' However, as I 
stated earlier, we believe that implementing legislation should contain 
a mandatory duty for EPA to decide, within a specific time after a 
Stockholm listing decision, whether to take action or not. Because we 
anticipate that our proposal may raise objections from the Bush 
Administration based on its international non-delegation theory, I have 
included this section of my remarks to demonstrate that such objections 
would be without merit as a matter of law.
                             v. conclusion
    In closing, I would like to reiterate the environmental and health 
community's enthusiastic support for the Stockholm POPs Convention, and 
our hope that the United States will soon be a party to it. Yet our 
organizations are also devoted to preserving and improving the 
integrity of U.S. environmental and health law, and we do not wish to 
see U.S. ratification of this groundbreaking treaty serve as a means to 
introduce a radical, regressive reshaping of that law. We believe the 
approach taken in the June 17 Discussion Draft would do just that, and 
we respectfully call on this Subcommittee to reject it in favor of an 
approach that will faithfully reflect the spirit and letter of the 
Convention.

    Mr. Gillmor. Thank you.
    Scott Slesinger, Vice President Government Affairs 
Environmental Technology Council.

                  STATEMENT OF SCOTT SLESINGER

    Mr. Slesinger. Thank you, Mr. Chairman, Congresswoman 
Solis.
    Our council represents the environmental service companies 
that dispose, destroy and recycle hazardous waste.
    The draft bill before the committee implements a treaty for 
all but one of the chemicals listed in Annex A, PCBs. We ask 
the committee to amend the draft bill to follow the treaty 
language and intent and allow imports of PCBs for safe 
destruction as it allows for the other POPs chemicals. Allowing 
such PCB destruction will improve the environment in North 
American and elsewhere, help American business and assist 
developing countries to destroy their dangerous U.S. made PCBs.
    There are two ways that PCBs enter the United States. Today 
they enter through air deposition generally from the tropics. 
PCBs are semi-volatile that makes them rise into the atmosphere 
in the warm air and drop down in cooler clims. That is why 
despite a 28 year PCB ban in Canada and the U.S., the Great 
Lakes continue to increases their PCB load. EPA reports that up 
to 89 percent of the current PCB loadings for Lake Superior 
occurs through air deposition, most of it from thousands of 
miles away.
    The other way they could enter the U.S. is by shipment for 
proper disposal.
    Any waste: nuclear, biological or chemical can be imported 
into the United States for proper disposal except for PCBs. 
Section 60 of the TSCA requires a full rulemaking before PCBs 
can be imported for manufacture or use. In 1996 the Clinton 
Administration issued a final rule to allow PCBs into the U.S. 
for proper disposal without going through this burdensome 
process. EPA found that the safe disposal of PCBs in approved 
U.S. facilities poses less risk of injury to health or the 
environment in the U.S. than their continued presence of these 
PCBs in other countries. However, the Ninth Circuit vacated the 
rule when it interpreted the term in the statute 
``manufacture'' to include import for disposal.
    Therefore, before PCBs can be brought into the country for 
use or disposal requires a full rulemaking. Such a process 
takes at least 3 years, even if it could get on EPA's 
regulatory agenda. The volume of PCBs that could enter the 
country and any possible profit would be overshadowed by the 
costs and risks of going through this administrative procedure. 
No company has ever been approved for importing PCBs, although 
the Department of Defense was allowed to bring in PCBs for 
disposal in January 2003. The current regulatory process is 
clearly an insurmountable trade barrier.
    The U.S. has permitted facilities under TSCA to destroy or 
dispose of PCBs consistent with the world standard required by 
the treaty. The PCBs are under 12,000 parts per million, they 
are chemically changed so they are no longer toxic. In a higher 
concentration, EPA requires incineration that is 99.99999 
percent effective, and those standards were just accepted in 
the conference for the parties to the POPs treaty.
    Those that suggest that we could export our technology 
ignore several facts. First, most countries, such as Mexico, do 
not have the volume of PCBs to justify the very expensive 
investment required to properly destroy PCBs. If a developing 
country tried to build such a facility, local critics and NGO's 
would be frightened that such facility would lead to that 
country being a dumping ground for first world waste. Approval 
for such facility is all but impossible.
    Mobile technologies can handle only small volumes, but are 
also similarly difficult to site.
    Mr. Chairman, most of the PCBs in the world are 
manufactured in the United States, put it products and 
exported. Now we consider these PCBs foreign and banned in 
importation. Not exactly an example of product stewardship.
    Under the current system our exported PCBs on developing 
countries, particularly in Latin America with no realistic hope 
of proper disposal unless these PCBs are shipped back to our 
country. As the treaty states, these chemicals are persistent 
and organic. Putting chemicals and annex and banning their 
manufacturer or use does not stop the environmental threat. 
These chemicals including PCBs must be irreversibly changed or 
destroyed or they will continue to adversely effect public 
health and the environment.
    Mr. Chairman, PCBs are coming to the United States. They 
will poison our food supply in the Great Lakes with air 
deposition unless the PCB waste can be brought back into the 
United States for proper destruction or disposal. The decision 
is in Congress' hands.
    Thank you. And I look forward to answering any questions 
you may have.
    [The prepared statement of Scott Slesinger follows:]
Prepared Statement of Scott Slesinger, Vice President for Governmental 
             Affairs, The Environmental Technology Council
    My name is Scott Slesinger. I am Vice-President for Governmental 
Affairs of the Environmental Technology Council. Our council represents 
environmental service companies that dispose, destroy and recycle 
hazardous waste. The legislation before the Committee implements the 
Stockholm Persistent Organic Pollutant Treaty for 12 of the 13 
chemicals listed in Annex A of the Treaty. The implementing language 
does not implement all the requirements of the treaty concerning one of 
the listed chemicals, PCBs. We ask the Committee to implement the 
entire treaty for all the Annex A chemicals. Such a change in the 
legislation will improve the environment, help American business and 
assist developing countries destroy their dangerous U.S.-made PCB 
wastes.
    Our trade association represents several companies that have Toxic 
Substances Control Act (TSCA) permits for destruction and disposal of 
PCBs. Many of our companies hold Resource Conservation and Recovery Act 
(RCRA) permits for proper destruction and disposal of the other POPs 
Annex A chemicals.
                                summary
    There are two ways that PCBs enter the United States. The first 
way, the way they enter the United States today, is through air 
deposition, generally from the tropics. PCBs are semi volatile that 
makes them rise into the atmosphere in the temperate zone and drop down 
in cooler climes. That is why despite a 28-year PCB ban in Canada and 
the United States, the Great Lakes continue to increase their PCB 
loads. EPA reports that up to 89% of the current PCB loading for Lake 
Superior occurs through air deposition, much of it from sources 
thousands of miles away. The second and preferable way PCBs should 
enter the United States is shipped on a regulated common carrier for 
disposal and destruction consistent with the world-class standards in 
the treaty and federal law. Congress has an opportunity to support the 
status quo or modify TSCA to allow U.S exported PCBs back into the 
United States for proper disposal consistent with the language and 
intent of the Stockholm agreement.
    We ask you to support the latter alternative.
                        the intent of the treaty
    The treaty is concerned with the environmental threat of organic 
persistent organic pollutants. As the Treaty notes, ending the 
manufacturing and use of these chemicals does not solve the problem. 
The chemicals must be chemically or molecularly changed so they no 
longer have the dangerous characteristics, particularly of persistence 
and toxicity. Because the technology to properly dispose and destroy is 
expensive, complex and dangerous in unskilled hands, few countries have 
the volume of these chemicals to justify the costs to construct 
facilities to meet the Treaty's standards for proper disposal. In 
recognition of this, the treaty bans imports and exports except for 
proper disposal.
                              domestic law
    Any waste, nuclear, biological or chemical, can be imported into 
the United States for proper disposal except for PCBs. Section 6(e) of 
TSCA, requires a full rulemaking on a per shipment basis before PCBs 
can be manufactured or used in the United States. In 1996, EPA 
Administrator Carol Browner issued a final rule to allow PCBs into the 
United States for disposal without going through this rulemaking 
process. The preamble to that rule stated:
        . . . EPA believes that the safe disposal of PCBs in approved 
        U.S. facilities poses less risk of injury to health or the 
        environment in the United States than the continued presence of 
        PCBs in other countries, since proper disposal in this country 
        provides protection against possible hazards from improper 
        disposal elsewhere.'' 61 Federal Register 11099 (March 18, 
        1996)
    However, the Ninth Circuit vacated the rule when it interpreted the 
term in the statute ``manufacture'' to include ``import for disposal.'' 
Private entities have tried unsuccessfully to import PCBs for disposal 
but have found the legal costs of going through a multi-year rulemaking 
process far outweighs the financial revenue such import would 
justify.1
---------------------------------------------------------------------------
    \1\ In 28 years, EPA has approved only one 6(e) exemption. That was 
in January of last year for the only entity with the resources and 
volume of PCBs to justify going through the process--The Department of 
Defense. No environmental group or individual commented against the 
proposal. 68 Federal Register 4934 (January 31, 2003) In 2003, EPA 
allowed the Maritime Administration to export PCBs in ships being 
disposed overseas by writing an ``enforcement discretion letter'' 
saying it would not prosecute MARAD under Section 6(e) if it exported 
the ships. Sierra Club won a temporary restraining order against the 
export of most of the ships. Our companies have the expertise and 
facilities to handle this ships domestically.
---------------------------------------------------------------------------
                        where do pcbs come from?
    Ironically, most the PCBs that are banned for importation for 
disposal were manufactured in the United States. The vast majority of 
PCBs in the world, 700,000 tons, were manufactured in the United States 
between 1927 and 197.2 Before the risks of PCBs were known, 
American companies exported equipment that used PCBs as an insulator. 
Despite PCBs' special legislative treatment, they are not the most 
dangerous chemical in the world. In fact, EPA lists PCBs as only a 
``suspected carcinogen'' rather than a carcinogen, although it is one 
of the most studied toxic chemicals in the world. Because of  6(e) of 
TSCA, those American-made PCBs, even those owned by American companies, 
are now considered ``foreign'' and cannot be imported back into the 
United States for destruction. Imagine if the French manufactured a 
product that was shipped to the United States, later found out to be 
toxic, and then France banned its export back into France.
---------------------------------------------------------------------------
    \2\ ``Status of PCB Management in the United States, Ross and 
Associates, Prepared for the Commission for Environmental Cooperation, 
Montreal, Canada, August 24, 1995. The volume eventually exported is 
estimated by Ross to be 75,000 tons
---------------------------------------------------------------------------
                     proper treatment and disposal
    The United States, through both TSCA and the Resource Conservation 
and Recovery Act (RCRA) have world class standards for PCB disposal and 
destruction that meets the Treaty's requirements for proper disposal. 
Chemical dechlorination is an effective non-thermal technology for PCBs 
at lower concentrations. Chemical dechlorination separates the chlorine 
molecule from the PCBs to form salts. This chemical treatment is 100% 
effective in destroying PCBs that are in concentrations below 12,000 
parts per million but it is not appropriate at higher concentrations. 
Most of the PCBs, including all 1,500 tons that are now being imported 
by the Department of Defense are in concentrations of less that 12,000 
parts per million. Incineration is the necessary treatment with higher 
concentrations. Under TSCA, incinerators are required to have an 
efficiency of PCB destruction of 99.9999%. Liquid PCBs at any level or 
banned from land disposal, although solid PCBs in soils may be disposed 
in some RCRA Subtitle C landfills that also have TSCA permits. These 
are consistent with world-class requirements in Article 6 of the 
Treaty.
    Those who oppose the importation of PCBs argue that dioxin 
emissions will increase from hazardous waste incinerators. Under the 
Clean Air Act, incinerators that burn PCBs must meet the most 
protective emission standards of any industrial source in the U.S. that 
include specific technologies to control dioxin. As the EPA data in 
Appendix A shows, hazardous waste combustors are a very minor emitter 
of dioxin compared to wood burning stoves, municipal incinerators and 
most sources of dioxin in the United States. Because of more recent air 
pollution standards, newer data would drop hazardous waste incinerators 
even lower on the list.
    Critics of our position believe that exporting technology is the 
answer to destruction of foreign-based PCBs. However, such exports are 
a chimera. Those who suggest that we could export our technology ignore 
several facts. First most developing countries do not have the volume 
to justify the costs of the technology. If a developing country tried 
to build such facilities, local critics and NGOs would be frightened 
that such facility would lead to the country being a dumping ground for 
first world waste. Hence, any attempt to export technologies to destroy 
U.S.-made PCBs is seen in that light. Clearly, exporting such 
technology is not politically practical.
    In addition, we must remember that the technology to properly 
dispose of these chemicals is highly capital intensive. EPA noted in 
court documents that ``Mexico does not have disposal facilities for 
PCBs and based on the volume in the country, there is no economic 
justification to build a facility to properly handle the PCBs in the 
country.'' (Letter to EPA from the National Institute of Ecology cited 
in Brief of Respondent Sierra Club v. Environmental Protection Agency 
(9th Circuit) July 17, 1996 at page 5.) And Mexico has more PCBs than 
any Latin American country.
    As President Bush stated at the Treaty signing:
        ``. . . This treaty takes into account understandable concerns 
        of less-developed nations. When these chemicals are used, they 
        pose a health and environmental threat, no matter where in the 
        world they are allowed to spread. But some nations with fewer 
        resources have a harder time addressing these threats, and this 
        treaty promises to lend them a hand.''
    If we do not allow imports for proper disposal, unused equipment, 
contaminated with PCBs will continue to be improperly disposed or 
stored indefinitely until they leak and enter the environment. These 
conditions pose a continuing threat to health and the environment in 
those countries and in the United States.
                     what does the treaty require?
    Article 3 Section 2.(a) states ``Each Party shall take measures to 
ensure that a chemical listed in Annex A is imported only for the 
purpose of environmentally sound disposal as set forth in paragraph 
1(d) of Article 6
    Some argue that a three-year rulemaking process before allowing a 
shipment of PCBs into the United States is consistent with the Treaty. 
We believe such a trade barrier is not only inconsistent with this 
treaty but with virtually all our trading agreements such as NAFTA. As 
I noted, most countries do not have the volumes of PCBs to justify the 
sophisticated technology to properly dispose or destroy their domestic 
supplies of PCBs. Keeping the present regulatory barrier at the border 
is clearly contrary to the Treaty's preamble to ``protect human health 
and the environment through measures which will reduce and/or eliminate 
emissions and discharges of persistent organic pollutants.''
    Mr. Chairman, PCBs are coming to the United States. They will 
poison our land and Great Lakes through air deposition unless the PCB 
waste can be brought back to the U.S. for proper destruction or 
disposal. The decision is in your hands.
    Thank you and I look forward to answering any questions you may 
have.

                               Appendix A
 Inventory of Sources of Dixoin-Like Compounds in the United States-1987
                                and 1995
------------------------------------------------------------------------
                                        1987         1995
                                    Emissions(g  Emissions(g    Percent
              Source                TEQdf-WHO98/ TEQdf-WHO98/  Reduction
                                        yr)          yr)       1987-1995
------------------------------------------------------------------------
Municipal Solid Waste                      8877         1250         86%
 Incineration, air................
Backyard Refuse Barrel Burning,             604          628         -4%
 air..............................
Medical Waste Incineration, air...         2590          488         81%
Secondary Copper Smelting, air....          983          271         72%
Cement Kilns (hazardous waste             117.8        156.1        -33%
 burning), air....................
Sewage Sludge/land applied, land..         76.6         76.6          0%
Residential Wood Burning, air.....         89.6         62.8         30%
Coal-fired Utilities, air.........         50.8         60.1        -18%
Diesel Trucks, air................         27.8         35.5        -28%
Secondary Aluminum Smelting, air..         16.3         29.1        -79%
2,4-D, land.......................         33.4         28.9         13%
Iron Ore Sintering, air...........         32.7           28         14%
Industrial Wood Burning, air......         26.4         27.6         -5%
Bleached Pulp and Paper Mills,              356         19.5         95%
 water............................
Cement Kilns (non-hazardous waste          13.7         17.8        -30%
 burning).........................
Sewage Sludge Incineration, air...          6.1         14.8       -143%
EDC/Vinyl chloride, air...........           NA         11.2          NA
Oil-fired Utilities, air..........         17.8         10.7         40%
Crematoria, air...................          5.5          9.1        -65%
Unleaded Gasoline, air............          3.6          5.6        -56%
Hazardous Waste Incineration, air.            5          5.8        -16%
Lightweight ag kilns, haz waste,            2.4          3.3        -38%
 air..............................
Commercially Marketed Sewage                2.6          2.6          0%
 Sludge, land.....................
Kraft Black Liquor Boilers, air...            2          2.3        -15%
Petrol Refine Catalyst Reg., air..         2.24         2.21          1%
Leaded Gasoline, air..............         37.5            2         95%
Secondary Lead Smelting, air......         1.29         1.72        -33%
Paper Mill Sludge, land...........         14.1          1.4         90%
Cigarette Smoke, air..............            1          0.8         20%
EDC/Vinyl chloride, land..........           NA         0.73          NA
Primary Copper, air...............          0.5          0.5          0%
EDC/Vinyl chloride, water.........           NA         0.43          NA
Boiler/industrial furnaces........         0.78         0.39         50%
Tire Combustion, air..............         0.11         0.11          0%
Drum Reclamation, air.............          0.1          0.1          0%
Carbon Reactivation Furnace, air..         0.08         0.06         25%
  TOTALS..........................       13,998        3,255         77%
    Percent Reduction from 1987 to                                   77%
 1995.............................
------------------------------------------------------------------------
NA=Not Available; (+)=reduction from 1987 to 1995; (-)=increase from
  1987 to 1995; (0)=no change from 1987 to 1995.
Citation for Chart. Inventory of Sources of Dioxin-Like Compounds in the
  United States. Version 3.0 for the Reference Year 1987 and 1995
  National Center for Environmental Assessment, EPA. http://
  cfpub.epa.gov/ncea/cfm/dioxindb.cfm?actType+default

    Mr. Gillmor. Thank you very much.
    And we will go to Jim Roewer, Executive Director of the 
Utility Solid Wastes Activities Group. And I hope I pronounced 
that right.

                  STATEMENT OF JAMES R. ROEWER

    Mr. Roewer. Thank you, Mr. Chairman, Ms. Solis. I am 
pleased to present this statement on behalf of the Edison 
Electric Institute or EEI and the Utility Solid Wastes 
Activities Group or USWA regarding implementation of the 
Stockholm POPs Convention.
    The utility industry has a substantial interest in the 
development of POPs legislation because, among other reasons, 
polychlorinated biphenyls or PCBs are one of the 12 POPs 
identified in the convention. As this subcommittee is aware, 
and other previous speakers have noted, PCBs are singled out 
for comprehensive regulation under section 6(e) of the Toxic 
Substance Control Act and authorized for limited use in 
specified equipment such as transforms and capacitors in 
accordance with exacting requirements insuring 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. In fact, our PCB 
problem is the standard against which the PCB programs of other 
countries are measured.
    With that being said, we share the view of others in this 
room that it is important for the United States to continue to 
play a leading role regarding the implementation and future 
strategic decisions involving the convention. We must be 
careful, however, that the final implementing legislation 
incorporates the proper statutory framework for the United 
States to meet its convention obligations. The Stockholm 
Convention is a commitment between nations to take certain 
actions and does not, in and of itself, directly regulate 
individuals within those nations. Therefore, a key goal is 
ensuring that the legislation not supersede U.S. law already 
regulating POPs or cede decisionmaking authority to an 
international body. Rather the purpose of the implementing 
legislation should be allow Congress to exercise its authority 
to establish how the United States through existing domestic 
laws will meet its convention obligations. This will ensure 
that decisions regarding how the United States implements its 
convention obligations remain within the sovereign jurisdiction 
of the United States.
    The committee's discussion draft does this. The model for 
POPs legislation should involve nothing more than identifying 
the United States commitments under the convention and then 
determining whether existing U.S. laws allow the United States 
to meet those commitments. To the extent there are any gaps, 
implementing legislation should fill those gaps through 
targeted amendments to TSCA and/or FIFRA. This is also the 
appropriate framework to use in evaluating whether and how to 
regulate new POPs chemicals that could be added to the 
convention in the future.
    This framework is fully consistent with the messages of 
both President Bush in his letter transmitting the POPs to the 
Senate for ratification and of Secretary of State Powell in his 
letter transmitting the convention to the President. The 
President's transmittal letter observes that the convention 
obligates parties to take significant steps similar to those 
already taken by the United States to address POPs. Implicit in 
this message is the fact that the United States is one of the 
world's leaders in regulating POPs, and that a key fundamental 
purpose of the convention is for other countries to upgrade 
their POPs regulations to the level already achieved by the 
United States.
    Of particular relevance to this hearing is the Secretary's 
comprehensive analysis of the convention obligations and how 
existing U.S. laws match up to those obligations. This analysis 
is a road map for how the United States should develop 
implementing legislation to meet its convention obligations 
with respect to the 12 POPs chemicals including PCBs.
    The Secretary concluded that the United States could 
implement nearly all convention obligations under existing 
authorities. And with regard to PCBs, noted explicitly that the 
United States has already taken strict measures to regulate 
PCBs and that existing statutory authority allows the United 
States to implement its convention obligations under existing 
PCB regulations. The only exception where the Secretary notes 
that additional regulation with respect to PCBs may be 
necessary concerns meeting the convention's prohibition on PCB 
exports. Thus, neither the President nor the Secretary of State 
contemplated whole changes to the existing laws regulating POPs 
in this country. Rather, they envisioned a deliberate and 
thoughtful analysis regarding whether existing U.S. laws will 
allow the United States to meet its convention obligations and 
to the extent such laws are deficient, enacting targeted 
legislative amendments to fill such gaps.
    The draft appropriately directs that for purposes of 
complying with the POPs convention, EPA may issue or amend 
rules applicable to PCBs if the Administrator of the EPA 
concludes through notice and comment rulemaking and with the 
concurrence of the Secretary of States that such additional 
rules or amendments are necessary to comply with the 
convention. This approach leaves open the means for EPA to 
shore up such gaps if and when any are identified, while 
preserving the integrity and stability of existing U.S. law. 
This is an imminently reasonable and thoughtful framework for 
implementing the United States convention obligations.
    I would like to thank the subcommittee for this opportunity 
to present our views of implementing the Stockholm Convention. 
We are looking forward to working with you the subcommittee 
staff on POPs legislation. And I would be happy to answer any 
questions that you may have.
    [The prepared statement of James R. Roewer follows:]
   Prepared Statement of James R. Roewer for the Utility Solid Waste 
             Activities Group and Edison Electric Institute
    Good afternoon. My name is James R. Roewer. I am the Executive 
Director of the Utility Solid Waste Activities Group (or ``USWAG'') and 
I am pleased to present this statement on behalf of the Edison Electric 
Institute (``EEI'') and USWAG regarding the important issue of the 
development of draft legislation to implement the United States' 
obligations as a party to the Stockholm POPs Convention, LRTAP POPs 
Protocol, and Rotterdam PIC Convention (which I refer to collectively 
as the ``Stockholm'' or ``POPs'' Convention).
    EEI is an association of U.S. shareholder-owned electric companies, 
international affiliates, and industry associates worldwide. EEI's U.S. 
members serve roughly 90 percent of the ultimate customers in the 
shareholder-owned segment of the industry, 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.
    The utility industry has a substantial interest in the development 
of the POPs implementing legislation because, among other reasons, 
polychlorinated biphenyls or PCBs are one of the twelve POPs identified 
in the Convention. As this Subcommittee is aware, PCBs are singled out 
for comprehensive regulation under section 6(e) of the Toxic Substances 
Control Act (``TSCA'') and are authorized for limited use in specified 
equipment, such as transformers and capacitors, in accordance with 
exacting requirements 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. I feel confident in saying that our PCB program is the 
standard against which the PCB programs of other countries are 
measured.
    With that being said, let me commend the Subcommittee for holding 
this hearing. EEI and USWAG recognize and support the leading role that 
the United States has played in helping to forge the Stockholm 
Convention, and we share the view of others in this room 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. For that to happen, it is essential for the 
United States to both ratify the Convention and enact implementing 
legislation.
    At the same time, we must be careful that the final implementing 
legislation incorporates the proper statutory framework under which the 
United States can assess and meet its Convention obligations. 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, we believe a key goal to keep in mind during 
this process is ensuring that the legislation not supercede U.S. law 
already regulating POP chemicals or cede to one of the many 
international committees established under the Convention direct 
decision-making authority regarding the domestic regulation of POP 
chemicals. Rather, the purpose of the implementing legislation should 
be to allow Congress to exercise its authority to establish how the 
United States, through our existing domestic laws, will meet the 
international obligations of the United States as a Party to the 
Convention. This will ensure that decisions regarding how the United 
States implements its Convention obligations remain with the sovereign 
jurisdiction of the United States and are determined by the Congress 
and the Executive Branch.
    With these objectives in mind, we are concerned that the POPs 
legislation pending in the Senate--S. 1486--could be construed as 
replacing U.S. law with the text of the POPs Convention and result in 
the decisions of international bodies with respect to the regulation of 
POP chemicals being directly binding on U.S. entities. We do not think 
this would be in keeping with the structure or purpose of the 
Convention or the intent of the United States in becoming a party to 
the Convention.
    It is for that reason that we believe that the Committee's 
Discussion Draft of June 17, 2004, establishes the appropriate 
statutory framework for implementing the United States' Convention 
obligations. In fact, we respectfully suggest that the model for 
developing implementing legislation for the POP chemicals should 
involve nothing more than a relatively straightforward two-step 
process. The first step involves identifying the United States' 
commitments under the Convention and then determining whether existing 
U.S. laws applicable to POPs chemicals allow for the United States to 
meet those commitments. To the extent that there are any ``gaps'' in 
existing U.S. laws, the implementing legislation should fill those gaps 
through targeted and focused amendments to TSCA and/or FIFRA. This 
approach would enable the United States to fulfill its Convention 
obligations with respect to the twelve POPs currently subject to the 
Convention while, at the same time, preserving the sovereign role of 
the United States in enacting domestic laws applicable to its citizens. 
We also believe this is the appropriate framework to use in evaluating 
whether and how to regulate new POP chemicals added to the Convention 
in the future.
    This ``framework'' should not come as a surprise to anyone, as it 
is fully consistent with the messages of both President Bush in his 
letter transmitting the POPs Convention to the Senate for ratification, 
and of Secretary of State Powell in his letter transmitting the 
Convention to the President. 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 (Attached). In fact, the 
President's transmittal letter observes that the Convention obligates 
parties to the Convention to take ``significant steps, similar to those 
already taken by the United States,'' to address POPs. Id. at III 
(emphasis added). Implicit in the President's message is the fact that 
the United States is one of the world's leaders in regulating POP 
chemicals and that a key fundamental purpose of the Convention is for 
other participating countries to ``upgrade'' their POP regulations to 
the level already achieved by the United States.
    The Secretary of State's transmittal letter also observes that the 
Convention will commit other countries to take actions similar to those 
already taken by the United States to eliminate or restrict the 
production, use and release of POP chemicals. Id. at V. Of particular 
relevance to this hearing, however, is the Secretary's comprehensive 
section-by-section analysis of the obligations set forth in the 
Convention and how existing U.S. laws regulating POP chemicals match up 
to those obligations. Id. at VI-XXII. I respectfully suggest that the 
Secretary's analysis is a road map for how the United States should 
develop implementing legislation to meet its Convention obligations 
with respect to the 12 POP chemicals, including PCBs.
    Given that the United States already is one of the world's leaders 
in this area, it is not remarkable that the Secretary concludes 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). Of special relevance to USWAG and 
EEI is the Secretary's findings with respect to the Convention's 
obligations regarding PCBs, where he concludes 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.'' Id. at XX. The 
only exception where the Secretary notes that additional regulation 
with respect to PCB may be necessary concerns meeting the Convention's 
prohibition on PCB exports.
    Thus, neither the President nor the Secretary of State contemplated 
whole changes to the existing laws regulating POP chemicals in this 
country. Rather, they envisioned a deliberate and thoughtful analysis 
regarding whether existing U.S. laws allow the United States to meet 
its Convention obligations and, to the extent that such laws are 
deficient in any particular area, implementing legislation consisting 
of targeted amendments to fill such gaps.
    Again, in our view, this is the approach reflected in the House 
Discussion Draft of June 17, 2004, and is reflected in the Draft's 
treatment of PCBs. For those subject areas where the drafters 
identified statutory gaps in existing law that did not provide EPA with 
adequate statutory authority to fulfill a Convention commitment with 
respect to PCBs--such as authority under TSCA to prohibit PCB exports--
the Draft legislation specifically fills that gap. See Section 3 of the 
Discussion Draft amending TSCA Section 6(e) to prohibit PCB exports 
except for environmentally sound disposal (pp. 40-41 of Draft). The 
Draft also fills a perceived statutory gap with respect to PCBs by 
amending TSCA to require PCB variances to conform to the variance 
provisions in the Convention. Id.
    With respect to all other aspects of the U.S. PCB regulatory 
program, the Draft appropriately assumes, consistent with Secretary of 
State's findings, that there are no other identifiable shortfalls 
between what the POPs Convention contemplates with respect to PCBs and 
what already is provided for under existing U.S. law. The Draft, 
therefore, appropriately directs that, for purposes of complying with 
the POPs Convention, EPA may only issue or amend rules applicable to 
PCBs if the Administrator of EPA concludes, through notice and comment 
rulemaking and with the concurrence of the Secretary of State, that 
such additional rules or amendments are necessary to comply with the 
Convention. This approach leaves open the means for EPA to shore up 
such gaps if and when any are identified, while preserving the 
integrity and stability of existing U.S. law. This is an eminently 
reasonable and thoughtful framework for implementing the United States' 
Convention obligations.
    As a final note on this subject, I would like to point out that, 
contrary to certain reports in the trade press, the House Draft does 
not in any way preclude EPA from imposing additional regulatory 
controls on PCBs under TSCA section 6(e) or any other applicable 
federal law for any reasons unrelated to the POPs Convention. The 
conditions set forth in the House Draft for issuing or amending rules 
applicable to PCBs are applicable only in the context of EPA taking 
action for purposes of complying with the POPs Convention. This is a 
narrow and discrete provision and in no way alters EPA's existing 
authority under TSCA section 6(e) to regulate PCBs.
    I would like to thank the Subcommittee for the opportunity to 
present the views of EEI and USWAG on draft legislation for 
implementing the Stockholm Convention. I would be glad to answer any 
questions you have concerning my testimony.

    Mr. Gillmor. Thank you, Mr. Roewer.
    We will now go to a round of questions. Let me begin with 
Mr. Walls. Talking about the opt-in procedure that is part of 
Article 25 section 4 of the POPs convention. Why was this 
feature an important safeguard for the treaty? And according to 
your testimony, a major objective of U.S. negotiators?
    Mr. Walls. Well, Mr. Chairman, I would be happy to answer 
that question from the perspective of the chemical industry. 
Mr. Yeager may have a perspective based on his role as the 
former negotiator.
    Mr. Gillmor. Yes.
    Mr. Walls. But in our view Article 25(4) confirms the need 
or recognizes the opportunity for countries to make an 
independent judgment about domestic implementation of the 
decisions taken at the international level.
    Mr. Gillmor. Mr. Yeager, you were negotiating basically for 
the Clinton Administration. Would you agree with that 
assessment that that feature was a major objective of U.S. 
negotiators?
    Mr. Yeager. It was certainly an objective to make sure that 
the United States retained the right in the case of any new 
addition to seek the advice and consent of Congress or to 
approve through an executive mechanism the addition.
    I just would point out that there are actually two ways to 
do that in the convention. One is to recognizing the right of 
any country to opt-out of a newly added chemical. But the 
second was introduced, actually, at the U.S. request which was 
a process from the decertification which allowed any country to 
declare that it would opt-out unless it opted-in to a new 
chemical, essentially.
    Mr. Gillmor. Run that one by me again.
    Mr. Yeager. Well, a little complex. But there are two ways 
a country can respond to a newly added chemical under the 
convention. It can wait until the chemical has been added by 
the convention and then within a period of time say that it 
opts-out of that addition and will not join the convention for 
that purpose. Or, it can declare upon its ratification that it 
will opt-out of all new additions until and unless it says it 
opts-in.
    Mr. Gillmor. Okay. Thank you.
    Let me go to Mr. Wiser. And you testified that we ought not 
use a de novo regulatory standard, instead use a controlled 
measures specified in the convention. Could you be some more 
specific as to what those controlled measures are in the 
convention and what you mean by the term ``de novo regulatory 
standard''?
    Mr. Wiser. When I referred to de novo regulatory standard, 
I was referring to the standard that is in the discussion 
draft. I am not aware of that balancing standard appearing in 
any other environmental or health laws that we have. So, I do 
believe that that's a de novo standard.
    Now the control measure that would be specified in the 
Convention. Under the Convention currently the control measures 
are either banning a chemical or severely restricting it, and 
then these bans and severe restrictions are subject, in most 
cases, to specific exemptions the countries may register for if 
they desire.
    Now, we do not know precisely what the control measures on 
a given chemical will be that has not been added yet, because 
presumably that will be the product of negotiations by all the 
governments. But if we look at the provisions that exist in the 
convention at this time, the control measures will generally be 
banning the chemical outright or in some cases restricting its 
use or production subject to specific exemptions that are time 
bound and may be obtained by countries if they request them.
    Mr. Gillmor. Let me ask you, Mr. Walls or Mr. Roewer or Mr. 
Goldberg want to comment on that subject matter?
    Mr. Walls. Thank you, Mr. Chairman, yes. A number of 
comments. One, we believe that the standard, the balancing 
standard contained in your draft legislation reflects exactly 
what's going on under the convention. The convention says in 
effect that the parties should balance the risks, costs and 
benefits of regulation and achieving a decision in a 
precautionary manner. What does a precautionary manner in this 
case? The convention specifically cites to the Rio Declaration 
on environment and development. And that says simply where 
there is threats of serious and irreversible damage, the lack 
of scientific certainty shall not be used a reason for 
postponing cost effective measures to prevent environmental or 
health degradation in this case.
    Now, that to me sounds a lot like a balancing standard. To 
suggest otherwise means that we are somehow reading all that 
information in the treaty out of the convention, that we 
suddenly will not take account of Annex D, Annex E and Annex F; 
the very information on which the parties are to base their 
decision.
    Mr. Goldberg. If I may, Mr. Chairman.
    Mr. Gillmor. Dr. Goldberg.
    Mr. Goldberg. If I could also add that, of course, from our 
standpoint we are concerned with the implementation of this 
convention and FIFRA. And FIFRA is, in fact, that very type of 
statute that looks like risks, that looks at benefits, the use 
of pesticide chemicals, the subsequent impact on farmers and 
the ability to create a safe and abundant food supply. So, in 
fact, there is a statutory scheme and one that will need to be 
amended to implement this convention that has those concepts 
built in.
    Mr. Gillmor. Thank you.
    My time has--well, Mr. Yeager, did you have any comment on 
that?
    My time has expired. Let me turn to Ms. Solis for 
questions.
    Ms. Solis. Thank you, Mr. Chairman.
    Mr. Walls, you made an interesting comment there. It sounds 
to me as though you gave a little bit more information than the 
previous speaker representing EPA regarding what actually would 
be restricted or would be looked at, what that balance would 
be.
    And my question is actually to Ms. Goldman as a former EPA 
officer there, how do you view this interpretation?
    Ms. Goldman. Well----
    Ms. Solis. In the bill, the bill that is currently being 
discussed here.
    Ms. Goldman. In the bill what I see is a lot of language 
that has never appeared before in U.S. environmental statutes. 
And having been responsible for both TSCA and FIFRA during the 
time I served as Assistant Administrator at EPA, I would tell 
you that these provisions would have to be interpreted by the 
executive branch and by the courts.
    And unfortunately sometimes there is a considerable amount 
of litigation before people understand what it is that Congress 
intended.
    And so, one of the problems with a legal standard that has 
never been in an environmental statute before is that nobody's 
going to know what it really means. Why do that when there is 
very clear language that was negotiated within the convention 
and which, as Mr. Wall said, is language that the industry is 
comfortable with? I was there and can tell you that a lot of 
time and attention went to consulting with industry groups, 
environmental groups, and stakeholders about what the process 
should look like. So why invent new language and new sets of 
processes that can be litigated? That is a recipe for gridlock 
and, at the end of the day, none of the decisions of the 
convention being implementable in the United States.
    Ms. Solis. So in other words it would actually take us a 
step further away from achieving the intent of the treaties?
    Ms. Goldman. I believe that it is worse than current law. I 
think that it actually would make for more delay and more 
difficulty than what we have today with TSCA and FIFRA.
    Ms. Solis. You said something in your statement earlier 
about the burden should be placed with EPA. Can you go into 
further detail about that?
    Ms. Goldman. What I think would be workable, from my 
experience and the years that I was at EPA, is that if the 
convention lists a chemical for action, that EPA will move that 
forward with that action unless they can make a regulatory 
finding that action is not required in the United States either 
because they do not agree with the scientific bases for the 
listing; or because we have other ways of controlling the 
chemical. But you should expect from them within date certain 
that they either will take action or that they will give a 
regulatory finding for why not. That is what I believe would be 
the way to assure effective action from EPA.
    Ms. Solis. Thank you.
    My question next to Ms. Heinzerling. Sorry if I 
mispronounce that.
    Ms. Heinzerling. That is all right.
    Ms. Solis. Can you go into a little bit more detail about 
the cost benefit, human benefit as opposed to financial in 
terms of how we go about applying the methodology that is 
included in this bill in terms of adverse effects that that 
might have and, you know, talk a little bit about that?
    Ms. Heinzerling. Yes. Cost benefit analysis has proved a 
very effective way of shutting down regulation. And so if you 
want a bill that does not do much to protect the environment, 
one of the good ways to do it is to enact a cost benefit 
requirement. And the reason for that result is that in many 
cases cost benefit analysis really favors numerical results, 
numbers, quantified estimates of costs and benefits. And, as I 
said, many of the benefits of environmental policy cannot even 
be quantified, much less translated into dollar terms.
    And so in many cases we know that a chemical causes 
particular harms, but it is very hard to figure out exactly how 
many people will get sick, how many people will die, how many 
ecosystems will be threatened and so forth. And so we do not 
even have a number to attach to those effects.
    And the second problem is then we have to try to figure out 
what those are worth in dollars, and that becomes really 
tricky. The reigning method, and Representative Allen referred 
to this before in his opening statement, for figuring out how 
much increased risk is worth is to look at what people in 
workplaces are willing to take in extra wages for extra work. 
Those data come mainly from the 1970's. They are almost 
exclusively for male workers, exclusively from immediate risks, 
not risks of cancer. And so there are lots of problems even in 
getting to that $6.4 million figure that you mentioned, 
Representative Allen. There are a lot of problems getting to 
that number. And as we speak, the Office of Management and 
Budget is busily trying to reduce that number. So, they have 
been hard at work on it for a number of years. Now we are down 
to the lower part of the range, as low as a million dollars in 
recent OMB reports.
    And so it is difficult to quantify, it is difficult to 
monetize. And then at the end of the day cost benefit analysis 
also often requires discounting future benefits. And in the 
case of persistent pollutants that is a disaster. Because what 
we are talking about, as I said, is we are protecting for the 
long term, we are trying to protect against cases or diseases 
like cancer that take a long time to manifest themselves. And 
so cost benefit analyses can be paralyzing.
    Ms. Solis. Thank you.
    Just one quick question for Mr. Yeager. Having your 
previous experience on this issue, what is your opinion of the 
current Senate legislation, that is if you have one?
    Mr. Yeager. Well, I actually testified on that, and I would 
be glad to give you the testimony that we provided and any 
further comments that WWF has made with regard to that 
legislation.
    Ms. Solis. I am assuming you supported the legislation?
    Mr. Yeager. Well, we were supportive of aspects of it. We 
were concerned about other aspects, I think I would have to 
say.
    Ms. Solis. Okay. Thank you. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman from Michigan, Mr. Rogers?
    Mr. Rogers. Thank you, Mr. Chairman.
    It is certainly difficult and it seems complicated to get 
to the root of this.
    Dr. Goldman, if I may, I am from Michigan. PCBs are 
obviously a huge problem in Michigan. And when we look at Lake 
Superior, 89 percent of the current PCB loading occurs from air 
deposition. So it is actually coming external to the 
continental United States into the United States and being 
dropped in the water. And I know at one time when you were 
serving with the EPA you were looking to import PCBs into the 
United States. And I want to understand that. Is that a bad 
thing? Is that a good thing? Obviously that is something beyond 
our control if it is coming in external to the United States by 
air.
    Ms. Goldman. Let me tell you what was going on at that 
time. We had recently signed the NAFTA agreement, and under 
that was an environmental side agreement between Mexico, the 
U.S. and Canada. And under that we developed a PCB action plan 
for attempting to deal with the problem that you are talking 
about, which is the movement between countries of PCBs in the 
air, which as you correctly note, can then wind up in places 
like the Great Lakes or in the Arctic and places far away from 
where they are generated.
    And Mexico did an inventory where they found a lot of PCBs 
that were still in use that needed to be destroyed but they did 
not have adequate destruction technology.
    And so we did make an effort to say that those PCBs could 
be destroyed through agreements in the United States. And we 
utterly failed.
    And I think I learned a lesson from that as well. And that 
is, one: Even though this is something that may have seemed 
like a correct thing to do, politically it was absolutely a 
nonstarter. There is not a community in this country with an 
incinerator that can destroy PCBs or a PCB disposal facility 
that wants to receive PCBs from other countries into their 
facility. So it is a complete nonstarter from that standpoint.
    And second, that fortunately in terms of the Mexican 
situation there are other countries were there is the ability 
to do this. And so, for example, they have been able to find 
they can take those PCB wastes to Canada and destroy them. 
Believe it or not, they can take them to Holland and destroy 
them. And so basically our efforts were stopped by the court. 
We decided to not go down that route anymore. And there were 
members of Congress as well who did not want to see that 
happen, members who have those facilities in their districts.
    So that is pretty much where it ended in terms of our 
efforts.
    Mr. Rogers. Mr. Yeager, obviously it seems to me that at 
least from my understanding and my reading that PCBs, at least 
the production of them, is happening in primarily Third World 
countries at this point. It is either there in large quantity 
or not being dealt with. I mean, is there--what is your 
organization doing to try to address those source points of 
PCBs?
    Mr. Yeager. We actually have not taken specific action as 
World Wildlife Fund that I am aware of with regard to PCB 
residues. We actually have taken a large interest in obsolete 
residues of pesticides that are all over Africa. And your 
earlier witness mentioned the African stockpiles program, which 
is an effort that we actually initiated that has been joined by 
the FAO and the GEF, and a number of other facilities including 
UNEP to address obsolete stockpiles of pesticides in Africa.
    My impression, which is not based on a lot of current 
knowledge of the PCB situation, is that most PCBs were actually 
produced in the United States, as Mr. Slesinger indicated, and 
exported often in electrical equipment. And that there are 
serious residue problems and remedial action needs, not mostly 
in developing countries although there may be some, but 
including in countries like Russia. And I am not aware of the 
EPA, what current programs they have in that regard.
    Ms. Goldman. I should add that Russia produced them, too. 
They were the last to stop production.
    Mr. Roewer. If I may, Mr. Rogers?
    Mr. Rogers. Yes, please.
    Mr. Roewer. There was a substantial piece of the production 
capability in the Soviet Union. And I do know that the U.S. EPA 
has engaged in quite a bit of capacity building with countries 
around the world, countries working for UNEP and GEF are 
attempting to assist countries in their management of all POPs 
including PCBs. UNEP really has an ongoing program to try to 
assist--continue with the leadership that this country has 
shown in environmental protection to assist those countries 
manage their PCB and POPs issues.
    Mr. Rogers. I think we can all agree that they are 
something we ought to deal with. I mean, obviously, those are 
the same residue effects that are obviously getting in the air 
and coming to the United States. So it may not be politically 
tenable but we need to find some solutions on that source 
pollution of PCB that has been either sent overseas and coming 
back to get us in another way; we all agree it is dangerous, 
bad, awful, ugly stuff and we need to do something. Huge 
problem in Michigan.
    Mr. Yeager, just quickly, I am a little confused at your 
position in opposition to the bill. I mean, the 12 chemicals 
that we have listed that we all agree are bad, the 90 plus 
signatories that have agreed bad stuff, but your opposition is 
gee, if there is something that happens in the future of which 
a chemical we do not understand today or we have no knowledge 
of today, we are going to be in opposition in the sense that we 
do not believe that we ought to have some at least due process 
here for regulatory relief and cost benefit analysis and other 
things. Do I understand this correctly?
    Mr. Yeager. I do not think you have quite characterized my 
position the way I would characterize it. But that is, but that 
is your freedom as a member.
    Mr. Rogers. Well, that is why I wanted to mention it.
    Mr. Yeager. No. I do not think that is our position. Our 
position is that we very much are supportive of the treaty and 
of the obligations of the treaty. We recognize that for the 
first 12 chemicals for the most part, and I think almost 
universally, the United States has ceased production and use of 
those chemicals. But we think it is very important from the 
U.S. national interest to have production and use of those 
chemicals also eliminated to the extent that the treaty 
requires it in all other countries, including in developing 
countries for the reason that you mentioned. That even if some 
of these chemicals like chlordane are being used in Africa or 
in China, they travel through the atmosphere and appear in 
bloodstream of people in Arctic and people who fish in the 
Great Lakes.
    So we think that the fundamental purpose of the treaty is 
very important to see accomplished.
    Mr. Rogers. I know I see my time is running out here. I 
just want to follow up on that point.
    So your argument is not necessarily the United States and 
the fact that we have been pretty good stewards, we have 
identified it and said opps this is bad stuff, we need to do 
something about it. Our regulatory practices are a part of 
those considerations. Do you not think it is important that we 
keep that sovereignty versus your worrying about Third World 
nations who we know are violating in some cases, in almost all 
the cases, those chemicals that are listed there today?
    Mr. Yeager. I appreciate the point, but I do not think the 
treaty in any way infringes on U.S. sovereignty, as the point 
of my testimony was to point out the many protections that we 
negotiated into the treaty so that the U.S. interest would be 
in fact protected and the U.S. discretion with regard to its 
own way of regulating would be protected.
    Our concern is that with the legislation that has been 
proposed so far and in particular with the draft on which we 
are testifying today, that the standards under which the U.S. 
would regulate are new, and give rise to potentially a lot of 
litigation, make it very hard to actually regulate for a 
chemical that is added to the treaty list, even when 
scientifically the United States agrees that the chemical 
should be added to the list and should be acted on as a 
chemical of global concern.
    And so I think those problems could be solved, but I think 
the way that the current draft is written it makes it very 
difficult to imagine that we would, in fact, act on a future 
chemical.
    Mr. Walls. Mr. Rogers, may I quickly weigh in here?
    Mr. Rogers. Sure.
    Mr. Walls. With respect to the standard established in the 
draft legislation, as I have tried to state that standard 
tracks very closely the very same decisionmaking approach taken 
under the convention.
    More important, in our view the draft recognizes that this 
subset of chemicals is special. They pose special risks, pose 
special global risks that warrant a different approach. This 
draft does not say take the existing TSCA section 6 process, in 
fact it does not require EPA to establish that a substances 
poses an unreasonable risk. It does not require EPA to 
establish that its preferred risk management approach is the 
least burdensome regulatory alternative. And it in fact, it 
imposes none of the procedural barriers that have contributed, 
I think, wrongly to the perception that section 6 does not 
work. So the draft in our view sets out a system that should 
enable EPA to act quickly and expeditiously to implement an 
international decision.
    Mr. Rogers. Interesting.
    I see my time is long past due, Mr. Chairman. I relinquish 
the microphone.
    Thank you, sir.
    Mr. Gillmor. Thank you, Mr. Rogers.
    The gentleman from Maine.
    Mr. Allen. Thank you, Mr. Chairman.
    Mr. Goldberg, in a June 3, 2004 press release CropLife 
International noted that the industry is working ``to ensure 
that national and international interpretation is consistent 
with the articles of the convention including risk management 
procedures in determining future POPs.''
    So my question is does CropLife support the international 
process to regulate that is established in the convention in 
Article 8?
    Mr. Goldberg. Yes. If I may add one point consistent with 
the comments from my colleague and friends, Mr. Walls. We 
believe that those standards are consistent with the standards 
that are expressed from the chemical side in the discussion 
draft and from the pesticide side in the statutory provisions 
of FIFRA and the Food Quality Protection Act.
    Mr. Allen. Let me address then to both of you, because Mr. 
Walls said earlier--had said a couple of times, that the 
convention says--it says we should balance risk, cost and 
benefits in a precautionary matters. You know, all these words 
have different interpretations.
    My sense is from that particularly in Europe the 
precautionary principle is seen as a way of not having to prove 
to the last comma that there is harm, but it reflects an 
understanding that the world is better off to try to prevent 
pollution degradation before it occurs, even if the science is 
not complete. And particularly with respect to climate change, 
it is a principle that is evoked all the time because the 
science may get to 95 percent, but it will not get to 100 
percent.
    Ms. Heinzerling said, and I would tend to agree, that often 
in this country cost benefit analysis, formal cost benefit 
analysis has been an obstacle to regulation. Are you saying in 
your opinion that would not be the case here? Do you understand 
the statement she is making, the risk that some of us see in 
getting into numbers and trying to quantify things that may be 
ultimately not qualifiable?
    Mr. Walls. Well, Mr. Allen, I will try and respond this 
way. I mean, you are absolutely right. We are talking about an 
international agreement and we are talking about a lexicon that 
has developed around this negotiation with words like 
precaution. And we are trying to grapple with what that means 
in a regulatory context. But what we are talking about here is 
fundamentally the implementation of an international obligation 
of the United States. And the struggle here to give effect to 
the very provisions of the treaty in a way that makes sense.
    Now, with all due respect to Ms. Heinzerling, I have to say 
I do not believe that any negotiator of the Stockholm POPs 
convention contemplated that we would be engaged in a series of 
long quantitative analyses of the cost benefit analyses in 
making decisions here. The treaty is very clear. Cost and 
benefit considerations are to be taken into account. There may 
be analyses out there with respect to any particular chemical 
that is relevant and must be taken into account. So we see the 
draft as taking the convention language and implementing it in 
a way that makes sense.
    Mr. Goldberg. Very quickly. Remember with respect to a 
number of these chemicals that are on the list, they are 
pesticides. Pesticides have important public health uses. And 
the process of balancing those risks of losing chemicals that 
have important public health uses is always compared to the 
risk of the products themselves.
    Mr. Allen. The question is how it is done.
    I want to turn to Mr. Yeager, because when you negotiated 
the treaty, when you were negotiating the treaty how did you 
expect the domestic regulatory process would work after an 
international decision by the conference of parties to list a 
new chemical? Did you have something in mind when you were 
negotiating, and more specifically did you think there would be 
new language, this reasonable balance language that would be 
offered?
    Mr. Yeager. That is a difficult question, Representative 
Allen.
    We consulted with EPA about every aspect of the treaty, and 
knowing that EPA was the primary regulator in the United 
States. We attempted to negotiate terms of reference in the 
treaty that were as close as possible to the U.S. regulatory 
system. And, in fact, that was a fundamental negotiating 
objective.
    I think our objective was to ensure that we would not 
require wholly new standards in U.S. regulation in order to 
implement the treaty. And, in fact, that to some extent I 
suspect we were hopeful that we would be able to rely on the 
thresholds established in the treaty when interpreting the U.S. 
regulatory context.
    I think that the difficulty that we have, with due respect 
to my colleagues, is that the treaty does require some 
consideration of socio-economic considerations and therefore of 
costs. But it assumes that once a chemical has been given--has 
passed the risk profile and the Annex D criteria, if it is 
assumed to be a POPs, it will be regulated. And in fact it will 
be regulated strenuously because that is the whole purpose of 
the treaty. That is how precaution is embedded in the treaty.
    So here we have a proposal that says well once that 
decision has been made and the U.S. has participated in it, 
formed the scientific review, and in fact probably formed part 
of the scientific committee, that then we will have a new 
process in the United States to decide whether or not to 
regulate it. There is no presumption that we will regulate.
    Mr. Allen. And if I may, Mr. Chairman, just one last.
    I take, Mr. Yeager, that that is your response to Mr. 
Walls' suggestion that reasonable balance in the implementing 
legislation reflects the language of the convention itself? I 
mean, I think I hear both of you, your arguments clearly. I 
just want to make sure that they're----
    Mr. Yeager. Yes. I do see a difference. If you look at the 
structure of the treaty where and when socio-economic 
considerations to be brought in, you will find that once a 
chemical has passed the scientific thresholds and the 
conference of the party lists it, it is expected that it will 
be regulated. The question is how.
    Mr. Allen. I thank you.
    Thank you, Mr. Chairman.
    Mr. Gillmor. Let us go to one more round of questions. And 
let me start directing this to Ms Goldman and Mr. Walls.
    I want to give a statement of a principle and ask you to 
respond whether you agree with it or not. And the 
administration principles state in determining whether the 
domestic regulatory measures are necessary and adequate, the 
United States should compare the international decision to 
measures that are more and less stringent, thereby facilitating 
a risk management decision as to which measure provide the most 
reasonable balance of benefits, risks and costs for specific 
uses. Could you both comment on that principle?
    Ms. Goldman. I would not have stated it quite that way, but 
I do think that it well could be that a chemical might be 
listed in the convention with a set of risk management options 
that are put forward and that the U.S. may decide to do it 
differently, to either be more stringent or less stringent.
    For example, take DDT which under the POPs convention 
continues to be used for public health use in developing 
countries for malaria, whereas we have not required it for that 
use for more than 20 years. And so we may look at an exemption 
that has been put forth or a risk management option that has 
been put forth and decide that in our situation it does not 
make sense because, say, we do not have malaria here.
    So, that is one of the reasons why I think it was important 
that the convention preserve the sovereignty of nations to go 
their own way in terms of having flexibility about how these 
things would be managed.
    Mr. Walls. We agree with the principle.
    Mr. Gillmor. Let me state another administration 
principles. In weighing benefits, risks and costs the United 
States should consider domestic production, export and use of 
the chemical and any national and international consequences 
that are likely to arise as a result of domestic regulatory 
action including consequences that cannot be quantified and 
including consideration of the possible consequences of using 
likely substitute chemicals.
    Could you comment on that?
    Ms. Goldman. I could go first on that one. That principle 
is actually 2 or 3 different things embedded together. I find 
that to be a very complicated statement coming from the 
administration.
    Mr. Gillmor. I thought it was a little complicated myself.
    Ms. Goldman. Yes.
    Mr. Gillmor. But you are the expert, so I wanted to ask 
you.
    Ms. Goldman. Well, I am going to do that but I will 
apologize if I have not teased it apart completely.
    But No. 1, I do think that the fundamental principle of the 
convention, which is that whether the chemicals meet certain 
criteria about persistence in toxicity, and if they do they 
should be managed, that that needs to be adhered to by the 
United States regardless of the economic benefits. This is 
because we know that once these persistent toxics are in the 
environment, we cannot get them out again. We are still 
cleaning up DDT and PCBs from decades ago.
    So that piece of it, which I think is implied in the first 
part, I would not agree with.
    I do think that we need to put into the mix at the outset 
gathering of information about production, import, usage. That 
is information our negotiators need to have the first time they 
go to the table to talk about a chemical. And, in fact, I said 
in my written testimony that I felt that Congress should 
require that EPA collect that information, including the usage 
information, so that our negotiators are there with a full deck 
of cards right at the beginning.
    With due respect to my colleagues who have suggested to you 
that there is plenty of authority in TSCA, the information 
collection provisions of TSCA do not give EPA the authority to 
collect that information in a timely fashion. You need to give 
them that authority, because if the information comes in after 
the negotiation has been accomplished, they will not be able to 
really represent the U.S. situation well.
    Mr. Walls. Mr. Chairman, we not only agree with the 
principle, but also believe that the draft legislation 
incorporates that principle.
    We also agree with Ms. Goldman that U.S. negotiators and 
the review committee should play with a full deck.
    Mr. Gillmor. Thank you.
    Let me direct my question to Mr. Wiser. Your testimony 
states that implementing legislation should require a clear 
statement that the United States should not register for any 
specific exemptions under the POPs treaty. Now the POPs treaty 
does call for countries to do that, but by doing so would you 
not in effect be opposing research on those chemicals and 
inject manufacturing regulatory possibilities for trace 
contaminants.
    Mr. Wiser. In all due respect, Mr. Chairman, I do not 
recall putting it exactly that way. In my testimony my 
recollection is that what I objected to was the provision in 
the discussion draft that would appear to prohibit EPA from 
regulating if an exemption were available to the United States 
under the convention. And the point that I hoped to make, and I 
apologize if I did not make it clearly, was that in our view 
the legislation should not require EPA to try to take an 
exemption. In other words, the legislation should not prohibit 
EPA to regulate if an exemption is available. Instead, it 
should be up to EPA to decide, well, when looking at all these 
various factors, is it appropriate for us to request an 
exemption? And that would be something that would have to be 
done with the Executive.
    But we do not believe that the legislation should prohibit 
EPA from regulating if an exemption is available, because as 
Dr. Goldman pointed out, in most cases the United States will 
not want to take one of the exemptions. Most of these 
exemptions are intended, at least in terms of the dirty dozen, 
the 12 chemicals that are already regulated in the convention, 
most of these exemptions are intended for developing countries 
that for one reason or another need a transition time. And we 
do not believe that that kind of situation should be forced on 
EPA. Instead, we should be able to evaluate the situation, 
determine is it appropriate for us to take an exemption. We 
should not prohibit EPA from regulating if an exemption is 
available.
    Mr. Gillmor. My time has expired.
    Ms. Solis?
    Ms. Solis. Mr. Wiser, thank you for being here.
    You mentioned in your testimony that there were other 
organizations that you represented that were also not in 
support of the current discussion draft legislation. Can you 
name any of those groups?
    Mr. Wiser. Yes, I can. As I did mention, the views that I 
expressed in my testimony have been endorsed by a number of 
organizations, and they are listed in my written testimony. 
They include the National Environmental Trust, Physicians for 
Social Responsibility, Oceania, United States Public Interest 
Research Group, the Sierra Club and Pesticide Action Network 
North America. I would also add that World Wildlife Fund is one 
of the organizations that we have worked very, very closely 
with. WWF has been absolutely essential in our efforts. We did 
not think it was appropriate to try to have them endorse my 
testimony considering Mr. Yeager is giving his own testimony.
    But these organizations have been among the core of groups 
that have been working very actively on this legislation. And 
we have uniformly and consistently shared our views. We have 
the same view, we have the same objection to this legislation.
    And then the other thing I would like to add is that we are 
also working very closely with organizations, particularly 
grassroots organizations throughout the country. So it is not 
just beltway groups or Washington, DC groups. We are in close 
contact with a number of different organizations. And I think I 
can say with confidence that these organizations are uniform in 
their objection to this approach that is in the discussion 
draft.
    Ms. Solis. So you have a position on the current Senate 
legislation?
    Mr. Wiser. Well, as Mr. Yeager sort of--I think I will say 
he fudged a little bit. I may fudge a little bit myself. But I 
will try to be as direct as I can to you.
    We were involved very heavily in the development of that 
legislation. We were invited by then-Senator Smith to work with 
industry and to work with staff of the Environment and Public 
Works Committee on it, and we did that. We worked very hard.
    In the end I think we can say that there were some aspects 
of Senate 1486 that we liked and there are some aspects that we 
do not like. And in fairness to Senator Chafee who was key in 
developing this, he said he was going to try to split the 
difference between many of the different interest groups and 
the administration. And the result was he upset a lot of people 
in doing that. But it is a mixed bag, quite frankly.
    Ms. Solis. Do you think there is an urgency to move forward 
as quickly as this proposed legislation might have us move?
    Mr. Wiser. I think it would be very good for the United 
States to be an active participant in the Stockholm Convention. 
As we have heard from many of our witnesses, the United States 
provides very important leadership in this issue. We have 
technical abilities that are simply unparalleled. It is 
important for us to be a party to the convention. And it is 
important for us to join in a multilateral process, important 
for us to give guidance to others and to demonstrate that we 
can do things, we can address these kinds of chemicals 
together, not just unilaterally but together.
    That said, I think that it is essential, and I also speak 
on behalf of my colleagues in this respect, that it is 
absolutely essential for us to get it right here. Let us not 
rush if the result is severely flawed legislation that we will 
be stuck with for years and years and years. And we believe 
that the approach in the discussion draft is that kind of 
severely flawed approach.
    Ms. Solis. Thank you.
    Mr. Yeager I had a question for you as a former EPA 
representative. I am sorry, Dr. Goldman. Excuse me. Dr. 
Goldman, regarding California, the State that I come from, we 
have some of the more stringent environmental laws in the 
country. If the draft legislation were to be implemented, what 
are some of the things that might happen with a State like mine 
where we do have much more rigorous review of chemicals and 
their use?
    Ms. Goldman. Well, first and foremost, I believe that the 
draft legislation would preempt efforts by the State of 
California to set its own regulations. And I think that that is 
very important.
    I used to work for the State of California as an official 
for the California Department of Health Services. And we often 
needed to take action in advance of the Federal Government 
because of the unique environment of California and the need to 
protect that. And I think that there should not be preemption 
of State action in this bill.
    Ms. Solis. Thank you.
    Mr. Gillmor. The gentleman from Michigan.
    Mr. Rogers. Thank you, Mr. Chairman.
    I am still trying to understand this, the best I know how.
    But Mr. Walls, is it my understanding that the convention 
does call for a cost benefit analysis?
    Mr. Walls. That is correct, Congressman. Once the review 
committee reviews the sufficiency of the nomination vis-a-vis 
the criteria in the convention itself, and once they have 
reviewed a risk profile and determine that some action is 
warranted, there is a process to consider the costs and 
benefits of regulation.
    Mr. Rogers. So the bill as drafted does not add anything 
new to the convention in that regard? They already recognize 
the cost benefit analysis model?
    Mr. Walls. That is our position, Congressman. Yes.
    Mr. Rogers. I see a shaking of the head, a stick up finger 
and a nod, all down the row there. So why do we not just work 
our way down.
    Ms. Goldman. Well, I will just tell you my view, which is 
that I believe and the way I would view it as a regulator, and 
that is that the convention requires consideration of a number 
of cost issues and social issues, many, many considerations I 
think you would take into account in managing risks. But it 
does not involve a formal cost benefit analysis as an exercise. 
By saying balance the draft bill does lead you down that path 
of doing a quantitative modeling effort. And I think that that 
is the difference.
    Mr. Rogers. But in fact the convention does state that. As 
a matter of fact, I think Mr. Yeager used the ``socio-
economic.''
    Ms. Goldman. It says that those considerations should be 
assessed and evaluated, but it does not have language that says 
quantified, weighing it and doing the kind of formal, formal 
cost benefit analysis. That is my opinion.
    Mr. Yeager. I guess if I could just try to clarify my own 
view with regard to the convention and maybe the difference.
    It appears to me at least, and I think to us on reading the 
draft, that the cost benefit balancing that is required in the 
draft which would, as Ms. Goldman stated, require a cost 
benefit analysis that has the flaws that Ms. Heinzerling points 
out, is linked to the decision of whether or not to regulate a 
chemical after it has been listed by the convention.
    The convention actually presupposes a process that I try to 
describe in my testimony, but starts with a screening for the 
chemical, determines whether the chemical fits a series of 
science characteristic that make it a POP, then has a risk 
profile for the chemical that--again no economics so far--that 
determines whether the chemical presents a risk that warrants 
global concern, that's Annex E. So you have gone through Annex 
D and E. Only then at that point does Annex F consider what 
kinds of control measures should be taken. And in that 
consideration there is not, as Ms. Goldman states, a cost 
benefit analysis as such but it does require a look at the 
efficacy and efficiency of possible control measures. And then 
under alternatives a look at technical feasibility and costs 
including an environmental and health costs.
    But those are not part of an equation in which you 
determine whether or not to regulate at that point. They're 
part of a consideration of how you should regulate.
    Mr. Walls. Mr. Rogers, I would perhaps add a clarification 
from our perspective.
    The decision taken under the convention with respect to 
costs and benefits is a decision taken at the international 
level. That decision may ignore for all practical purposes the 
relevant costs and benefit consideration that apply to 
regulation in the United States. The draft legislation provides 
a process to insure that those costs and benefits are 
articulated as the agency considers to regulate the chemical.
    Mr. Rogers. Sure. And obviously the signatories believes it 
was important enough to mention it, just like as we mention 
paragraphs in a bill that need further clarification when it 
gets to rulemaking.
    We are really nothing more than the rulemaking body of the 
convention as it relates to the United States verses the other 
signatories of the convention. I guess I am confused why we are 
arguing about the point.
    Ms. Heinzerling. May I just add. It would be easy enough to 
say that if that is all you meant was to duplicate what went on 
at the international level and that is all that Mr. Walls 
believes this legislation does. It would be easy to simply 
replicate that standard in this legislation. That is not what 
is happening. The legislation adds whole new language that is 
not even present in the international context.
    Mr. Rogers. You mean clarifying language like we do in 
rulemaking? That is exactly what we do when we make rules; we 
clarify the language. The intent was they obviously believe it 
was important for a cost benefit analysis to some degree, and 
it is up to us to determine what that is, is that not right?
    Ms. Heinzerling. I do not see that that is the case. And in 
fact----
    Mr. Rogers. I mean, you are saying we do not want any. And 
we are saying you probably ought to have some.
    Ms. Heinzerling. I think that Mr. Yeager's point is 
fundamental, which is that the international context takes it 
as a given that once you go through the science-based process 
there will be regulation. The question is what form it will 
take. Whereas, under cost benefit analysis such as the 
reasonable balance standard in the discussion draft, the 
question is will there be regulation at all.
    Mr. Rogers. Well, you are saying that only because there is 
a presumption, I think. You are nervous that there is only a 
presumption that there would be regulation?
    Ms. Heinzerling. Well, there is also the addition of the 
language that is quite cryptic in the current draft having to 
do with sound scientific evidence, peer reviewed studies and so 
forth that is added and is not present in the treaty language. 
And so that there is a lot of language that if it merely is 
intended to duplicate what the treaty does, then is very 
confusing.
    Mr. Rogers. You oppose peer reviewed science?
    Ms. Heinzerling. Nothing I have said suggests that.
    Mr. Rogers. Well----
    Ms. Heinzerling. No, I do not.
    Mr. Rogers. Okay. Just for clarification. So you do not 
oppose those on the face of getting the good science? I mean, I 
think we are arguing semantics here.
    Ms. Heinzerling. Well, usually when your legislation, the 
legislation you pass here goes to courts, courts assume that 
you meant something new when you add new language. They are 
just funny that way. They take the language and they assume 
that if you add language, then you must have meant something. 
And so you must mean something different from the 
Administrative Procedure Act's requirements against arbitrary 
action for example. And so if you only mean that, if you only 
mean what the agencies are already doing, which is often 
relying on peer reviewed science, then you do not need to say 
anything.
    And so courts will become confused when they see new 
language and they think what do they have in mind, because they 
try to take you seriously when you say something.
    Mr. Rogers. Really? That is new.
    Mr. Yeager, did you have a point to that?
    Well, I see I am over my time again.
    Mr. Chairman, I hope we can get something going. I think 
you are absolutely on the right track, and I think the 
semantics arguing about may keep us from doing something pretty 
powerful for something that we all agree on. And I think 
everyone in the panel agrees on are some pretty bad actors out 
there. And I would encourage your leadership on this so that we 
do in fact become a part of that success story on getting this 
stuff out of there.
    Sometimes I think we argue for the sheer sake of justifying 
our organization, and that is unfortunate when you are talking 
about the threat that I think these chemicals and other things 
may pose to the future health of America.
    Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you, Mr. Rogers.
    One of the purposes of a discussion draft is to stimulate 
discussion, and we were imminently successful in doing that.
    Let me also ask if the members of the panel would be 
willing to respond to written questions from members, if they 
would want to submit them later and all the members have 
indicated that they would.
    And I want to thank all of you for coming and testifying 
for what has been a fairly long afternoon. But we appreciate 
it.
    Meeting adjourned.
    [Whereupon, the subcommittee was adjourned at 5:03 p.m.]
    [Additional material submitted for the record:]
Response of Brooks Yeager, Vice President, Global Threats, WWF-US, for 
                               the Record
    1. Discretion to Regulate: A key question which I would like to 
address first is whether or not the treaty includes any standard for 
POPs regulation. A strong argument can be made that there is, in the 
Stockholm Convention, an implicit set of standards for the regulation 
of POP chemicals by parties.
    In contrast to instruments of broad application, such as a number 
of U.S. chemical regulatory statutes, which are intended to provide for 
the regulation of broad classes of chemicals (such as all ``hazardous 
chemicals''), with a wide latitude as to the type of management 
appropriate, the POPs treaty is intended to affect a rather narrow 
class of chemicals, which are assessed to have properties of toxicity, 
bio-accumulative potential, transportability, and persistence such that 
they must be controlled, and if possible eliminated, at the global 
level. For this group of chemicals, the treaty assumes a very stringent 
level of regulation, and sets implicit standards for such regulation in 
the language of the regulatory goals for each of the annexes in which 
new chemicals could be listed. The discrimination among the basic 
regulatory standards is not based primarily on a balancing of health, 
environment, and other benefits, but rather on the type of chemical 
being regulated, and in particular on whether it is produced 
intentionally (Annex A) or unintentionally (Annex C). The only 
exception among the existing 12 chemicals is DDT, which is placed in 
its own annex (Annex B), in which the control strategies explicitly 
recognize the importance of maintaining, in the absence of substitutes, 
its critical public health uses.
    For example, if a newly listed POP is an unintentional byproduct, 
such as dioxin, it would be listed in Annex C, and parties would be 
obligated to take regulatory measures consistent with the guidance 
outlined in the annex, including general prevention measures and ``best 
available techniques,'' to meet the regulatory goal of ``continuing 
minimization, and, where feasible, ultimate elimination,'' as stated in 
Article 5. If a newly listed chemical is an intentionally-produced 
product, and unless it serves critical public health functions as does 
DDT, it would be listed in Annex A, and parties would be obligated to 
``prohibit and/or take the legal and administrative measures necessary 
to eliminate'' its production and use, import and export. These basic 
goals are, of course, modified by any country-specific exceptions 
registered, but they act as a fundamental regulatory standard 
nonetheless.
    The question of how the considerations of Annex F play into all 
this is an interesting one, but a careful reading provides little 
support for any suggestion that Annex F invites a cost-benefit 
consideration of whether to regulate. Instead, it comprises a set of 
factors to be used by the POPs Review Committee in the preparation of 
``a risk management evaluation,'' that would include ``an analysis of 
possible control measures for the chemical.'' This information would be 
provide to parties, and might assist some parties in devising control 
strategies necessary to meet the implicit standards for each type of 
chemical.
    2. Legislation w/o Adding Mechanism: WWF strongly disagrees with 
the observation that it would be acceptable to enact legislation that 
focuses solely on ``the provisions of the discussion draft to fill the 
gaps for U.S. compliance with treaty obligations for currently listed 
chemicals,'' i.e., to leave out ``a statutory process for U.S. 
consideration of additional chemicals or even new rulemaking 
authority.'' Adding new chemicals to the POPs treaty is one of the most 
critical elements of the treaty, and legislative authority would be 
incomplete and unacceptable without such matters addressed. Moreover, 
existing domestic authority for chemicals, especially under TSCA and 
FIFRA, is rarely amended, and it would be very difficult to do so on a 
chemical-by-chemical basis as new chemicals are added. In addition, 
ratification without the benefit of legislative guidance in relation to 
the ``adding mechanism'' would result in the U.S participation in COPs 
with inadequate guidance with respect to such matters as terms of 
reference for the POP Review Committee, and consideration of new 
chemicals, among other matters.
    3. State Preemption: While we agree that states should not be 
allowed to regulate less stringently than Federal government standards, 
WWF's preference would be to amend TSCA 18(b) to allow states to 
regulate chemicals more stringently than federal law, without the EPA 
Administrator's oversight or approval.
    4. PCBs: The intent of WWF's testimony is to support the enactment 
legislation that is needed to effectively implement the Stockholm POPs 
Convention, and in that context there is no need to change EPA's 
current practice of disallowing the import of PCBs into the US.
    5. Requiring the U.S. to ``opt in'': As per WWF's testimony (bottom 
of page 10/top of page 11), the discussion draft oversteps by 
attempting to constrain the President's constitutional power to conduct 
international negotiations by requiring the US to declare the ``opt 
in'' election. It is inappropriate for the Congress to legislate a 
requirement as to which option the President may choose with regard to 
treaty adherence
     6. Costs and Benefits: Regarding the ``all witnesses'' question , 
top of page 7, WWF agrees with the view that the treaty relies on 
countries to choose the appropriate means of implementation. However, 
we also believe that the POPs treaty provides excellent compliance-
related guidance under Article 8(7)(a) with its threshold for advancing 
a new chemical proposal based on whether or not ``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.'' With regard to the follow-on ``all other 
witnesses'' question a few lines later, see the response in section 1, 
above, especially the concluding paragraph. (The same response is 
appropriate in relation to your ``Protection Standards'' comments at 
bottom of page 9/top of page 10.) Relationship between new and existing 
authority (page 8): See WWF's testimony (numbered items 3, 4 and 5 on 
page 10).
    7. Exemptions: WWF's testimony (also at page 10) regarding 
exemptions is focused on chemical and country specific exemptions for 
which a Register has been established pursuant to Article 4 of the 
Stockholm Convention.
    8. Sound Science: See WWF's testimony (bottom half of page 9).
    The above responses address those points where WWF was specifically 
asked to do so--either specifically or as a general request to all 
witnesses--as well as stating views on some other commentary points. 
Our silence as to other commentary should not be treated as reflecting 
agreement or disagreement therewith. Thanks for the opportunity to 
respond to the additional questions posed on behalf of the Committee's 
Majority Members.
                                 ______
                                 
                                  American Chemical Council
                                                 September 10, 2004
The Honorable Paul E. Gillmor
Chairman
House Subcommittee on Environment And Hazardous Materials
2125 Rayburn House Office Building
United States House of Representatives
Washington, D.C. 20515-6115
    Dear Mr. Chairman: Thank you for your letter of August 31, 2004 
concerning the Committee's further commentary and questions regarding 
the Stockholm Convention on Persistent Organic Pollutants and the 
Rotterdam Convention on Prior Informed Consent.
    I have attached the further responses of the American Chemistry 
Council for the Committee's information.
    ACC very much appreciates the opportunity to testify on the 
Subcommittee's discussion draft of the necessary implementing 
legislation, and we look forward to continue working with you and your 
staff on this important issue.
    If we can provide any additional information regarding ACC's 
positions, please let me know.
            Sincerely,
                                           Michael P. Walls
             Managing Director, Health, Products and Science Policy
Attachment
Response of the American Chemistry Council to Supplemental Questions on 
   Legislation to Implement the Stockholm (POPs) and Rotterdam (PIC) 
                              Conventions
                           September 10, 2004
1. Draft Provisions to Fill the Gaps for U.S. Compliance with Treaty 
        Obligations for Currently Listed Chemicals
    ACC agrees with the statement that if Mr. Gillmor's draft 
legislation was enacted, and the Senate provided advice and consent to 
ratification of the Stockholm POPs and Rotterdam PIC Conventions, ``the 
U.S. could sit at the upcoming meetings [of the Parties] as full 
partners.'' The statement correctly notes that nothing in the treaties 
compels the Congress to establish a statutory program to consider 
chemicals added to the treaties by subsequent decision of the Parties. 
ACC's preference for an implementation package that addressed additions 
is based on our interest in legislative economy and our interest in 
addressing uncertainties about the process, standard, and impacts of 
the additions process set forth in the LRTAP POPs Protocol and the 
Stockholm Convention under U.S. law. If the Subcommittee were to enact 
legislation addressing only the currently listed POPs and the PIC 
provisions, ACC would support that effort as the next best step to 
assuring the United States can participate as a full Party to the 
agreements.
2. Federal-State Provision
    ACC agrees that the Subcommittee's draft does not affect State 
authority under Section 18(a)(2) of the Toxic Substances Control Act. 
The draft retains the ability of a State government to regulate a 
chemical substance more stringently than the federal government, 
subject to the existing petition procedures in Section 18(b) of TSCA. 
As the Subcommittee is no doubt aware, EPA can regulate POPs substances 
under existing TSCA authority, which could affect certain State laws 
pursuant to Section 18(a)(2). The Subcommittee's draft legislation 
would make no change from current law.
3. The Relationship of PCB Provision to Existing TSCA Section 6(e)
    ACC agrees with the Subcommittee's interpretation of the effect of 
the draft legislation on EPA's authority under Section 6(e) of TSCA.
4. Compliance with the Prior Informed Consent (PIC) Procedure for 
        Certain Hazardous Chemicals and Pesticides in International 
        Trade
    ACC believes the provisions of the Subcommittee's draft provide for 
full implementation of the Rotterdam PIC Convention in U.S. law. Under 
the Rotterdam Convention, governments retain the discretion to respond 
to a PIC notice. Pursuant to Article 10 of the Rotterdam Convention, 
Parties are to ``implement appropriate legislative or administrative 
measures to ensure timely decisions with respect to the import'' of PIC 
chemicals. Nothing in the draft legislation further restricts the 
ability of the United States to: 1) notify importers that it is 
restricting the entry of any particular substance; or 2) participate as 
a full Party to the Convention. ACC notes that the United States has 
been participating in the voluntary PIC procedure (the voluntary 
government to government process that mirrors the Rotterdam Convention 
procedure), with the full support of the chemical industry, since its 
inception in 1989, suggesting that the United States has had 
appropriate ``administrative measures'' with respects to imports.
5. Provisions Concerning the United States Process for Opting into the 
        Treaty for Additional Chemicals
    ACC agrees with the Subcommittee's interpretation of the draft 
provisions regarding additions to the list of POPs substances. In fact, 
ACC's strong support for the Subcommittee's version was based in large 
part on a similar reading of the draft.
    The Stockholm Convention requires only that Parties ``take the 
necessary legal and administrative measures'' to prohibit or restrict 
the production, use, export or import of POPs chemicals. See Stockholm 
Convention, Article 3. No provision of the treaty delineates the 
specific ``necessary legal and administrative measures,'' to be taken 
and no provision of the treaty requires implementation by any specific 
branch or agency of a national government.
    The Rotterdam Convention similarly requires Parties to implement 
``appropriate legislative and administrative measures'' with respect to 
imports and exports of PIC chemicals, but does not identify any 
specific legal or procedural means by which those measures are to be 
accomplished.
    ACC believes the draft legislation has no practical or legal effect 
on the Executive Branch's ability to ``opt-in'' on new chemicals. If 
the U.S. exercises its preference to ``opt-in'' for chemical additions, 
current practice suggests that the only prerequisite would be that the 
U.S. government have adequate legal authorities to discharge any U.S. 
obligations with respect to the newly added POP. At a minimum, the 
notice-and-comment process outlined in the draft for chemicals under 
consideration as additions under the treaty should help inform the opt-
in decision.
6. Requirements on the Executive Branch Related to Opting-In
    This issue raises a significant number of complex legal and 
political issues. In general, ACC is of the view that the Executive 
Branch has the constitutional power to ``make treaties,'' and that the 
power to agree to amendments to treaties remains wholly within the 
Executive Branch. ACC is aware of no legal precedent in which a United 
States Court has compelled the Executive Branch to make a treaty (or 
make an amendment to a treaty).
    The issue of compelling a regulatory decision with a time certain 
is another matter, however. Once the decision to opt-in to a new 
chemical addition has been made, it may be reasonable to require the 
Executive Branch to provide appropriate notice to the public on its 
subsequent plans to implement the decision.
7. Listing Decisions versus U.S. Determination of Protective Measures
    The Stockholm Convention does not specify a rulemaking standard to 
be adopted by Parties in their national legal or administrative 
implementing measures. ACC is very concerned that the interpretation of 
several other witnesses at the hearing, notably Mr. Wiser and Dr. 
Goldman, would rewrite a very carefully negotiated text for a purpose 
not contemplated by the negotiating governments.
    That the Stockholm Convention specifies no specific risk management 
measures and no specific standard for national implementing measures is 
no accident. Annex F of the Convention acknowledges that ``the full 
range'' of risk management measures should be available to the Parties 
in deciding whether to restrict the use or production of a chemical 
under the Convention. The Convention also carefully balanced the desire 
for collective national action on a listed POP with a Party's ability 
to: 1) seek appropriate exemptions; or 2) decide not to ``opt-in'' to a 
listing. The negotiating governments recognized the need for 
flexibility on chemicals for which ``global action'' is warranted, and 
simply declined to complicate the process by mandating that Parties 
adopt a particular decision standard as a matter of domestic law.
    The lack of a clear decision standard in the Convention makes it 
all the more important that the U.S. implementing legislation contains 
a reasonable, defensible standard for domestic regulatory decisions to 
address new chemicals listings under the treaty. In our view, the 
Subcommittee's draft adopts a risk-based standard that is entirely 
appropriate--a standard that has ample precedent under TSCA and that 
complements EPA's existing TSCA authorities.
8. Costs and Benefits under the Treaties
    It is abundantly clear that the Stockholm and Rotterdam Conventions 
do not directly regulate persons, both as a matter of U.S. and 
international law, and based on the plain language of the treaty.
    Both treaties speak only to the obligations of Parties--national 
governments--to take the necessary control measures. Those domestic 
implementing measures, in turn, are expected to bind the actions of 
legal persons.
    In ACC's view, the Administration properly established principles 
for domestic implementation of the treaties that rely on risk and cost/
benefit considerations. The entire statutory framework for chemical 
control in the United States is based on those considerations, and it 
would have been highly unusual for the Administration to depart from 
that approach in suggesting implementing approaches. Risk and cost/
benefit considerations are not prohibited by the treaties, but in fact 
are inherent in the approach adopted by the negotiating governments. 
Together, Annexes D, E and F of the Stockholm Convention develop the 
very hazard, risk and cost/benefit information necessary to take 
decisions consistent with the Administration principles. Notably, 
Article 8 of the Convention requires the Parties to take that 
information into account in deciding whether to list a chemical as a 
POP. The Subcommittee's draft, which incorporates risk and cost/benefit 
considerations in the domestic regulatory process following a decision 
to list a chemical, is similarly consistent with the Administration's 
principles. The process outlined in the discussion draft is not 
duplicative of the treaty process, but appropriately leverages the 
treaty process for the purposes of domestic decision-making.
9. Discretion to Regulate
    In ACC's view, it is essential that the United States retain a 
certain degree of flexibility in implementing the treaty obligations. 
We do not support the idea that rulemaking authority should be 
mandatory based solely on a decision by the Parties to list a chemical 
under one of the agreements at the international level. It is also 
important to clarify that while an internal Executive Branch decision 
to ``opt-in'' may trigger a domestic rulemaking process, the final 
manifestation of an opt-in decision by the U.S. is the deposit of an 
appropriate instrument indicating that the U.S. agrees to be bound to 
the amendment (i.e., addition) as a matter of international law. To 
this end, the effective date of any regulation should be linked to the 
effective date of any new U.S. obligations that arise from U.S. 
acceptance of a new listing. As a historical matter, the United States 
was often the first to regulate the current 12 POPs substances, an 
indication that existing law has provided ample authority for the 
government to act against a particular substance. Moreover, there may 
well be instances where U.S. regulation under another authority--the 
Clean Air Act's Hazardous Air Pollutants (HAPs) authority, for 
example--may prove sufficient to address any U.S. obligations with 
respect to a listed chemical. Further, in those instances where a 
treaty exemption applies to the United States, there must be regulatory 
authority that recognizes that different risk management measures may 
be applied to meet the treaties' obligations.
10. Alleged Duplication of International Body Decision
    ACC is at a loss to explain how some witnesses believe that the 
Subcommittee draft ignores the international investigation into a 
proposed chemical listing or duplicates the international process. The 
draft legislation makes clear that EPA is to develop a domestic 
rulemaking record that includes all the information developed in the 
international listing process. As the treaties do not dictate the 
rulemaking standard to be applied in the domestic regulatory process, 
the suggestion that the legislation ``should not itemize the criteria 
that EPA must consider during the rulemaking'' is tantamount to 
abdicating U.S. responsibility for a decision to an international body.
    ACC agrees with the Subcommittee's assessment that listing 
decisions under the Stockholm Convention will not address country-
specific circumstances, legal systems and procedures, health or 
economic impacts. Those are considerations the Convention leaves 
entirely to individual Parties, and for which the Subcommittee's draft 
provides a reasonable and transparent process.
11. Relationship of Proposed New Regulatory Authority to Existing 
        Regulatory Authority
    ACC believes the Subcommittee draft has been carefully crafted to 
avoid creating ``unnecessary regulatory baggage'' or inconsistencies 
with current authority. Indeed, ACC is perplexed that other witnesses 
characterized the draft language as ``worse than current law,'' even 
while they acknowledge that current law has already provided sufficient 
authority to implement U.S. obligations under the treaties for the 
currently-listed substances. It is clear that the Subcommittee's draft 
legislation does not interfere with the operation of TSCA Section 6, 
does not require compliance with TSCA Section 6(a), and only in the 
wildest stretch of the imagination could it have any effect on existing 
regulatory authority under TSCA or any other statute.
12. Protection Standards versus Means and Measures
    ACC believes there is no merit in the contention of some other 
witnesses that the Subcommittee's draft legislation allows the 
protection of human health to be simply traded off for other 
considerations. ACC believes that EPA has established a long record of 
making decisions under numerous statutes that protect human health and 
the environment while balancing risks, costs and benefits. There is 
simply no basis for arguing that EPA has no ability (or prior 
experience) in finding a ``reasonable balance'' of costs and benefits. 
Moreover, this balancing process tracks the Convention listing process, 
and provides an important mechanism for determining not only whether 
but how the U.S. government can best address a newly-listed substance.
13. Exemptions
    ACC believes that a statement clarifying the availability of 
exemptions for the United States is not necessary. The Subcommittee's 
draft is clear that the United States is not forced to take advantage 
of every available exemption. ACC's primary concern in this area is the 
availability of country-specific exemptions, not the broader exemptions 
provided in the treaties. ACC believes that any future issues will 
likely arise in the context of proposals for new chemical listings.The 
nature of those issues will be largely fact-specific. There may be 
instances when there are significant market impacts from a proposed 
listing that may require significant government consideration of the 
available treaty exemptions, or there may be critical public health and 
other uses that warrant an exemption. For example, it is not out of the 
realm of possibility that a listing nomination could be made simply to 
provide a significant market advantage to an alternative product. 
Indeed, the availability of exemptions under the treaty reinforces the 
need for a robust domestic process and decision criteria that supports 
those decisions.
14. Sound and Objective Science
    ACC was particularly pleased to hear of the strong support of the 
environmental and health community for high-quality scientific 
information and analysis as the foundation for decisions on the 
evaluation and management of POPs risks. It is abundantly clear that 
the Stockholm POPs Convention relies on such scientific information to 
reach decisions on whether to list a new chemical. In ACC's view, it is 
entirely appropriate that the same high standard of quality and 
objectivity should apply to domestic decisions on how to regulate a 
POPs substance. The environmental and health community certainly cannot 
be supporting a lower standard of quality and objectivity, or no 
standard at all. ACC is aware of no circumstance in which a standard 
for quality and objectivity for scientific information operated as a 
barrier to EPA action. Perhaps most importantly, high quality 
scientific information will help reinforce an Executive Branch decision 
to ``opt-in'' to a new chemical listing.
                                 ______
                                 
      United States Environmental Protection Agency
      Office of Prevention, Pesticides and Toxic Substances
                                                 September 10, 2004
The Honorable John D. Dingell
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
    Dear Congressman Dingell: Thank you for your letter of August 12, 
2004, requesting responses to two additional questions as followup to 
the July 13, 2004, 4eariiig. I am responding on behalf of myself and 
Claudia McMurray, Deputy Assistant Secretary of State for Oceans, 
International Environmental and Scientific Affairs. We appreciate the 
opportunity to offer further clarification on the Stockholm Convention 
for Persistent Organic Pollutants (POPs), and the legislation necessary 
for the United States to become a party to that agreement, as well as 
to the Protocol on Persistent Organic Pollutants to the 1979 Convention 
on Long-Range Transboundary Air Pollution (LRTAP) and the Rotterdam 
Convention on the Prior Informed Consent (PIC) Procedure for Certain 
Hazardous Chemicals and Pesticides in International Trade.
    Enclosed are responses to your two questions, which we hope you 
will find helpful. We would like to take this opportunity to reiterate 
that enacting legislation this year is an important priority for the 
Administration, as we are fully committed to ratifying the global POPs 
Convention, the PIC Convention, and the LRTAP POPs Protocol. It is 
important that the United States continue to have an active and 
influential role in multilateral negotiations related to POPS, PIC, and 
LRTAP. In order to enable the United States to be effective at the 
first meeting of the Conference of the Parties to the POPs Convention, 
and at the next meeting of the LRTAP POPs Protocol in December of 2004, 
the United States needs to be able to function fully as a Party to both 
agreements.
    Again, thank you for your letter. We look forward to working with 
you and other members of Congress in the weeks ahead hi a united effort 
to enable the United States to join these important agreements. If you 
have any further questions, please contact me or your staff may contact 
Betsy Henry in EPA's Office of Congressional Relations at (202) 564-
7222, or Teresa Hobgood in State's Bureau of Oceans and International 
Environmental and Scientific Affairs at (202) 647-3550.
            Sincerely,
                                             Susan B. Hazen
                                     Acting Assistant Administrator
                                 ______
                                 
      United States Environmental Protection Agency
      Office of Prevention, Pesticides and Toxic Substances
                                                 September 10, 2004
The Honorable Hilda Solis
Ranking Member
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
    Dear Congresswoman Solis: Thank you for your letter of August 12, 
2004, requesting responses to two additional questions as followup to 
the July 13, 2004, hearing. I am responding on behalf of myself and 
Claudia McMurray, Deputy Assistant Secretary of State for Oceans, 
International Environmental and Scientific Affairs. We appreciate the 
opportunity to offer further clarification on the Stockholm Convention 
for Persistent Organic Pollutants (POPs), and the legislation necessary 
for the United States to become a party to that agreement, as well as 
to the Protocol on Persistent Organic Pollutants to the 1979 Convention 
on Long-Range Transboundary Air Pollution (LRTAP) and the Rotterdam 
Convention on the Prior Informed Consent (PIC) Procedure for Certain 
Hazardous Chemicals and Pesticides in International Trade.
    Enclosed are responses to your two questions, which we hope you 
will find helpful. We would like to take this opportunity to reiterate 
that enacting legislation this year is an important priority for the 
Administration, as we are firmly committed to ratifying the global POPs 
Convention, the PIC Convention, and the LRTAP POPs Protocol. It is 
important that the United States continue to have an active and 
influential role in multilateral negotiations related to POPS, PIC, and 
LRTAP. In order to enable the United States to be effective at the 
first meeting of the Conference of the Parties to the POPs Convention, 
and at the next meeting of the LRTAP POPs Protocol in December of 2004, 
the United States needs to be able to function fully as a Party to both 
agreements.
    Again, thank you for your letter. We look forward to working with 
you and other Members of Congress in the weeks ahead in a united effort 
to enable the United States to join these important agreements. If you 
have any further questions, please contact me or your staff may contact 
Betsy Henry in EPA's Office of Congressional Relations at (202) 564-
7222, or Teresa Hobgood in State's Bureau of Oceans and International 
Environmental and Scientific Affairs at (202) 647-3550.
            Sincerely,
                                             Susan B. Hazen
                                     Acting Assistant Administrator
ENCLOSURE
   U.S. Environmental Protection Agency and U.S. Department of State 
   Responses to Questions from the Honorable John D. Dingell and the 
 Honorable Hilda L. Solis regarding the July 13, 2004, Subcommittee on 
  Environment and Hazardous Materials Hearing ``POPs, PIC, LRTAP: The 
  Role of the United States and Draft Legislation to Implement These 
                      International Conventions''
    Question 1: As you are aware, legislation designed to implement the 
Stockholm Convention for Persistent Organic Pollutants (POPs) has been 
reported from the Senate Environment and Public Works Committee (S. 
1486). In the House of Representatives, Subcommittee Chairman Gillmor 
has released a ``discussion draft,'' which was the subject of the 
hearing held on July 13, 2004. Both S.1486 and the Gillmor discussion 
draft state that no person may ``manufacture, process, distribute in 
commerce for export, use or dispose of'' any listed POPs chemical 
substance or mixture. (S. 1486, section 502(a); Gillmor discussion 
draft, section 502(a)).
    Similar language, designed to prohibit ``distribution in commerce 
for export'' and implement the general prohibition is found throughout 
both bills. In a previous Administration bill, however, introduced upon 
request by Chairman Gillmor in the 107th Congress (H.R. 4935), the same 
prohibition applied to the ``distribution in commerce'' of POPs 
substances or mixtures, as opposed to the ``distribution in commerce 
for export'' of such substances.
    With regard to this difference, please indicate whether there is 
any ``distribution in commerce'' of such substances (except 
distribution in commerce for export) that is currently either allowed 
or taking place that would not be prohibited under the prohibition 
applicable to ``manufacturing, processing, use or disposal.'' Please 
indicate whether there is, to the agency's knowledge, any such 
``distribution in commerce'' of POPs substances taking place. For any 
and all examples of such activities, please indicate the particular 
circumstances of such distribution in commerce and the specific 
chemicals and specific amounts.
    Response: The Stockholm Convention does not address domestic 
distribution in commerce of listed substances. In other words, it does 
not require parties to prohibit or restrict domestic distribution in 
commerce 1 of any listed substance. Likewise, the POPs 
Protocol to the Convention on Long- Range Transboundary Air Pollution 
(the LRTAP POPs Protocol) does not restrict or prohibit domestic 
distribution of substances that it covers. The POPs Convention does, 
however, restrict, and in certain circumstances prohibit, export of 
listed substances. A prohibition applicable to ``manufacturing, 
processing, use, or disposal'' would not prohibit distribution in 
commerce, including distribution in commerce for export.
---------------------------------------------------------------------------
    \1\ TSCA defines ``distribute in commerce'' and ``distribution in 
commerce'' when used to describe an action taken with respect to a 
chemical substance or mixture or article containing a substance or 
mixture to ``mean to sell, or the sale of, the substance, mixture, or 
article in commerce; to introduce or deliver for introduction into 
commerce, or the introduction or delivery for introduction into 
commerce of, the substance, mixture, or article; or to hold, or the 
holding of, the substance, mixture, or article after its introduction 
into commerce.
---------------------------------------------------------------------------
    With regard to PCBs, TSCA generally prohibits their distribution in 
commerce, with certain exceptions. For example, TSCA and EPA 
regulations allow for the distribution in commerce of PCBs in a totally 
enclosed manner where the PCBs were ``sold for purposes other than 
resale before two and one half years after October 11, 1976.'' In 
addition, TSCA allows EPA to authorize the distribution in commerce of 
PCBs where, among other things, EPA finds that the distribution will 
not pose an unreasonable risk of injury to health or the environment. 
Given these types of circumstances, certain use and distribution in 
commerce of PCBs continues to be legal in the United States and PCBs 
are currently distributed in commerce for disposal and for other 
reasons such as those described above.
    Aldrin, Chlordane, Dieldrin, Endrin, Heptachlor, and Toxaphene have 
never been listed on the TSCA Inventory; nor has EPA ever otherwise 
authorized their manufacture as chemical substances. Thus, based on all 
available information, the Administration is not aware of situations 
where any of these substances are being distributed in commerce in the 
United States as chemical substances or mixtures. The Administration, 
however, can't say categorically that these substances are not 
manufactured and distributed in commerce in the United States as TSCA 
section 5 allows certain manufacture of chemical substances without 
notification to EPA.
    Hexachlorobenzene (HCB) and DDT are listed in the TSCA Inventory 
and can legally be manufactured in and imported into the United States. 
The Administration, however, has no knowledge of any distribution in 
commerce of DDT for domestic use. Regarding HCB, during negotiation of 
the Stockholm Convention, one company informed the U.S. negotiators 
that it imported the substance into the United States for use as a 
chemical intermediate. The Administration, however, does not know 
whether the company already has stopped such import in anticipation of 
U.S. ratification of the Convention. If not, there may be current 
distribution in commerce (after its import) of HCB in the United 
States.
    Mirex is not listed on the TSCA Inventory, but in 1993, EPA granted 
a low volume exemption (LVE) pursuant to regulations at 40 C.F.R. 
section 723.50, that authorized a company to manufacture the substance. 
EPA has been unable to contact the company and, based on available 
information, believes that it is no longer in business and that Mirex 
is not manufactured or distributed in commerce in the United States at 
this time.
    In addition, all of the substances listed on Annex A and B of the 
POPs Convention have been registered pesticides in the United States. 
Thus, in the past, they have been distributed or sold as pesticides. 
(None are now registered in the United States.) As pesticides, 
stockpiles of or articles containing these substances may continue to 
be distributed for disposal or other purposes.
    Question 2: Section 12 of the Toxic Substances Control Act (TSCA) 
applies to the export of chemical substances or mixtures. EPA has 
promulgated rules implementing this section for PCBs at 40 C.F.R. Part 
761 (including 761.20). Has EPA reviewed these rules with regard to 
their consistency with the Stockholm Convention and the LRTAP POPs 
Protocol? In particular, are these regulations in compliance with the 
provisions of the Convention and the Protocol that prohibit export of 
PCBs except for the purpose of environmentally sound disposal? If not, 
please indicate any specific provisions or aspects of these regulations 
that would need to be amended in order for such regulations to be fully 
consistent with the treaty.
    Response: EPA has reviewed the rules promulgated at 40 C.F.R Part 
761 with regard to their consistency with the Stockholm Convention and 
LRTAP POPs Protocol. (EPA notes that 40 C.F.R. Part 761 was promulgated 
principally under the authority of section 6 of TSCA, not section 12.) 
In particular, EPA has reviewed these regulations to determine whether 
they are consistent with the provision of the Stockholm Convention that 
prohibits the export of PCBs except for the purpose of environmentally 
sound disposal. The LRTAP POPs Protocol does not contain a similar 
prohibition. EPA has determined that these regulations would allow 
distributions in commerce that are not in compliance with this 
provision of the Stockholm Convention. Indeed, as explained in the 
response to question 1, because TSCA does not prohibit all distribution 
in commerce (which includes export) of PCBs, the Administration has 
determined that, in this respect, TSCA allows distributions in commerce 
that are not in compliance with these provisions of the Convention.
    In particular, 40 C.F.R 761.20 and 761.20(c) allow distribution in 
commerce (including export) of certain PCBs and PCBs items. For 
example, 40 C.F.R. 761.20(c)(1) allows PCBs and PCB items that were 
sold before July 1, 1979 for purposes other than resale to be 
distributed in commerce in a totally enclosed manner. Such PCBs or PCB 
items could include, for example, intact, non-leaking electrical 
equipment such as transformers and capacitors. (See 40 C.F.R. 761.20). 
There are also regulations at 40 C.F.R. 707.60(c) requiring notice of 
export of PCB articles exported for purposes other than disposal. Thus, 
before the United States ratifies the Convention, the Administration 
believes that this gap in authority, which could prevent the United 
States from meeting the obligation in the Convention to prohibit export 
of PCBs except for environmentally sound disposal, must be closed. 
Indeed, toward this end, the Administration worked with majority staff 
of the House Energy and Commerce Committee to develop language to close 
this gap. This language is included in Representative Gillmor's 
discussion draft at section 3, which amends section 6(e)(3) of TSCA. 
(See page 40, line 23 through page 41, line 6 of the July 17, 2004 
draft).
                                 ______
                                 
                 Center for International Environmental Law
                                                 September 13, 2004
Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Washington, DC 20515-6115

Re: Notes and Questions from July 13, 2004 Hearing on POPs, PIC, and 
        LRTAP: The Role of the U.S. and Draft Legislation to Implement 
        These International Conventions

    Dear Chairman Gillmor: Thank you for your request for responses to 
your additional notes and questions stemming from my testimony at the 
July 13 Subcommittee hearing on POPs. All of my responses below are 
provided within the context of the Stockholm Convention on Persistent 
Organic Pollutants (POPs).
    Throughout the Notes and Questions, there are many conclusions and 
opinions that are expressed as being those of the ``Subcommittee.'' I 
found this confusing, because many of those conclusions and opinions 
run counter to views that minority members of the Subcommittee 
expressed at the hearing. Moreover, I am not aware of any vote or 
agreement having taken place that has resulted in a consolidated view 
on this subject among the Subcommittee members. For clarity's sake, 
therefore, I have taken the liberty of referring to the Notes and 
Questions as the work of the Chair, rather than the Subcommittee.
    With the exception of my response to Question 12, my responses are 
limited to those questions to which you specifically asked me to reply. 
My silence on other parts of your Notes and Questions should not be 
construed as approval or disapproval of their contents.
            Sincerely,
                                                        Glenn Wiser

    Question 3 (Wiser): What if the Executive Branch responded that 
they are not ready to support opting in at this time but might within 6 
months? Would this be an impermissible answer under your proposal? If 
not permissible, what is the sanction that would apply and how would it 
be enforced? If permissible, is there much of a difference between your 
proposal and simple deference to the executive branch?
    Response: Page 3 of the Chair's Notes and Questions correctly 
states that ``The decision to opt-in and the manner in which the U.S. 
chooses to regulate are two different occurrences.'' Despite the 
clarity in that sentence, the Chair's Question 3 and the comments 
preceding it confuse these two things, and thus erroneously suggest 
that mandatory rulemaking authority for EPA would somehow be synonymous 
with a congressional requirement that the Executive Branch ``opt in'' 
to a Stockholm new-listing amendment.
    The Executive Branch's authority to decide whether or not to opt in 
to an additional treaty requirement stems from its foreign affairs/
treaty making powers. It is not dependent on a delegation from 
Congress. Unlike the Chair's June 17 Discussion Draft, which 
impermissibly attempts to constrain Executive Branch prerogatives by 
requiring the President to make an Article 25.4 opt-in declaration, we 
believe the question of whether and when the Executive Branch consents 
to be bound by a Convention amendment is not one that should be 
addressed by this bill, because the Constitution does not give the 
Congress a role in that decision. (We do not voice an opinion here 
about the separate question of the Senate's role under its advice and 
consent powers.) Similarly, it would be inappropriate for the Congress 
to attempt to empower the courts to force the Executive Branch to 
exercise its foreign affairs/treaty making powers in this context.
    The question this legislation needs to address is whether and how 
Congress will authorize EPA to regulate a POP when the Stockholm 
Conference of the Parties (COP) adds one to the Convention. Congress' 
constitutional power to do this is not contingent on whether or when 
the United States decides to opt in to a new-listing amendment or, for 
that matter, whether the amendment has entered into force for the 
United States. Yet Congress can effectively prevent the Executive 
Branch from exercising its treaty making powers by failing to give EPA 
adequate authority to ban or restrict the newly listed POP. Because of 
the constitutional separation of powers, the Executive Branch 
traditionally does not bind the United States to a treaty until it is 
confident that we will be able to comply with it. In the POPs context, 
that will require passage by the Congress of adequate implementing 
authority, unless such authority already exists. It would undercut the 
negotiating posture of the United States if, during a Stockholm new-
listing discussion, the Executive Branch could not confidently predict 
whether it would obtain the implementing authority needed to allow the 
United States to regulate the chemical and thus opt-in to the new-
listing amendment. Hence, the POPs implementing legislation must 
provide adequate implementing authority for future, additional POPs 
listings.
    The most straightforward and reliable way to accomplish that would 
be for Congress to require EPA to regulate, or decide not to, within a 
specific time after the Conference listing decision. The statutory 
language pertaining to a decision not to regulate could be drafted in 
such a way as to respond to some of the questions raised in this Notes 
and Questions. For example, a decision not to regulate under Title V 
could be made because EPA had concluded that the chemical is not a POP 
as defined under the Convention or because EPA already had exercised 
sufficient regulatory authority under a different statute.
    Question 5 (Wiser): Doesn't paragraph 7a within Article 8's 
reference to considerations in Annex F apply to international guidance 
for control measures under the treaty, and therefore is part of the 
relevant guidance in the treaty for parties? In your proposed 
rulemaking standard, why did you ignore the proposed rulemaking 
standards in Annex F? Are you stating that any guidance from the 
international body should be mandatory as US regulations?
    Response: Stockholm Article 8.7(a) does articulate a standard by 
which the Convention's Persistent Organic Pollutants Review Committee 
(POPRC) shall determine whether a chemical is a POP and thus, global 
action is warranted; and the Convention does not specifically define a 
methodology by which parties will determine the control measures for a 
new POPs listing. 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. Neither Annex F nor the body of 
the Convention, however, specifically define how the items must be 
considered. Rather, Article 3 establishes the fundamental standard for 
POPs that are listed in the Convention: National control measures must 
be whatever ``legal and administrative measures [are] necessary to 
eliminate'' production, use, import, and export of the chemical.
    The Convention does not establish a fixed methodology for 
determining control measures. The negotiating parties recognized that, 
given the tremendous disparity of implications different POPs may have 
for health, environment, and global, national, and local economies 
(e.g., compare the respective uses and control measures for DDT with 
those for PCBs), it would not be realistic or desirable to try to 
devise a single, fixed methodology for determining what the control 
measures will be for every POP that may be added to the Convention, 
because a ``one size fits all'' methodology could very well prove 
inappropriate or unworkable for a future POP listing. Instead, the 
parties agreed to the broad guidance contained in Art. 8.9: ``The 
Conference of the Parties, taking due account of the recommendations of 
the [POPs Review] Committee, including any scientific uncertainty, 
shall decide, in a precautionary manner, whether to list the chemical, 
and specify its related control measures . . .''
    A Conference listing decision will establish requirements, not mere 
``guidance,'' for control measures. The guidance to the Conference of 
the Parties (COP) contained in Article 8.9 pertains to how the COP will 
render its decision on an additional POP. It should not be construed 
(as Question 5 erroneously does) to suggest that the COP decision will 
provide mere ``guidance from the international body'' on how a party 
may or may not control a listed POP. 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. 
This misunderstanding--that a new-listing amendment will contain only 
guidance about control measures, rather than the control measures 
themselves--may be why the June 17 Discussion Draft proposes a 
regulatory standard that would likely not provide EPA with sufficient 
authority to ensure that the United States could comply with a new 
listing decision under the Stockholm Convention if it decided to ``opt 
in'' with respect to one.
    Annex F outlines informational considerations; it does not contain 
a rulemaking standard. Confusion about the function of Annex F may be 
why the Chair seems to suggest or accept the argument that cost-benefit 
``balancing'' is required by the Convention, and why it believes that 
statutory authority allowing EPA to regulate 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 we note in the first paragraph of 
this response, 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, Question 5 errs when it suggests that Annex F contains 
``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.''
    The fundamental Convention standard for control measures is 
elimination. The core treaty terms of Article 3 establish the 
fundamental Convention 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.
    In very limited situations, the required control measure could be 
restriction. 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 especially 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 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.
    In conclusion, 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 is not a POP. 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.
    Question 7(a) (All witnesses): Please state whether the treaties 
directly regulate persons or rather rely on individual countries to 
choose the appropriate means of compliance. Please state whether any of 
the treaties have a specific regulatory standard for individual nations 
to follow.
    Response: The Stockholm Convention, like other multilateral 
environmental agreements of global scope, is an agreement among 
nations. It does not directly regulate persons.
    The Convention--again like most other multilateral environmental 
agreements--leaves the decision of how best to implement specific 
treaty obligations up to individual parties. However, as noted in my 
response to Question 5, Stockholm Article 3 requires every party to 
``Prohibit and/or take the legal and administrative measures necessary 
to eliminate'' its production, use, import, and export of POPs listed 
in Annex A; and to ``Restrict its production and use of the chemicals 
listed in Annex B in accordance with the provisions of that Annex.'' 
Thus, if the purpose for enacting TSCA POPs amendments includes 
facilitating U.S. acceptance and compliance with a Stockholm new-
listing amendment, then any regulatory standard in the bill must give 
EPA sufficient statutory authority to promulgate regulations that will 
ensure that the United States can comply with these requirements. A de 
novo cost-benefit balancing standard will not accomplish that.
    Question 7(c) (All witnesses): Do you believe the above 
Administration principles are prohibited by or consistent with the 
treaties? If you believe them to be prohibited, please point to 
specific language prohibiting such consideration.
    Response: Because the second quoted ``Administration principle'' is 
simply an elaboration of part of the first principle, this comment will 
refer only to the first quoted principle.
    The Administration's principle states, in part, ``the United States 
should compare the international decision to measures that are more and 
less stringent, thereby facilitating a risk-management decision as to 
which measure(s) provide(s) the most reasonable balance of benefits, 
risks and costs for specific uses.''
    This principle is neither prohibited nor consistent with the 
Stockholm Convention. One cannot say it is consistent, because the 
Convention contains no requirement (or even suggestion) that the POPRC 
or Conference will base their decisions on cost-benefit balancing. The 
principle simply adds an idea that is not present in the Convention.
    Yet one cannot say that the Convention prohibits the principle, 
because the principle relates to domestic regulatory decisions about 
adding chemicals to the Convention. The principle necessarily 
contemplates making it impossible for the United States to comply with, 
and thus adopt, a new-listing amendment, because it would require EPA 
to consider regulatory measures that would be less stringent than those 
permitted under the amendment, and to chose the less stringent measures 
if they could be shown to provide a more ``reasonable'' result under 
the principle's cost-benefit balancing. However, because the Convention 
does not require parties to adopt new-listing amendments, a principle 
that could have the effect of preventing the United States from opting 
in to such an amendment would not contravene any legally binding 
obligation under the Convention.
    By comparison, the principle would be prohibited under the 
Convention if it were applied to any of the chemicals presently listed 
in Annexes A or B, because all parties must agree to abide by the 
control measures contained in those annexes. Implementing control 
measures that were less strict--as envisioned under the principle--
would violate that core treaty requirement.
    Question 9 (all witnesses): Would it not be useful to use a current 
regulatory authority if it would provide for more cohesive U.S. law? 
Also are there not circumstances where existing law may be sufficient 
and no new regulation required?
    Response: We agree that it would make sense for EPA to use current 
regulatory authority or existing law to deal with an additional POP 
under the Stockholm Convention whenever such authority or law were 
sufficient to ensure U.S. compliance with the new-listing amendment. 
That may well be the case for a POP added to Annex C, especially when 
unintentional production of the POP is caused by combustion and the 
release is to the air, and the Clean Air Act thus applies. The same may 
be said for measures related to releases of POPs listed in Annexes A, 
B, or C from stockpiles and wastes (where RCRA and CERCLA might apply). 
For POPs pesticides, EPA would presumably regulate under authority 
derived from amendments to FIFRA, which should be a discrete part of 
any POPs implementation bill that Congress adopts.
    However, for industrial chemicals that have been added to Annex A 
(and whose production, use, import, and export have thus been 
prohibited), the only relevant statutory authority that is presently 
available to EPA is TSCA  6(a). After EPA's proposed asbestos rule was 
overturned in the Corrosion Proof Fittings case, 947 F.2d 1201 (5th 
Cir. 1991), commentators generally concluded that the ``least 
burdensome means'' balancing test in  6(a) does not give EPA effective 
authority to ban the production and use of industrial 
chemicals.1
---------------------------------------------------------------------------
    \1\ See, e.g., Testimony of Lisa Heinzerling, POPs, PIC, and LRTAP: 
The Role of the U.S. in Draft Legislation to Implement These 
International Conventions: Hearing Before the Subcomm. on Environment 
and Hazardous Materials of the House Comm. on Energy and Commerce, 
108th Cong., at 2-11 (July 23, 2004).
---------------------------------------------------------------------------
    Indeed, EPA has never finalized regulations for any other chemical 
under  6(a) since Corrosion Proof Fittings. Thus, it would be 
unreasonable to presume that EPA could successfully implement a 
Stockholm Annex A amendment for an industrial chemical through its  
6(a) authority.
    Question 11 (All witnesses): Are there concerns over any 
anticipated use of all of these treaty exemptions, including the 
broader exceptions? . . . Is the concern limited to the country-
specific exemptions?
    Response: The concern expressed in my testimony referred to the 
country-specific exemptions.
    Question 12 (EPA): Do you have examples where the provisions of the 
Safe Drinking Water Act risk language or the science provisions of 
Executive Order 12866 adversely and inappropriately paralyzed the 
rulemaking procedure? If so, please provide specific examples.
    Response: The introductory comments to Question 12 assert that the 
``sound science'' language in the June 17 Discussion Draft is justified 
because the Safe Drinking Water Act Amendments of 1996 ``were passed 
with broad bipartisan support and have worked very well,'' and because 
Executive Order 12866 is still in effect.
    The environmental and health community objects to the presence of 
the ``sound science'' language in the Draft because it is superfluous 
and because it will provide entities that have a vested interest in 
continued production and use of POPs with an inappropriate litigation 
tool, which they may use to intimidate EPA in the rulemaking process.
    The language is unnecessary because, as the comment notes, 
Executive Order 12866 already requires EPA to base its decisions on the 
best reasonably obtainable scientific information. Thus, it is not 
apparent how the additional ``sound science'' language in the 
Discussion Draft could improve the quality of EPA's decision-making.
    A key difference between Executive Order 12866 and the Discussion 
Draft's language, however, is that private entities cannot base a 
judicial cause of action on an executive order. Under either the 
Administrative Procedure Act's arbitrary and capricious standard or 
TSCA's substantial evidence standard, agency rules that are not 
grounded in careful scientific analysis may be struck down by the 
courts. Thus, regulated entities will be fully protected under the TSCA 
POPs amendments from any potential misuse of science by EPA--without 
the Discussion Draft's ``sound science'' language.
    Because the language is unnecessary, we conclude that its 
underlying purpose is to 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 desire to initiate a POPs-related rulemaking. As 
we noted in our answer to Question 3 above, Congress can effectively 
prevent the Executive Branch from exercising its treaty making powers 
by failing to give EPA adequate authority to ban or restrict a newly 
listed POP. Congress can also accomplish that by expanding the 
opportunity for individuals to sue EPA over its implementing 
regulations. Because we do not believe that U.S. participation in the 
Stockholm Convention should so easily be held hostage to the interests 
of private entities that produce or use POPs, we believe it is 
inappropriate for superfluous and potentially pernicious ``sound 
science'' provisions to be included in this bill.
    As to whether the sound science provisions of the 1996 Safe 
Drinking Water Act Amendments have stifled rulemaking or ``worked very 
well,'' we point out that the only substance EPA has regulated under 
the Amendments is arsenic, which it was specifically required to do.
                                 ______
                                 
                 Bloomberg School of Public Health,
                                   Johns Hopkins University
                                                 September 14, 2004
Paul E. Gillmor, Chairman
Subcommittee on Environment and Hazardous Materials
Washington, DC 20515-6115

Re: Notes and Questions, July 13, 2004 Hearing on POPs, PIC, and LRTAP: 
        The Role of the U.S. and Draft Legislation to Implement These 
        International Conventions

    Dear Chairman Gillmor: Thank you for your letter of August 31, 2004 
requesting my responses to your notes and questions arising from the 
testimony that was given at the July 13 Subcommittee hearing on POPs, 
PIC and LRTAP. I am pleased to provide my views on these issues. I have 
addressed the issues raised in each section of the letter as well as 
your questions, many of which were not specifically directed to me.
Draft Provisions to Fill the Gaps for U.S. Compliance with Treaty 
        Obligations for Currently Listed Chemicals
    The ability to consider additional chemicals is a critical part of 
the POPs treaty. It would be a mistake to think that the United States 
will truly ``sit at the upcoming meetings as full partner'' based on 
implementing legislation that does not include a mechanism for adding 
future POPs. The international community will be looking for evidence 
that the United States intends to comply with the entire treaty, not 
just the control measures for the initial twelve POPs, which we have 
largely undertaken already. If the U.S. is to have credibility as a 
Party to the Stockholm Convention, Congress should enact enabling 
legislation that contains an adding mechanism.
Federal-State Provision
    If it is the intention of the Committee to maintain the existing 
Federal-state relationship with respect to currently listed chemicals 
under TSCA, then this needs to be clarified as suggested in the Notes. 
I, too, was concerned that the language was ambiguous and could be 
interpreted to limit the ability of states to regulate substances more 
stringently than the federal government. Ultimately, it is my opinion 
that TSCA needs to be reformed to allow more state involvement and to 
grant states broad authority (without prior EPA approval) to regulate 
chemicals more stringently than the federal government.
The Relationship of PCB Provision to Existing TSCA 6(e)
    Evidently it was not the intention of the draft legislation to 
alter TSCA 6(e). I concur that if that is the case, it should be 
clarified in the draft legislation.
Compliance with the Prior Informed Consent (PIC) Procedure for Certain 
        Hazardous Chemicals and Pesticides in International Trade
    If the U.S. EPA and State Department indicate in their responses to 
Question 1 that there is already a procedure under which the U.S. 
government may notify the international authority that the U.S. does 
not wish a particular PIC listed chemical to be imported into the U.S., 
then the Subcommittee may wish to ask them to clarify under which 
authority the U.S. would take this action.
Provisions Concerning the United States Process for Opting into the 
        Treaty for Additional Chemicals
    Question 2: Please comment on this point. Does the draft restrict 
the U.S. ability to opt-in based on the rulemaking standard in 502(e)?
    Throughout this letter there is reference to the fact that ``the 
decision to opt-in and the manner in which the U.S. chooses to regulate 
are two different occurrences.'' I would agree. However, in the case of 
rule-making, the language in 502(e) would nearly assure that no 
regulatory action is taken even when the U.S. decides to opt-in (or 
declines to opt-out).
Requirements on the Executive Branch Related to Opting-In
    Question 3: What if the Executive Branch responded that they are 
not ready to support opting in at this time but might within 6 months? 
Would this be an impermissible answer under your proposal? If not 
permissible, what is the sanction that would apply and how would it be 
enforced? If permissible, is there much of a difference between your 
proposal and simple deference to the executive branch?
    Question 4: Do you believe a court should be able to compel the 
Executive Branch to opt in on behalf of the United States for any given 
chemical through enforcement of a statutory standard? If so, what 
should the standard be?
    Although these questions were not directed to me, I would like to 
address one point, with regards to the issue of a deadline for action. 
As the notes correctly indicate, the decision to opt-in (or to opt-out) 
and subsequent risk management decisions are two different issues.
    However, in my testimony, and I believe in some of the other 
testimony that you heard, the suggestion for a deadline had to do with 
the subsequent risk management action for the POPs. The risk management 
provisions of TSCA are at this point in time an exercise in futility 
and will not serve the nation well in assuring protection from POPs. 
However, ratification of the POPs convention is an opportunity to 
establish a clear set of expectations that the EPA will take action to 
manage risks for chemicals that have been added to the POPs convention. 
Little to no risk management occurs under TSCA Section 6. One tool that 
Congress can use to establish clear expectations of action by the EPA 
is a statutory deadline. As you imply in your notes, statutory 
deadlines are indeed enforced by the Courts. That is what provides the 
incentive for EPA to take an action. From my experience at the EPA, 
while the Executive Branch dislikes (and usually opposes) statutory 
deadlines, it has a great deal of respect for them because they very 
clearly convey the intention of Congress. What is the alternative? One 
could undertake a more thorough-going reform of TSCA, to ``fix'' TSCA 
Section 6 which has not proven effective at all, for the reasons that I 
already laid out in my testimony. I think that such a major overhaul of 
TSCA is long overdue, however, I suspect that the Subcommittee would 
prefer to make only the corrections that are necessary to assure that 
the U.S. can be in compliance with the treaties.
Listing Decisions versus U.S. Determination of Protective Measures
    Question 5: Doesn't paragraph 7a within Article 8's reference to 
considerations in Annex F apply to international guidance for control 
measures under the treaty, and therefore is part of the relevant 
guidance in the treaty for parties? In your proposed rulemaking 
standard, why did you ignore the proposed rulemaking standards in Annex 
F? Are you stating that any guidance from the international body should 
be mandatory as US regulations?
    Question 6: Does Annex F apply to international guidance for 
control measures under the treaty? Do you believe that any guidance 
from the international body should be mandatory as US regulation?
    It is my sense that the POPs convention contains provisions related 
both to risk assessment and risk management for POPs. As stated in 
Article 8.9: ``The Conference of the Parties, taking due account of the 
recommendations of the Committee, including any scientific uncertainty, 
shall decide, in a precautionary manner, whether to list the chemical, 
and specify its related control measures . . .'' In terms of risk 
assessment, the language in Article 8.7(a) does clearly articulate a 
standard by which the Convention's Persistent Organic Pollutants Review 
Committee (POPRC) shall determine whether a chemical is a POP and thus, 
global action is warranted. It is important to note that this decision 
to list is solely based on attributes of the substance related to its 
persistence and toxicity and does not include any considerations of 
economics and so forth. Were the U.S. government to adopt a different 
standard for such a determination (as I believe is proposed in the 
Draft Legislation) then the U.S. would not be in compliance with the 
treaty.
    In terms of risk management, the Convention also provides a list of 
issues (Annex F) that are to be considered by the Parties in 
determining the control measures to be specified for a newly listed 
POP. While the goal of the Convention is the elimination of POPs, the 
Convention recognizes that this is not always immediately achievable. 
For the initial 12 listed POPs, the Convention provides a public health 
exception for DDT use in malaria control and a reduction (rather than 
an elimination) strategy for certain POPs (dioxins and furans) that are 
produced inadvertently. In this way, Annex F allows the Parties to 
consider economic and other factors in making risk management decision. 
However, it is important to note that while Annex F lists a number of 
factors that should be considered, it does not require formal cost 
benefit analysis, or any other specific risk analysis tool be employed 
in that process.
    In terms of your question 6, as agreed to in negotiations, nations 
will employ any ``legal and administrative measures [are] necessary to 
eliminate'' production, use, import, and export of the chemical. This 
means that the treaty would indeed bind the U.S. to take specific 
regulatory action to be in compliance with the decisions by the 
Conference of Parties for the initial set of POPs. However, the U.S. 
would do so under its own laws, utilizing the measures that are most 
appropriate in the U.S. The convention does not dictate these measures. 
In no way is the list in Annex F, or any other provision of the POPs 
accord, intended to create any ``rulemaking standards'' for the Parties 
to the Convention.
Costs and Benefits under the Treaties
    Question 7: Please state whether the treaties directly regulate 
persons or rather rely on individual countries to choose the 
appropriate means of compliance. Please state whether any of the 
treaties have a specific regulatory standard for individual nations to 
follow.
    Please explain how the two principles cited above are consistent 
with, or allowed under the treaties.
    Do you believe the above Administration principles are prohibited 
by or consistent with the treaties? If you believe them to be 
prohibited, please point to specific language prohibiting such 
consideration.
    It is my understanding that the treaties rely on individual Parties 
(countries) to choose the appropriate means of compliance. The 
Stockholm Convention does include very specific actions that nations 
must take to be in compliance with the agreement, such as, elimination 
of production, use, import, and export of certain chemicals. Should the 
U.S. opt-in (or decline to opt-out) to amendments adding future POPs, 
EPA will need regulatory authority to take action with regard to these 
chemicals. This is why I urge you to bring forward a bill that would 
give EPA sufficient statutory authority to promulgate regulations that 
will ensure that the United States can comply with these requirements. 
A de novo cost-benefit balancing standard will not accomplish that.
    The Administration states that, ``the United States should compare 
the international decision to measures that are more and less 
stringent, thereby facilitating a risk-management decision as to which 
measure(s) provide(s) the most reasonable balance of benefits, risks 
and costs for specific uses.'' It goes on to state that ``In weighing 
benefits, risks and costs, the United States should consider domestic 
production, export and use of the chemical, and any national and 
international consequences that are likely to arise as a result of 
domestic regulatory action, including consequences that cannot be 
quantified and including consideration of the possible consequences of 
using substitute chemicals.''
    The Administration's principles are not consistent with the 
Stockholm Convention because of the clear implication that the United 
States will go its own way, regardless of international decisions in 
which the U.S. has participated, and based on a risk/benefit balancing 
process that is not included in the Convention. These principles also 
would require the EPA, in each case, to consider regulatory measures 
that would be less stringent than those specified in the Convention 
amendment, including no control measures at all. While these procedures 
would not be prohibited for new listings, they certainly are not 
consistent and would weaken the U.S. participation in the Convention.
Discretion to Regulate
    Question 8: Missing
    Question 9: Would it not be useful to use a current regulatory 
authority if it would provide for more cohesive U.S. law? Also are 
there not circumstances where existing law may be sufficient and no new 
regulation required?
    I agree that it makes sense for EPA to use current regulatory 
authority or existing law to deal with an additional POPs under the 
Stockholm Convention whenever such authorities would be sufficient. As 
you state, there may be cases where the authority under the Resource 
Conservation and Recovery Act or the Federal Insecticide Fungicide and 
Rodenticide Act may be more appropriate. Certainly FIFRA may in many 
cases provide adequate authority for the regulation of POPs pesticides 
and RCRA for POPs in waste disposal. TSCA is the weakest link in the 
chain and may need to be invoked in a number of circumstances. The most 
obvious is for industrial chemicals added to Annex A. Another example 
is POPs that are formed inadvertently in the production of other 
chemicals, e.g., the incidental production of dioxins and furans in the 
manufacture of other chemicals. In these cases the only statute that 
provides EPA with regulatory authority is TSCA  6(a). Ever since the 
1991 asbestos decision by the 5th Circuit Court (Corrosion Proof 
Fittings) EPA has had to meet the ``least burdensome means'' test, 
which has in turn led to no new risk management decisions under TSCA. 
This is the area in which existing law is completely insufficient. 
While a broader reform of TSCA is what is really needed, Congress 
should now act to grant EPA the authority to regulate new chemicals 
that are added to the Stockholm Convention over time, and to create an 
expectation that EPA will do so in most cases.
Alleged Duplication of International Body Decision
    I would agree that ``the decision to list a chemical or even to set 
out guidance on control measures is not the same as the promulgation of 
a U.S. regulation.'' However, I cannot support legislation that uses 
this idea as a justification for creating an elaborate process that 
would not add value and instead would make it more difficult for the 
EPA to take action to protect the public health and environment from 
POPs chemicals.
Relationship of Proposed New Regulatory Authority to Existing 
        Regulatory Authority
    Question 10: Do you read the Gillmor draft as requiring compliance 
with the provisions of TSCA section 6(a)? If not, please outline the 
items of TSCA section 6 that you would not need to address under the 
Gillmor draft regulatory authority under the proposed section 503(e). 
Please also compare this language to FIFRA section 2, Definition (bb) 
and Section 6 (b) (2).
    In my view, the Subcommittee isn't asking the right questions. More 
relevant questions are: Would the proposed section 503(e) provide EPA 
with the tools that it needs to protect the U.S. as well as the global 
environment and public health from POPs chemicals under the POPs 
convention? Or, rather, will the language promote regulatory paralysis, 
litigation, and delay, thus depriving U.S. citizens of protection from 
POPs and undermining U.S. participation in this important global public 
health treaty?
Protection Standards versus Means and Measures
    I would agree that there is a clear distinction between a legal 
standard for protection of human health and the environment and the 
means for achieving such a standard. Given that POPs are persistent, 
many of their effects on health and the environment are difficult if 
not impossible to reverse for years and years, and thus require very 
stringent risk management procedures. POPs are a special class of 
chemicals that deserve a health-based, precautionary approach to risk 
management. Indeed, this is the reason that nations negotiated a treaty 
to phase out the manufacture, use, import, and export of this entire 
class of chemicals. The problem with language such as ``means of 
protection that reasonably balance costs and benefits'' is that the 
calculation of such costs and benefits is likely to be driven by short-
term, easily quantifiable considerations, thus leaving future 
generations with the burdens of disease, environmental devastation, and 
clean-up that are likely to result from such ``balancing''.
Exemptions
    Question 11: Are there concerns over any anticipated use of all of 
these treaty exemptions, including the broader exceptions? Do you 
envision the US overriding the broader exemptions 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? If so under what situations? Or the concern 
limited to the country-specific exemptions?
    In my testimony, I was referring to country-specific exemptions. I 
believe that this is another area in which the draft legislation needs 
clarification, because I still do read it to state that the United 
States must take advantage of each country-specific exemption available 
to every single country, and not just those which the U.S. reasonably 
needs, requests, and receives. This is inappropriate and would 
undermine U.S. leadership in this area. If it is not the intent of the 
draft legislation then it needs to be modified.
    In terms of the general exemptions, in my opinion the U.S. would 
need exemptions in areas such as for laboratory-scale research (for 
example, research to quantify the amounts of POPs in the environment 
and toxicology research). The other cases you give (possession of small 
amounts of the material and trace quantities in products) are difficult 
to address as a general matter since the circumstances could involve 
varying levels of risk. The US should be able to make decisions in 
these areas based on providing an adequate level of protection to 
health and the environment; Congress should not require that every 
general exception would be adopted by the U.S. government.
Sound and Objective Science
    Question 12: Do you have examples where the provisions of the Safe 
Drinking Water Act risk language or the science provisions of Executive 
Order 12866 adversely and inappropriately paralyzed the rulemaking 
procedure? If so, please provide specific examples.
    You have justified the use of the term ``sound and objective 
scientific practices'' by pointing to similar language in the Safe 
Drinking Water Act and language elsewhere that is not similar. It is 
not correct that the language in EO 12866 and in the President's 
Commission on Risk Assessment and Risk Management Report embraces the 
ridiculous dichotomy between ``sound'' and ``unsound'' science. Only 
the Safe Drinking Water Act includes this term. In considering whether 
this language has been useful in SDWA, you might want to ask the EPA to 
list every public health protective action it has taken under the SDWA 
using this language over the last eight years. For example, when will 
the EPA adopt a Maximum Contaminant Level (MCL) for MTBE or for 
perchlorate? I would argue that to date, this provision of the SDWA has 
not been particularly effective, and therefore does not stand as a 
model for future legislation, especially for chemicals as dangerous as 
POPs.
    What is broken, that the Draft Legislation is trying to fix? 
Indeed, what is wrong with the very workable language in EO 12866 that 
already requires ``best reasonably obtainable scientific, technical, or 
other information''? Legislative language with regards to ``sound 
science'' will not add value to the regulatory process, but it is 
likely to add to costs of transaction time, litigation, and delay. It 
should be opposed, even it is well-intentioned. However, generally the 
support for such provisions is from members of the regulated industry 
(and their expert consultants), who would be the sole beneficiaries of 
additional opportunities for litigation and delay.
    In closing, I would hope that you have seriously considered the 
points that I have raised in response to your letter. Phasing out 
emissions of POPs to the environment is an important public health and 
environmental goal. The United States has an opportunity to play a key 
role in this process as a Party to the Stockholm Convention. I hope 
that, at the end of the day, Congress enacts legislation that will 
allow the U.S. to fully participate in all aspects of the Convention, 
including the ability to regulate newly added POPs chemicals.
            Very truly yours,
                              Lynn R. Goldman, M.D., M.P.H.
                           Professor, Environmental Health Sciences
                                 ______
                                 
                           Georgetown University Law Center
                                                 September 14, 2004
Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Washington, DC 20515-6115

Re: ``Notes and Questions from July 13, 2004 Hearing on POPs, PIC, and 
        LRTAP: The Role of the U.S. and Draft Legislation to Implement 
        These International Conventions''
    Dear Chairman Gillmor: I am happy to respond to your additional 
questions relating to my testimony at the July 13 Subcommittee hearing 
on POPs. In addition to answering the specific questions directed at me 
(these are the questions you have addressed to ``all witnesses''), I 
wish to note that I hold general views consistent with those expressed 
in the letters from Lynn Goldman, Glenn Wiser, and Brooks Yeager.
1. Question 7:
    Please state whether the treaties directly regulate persons or 
rather rely on individual countries to choose the appropriate means of 
compliance. Please state whether any of the treaties have a specific 
regulatory standard for nations to follow.
    I did not testify on matters related to these questions, but I will 
say that I agree with the views expressed in the letters from Lynn 
Goldman, Glenn Wiser, and Brooks Yeager.Do you believe the 
Administration principles are prohibited by or consistent with the 
treaties? If you believe them to be prohibited, please point to 
specific language prohibiting such considerations.
    Again, I did not testify on matters related to this question, but I 
will note again that I am in agreement with the responses submitted by 
the witnesses I have just mentioned.
2. Question 9:
    Would it not be useful to use a current regulatory authority if it 
would provide for more cohesive U.S. law? Also are there not 
circumstances where existing law may be sufficient and no new 
regulation required?
    It would be useful to use a current regulatory authority if it 
would provide for more cohesive and adequate U.S. law on POPs. As I 
testified at the hearing in July, however, certain aspects of current 
U.S. law--in particular, section 6(a) of the Toxic Substances Control 
Act--have proved inadequate for regulating POPs, and therefore it would 
not be advisable to rely on the kind of regulatory framework embodied 
in this statute for regulating POPs.
3. Question 11:
    Are there concerns over any anticipated use of all of these treaty 
exemptions, including the broader exceptions? Do you envision the US 
overriding the broader exemptions 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? 
If so under what situations? Or is the concern limited to country-
specific exemptions?
    I did not testify on this issue, and thus I cannot attest to the 
nature of the concerns noted in this question.
    Thank you for the opportunity to address these questions.
            Sincerely,
                                           Lisa Heinzerling
                                                   Professor of Law
                                 ______
                                 
                       Utility Solid Waste Activities Group
                                                 September 10, 2004
Honorable Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
U.S. House of Representatives
Committee on Energy and Commerce
Washington, DC 20515-6115

Re: Response To Follow-Up Commentary and Questions from July 13, 2004 
        Subcommittee Hearing on Implementing Legislation for POPS, PIC, 
        and LRTAP Treaties

    Dear Representative Gillmor: The Utility Solid Waste Activities 
Group and the Edison Electric Institute (collectively ``USWAG'') are 
pleased to respond to the Subcommittee's additional commentary and 
questions regarding implementation of the POPs, PIC and LRTAP treaties 
(collectively ``Treaties''). As an initial matter, USWAG would like to 
reiterate its support for the House Discussion Draft (dated June 17, 
2004), as it represents a sound statutory framework for the United 
States to promptly implement its obligations under the above Treaties. 
It is important for the United States to enact implementing legislation 
as soon as possible to enable the United States to continue to play a 
leading role regarding the strategic implementation of the Treaties and 
to participate as a member of the Conference of the Parties (``COP'') 
at the upcoming May 2005 COP-1.
1. Federal-State Provision
    USWAG agrees with the Subcommittee's explanation of the Discussion 
Draft's provision regarding the relationship of federal-state laws 
regulating POP chemicals. It is important that implementing legislation 
provide a uniform and level-playing field across the country with 
respect to the regulation of POP chemicals, while preserving the 
ability of individual states to regulate POP chemicals more stringently 
in certain circumstances. The House Discussion Draft establishes this 
statutory framework, while preserving the ability of individual states 
to seek approval from EPA to regulate POP chemicals more stringently on 
a case-by-case basis pursuant to the procedures set forth in section 
18(b) of TSCA.
2. The Relationship of PCB Provision to Existing TSCA 6(e)
    USWAG agrees with the Subcommittee that nothing in the Discussion 
Draft precludes or in anyway alters EPA's existing statutory 
authorities to regulate POP chemicals, including PCBs. The conditions 
set forth in the Discussion Draft for issuing or amending rules 
applicable to PCBs are applicable only in the context of EPA taking 
action for purposes of complying with the POPs Convention. This is a 
narrow and discrete provision and in no way alters EPA's existing 
authority under TSCA section 6(e) to regulate PCBs or to otherwise 
amend the existing PCB regulations promulgated under TSCA section 6(e).
3. Provisions Concerning the United States Process for Opting into the 
        Treaty for Additional Chemicals
    USWAG agrees with the Subcommittee's interpretation that the 
Treaties themselves do not articulate or mandate any legal process or 
procedural mechanism to which the Parties must adhere for purposes of 
implementing their respective treaty obligations. Indeed, Article 7 of 
the POPs treaty directs the Parties to develop a plan for the 
implementation of the Party's respective treaty obligations. This makes 
clear that the POPs treaty contemplates individual Parties devising and 
implementing their own procedures for fulfilling their respective 
treaty obligations. Whether and how any particular country will respond 
to the listing of a new chemical or otherwise implement its Treaties 
obligations must remain within the sovereign jurisdiction of the 
participating country.
    USWAG also agrees that nothing in the Discussion Draft ties the 
decision to ``opt-in'' to a decision to establish domestic regulations 
for a newly listed POP. As the Subcommittee correctly points out, the 
United States may determine to opt-in with respect to a newly listed 
POP and then determine that there is no need to develop additional 
regulatory controls because existing, domestic regulations already 
allow the United States to meet its Treaty obligations with respect to 
the POP.
4. Requirements on the Executive Branch Related to Opting-In
    USWAG agrees that the decision of the United States whether or not 
to ``Opt-In'' should lie exclusively with the Executive Branch and 
should not be judicially reviewable. As a practical matter, the 
decision whether or not to agree to be bound by a decision of the COP 
is effectively a decision by the United States to agree to a new 
international treaty. Such decisions have historically resided within 
the domain of the Executive Branch and nothing in the Treaties warrants 
a departure from this precedent or warrants allowing the judicial 
branch to reverse the Executive Branch decision-making process with 
respect to whether to become a party to an international treaty.
    USWAG also is extremely wary of legislation establishing a 
statutory timeframe by which the Executive Branch must decide whether 
to agree to a listing decision. Whether to opt-in with respect to any 
new listing decision will necessarily involve a host of unique factors 
for the Executive Branch to consider--some of which will require more 
evaluation, deliberation and study than others. Therefore, USWAG 
believes it is unwise to prejudge--through imposition of a statutory 
deadline--the length of time that the Executive Branch will need to 
evaluate and render a decision regarding whether to opt-in with respect 
to any future POP chemical. Such arbitrary deadlines can be the source 
of mischievous ``statutory deadline'' lawsuits that often produce 
results wholly unrelated to the underlying statutory deadline.
5. Whether the Treaties Address Individual Persons or Countries
    As USWAG made clear in its testimony, there is little debate that 
the Treaties constitute commitments between nations to take certain 
actions and do not, in and of themselves, directly regulate individuals 
with those nations. The Treaties contemplate the individual 
participating countries selecting the appropriate means, through their 
respective implementing legislation, to set forth (as necessary) 
regulations to ensure that the participating country can meet its 
Treaty obligations. In the case of the United States, the purpose of 
the enabling legislation is to allow Congress to exercise its authority 
to establish how the U.S., though its domestic laws, will meet the 
international obligations of the U.S. as a Party to the Treaties. 
Citizens then comply with U.S. law established by Congress, as 
implemented by the Executive Branch and interpreted by the Judiciary. 
USWAG does not believe that the Treaties, in and of themselves, set 
forth ``specific regulatory standard[s] for individual nations to 
follow,'' but rather set forth objectives that participating countries 
must ensure compliance with through their own implementing legislation.
6. Whether the Administration's Principles Are Prohibited by or 
        Consistent With the Treaties
    The Subcommittee points to certain of the Administration's 
principles set forth in its written testimony for implementing the 
Treaties--including risk-management and risk/cost issues--and asks 
whether these principles are inconsistent with or prohibited by the 
Treaties. These principles are neither prohibited by nor inconsistent 
with the Treaties. There is nothing in the Treaties that speak to what 
mechanism and/or procedures a Party should adhere to in deciding 
whether and how to control a POP. Put simply, the Parties are free to 
opt-in using their own internal criteria. Therefore, the 
Administration's principles, as outlined in its written testimony, are 
neither prohibited nor inconsistent with the Treaties.
7. Discretion to Regulate
    As noted above, there is no mandatory requirement for EPA (or any 
other federal agency) to promulgate new regulations following a 
decision by the United States to opt-in with respect to a newly listed 
POP. As the Subcommittee correctly points out, the United States may 
already have in place adequate regulatory controls to fulfill its 
Treaty obligations with respect to the newly listed chemical. Indeed, 
this is the case with many of the existing POPs, such as PCBs, where 
EPA is effectively agreeing to opt-in with respect to these chemicals 
(i.e., by becoming a Party to the Treaty), but at the same time 
recognizing that existing domestic regulations already fulfill most of 
the United State's Treaty obligations with respect to these chemicals. 
The bottom line is that EPA should only be promulgating additional 
regulations to fill regulatory gaps--i.e., differences between existing 
domestic regulations and our obligations under the Treaties. The Agency 
must be afforded the discretion to make these decisions, as opposed to 
being required to promulgate new regulations simply as a result of an 
opt-in decision.
8. Exemptions
    USWAG agrees with the Committee that there is nothing in the 
Discussion Draft compelling the United States to avail itself of any/or 
all exemptions. Therefore, there is no need for any further 
clarification on this point.
    USWAG appreciates the opportunity to respond to the Subcommittee's 
follow-up commentary and looks forward to continuing to working with 
the Subcommittee to enact implementing legislation as soon as possible.
            Very truly yours,
                                                    James R. Roewer
                                 ______
                                 
   Response for the Record by Steven Goldberg on Behalf of Croplife 
                                America
    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 draft 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 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.
QUESTION 7
    All witnesses: Please state whether the treaties directly regulate 
persons or rather rely on individual countries to choose the 
appropriate means of compliance. Please state whether any of the 
treaties have a specific regulatory standard for individual nations to 
follow.
    The treaties are clearly binding to ``Parties,'' meaning governing 
bodies, and not persons. The treaties on their faces indicate that 
measures to reduce or eliminate POPs chemical releases are to be 
determined and undertaken by said Parties. National governments are 
responsible for implementing control measures--consistent with each 
country's sovereign right to execute domestic environmental policies--
to meet their obligations under the Conventions.
    It is not our belief that the treaties establish a specific 
regulatory standard for individual nations to follow. The Treaties 
merely require that Parties be bound to implement bans or restrictions 
on the production or use of listed chemicals imposed by the 
Conventions. It is up to each of the country's specific regulatory 
scheme to accomplish those objectives.
    However, in the context of U.S. laws and regulations, risk-cost/
benefit standards are solidly established measures governing pesticide 
production and use. Specifically under FIFRA, the EPA is required to 
conduct a cost-benefit analysis when determining whether or not to 
register a pesticide. The treaties do not prohibit this approach; in 
fact, it is entirely consistent with the approach of the Stockholm 
Convention. Under the Convention, cost/benefit information must be 
taken into account in all decisions to list new POPs chemicals. The 
Administration has embraced these principles as sound measures for all 
chemical regulation. Risk and cost benefit considerations are 
consistent with the spirit of the treaties, and Chairman Gillmor's 
draft legislation supports this approach.
QUESTION 9
    Would it not be useful to use a current regulatory authority if it 
would provide for more cohesive U.S. law? Also, are there not 
circumstances where existing law may be sufficient and no new 
regulation required?
    From a pesticide policy perspective, the existing statutory 
authority and regulatory framework under FIFRA is the most useful and 
effective means for regulating all current pesticides, as well as 
pesticides potentially identified as POPs in the future. Any laws or 
regulations intended to affect pesticide use/production in the U.S. 
outside the FIFRA framework will threaten the cohesiveness of U.S. 
pesticide laws and regulations, causing confusion to registrants and 
users alike. Considering that nine of the twelve chemicals under the 
Stockholm Convention are pesticides which have already been banned 
under FIFRA, this statute as it stands is clearly sufficient for the 
domestic regulation of pesticides, consistent with POPs international 
agreements.
QUESTION 11
    Are there any concerns over any anticipated use of all of these 
treaty exemptions, including the broader exceptions? Do you envision 
the U.S. overriding the broader exemptions 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? If so, under what situations? Or is the concern limited to 
the country-specific exemptions?
    The exemptions provided in the Treaties are clear and sound. Any 
anticipated use of such exemptions should be the result of thorough 
consideration, analysis and vetting through each country's domestic 
regulatory process and decision-making at the international level.
                                 ______
                                 
   U.S. Environmental Protection Agency and U.S. Department of State 
  Responses to Questions from the Honorable Paul E. Gillmor, Chairman
Provisions to Fill the Gaps for U.S. Compliance with Treaty Obligations 
        for Currently Listed Chemicals
    One can divide the proposed implementing draft into discrete 
functions. The first function is implementation of the treaties' 
various obligations. The Gillmor draft seeks to fulfill U.S. compliance 
obligations with respect to the Aarhus Protocol, and the Rotterdam and 
Stockholm Conventions regarding the currently listed, banned or 
severely restricted chemicals. U.S. law already assures a great deal of 
compliance with existing Convention and Protocol requirements. 
Accordingly, the Gillmor draft fills any remaining gaps in current law 
without requiring EPA to take additional regulatory steps. These 
provisions, along with ratification of the POPs and PIC treaties, would 
allow the United States to sit as full partners at the next set of 
international meetings.
    At the Subcommittee hearing on July 13, 2004, the State Department 
and the Environmental Protection Agency's testimony stated that the 
Gillmor draft accomplishes the objective of meeting our treaty 
obligations with respect to existing chemicals. The EPA stated: ``We 
believe that this draft bill would enable the United States to comply 
with the obligations in the POPs treaties to prohibit or restrict the 
production, use, import, export, or release of the substances covered 
by TSCA'' (Toxic Substances Control Act). The State Department also 
testified that, ``We believe that this proposal would accomplish this 
objective to provide the legal authority necessary for the United 
States to implement fully all of the Toxic Substances Control Act-
related obligations of the three agreements.'' Mike Walls, on behalf of 
the American Chemistry Council, stated: ``Mr. Gillmor's draft 
implementing legislation addresses all of the necessary changes to TSCA 
required to ensure that the United States can meet its obligations 
under the treaties.'' Also, Jim Rower, with the Utility Solid Waste 
Activities Group, stated the subcommittee discussion draft 
``establishes the appropriate statutory framework for implementing the 
United States Convention obligations.''
    The Subcommittee believes all other witnesses did not state any 
general disagreement on this point with respect to obligations for 
currently listed chemicals. Three potential exceptions are discussed 
below, concerning: (1) the federal-state provision, (2) the 
relationship of the Polychlorinated Biphenyls (PCB) provision, and (3) 
compliance with the PIC treaty. Therefore, as a general matter, based 
on the written testimony and witness discussion at the hearing, it 
appears we could have a broad agreement to pursue only the provisions 
of the discussion draft to fill the gaps for U.S. compliance with 
treaty obligations for currently listed chemicals, with minor 
modifications. This is significant because nothing in the treaties 
compel us to go further legislatively at this time. While many parties 
have previously expressed interest in an adding mechanism, nothing in 
the treaties compel the Subcommittee to set out a statutory process for 
U.S. consideration of additional chemicals or even new rulemaking 
authority. If the Subcommittee was to simply enact the provisions 
relating to current chemicals, and the Senate to ratify the POPs and 
PIC, the U.S. could sit at the upcoming meetings as full partners.
Federal-State Provision
    At the hearing, Representative Capps raised a concern over a 
provision setting out the relationship of language in the bill and 
state law. She has sought the Administration's interpretation. The 
provision contains modifications to section 18(a)(2) of TSCA and is 
located in the ``conforming amendments'' section of the draft.
    The Committee does not wish to alter the existing Federal-state 
relationship with respect to currently listed chemicals under TSCA. We 
note that while the discussion draft would amend TSCA Section 18(a)(2) 
to ensure that Federal and State laws are harmonized with our 
obligations under POPs and LRTAP POPs, the discussion draft does not 
amend TSCA section 18(b)--which provides the EPA Administrator with 
authority, in certain circumstances, to allow states (or political 
subdivisions) to regulate chemical substance or mixtures more 
stringently than the federal government. Therefore, under the 
discussion draft, a state maintains its ability to petition the EPA to 
regulate a POPs chemical substance or mixture more stringently than the 
federal government. In addition, the Gillmor discussion draft would 
preclude a state from acting less stringently than the Federal 
government.
The Relationship of PCB provision to existing TSCA 6(e)
    Mr. Yeager's testimony states:
          ``EPA could be prohibited from using its existing authority 
        under TSCA  6(e) to strengthen the regulation of PCBs, because 
        the Discussion Draft would allow EPA to do so only as 
        ``necessary for the United States to comply with its 
        obligations under the POPs Convention.''
    The Subcommittee believes Mr. Yeager's statement reflects a 
misunderstanding of the language of section 502(c). First, the 
provision does not apply at all where the rulemaking is for purposes 
other than compliance with provisions of the treaties. However, where 
the claim is that a change is necessary for compliance with the 
treaties for PCBs, such claim must be based on a finding that is in 
concurrence with the Secretary of State. This is the discussion draft's 
intent and can be clarified further by language or legislative history, 
if necessary.
Compliance with the Prior Informed Consent Procedure for Certain 
        Hazardous Chemicals (PIC) and Pesticides in International Trade
    Dr. Goldman stated in her written testimony:
          ``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. As obvious as this should 
        seem, at this point there seem to be no plans by the U.S. 
        government to put such a process in place.''
    The Subcommittee worked closely with the Administration to try to 
ensure the bill would fulfill obligations under PIC and believe the 
Administration's earlier statements concerning ``full compliance'' 
would apply to PIC as well. There is a discrepancy between witnesses on 
this point.
    Question 1. EPA and State Department: Please respond to Dr. 
Goldman's point. Does the draft need to be modified to bring U.S. law 
into compliance with the PIC treaty?
    EPA/State Response: The Administration believes that the Gillmor 
discussion draft gives us the authorities we need to meet the 
obligations of the PIC treaty. With respect to the particular provision 
Dr. Goldman points to, ``including notifying the international 
authority that the United States does not wish a particular PIC listed 
chemical to be imported into the United States,'' TSCA and FIFRA do not 
place any restrictions or requirements on the United States with 
respect to providing information related to our domestic laws to an 
international body. We do not envision the need for additional 
authorities to respond to the notification provision referred to by Dr. 
Goldman for PIC listed chemicals or pesticides.
Provisions Concerning the United States Process for Opting into the 
        Treaty for Additional Chemicals
    The second function of the discussion draft seeks to address the 
process by which the United States would add new chemical substances or 
mixtures to the lists of banned or severely restricted chemicals. At 
the hearing, many of the witnesses' interpretations on the procedures 
for newly listed chemicals in the discussion draft were varied. The 
following commentary and questions are meant to further elaborate and 
explore the procedures used in the discussion draft for both opting-in 
and the regulatory process for additional chemical substances or 
mixtures.
    The Subcommittee's interpretation is that the agreements themselves 
do not articulate the legal or procedural mechanisms by which each 
country takes steps to comply with the treaties. For example, nothing 
in the treaties require that any country spell out its process for 
considering whether it will opt-in for purposes of new chemicals under 
the Stockholm Convention. Nothing in the treaties requires that there 
be any rulemaking authority given to an Executive Branch agency. 
Nothing in the treaties require that there be a single rulemaking or 
other legal authority to address compliance with the treaty.
    Dr. Goldman, in her testimony, argues that the discussion draft 
would impose a new standard under which EPA would decide to ``opt-in'' 
for new chemicals. She appears to argue that, under the draft, such a 
decision could only be done ``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 Committee's reading is that the draft does not require this. The 
decision to opt-in and the manner in which the U.S. chooses to regulate 
are two different occurrences. Section 502(e) is new rulemaking 
authority. It does not set standards for the decision to opt-in or not. 
It may, in fact, be that the U.S. already has rules in place and need 
not pursue any rulemaking following a decision to opt-in.
    Question 2. EPA and State Department: Please comment on this point. 
Does the draft restrict the U.S. ability to opt-in based on the 
rulemaking standard in 502(e)?
    EPA/State Response: We do not believe the draft explicitly 
restricts the ability of the United States to opt-in to an amendment. 
We agree with the Committee that the decision to opt-in and the process 
for regulation are two separate issues, and that the draft only 
addresses the latter issue. The outcome of a rulemaking, however, could 
play an important role in the Secretary of State's determination of 
whether to opt-in on an amendment because it could impact whether the 
United States would be capable of fulfilling its obligations under that 
amendment. Thus, to the extent that the draft impacts the outcome of 
future rulemakings, it could be relevant to the determination of 
whether the United States will opt-in to an amendment.
    The Committee is also correct to note that there may be chemicals 
added to the Convention which do not involve any TSCA-related 
rulemaking whatsoever, for example in the case of an unintentional 
byproduct regulated under the Clean Air Act.
Requirements on the Executive Branch Related to Opting-In
    Ms. Heinzerling's testimony discussed what is constitutionally 
permissible through legislative action in the context of binding a 
future U.S. position on the addition of new chemicals. Others made 
statements on this as well. The specific proposals involve restricting 
the actions of the Executive Branch or subjecting the Executive Branch 
to judicial scrutiny with respect to whether the United States would 
opt-in for purposes of additional chemicals. As a matter of policy, the 
Subcommittee believes the Executive Branch should be the initiator when 
it comes to further U.S. obligations for the addition of chemicals or 
other amendments to the treaties. The Subcommittee finds it troublesome 
to set up a system where someone can access and empower federal courts 
to countermand the decisions of the Executive Branch in this regard. If 
the Executive Branch does not want to bind the United States to further 
treaty obligations, we think the sole recourse of policy opponents 
should be at the ballot box. The notion of courts setting out orders to 
the Executive Branch for amendments to treaty discussions or decisions 
does not seem like a prudent one from the Subcommittee's perspective.
    Related to this issue, Mr. Wiser also stated that implementing 
legislation should contain a mandatory timeframe and duty for EPA to 
decide, within a specific time after a Stockholm listing decision, 
whether to take action or not. The discussion draft does contain a 
mandatory process for public comment. It is true there is no specific 
deadline for a determination. It would seem reasonable that the 
Executive Branch would make a decision within a time that is related to 
international discussions and the mandatory public process. However, 
this issue raises further questions. What if the Executive Branch 
failed to meet the deadline? It is fair to assume a court would then 
compel a determination within a certain time.
    Question 3. Mr. Wiser: What if the Executive Branch responded that 
they are not ready to support opting in at this time but might within 6 
months? Would this be an impermissible answer under your proposal? If 
not permissible, what is the sanction that would apply and how would it 
be enforced? If permissible, is there much of a difference between your 
proposal and simple deference to the executive branch?
    Question 4. EPA and State Department: Do you believe a court should 
be able to compel the Executive Branch to opt in on behalf of the 
United States for any given chemical through the enforcement of a 
statutory standard? If so, what standard should it be?
    EPA/State Response: The statutory standard in question pertains to 
EPA's domestic regulatory authority, and judicial review, if 
appropriate, should relate to this authority. Moreover, the Executive 
is best-suited to determine the time-frame and appropriateness of 
opting into an amendment. The Constitution vests the President with the 
authority to make treaties (with the advice and consent of the Senate), 
and the courts have recognized that that the initiation of foreign 
policy is primarily the ``province and responsibility'' of the 
President. It would therefore be inappropriate to assign courts the 
purported ability to command the President to opt into a new amendment.
Listing Decisions versus U.S. Determination of Protective Measures
    Dr. Goldman states, ``. . . The decision standard in the discussion 
draft is not in alignment with the standard that we agreed to in the 
POPs Convention.'' She further states, ``[i]t is also important that 
the standard be consistent with the language negotiated in the POPs 
conventions, that is, to protect against significant adverse human 
health and environmental effects associated with the chemical substance 
or mixture.'' This also seems to be similar to a claim from Mr. Wiser. 
He states:
          ``The most sensible standard to use in the legislation would 
        be based upon the Convention, and would require EPA to 
        implement the control measures specified in the Convention in a 
        manner that protects against `significant adverse human health 
        or environmental effects.' ''
    The Subcommittee, however, wishes to further evaluate these 
statements. The Stockholm Convention, in Article 8, uses the terms 
``significant adverse human health or environmental effects'' as part 
of a decision whether to list the chemical and whether ``global action 
is warranted.'' This language does not address what that action should 
be. Indeed, the very paragraph within Article 8--7(a)--that mentions 
these terms specifically refers to considerations specified in Annex F 
with respect to the analysis of possible control measures. Annex F of 
the Stockholm Convention includes considerations of risk, cost, and 
benefits. Nowhere does the POPs treaty use the combined terms ``protect 
against significant adverse human health and environmental effects'' as 
a standard for control measures, let alone the sole standard. Yet both 
Dr. Goldman and Mr. Wiser's points rely on the language of Annex F, 
while also treating the standard for listing as if it were the language 
applicable to the selection of control measures. Nothing the 
Subcommittee has observed in the Secretary of State's transmittal 
document of the Stockholm Convention dated August 1, 2001, stated to 
ignore Annex F. The Executive Branch ``agreed'' to the ``significant 
adverse human health or environmental effects language'' precisely for 
its intended purpose--to determine whether to list a chemical.
    The Subcommittee is having trouble identifying the actual language 
in the Stockholm Convention that specifies a rulemaking standard. In 
addition, we cannot find a single, clear mandate in the agreements as 
to what U.S. rulemaking standards must be. Finally, we really do not 
know what types of guidance we could expect from the international 
conference of the parties (COP) regarding a future control measure of a 
later chemical listing since, at this time with respect to control 
measures, the COP is not passing laws or regulations.
    Question 5. Mr. Wiser: Doesn't paragraph 7a within Article 8's 
reference to considerations in Annex F apply to international guidance 
for control measures under the treaty, and therefore is part of the 
relevant guidance in the treaty for parties? In your proposed 
rulemaking standard, why did you ignore the proposed rulemaking 
standards in Annex F? Are you stating that any guidance from the 
international body should be mandatory as US regulations?
    Question 6. EPA and State Department: Does Annex F apply to 
international guidance for control measures under the treaty? Do you 
believe that any guidance from the international body should be 
mandatory as U.S. regulations?
    EPA/State Response: Annex F applies to the international process 
that will consider control measures under the Convention. The 
preambular language in Annex F of the Stockholm Convention makes that 
clear in stating ``An evaluation should be undertaken regarding 
possible control measures under consideration for inclusion in this 
Convention . . . For this purpose, relevant information should be 
provided relating to socio-economic considerations associated with 
possible control measures to enable a decision to be taken by the 
Conference of the Parties.''
    We believe that decisions 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 as U.S. regulations. First, it is possible that the COP could 
take a decision with which the United States does not agree, and it may 
not be appropriate to mandate domestic implementation in such a case. 
Second, we believe that legislation should set out an appropriate 
process for decision-making that would allow the United States to 
consider the appropriate scope of regulations for a listed chemical.
Costs and Benefits under the Treaties
    Mr. Wiser's written testimony says we should wholly reject a cost-
benefit standard that he believes may have the effect of making it 
impossible for the United States to concur with international decisions 
to address additional POPs. Dr. Goldman and Ms. Heinzerling appear to 
state similar points.
    Mr. Walls' testimony, on behalf of the American Chemistry Council, 
states that the Stockholm Convention adopts a risk/benefit approach in 
implementing appropriate regulatory controls on listed chemicals, and 
in considering chemicals nominated as potential POPs.
    Mr. Goldberg, on behalf of CropLife America urges that the 
implementing legislation recognize existing risk-benefit standards of 
FIFRA. He further applauds the ``. . . science-based, risk benefit 
assessment process . . .'' of the POPs agreement.
    The Subcommittee does not read the international agreements the 
Gillmor draft contemplates as ignoring costs or benefits. Annex C, Part 
V (B) of the POPS protocol specifically mentions costs and benefits. 
Annex F mentions costs, risks, and economic aspects as appropriate 
considerations regarding possible control measures. Annex V, Part 3, 
Paragraph 12 of the LRTAP POPs Protocol, states, in part:
          ``POP emission reduction costs should also be considered 
        within the framework of the overall process economics, e.g. the 
        impact of control measures and costs of production.''
    Following that statement, all of the tables in Annex V outline 
costs and benefits of options. In addition, Article 8 of the LRTAP Pops 
Protocol asks parties to look for ``methodologies permitting 
consideration of socio-economic factors in the evaluation of 
alternative control strategies.''
    In addition, the Administration's own principles, outlined in their 
written testimony, state among other items:
          ``In determining whether the domestic regulatory measures are 
        necessary and adequate, the United States should compare the 
        international decision to measures that are more and less 
        stringent, thereby facilitating a risk-management decision as 
        to which measure(s) provide(s) the most reasonable balance of 
        benefits, risks and costs for specific uses.''
    The principles also state:
          ``In weighing benefits, risks and costs, the United States 
        should consider domestic production, export and use of the 
        chemical, and any national and international consequences that 
        are likely to arise as a result of domestic regulatory action, 
        including consequences that cannot be quantified and including 
        consideration of the possible consequences of using likely 
        substitute chemicals.''
    Question 7. All witnesses: Please state whether the treaties 
directly regulate persons or rather relies on individual countries to 
choose the appropriate means of compliance. Please state whether any of 
the treaties have a specific regulatory standard for individual nations 
to follow. Finally, for the EPA and State Department witnesses, please 
explain how the two principles cited above are consistent with, or 
allowed under the treaties. For all other witnesses: Do you believe the 
above Administration principles are prohibited by or consistent with 
the treaties? If you believe it to be prohibited, please point to 
specific language prohibiting such considerations.
    EPA/State Response: The treaties do not directly regulate persons. 
Rather, it is countries that ratify the agreements and thereby 
affirmatively take on the obligations contained in the treaties. It is 
the responsibility of ratifying countries to implement their 
obligations under the treaties in a manner that is consistent with the 
language of the treaties. The treaties do not set out a specific 
regulatory standard that a country must follow with respect to their 
domestic regulations. Therefore, countries may undertake their 
obligations in a manner deemed by them to be most appropriate in their 
own circumstances and domestic regulatory context.
    The principles cited in this question were designed as a framework 
of Administration views on the appropriate manner to implement the 
treaties. As we just noted, the treaties are not prescriptive in 
mandating the manner in which a Party implements its treaty 
obligations. Because the treaties do not mandate a particular domestic 
standard for the addition of new chemicals, and because the principles 
above speak to the Administration's views on the most appropriate 
manner in which the United States should set out its domestic 
regulatory measures, the principles are fully consistent with the 
treaties.
Discretion to Regulate
    Several witnesses believed that the new rulemaking authority should 
be mandatory after a listing by the international body or after a U.S. 
decision to opt-in. The Subcommittee has further questions about this 
issue. What if the new rulemaking authority is not necessary or is not 
the best vehicle for that particular new addition? We already know that 
regulation of the current list of chemicals, sufficient to comply with 
treaty obligations, is already largely in place. It may be reasonable 
to assume the same might very well be true for a future chemical. It 
might also be that other rulemaking authorities such as those under the 
Resource Conservation and Recovery Act or the Federal Insecticide 
Fungicide and Rodenticide Act may be more appropriate authorities for a 
given circumstance. In these cases it would seem reasonable not to 
mandate a new rulemaking authority. Moreover, there may well be a 
phase-in of control measures. If there is a mandate to do a rulemaking, 
can we be sure what the appropriate time line is? The fact is, we can't 
predict what future amendments to the treaty would involve in this 
regard. Therefore, to remain in compliance, the Executive Branch has 
every reason to maintain its treaty obligations.
    Question 9. All witnesses: Would it not be useful to use a current 
regulatory authority if it would provide for more cohesive U.S. law? 
Also are there not circumstances where existing law may be sufficient 
and no new regulation required?
    EPA/State Response: The Administration believes that if there were 
regulatory authorities in current TSCA and FIFRA that allow the United 
States to meet the obligations of the treaties in question for 
substances listed on Annexes A or B of the POPs Convention or Annexes I 
or II of the LRTAP POPs Protocol, it would be useful to use such 
authorities when regulating these substances. For example, we think 
that the Clean Air Act currently provides the necessary authorities to 
address treaty obligations related to substances listed in Annex C of 
the POPs Convention and Annex III of the LRTAP POPs Protocol, and we 
have therefore not requested additional authorities to address those 
substances. With respect to whether there might be circumstances where 
existing law may provide sufficient authority for the United States to 
ratify adding new substances to the existing Annexes of the agreements 
in question, we are of the view that such a circumstance is only likely 
to occur with respect to amendments adding by-products (POPs Annex C or 
LRTAP Annex III substances).
Alleged Duplication of International Body Decision
    Mr. Wiser states that the discussion draft ``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.'' He further states, ``Considering the extensive scientific, 
risk assessment, and socio-economic analyses that are already required 
under the Convention (and which are there significantly due to U.S. 
insistence), we believe the implementing legislation should not itemize 
the criteria that EPA must consider during the rulemaking.''
    The Subcommittee is concerned that the international decision to 
list a chemical or even set out guidance on control measures is not the 
same as the promulgation of a U.S. regulation. There is no duplication 
at all. Though they may look at the factors in Annex F of the Stockholm 
Convention, they are not looking specifically at the circumstances in 
the U.S. They will not evaluate what laws are already on the books in 
the U.S. They will not do a specific evaluation of U.S. businesses. 
They will not do a specific evaluation of the risks to health in the 
context of the U.S. Moreover, we cannot support deferring to the 
international body on its findings when it comes to U.S. regulations.
Relationship of Proposed New Regulatory Authority to Existing 
        Regulatory Authority
    As noted by Mr. Walls:
          ``Notably, Mr. Gillmor's draft does not prevent EPA from 
        regulating POPs substances under its existing statutory 
        authority, including TSCA. The United States regulated the 
        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.
    Colin Powell, in his letter of transmittal for the Stockholm 
Convention dated August 1, 2001, stated that Annexes D, E, and F are 
consistent with the approach taken in existing U.S. pesticide and 
chemical regulations. The Subcommittee notes that considerations for 
taking action under FIFRA and TSCA include risk, costs, benefits and 
other societal factors.
    However, some of the witnesses stated that the Gillmor draft adds 
``regulatory baggage,'' including cost-benefit and sound science 
requirements to a piece of domestic environmental legislation that is 
ineffectual. In effect, they seem to argue we are adding new hurdles to 
TSCA section 6. However, this is not the Committee's reading of the 
draft. We don't see where in the new rulemaking language it says EPA 
has to satisfy the conditions of TSCA section 6(a). Rather under 
section 503(e) one would not have to comply with the unreasonable risk 
standard of TSCA section 6, nor the requirement to choose the least 
burdensome alternative, nor the requirement for a hearing and cross-
examinations, nor numerous other requirements under TSCA section 6.
    Several witnesses were also concerned with the proposed additional 
regulatory authority. However, this is an authority that is clearly 
easier for EPA to use than existing authority under TSCA section 6. 
Moreover, the draft does not circumscribe any existing regulatory 
authority, nor does the draft add any requirement from the new 
regulatory authority to TSCA section 6 or vice versa. However, several 
of these points were misunderstood during the hearing.
    Dr. Goldman stated, ``It is worse than current law.'' She further 
states:
          ``The burden should be placed on the EPA to show why a listed 
        chemical should not be controlled by the U.S., rather than the 
        reverse. The language in this regard is worse than current law 
        and again would render EPA ineffective.''
    Ms. Heinzerling stated:
          ``Merely duplicating the already-ineffective requirements of 
        TSCA as prerequisites for regulating new POPs would be bad 
        enough; the Discussion Draft goes even further and offers whole 
        new obstacles to meaningful toxic substance control. Better, in 
        truth, to have no mechanism at all for adding new substances to 
        the list--the route originally preferred by the current 
        Administration--than to offer this charade in place of a 
        meaningful listing process.''
    Mr. Yeager stated:
          ``I believe the Bush Administration's repeated efforts to use 
        proposed implementing legislation for the treaty as a vehicle 
        to advance its overall effort to weaken domestic environmental, 
        health, and safety protections.''
    The Subcommittee wishes to re-emphasize that nothing in this draft 
circumscribes existing regulatory authority unrelated to implementation 
of the treaty. There is no weakening of domestic environmental, health 
and safety protections. Allusions to the contrary are incorrect. 
Providing additional regulatory authority, while maintaining existing 
regulatory authority, cannot result in something worse than current law 
from the perspective of those who want greater regulatory power for 
EPA. It can result in something worse than current law for those who 
oppose expansion of bureaucratic authority. However, some of the 
testimony continued to confuse rulemaking authority and additions; 
erroneously suggesting that new rulemaking authority would make 
exercising existing authority more difficult.
    Ms. Heinzerling accurately states the following:
          ``Although the Draft does provide a laundry list of factors 
        EPA is to consider in coming to a decision,  502(e)(2)(A-E), 
        it does not give EPA guidance as to how to figure out what a 
        ``reasonable balance'' of costs and benefits is. Here, too, 
        therefore, the Discussion Draft affords EPA a huge amount of 
        discretion in making decisions on newly listed POPs.''
    We believe, in this case, such discretion is appropriate and is the 
same type of discretion afforded those providing guidance under Annex F 
of the Stockholm Convention. Where Congress does not further specify, 
courts must defer to agency interpretations of what is reasonable. 
Thus, we believe the discussion draft has a more deferential regulatory 
standard than the current ``least burdensome'' and other provisions of 
TSCA 6.
    Question 10. EPA and State Department: Do you read the Gillmor 
draft as requiring compliance with the provisions of TSCA section 6(a)? 
If not, please outline the items of TSCA section 6 that you would not 
need to address under the Gillmor draft regulatory authority under 
proposed section 503(e). Please also compare this language to FIFRA 
section 2, Definition (bb) and Section 6 (b) (2).
    EPA/State Response: No, the Administration does not read the 
Gillmor draft as requiring compliance with the provisions of TSCA 
section 6(a) when regulating additional chemical substances or mixtures 
listed on Annex A or B of the POPs Convention or I or II of the LRTAP 
POPs Protocol. Because the draft does not require compliance with TSCA 
section 6, none of TSCA section 6 would apply when regulating such 
chemical substances or mixtures. Thus, as the Committee points out, 
when regulating these chemical substances or mixtures, EPA would not be 
required to, inter alia, (1) apply the TSCA section 6 unreasonable risk 
standard, (2) choose the least burdensome regulatory alternative, or 
(3) hold hearings that allow for cross examination.
    Gillmor draft section 503(e) provides the EPA Administrator with 
authority to ``issue rules to prohibit or restrict the manufacture, 
processing, distribution in commerce for export, use or disposal of the 
additional chemical substances 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.'' FIFRA section 2(bb) defines ``unreasonable adverse effects 
on the environment'' to mean, inter alia, ``any unreasonable risk to 
man or the environment, taking into account the economic, social, and 
environmental costs and benefits of use of any pesticide.'' FIFRA 
Section 6(b) provides the EPA Administrator with authority, under 
certain circumstances, to cancel a pesticide registration if, inter 
alia, it appears to the Administrator that a pesticide when used in 
accordance with widespread and commonly recognized practice, generally 
causes unreasonable adverse effects on the environment. (Section 
6(b)(2) provides authority for the Administrator, if it appears to the 
Administrator that a pesticide, when used in accordance with widespread 
and commonly recognized practice, generally causes an adverse effect on 
the environment, to issue a notice of intent ``to hold a hearing to 
determine whether or not its registration should be canceled or its 
classification changed.) Both the standard in Gillmor draft section 
503(e) and the FIFRA unreasonable adverse effects standard (as applied 
to non-food use pesticides) are cost/benefit standards.
Protection Standards versus Means and Measures
    The Subcommittee believes there is a distinction between the basic 
goal of the Stockholm Convention--protection of human health and the 
environment--and the assessment of appropriate means or measures to 
address this goal. As discussed above, this seems clear based on Annex 
F and other items in the treaty.
    The discussion draft tries to carry a similar approach by setting 
the legal standard at the protection of human health and the 
environment, but choosing means of such protection that reasonably 
balance costs and benefits. Several allegations have been made about 
this proposed standard. On its face, the language does not trade 
protection of human health under a cost/benefit standard. The standard 
provides rulemaking authority ``to the extent necessary to protect 
human health and the environment.'' The standard asks the Administrator 
to choose a manner of protecting human health and the environment that 
``achieves a reasonable balance of social, environmental, and economic 
costs and benefits.'' Therefore, the Committee finds some of the 
witnesses' arguments that protection of human health can be ``traded'' 
as simply inconsistent with the clear language.
Exemptions
    Dr. Goldman states that the bill:
          ``Ties the hands of the EPA when it comes to taking action 
        more stringent or in advance of action taken under the 
        Conventions. It specifies that the U.S. will take advantage of 
        every single exemption that is available to every single 
        country in the world.''
    The Subcommittee is trying to interpret this statement. We 
recognize there are different types of exemptions in the treaties. Some 
exemptions 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. The treaty contains numerous exemptions and we would 
like to know under what circumstances the witnesses are advocating 
regulating in these areas when the treaties provide for clear 
exemptions.
    We have read Mr. Wiser's suggestion of a clarifying statement: 
``nothing in this title shall be construed to require the United States 
to register for any specific exemption or acceptable purpose available 
to the United States under Annex A or B to the POPs Convention.''
    We don't believe any language in the bill directs the U.S. to seek 
any exemptions. The exemption provision simply states that the 
prohibitions shall not apply to a production or use specific exemption 
available to the United States, not mandating that they must take 
advantage of each one and for every single country. However, we do not 
have a problem with the policy of the clarification. But if the U.S. is 
pursuing an exemption or has received such exemption, it does not make 
sense for this particular rulemaking authority to override that 
exemption.
    Question 11. All witnesses except EPA and State Department: Are the 
concerns over any anticipated use of all of these treaty exemptions, 
including the broader exceptions? Do you envision the United States 
overriding the broader exemptions 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? 
If so, under what situations? Or is the concern limited to the country-
specific exemptions?
Sound and Objective Science
    Mr. Wiser states:
          ``The environmental and health community believes that high 
        quality, objective scientific research and analysis should 
        provide the foundation for the evaluation and management of 
        POPs and other persistent toxic substances.''
    Mr. Yeager states:
          ``For the United States, it was critical that this process be 
        scientifically-driven and not subject to political whim . . . 
        the final agreement offers the United States the safeguards of 
        rigorous science, a careful review procedure . . .''
    Yet they, along with Dr. Goldman and Ms Heinzerling are highly 
critical of language in the draft that requires the EPA Administrator 
to use sound objective scientific practices when evaluating risk 
information. These are really a set of arguments that go back a long 
time. The same ones were used in 1996 prior to the use of similar 
language in the 1996 Safe Drinking Water Act Amendments.
    The Safe Drinking Water Act Amendments of 1996 state that the ``. . 
. the Administrator shall use--(1) the best available, peer-reviewed 
science and supporting studies conducted in accordance with sound and 
objective scientific practices'' It follows with a number of 
requirements for sound science. Some made claims that this language 
would stifle rulemaking. But these Amendments were passed with broad 
bipartisan support and have worked very well.
    In addition, The Clinton Administration issued Executive Order 
12866 and is still in effect. It states:
          ``Each agency shall base its decision on the best reasonably 
        obtainable scientific, technical, economic, and other 
        information concerning the need for and consequences of the 
        intended regulations.''
    Finally, The President's Commission on Risk Assessment and Risk 
Management stated in their 1997 report:
    ``A good risk management decision . . .''
          ``Is based on a careful analysis of the weight of scientific 
        evidence that supports conclusions about a problem's potential 
        risks to human health and the environment.'' [and]
          ``Reduce or eliminate risks in ways that . . . [a]re based on 
        the best available scientific, economic, and other technical 
        information.''
          ``[T]he Commission's Risk Management Framework is intended 
        to: . . . [e]nsure that decisions about the use of risk 
        assessment and economic analysis rely on the best scientific 
        evidence and are made in the context of risk management 
        alternatives.''.
          ``Making judgements about risk on the basis of scientific 
        information is called `evaluating the weight of the evidence.' 
        . . . It is important that risk assessors respect the objective 
        scientific basis of risk and procedures for making inferences 
        in the absence of adequate data.''
    Despite these precedents several witnesses suggested that similar 
language is inappropriate. The same claims were made with respect to 
these types of provisions. There is no evidence the SDWA language or EO 
12866 have done anything described by these witnesses.
    Question 12. EPA: Do you have examples where the provisions of the 
Safe Drinking Water Act risk language or the science provisions of 
Executive Order 12866 adversely and inappropriately paralyzed the 
rulemaking procedure? If so, please provide specific examples.
    EPA Response: Keeping in mind that the provisions of the Safe 
Drinking Water Act were not designed to be and have not, to date, been 
applied in the development of regulations under TSCA or FIFRA, and that 
the Agency is not opining at this time on the appropriateness of doing 
so, EPA has found that the work undertaken either to comply with the 
provisions of the Safe Drinking Water Act or to develop balanced 
science-based public health standards that meet the requirements of 
E.O. 12866 has not been adversely or inappropriately paralyzed by the 
rulemaking procedure.

                                 
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