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87–349 PDF 2014

REGULATION OF EXISTING CHEMICALS AND THE 

ROLE OF PREEMPTION UNDER SECTIONS 6 

AND 18 OF THE TOXIC SUBSTANCES CONTROL 

ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 18, 2013 

Serial No. 113–83 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

PHIL GINGREY, Georgia 

Vice Chairman 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

DAVID B. MCKINLEY, West Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

PAUL TONKO, New York 

Ranking Member 

FRANK PALLONE, JR., New Jersey 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JERRY MCNERNEY, California 

JOHN D. DINGELL, Michigan 

JANICE D. SCHAKOWSKY, Illinois 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 2 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 3 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 99 

WITNESSES

Mark A. Greenwood, Principal, Greenwood Environmental Counsel, PLLC ...... 5 

Prepared statement .......................................................................................... 8 

Answers to submitted questions ...................................................................... 109 

William K. Rawson, Partner and Chair, Chemical Regulations, Product Strategy and Defense Practice, Latham & Watkins, LLP ......................................... 22 

Prepared statement .......................................................................................... 25 

Answers to submitted questions ...................................................................... 114 

Jennifer Thomas, Director, Federal Government Affairs, Alliance of Automobile Manufacturers .......................................................................................... 36 

Prepared statement .......................................................................................... 38 

Answers to submitted questions ...................................................................... 117 

Justin Johnson, Deputy Secretary, Vermont Agency for Natural Resources, 

On Behalf of the Environmental Council of the States .................................... 45 

Prepared statement .......................................................................................... 47 

Lemuel M. Srolovic, Chief, Environmental Protection Bureau, Office of New 

York State Attorney General .............................................................................. 52 

Prepared statement .......................................................................................... 54 

Linda Reinstein, President/CEO and Co-Founder, Asbestos Disease Awareness Organization ................................................................................................ 64 

Prepared statement .......................................................................................... 66 

SUBMITTED MATERIAL

Letter of September 17, 2013, from Kathryn Alca ́ntar, Campaign Director, 

Californians for a Healthy and Green Economy, to Mr. Waxman, submitted 

by Mr. Shimkus .................................................................................................... 100 

Statement, dated July 24, 2013, of Californians for a Healthy and Green 

Economy, submitted by Mr. Shimkus ................................................................ 101 

Letter of September 18, 2013, from Linda Lipsen, Chief Executive Officer, 

American Alliance for Justice, to Mr. Shimkus and Mr. Tonko, submitted 

by Mr. Shimkus .................................................................................................... 104 

Resolution of ECOS, ‘‘Reforming the Toxic Substances Control Act,’’ dated 

September 17, 2013, submitted by Mr. Shimkus .............................................. 106 

(1) 

REGULATION OF EXISTING CHEMICALS AND 

THE ROLE OF PREEMPTION UNDER SECTIONS 6 AND 18 OF THE TOXIC SUBSTANCES CONTROL ACT 

WEDNESDAY, SEPTEMBER 18, 2013 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:05 p.m., in room 

2123 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Murphy, Latta, 

Harper, McKinley, Bilirakis, Johnson, Tonko, Pallone, Green, 

DeGette, McNerney, Schakowsky, Barrow, and Waxman (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Jerry Couri, Senior Environmental Policy Advisor; David McCarthy, Chief Counsel, 

Environment and the Economy; Andrew Powaleny, Deputy Press 

Secretary; Chris Sarley, Policy Coordinator, Environment and the 

Economy; Jacqueline Cohen, Democratic Senior Counsel; Greg 

Dotson, Democratic Staff Director, Energy and Environment; and 

Kara van Stralen, Democratic Policy Analyst. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. I call this subcommittee hearing to order, and I 

want to thank you all for coming. I ask unanimous consent that all 

members of the subcommittee have 5 days to submit their opening 

statements for the record, and I recognize myself for 5 minutes. 

Today’s hearing continues the subcommittee’s examination of the 

Toxic Substances Control Act, including statutory provisions, regulatory implementation, and practical outcomes. On June 13, our 

subcommittee held a hearing on the history and impact of Title I 

of TSCA. On July 11, the subcommittee explored regulation of 

chemicals before they enter commerce, under TSCA Section 5, and 

protection of sensitive business information, under TSCA Section 

14. I believe these hearings have helped us understand a law as 

complex as it is broad. 

Our focus now is on regulation of chemicals once they are in commerce, under TSCA Section 6, and the role of Federal pre-emption, 

under TSCA Section 18. 

These two sections of TSCA have been subject to a great deal of 

discussion. Notwithstanding the testimony of three of our witnesses 

2 

at the July 11 hearing that TSCA Section 5 is doing a fine job reviewing and, if necessary, limiting the use of new chemicals, some 

argue that TSCA is broken and because TSCA Section 6 has not 

produced more bans or other limits on chemicals. Others, including 

some on our panel today, suggest that concern is overstated. 

EPA has been more active issuing regulations on TSCA Section 

5 new chemicals than it has been on TSCA Section 6 ones, but it 

has issued regulations under Section 6. Charlie Auer, who testified 

in our June 13 hearing stated that TSCA Section 6 ‘‘had surprising 

early success in efforts between 1978 and 1980.’’ The question is, 

What has changed? 

Today we explore just what TSCA Section 6 asks EPA, including 

what ‘‘unreasonable risk’’ is and whether this is a novel concept 

under Federal law. We will also examine requirements in the law 

regarding the application of ‘‘least burdensome’’ regulations. We 

will study the role of risk assessment and cost-benefit analysis, 

how and whether it is done, and what role it plays in the final rulemaking decision. 

Understanding Section 6 and its link to the pre-emption provisions in TSCA Section 18 is also important. If EPA has taken action to test a chemical or regulate a new existing chemical in commerce, TSCA forecloses State action unless the State or locality 

meets one of four criteria. In many areas the States should handle 

local pollution issues, because they have a wealth of experience and 

capability to do so. But chemical regulation is not an area where 

States have traditionally taken a lead role because of the impacts 

on interstate commerce. 

In our June TSCA hearing, witness Beth Bosley said TSCA is a 

law about products, not pollution. TSCA vests EPA with authority 

to regulate risks to humans and the environment from chemicals 

that are not otherwise covered by some more targeted statute. 

TSCA is about making interstate commerce in chemicals work for 

all of us. 

I thank all our witnesses for appearing today, and look forward 

to their insights about the appropriate roles of the parties and the 

uniqueness of TSCA in this respect. I urge members to take today’s 

opportunity to learn the fundamentals of these Sections of the law. 

And now I want to thank the panel. Once I get through with our 

opening statements, I will then do the introductions of each one of 

you. We do appreciate you being here. There is kind of an excitement of trying to address a 30-year-old law that we haven’t really 

revisited in many years. I spent a lot of time during the break talking to various diverse groups of interested parties, so I think it is 

an exciting time and it really reinforces the need to at least have 

these hearings, become more educated, learn from you all, and see 

if we can move to bring a very old law kind of up to date. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

Today’s hearing continues the subcommittee’s examination of the Toxic Substances Control Act,including statutory provisions, regulatory implementation, and 

practical outcomes. On June 13, our subcommittee held a hearing on the history and 

impact of Title I of TSCA. On July 11, the subcommittee explored regulation of 

chemicals before they enter commerce, under TSCA section 5, and protection of senVerDate Aug 31 2005 12:09 Apr 24, 2014 Jkt 037690 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 F:\113-83~1\113-83~1 WAYNE
3 

sitive business information, under TSCA section 14. I believe these hearings have 

helped us understand a law as complex as it is broad. 

Our focus now is on regulation of chemicals once they are in commerce, under 

TSCA section 6, and the role of Federal pre-emption, under TSCA section 18. 

These two sections of TSCA have been subject to a great deal of discussion. Notwithstanding the testimony of three of our witnesses at the July 11 hearing that 

TSCA section 5 is doing a fine job reviewing and, if necessary, limiting the use of 

new chemicals, some argue that TSCA is broken because TSCA section 6 has not 

produced more bans or other limits on chemicals. Others, including some on our 

panel today, suggest that concern is overstated. 

EPA has been more active issuing regulations on TSCA section 5 new chemicals 

than it has been on TSCA section 6 ones—but it has issued regulations under section 6. Charlie Auer, who testified in our June 13, hearing stated that TSCA section 

6 ‘‘had surprising early success in efforts between 1978 and 1980.’’ The question is, 

What has changed? 

Today we explore just what TSCA section 6 asks of EPA, including what ‘‘unreasonable risk’’ is and whether this is a novel concept in Federal law. We will also 

examine requirements in the law regarding the application of ‘‘least burdensome’’ 

regulations. We will study the role of risk assessment and cost-benefit analysis, how 

and whether it is done, and what role it plays in any final rulemaking decision. 

Understanding section 6 and its link to the pre-emption provisions in TSCA section 18 is also important. If EPA has taken action to test a chemical or regulate 

a new or existing chemical in commerce, TSCA forecloses State action unless the 

State or locality meets one of four criteria. 

In many areas the States should handle local pollution issues, because they have 

a wealth of experience and capability to do so. But chemical regulation is not an 

area where States have traditionally taken a lead role because of the impacts on 

interstate commerce. 

In our June TSCA hearing, witness Beth Bosley said TSCA is a law about products, not pollution. TSCA vests EPA with authority to regulate risks to humans and 

the environment from chemicals that are not otherwise covered by some more targeted statute. 

TSCA is about making interstate commerce in chemicals work for all of us. I 

thank all our witnesses for appearing today, and look forward to their insights 

about the appropriate roles of the parties and the uniqueness of TSCA in this respect. I urge members to take today’s opportunity to learn the fundamentals of 

these sections of this law. 

Mr. SHIMKUS. With that, I would recognize the ranking member 

from New York, Mr. Tonko, for 5 minutes. 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Mr. Chair, and good afternoon. Thank 

you, Chair Shimkus, for holding this important hearing. Thank you 

to the members of our panel for participating and sharing information. I am especially pleased to have Mr. Srolovic from the New 

York State Attorney General’s Office here with us today. As one 

who served in the New York State Assembly for 25 years, we work 

closely with the agency, so it is good to have you here. 

This afternoon, we will hear from witnesses on Section 6, the 

regulation of hazardous chemical substances and mixtures, and on 

Section 18, preemption. As I observed in previous hearings, and as 

we have heard from previous witnesses, the Toxic Substances Control Act has not worked well. We have too little information about 

many of the chemicals we encounter every day. Even when it becomes common knowledge that a chemical is harmful, the Environmental Protection Agency does not have sufficient authority to restrict or ban that chemical from the market. 

Under the current law, individual States retain sufficient authority to act independently on behalf of their citizens. Although some 

States’ actions are not permissible under Section 18 of the current 

4 

law, it has been possible for States like New York to take action 

to restrict or ban harmful chemicals. In the absence of Federal actions, States have filled the void. States have used their authorities 

to protect the public when chemicals are found to indeed cause 

harm. 

While it is good to know that State governments are watching 

out for their citizens, the Federal Government should be an active 

participant in this effort and be providing a uniform level of protection for all citizens. The major failings with current law have little 

to do with the provisions that define the relationship between Federal and State action on toxic chemicals. They stem from the lack 

of a strong safety standard to protect the public and our environment. Section 6 of TSCA does not provide EPA with the tools needed to ensure that chemicals in commerce are safe. 

I am sure we will hear more about Section 6 and its failings from 

some of our witnesses today. Chemicals that are harmful should be 

removed from the market and make way for safer alternatives. Revision of this law is long overdue. I hope we will be able to make 

changes that will provide the assurances of safety desired by the 

public and the incentive for innovation and regulatory certainty 

needed by industry. 

Thank you again, Mr. Chair, for holding this important hearing. 

We have another fine group of witnesses on this panel this afternoon, and I thank you all for participating in this hearing. I look 

forward to hearing your testimony, and with that, I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. The chair seeks 

anyone on the Majority side for an opening statement. Seeing none, 

chair looks to the Minority side. Seeing no member interested in 

an opening statement, we will turn to you all. 

I just hearken back to my opening statement and trying to sort 

out the different sections and what they are doing and why they 

are doing, which reemphasizes the fact that why we invited you 

here, to help us try to make sense of all these provisions and where 

they work and where there may be questions about perfecting aspects of the law. 

So let me welcome you all here. The first one we will recognize 

for 5 minutes, Mr. Mark A. Greenwood, who is the principal with 

Greenwood Environmental Counsel in Washington, DC. Sir, your 

full statement is in the record. You are recognized for 5 minutes 

for an opening statement. We won’t be—we will be very patient on 

the time unless you go extraordinarily long and then we will 

have—we will start gaveling. So you are recognized for 5 minutes. 

5 

STATEMENTS OF MARK A. GREENWOOD, PRINCIPAL, GREENWOOD ENVIRONMENTAL COUNSEL, PLLC; WILLIAM K. 

RAWSON, PARTNER AND CHAIR, CHEMICAL REGULATIONS, 

PRODUCT STRATEGY AND DEFENSE PRACTICE, LATHAM & 

WATKINS, LLP; JENNIFER THOMAS, DIRECTOR, FEDERAL 

GOVERNMENT AFFAIRS, ALLIANCE OF AUTOMOBILE MANUFACTURERS; JUSTIN JOHNSON, DEPUTY SECRETARY, 

VERMONT AGENCY FOR NATURAL RESOURCES, ON BEHALF 

OF THE ENVIRONMENTAL COUNCIL OF THE STATES; 

LEMUEL M. SROLOVIC, CHIEF, ENVIRONMENTAL PROTECTION BUREAU, OFFICE OF NEW YORK STATE ATTORNEY 

GENERAL; AND LINDA REINSTEIN, PRESIDENT/CEO AND CO– 

FOUNDER, ASBESTOS DISEASE AWARENESS ORGANIZATION 

STATEMENT OF MARK A. GREENWOOD 

Mr. GREENWOOD. Chairman Shimkus, Ranking Member Tonko, 

and members of the committee, thank you for the opportunity to 

testify here today. My name is Mark Greenwood, I am an environmental lawyer, and I have the dubious pleasure of saying I have 

worked on TSCA for 25 years. Now that is a long time. Some of 

it was in private practice where I advised clients on many issues, 

but it also was during my time at EPA. I was the Associate General Counsel for Pollution Prevention and Toxics, and I was in pesticides. I was also Director of the Office of Pollution Prevention and 

Toxics as well. This is the part of EPA that actually regulates 

under TSCA. 

I am going to be addressing Section 6 in my comments here 

today. Obviously that is a very important section. It is the section 

under which the Agency does regulate existing chemicals. But I 

think as you alluded to, Mr. Chairman, it is also important politically because when people say that TSCA is a broken statute, they 

tend to refer to Section 6. And so it is all the more important to 

understand how it has worked and the structure of the law. 

I am going to talk about three general issues that are within Section 6, the first being the unreasonable risk standard, which is the 

basic guideline for regulation. Under Section 6C, what that means 

is EPA has to weigh four factors: the health and environmental 

risk of substances, the benefits of those substances, the availability 

of alternatives, which also includes their risks, and the reasonable 

and ascertainable economic consequences of the rule. I think it is 

important to recognize up front that this is not a standard that is 

unique to TSCA. In fact, if you look across Federal law, you will 

find that a vast majority of the laws that regulate products in commerce include either the unreasonable risk standard per se, or a 

set of factors that essentially replicate the factors I just mentioned. 

Certain aspects of this standard are really not that controversial. 

Everybody, of course, assumes we want to look at environmental 

risks and health risks. The alternatives are also a very important 

consideration, because it tends to determine whether any change 

would be a significant technological change for industry, and the 

risks associated with those is an extremely important consideration, because if you take an action against one chemical that 

pushes people into another chemical that is more risky, of course, 

that was not a good result. 

6 

There is an area of, I think, controversy which primarily comes 

up in the area of how to consider the benefits of a product and the 

cost issues. Now what that very quickly tends to go to is the issue 

of cost benefit analysis. TSCA does not require cost benefit analysis, but it is a framework in which that certainly would be allowed. One of the things I think is important for you to consider 

as you think about how this Act would work is recognize that for 

over 30 years, the Executive Branch has pursued various executive 

orders on regulation that require cost benefit analysis. So that is 

part of the framework in which EPA and other agencies will be 

working. And so I think for your purposes, it is really important 

to think about your view of cost benefit analysis when you are trying to decide whether this unreasonable risk standard makes 

sense. 

Now the second area I would like to talk about is something 

called the least burdensome alternative. Basically Section 6 says 

EPA shall regulate, but it must try to find the least burdensome 

alternative in its regulatory strategy. Now as a general matter, 

Federal agencies probably think this is fairly reasonable. In my 

corner, this would be called smarter regulation. You want to try to 

find a way of achieving your environmental objective, your health 

objective without having major disruption in the economy and in 

the society, if you can. That is a worthy goal. It makes sense. I 

think most people agree with it. 

Now, this is the one area that I would focus on where I would 

say that the decision corrosion-proof fitting, which is the decision 

related to asbestos, did some damage to what EPA can do, because 

essentially the corrosion-proof fitting case says that in order to 

meet this standard of least burdensome alternative, it is up to EPA 

to look at essentially each alternative that could possibly be less 

burdensome than the alternative they are considering. Now, that 

is a much bigger job than EPA and other agencies generally do, 

and it is broader than the obligations under the executive order. So 

this is becoming, I think, a very serious issue for consideration. I 

can absolutely tell you when we first looked at the corrosion-proof 

fitting decision at EPA, this was the issue that stuck in everybody’s 

mind because it looked to us like it could be a process of what we 

call paralysis by analysis, which we would have to be looking at 

many, many options doing many and many cost benefit analyses on 

each one and there was a deep concern. So again, I think this is 

one of those key issues that you want to think about and ask the 

question, here we have a very broad principle of least burdensome 

alternative that makes sense to many people. Now the question is 

in implementation, how can you run something like that so it does 

not create unreasonable analytical obligations for an agency who 

needs to act. 

A third topic I will just mention briefly is the procedures that are 

in Section 6. Now as you are probably aware, most Federal agencies do rulemaking through notice and comment rulemaking. That 

procedure is required under Section 6, but there is an additional 

set of requirements in Section 6 which would call for a legislative 

hearing, something like an event like this where EPA people ask 

questions of people who are participating, but also an opportunity 

for cross examination, which creates a sort of trial type of proVerDate Aug 31 2005 12:09 Apr 24, 2014 Jkt 037690 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 F:\113-83~1\113-83~1 WAYNE
7 

ceeding inside the rulemaking. Now, there is not a lot of history on 

this one. It was really only used once, which was in the asbestos 

rule. I participated in that particular proceeding. I will say that 

there was probably a bit more heat than light in that proceeding, 

and I am not sure how valuable it was. But I think this is the kind 

of issue that you want to think about, whether or not the procedures that are there add value and are warranted. 

So with that, I thank you again for having the chance to testify, 

and I look forward to your questions. 

[The prepared statement of Mr. Greenwood follows:] 

8 


87349.001

Testimony of Mark Greenwood 

Before the U.S. House of Representatives Energy and Commerce 

Subcommittee on Environment and the Economy 

Hearing on 

"Regulation of Existing Chemicals and the Role of Preemption 

under Sections 6 and 18 of the Toxic Substances Control Act" 

September 18,2013 

Chairman Shimkus, Ranking Member Tonko and members of the Committee, I thank you 

for the invitation to testify today on the implementation of Section 6 of the Toxic 

Substances Control Act ("TSCA"), the principal legal authority under which the U.S. 

Environmental Protection Agency ("EPA") is authorized to regulate existing chemicals in 

commerce. 

My name is Mark Greenwood. I am an attorney practicing environmental law through 

my firnl Greenwood Environmental Counsel. I am appearing here today to offer my 

personal views on the implementation ofTSCA, and do not represent the interests or 

views of any particular client. My comments are informed by my experience in private 

practice as well as my experience at EPA. From 1988 to 1990 I was Associate General 

Counsel for Pesticides and Toxic Substances, and from 1990 to 1994 I served as Director 

of the Office of Pollution Prevention and Toxics ("OPPT"). In these roles I was directly 

involved in EPA's efforts to address the risks of existing chemicals, including the 

challenges presented by EPA's asbestos ban and phase-out rule, the litigation surrounding 
9 


87349.002

that rule and the program aftermath when the rule was vacated by the U.S. Court of 

Appeals for the Fifth Circuit. 

My testimony will focus on the key elements of Sectioll 6 that commenters on TSCA 

often cite when arguing that the EPA existing chemical program has failed to achieve its 

intended objectives. My goal is to provide members of the committee with contextual 

infommtion surrounding the regulation of existing chemicals under TSCA that I hope will 

assist your evaluation ofthis subject. 

Overview of EPA Experience with TSCA Section 6 

When TSCA was originally enacted in 1976. the statute was viewed my many people in 

EPA and outside the Agency as the cutting edge of environmental law. In 1971 the 

Nixon Administration submitted the first version of the Toxic Substances Control Act to 

Congress. In support ofthc legislation, the Council on Environmental Quality submitted 

a report indicating that this bill was intended to provide a "New System" for addressing 

the environmental challenges of the time that would not be limited by the jurisdictional 

limits of media-specific statutes for air and water pollution or of statutes that only looked 

at certain materials, such as pesticides. This new system would allow EPA to address 

health and environmental risk in an integrated and comprehensive way. Regarding the 

regulation of existing chemicals, the CEQ report characterized the new role for EPA as 

follows: 

The Administrator of the Environmental Protection Agency would be empowered 

to restrict or prohibit the use or distribution of a chemical substance if such 

restriction were necessary to protect health or the environment. In imposing such 

2 
10 


87349.003

a restriction, the Administrator would be required to consider not only the adverse 

effects of the substance but also the benefits to be derived from its use. l 

While the legislation proposed by the Nixon Administration was modified, in some cases 

significantly, before the enactment of TSCA in 1976, the perspective reflected in this 

statement was carried forth as an expectation for how EPA would be using its Section 6 

authority to address existing chemicals. 

EPA did not, however, move ahead quickly to use Section 6 on specific existing 

chemicals. Many explanations have been offered for the slow implementation of the 

TSCA existing chcmical program but several factors are particularly worth noting. First, 

once TSCA was enacted EPA had a pressing responsibility to create the TSCA Inventory 

and then establish the framework for the new chemical program. Since chemical 

manufacturers had immediate statutory responsibilities in this area, it was important to 

give priority to clarifying those responsibilities. Second, the first major existing chemical 

challenge for the Agency involved creating the regulatory structure for the ban on 

polychlorinated biphenyls ("PCBs") that was mandated tmder Section 6(e) of the statute. 

This effort required a variety of complicated rulemakings addressing precedential issues 

for EPA on how it would regulate hazardous substances in commerce and provide for 

their safe disposal. 

Third, EPA was also challenged by the broad mandate, with no specific agenda, that 

Congress had provided in TSCA. After the statute was passed, there were substantial 

internal debates within EPA about the relative importance of, and thus resource allocation 

1 U.S. Council on Environmental Quality, "Toxic Substances" (April 1971), p. vi. 

3 
11 


87349.004

tor, information collection, chemical testing and risk management activities. Given the 

thousands of chemicals in commerce, EPA was further challenged to determine which 

chemicals warranted priority action. 

EPA reached a conclusion early in the history ofTSCA's implementation, however, that 

asbestos would be a prime target for regulatory action under Section 6. The rulemaking 

on asbestos began with the issuance of an Advance Notice of Proposed Rulemaking on 

October 17, 1979. As time pa~scd into the 1980's without EPA initiating Section 6 

actions on other chemicals, the asbestos rulemaking took on an importance larger than the 

issue of asbestos itself. It became the test case of whether Section 6 (and the promise of 

TSCA itself) could work. The stakes became particularly high as the Agency's 

regulatory strategy also began to shift from an array of Jess stringent approaches, such as 

labeling or limitations of particular uses, to a comprehensive ban and phase-out of all 

asbestos uses. 

The final a~bestos ban and phase-out rule was issued on July 12, 1989. It drew legal 

challenges from multiple parties in U.S. Court of Appeals, Fifth Circuit. The court issued 

its decision on the various challenges to the rule on October 18, 1991 in Corrosion-Proof 

Fittings, et al. v. Environmental Protection Agency, 947 F.2d 1201 (5th Cir. 1991). The 

decision represented a complete loss for the Agency, as the court vacated the primary 

sections of the rule. 

4 
12 


87349.005

With this decision, some stakeholder groups began to characterize TSCA as a "broken" 

statute. While this characterization was probably an overstatement, the court's opinion 

clearly set forth a more restrictive version of EPA's authority and flexibility under 

Section 6 than the Agency had assumed TSCA provided. The decision came at a time 

when OPPT was being given additional responsibilities in the Agency, including 

expansion of the Toxic Release Inventory and other "right to know" programs, as well as 

implementation of the Pollution Prevention Act. As Office Director ofOPPT during this 

time, I worked with my staff to develop and pursue a variety of new approaches, both 

regulatory (e.g., expanded use ofTSCA Significant New Use rules) and collaborative 

(e.g., Design for Environment program), to recast the TSCA program as an effort to 

improve the management of existing chemicals using a variety of tools, without being 

dependent on Section 6 as the primary mode of action. 

Over the last several years, legislative efforts aimed at reform ofTSCA have onee again 

focused on a rewriting of Section 6 as the centerpiece of revitalizing EPA '5 existing 

chemical program. Thus it is useful for the committee to evaluate the current structure of 

Section 6 to determine its strengths and weaknesses. 

Unreasonable Risk Standard 

The threshold finding that EPA must make to justify a rule under TSCA Section 6 is that 

"there is a reasonable basis to conclude that the manufacture2

, processing, distribution in 

commerce, use or disposal of a chemical substance or mixture, or that any combination of 

2 "Manufacture" also includes import of a substance under TSCA. 

5 
13 


87349.006

such activities, presents or will present an unreasonable risk of injury to health or the 

environment." Based on this finding, EPA may take a variety of actions, which may 

include a ban on manufacturing, production restrictions, limitations on use, labeling, 

controls on disposal, recordkeeping or product recalls. 

The essence of the "unreasonable risk" standard is that it requires a weighing of the 

factors enumerated in Section 6(c), which include the health and environmental risks 

associated with the substance, the benefits of the substance for various uses, the 

availability of substitutes, and the "reasonably ascertainable economic consequences of 

the rule." TSCA does not require on its face. and the court in the Corrosion Proo/Fitting 

case confirmed, that this standard does not necessarily require cost-benefit analysis. 

However. it certainly would allow EPA to consider the results of a cost-benefit analysis 

should one be prepared. 

While the general standard for regulation of existing chemicals under TSCA is 

"unreasonable risk", Congress has amended TSCA several times to require specific 

actions on certain chemicals. As part of the original statute, Congress directed EPA to 

phase out the manufacture and use of PCBs. In 1986, Congress amended TSCA to create 

an EPA program for inspection and management of asbestos in schools. In 1992, 

Congress added a program to address lead-based paint in residential housing. In 2008, 

Congress added restrictions on export of elemental mercury. In 2010, Congress required 

EPA to issue certain standards for composite wood products. In each case, Congress 

specitIed differing approaches unique to the particular risk of concern. 

6 
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87349.007

Several other federal statutes that address products in commerce have a similar structure. 

For example, the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), which 

is the legal framework for pesticide regulation, sets standards based on an unreasonable 

risk standard for most forms of pesticide exposure, including those affecting consumers 

in the home, workers or ecological resources. For purposes of pesticide residues in food, 

however, EPA is required to use a "reasonable certainty of no harm" standard as 

described under the Food Quality Protection Act. Similarly, the Consumer Product 

Safety Act's general standard -setting authorities apply an "unreasonable risk" standard 

or mandate consideration of a wide range of factors that include a balancing of the costs 

and benefits of a regulation. At the san1e time, the law has been amended several times 

to ban specific chemicals, such as butyl nitrite or phthalates in children's toys, and to set 

standards for specific products such as lead in children's products. 

Thus, the committee should be aWdre that several federal laws regulating industrial 

technology and products in commerce tend to share a common pattern characterized by a 

general standard allowing for the weighing of health and environmental risks, the 

availability of better alternatives, product benefits and overall cost impact, along with 

targeted restrictions on risks that warrant specific action. 

There are certain aspects ofthe unreasonable risk standard that draw support from many 

stakeholders. For example, most stakeholders would agree that when EPA considers 

restricting the uses of a chemical, the Agency should consider whether there are feasible 

7 
15 


87349.008

and practical alternatives that offer net improvements in protection of health and the 

environment. To do otherwise would run the risk that regulatory action could be 

counterproductive for health and the environment. 

A more controversial topic concerns the role of cost-benefit analysis under the 

unreasonable risk standard. In this regard, it is useful to consider long-standing 

regulatory policies that have been pursued by the Executive Branch. At least since the 

early 1980's the Executive Branch has required federal agencies to conduct cost-benefit 

analysis on major regulations, to the extent allowed by statute. This approach to 

regulation was first formalized in the Reagan Administration with the issuance of 

Executive Order 12291. This Order remained in place for twelve years, to be replaced in 

1983 by Executive Order 12866 issued at the beginning of the Clinton Administration. 

Executive Order 12866 also embraced the cost-benefit principle, stating that a regulation 

should be adopted "only upon a reasoned determination that the benefits of the intended 

regulation justify its costS.',3 The subsequent Bush and Obama Administrations have 

retained this element of Executive Order 12866 as the blueprint for their approach to 

regulation as well. 

Thus, when EPA issued its asbestos ban and phase out rule in 1989, it had prepared a 

detailed cost-benefit analysis of the rule, which the Corrosion Pr()(~IFittings eited in its 

criticism of EPA's decision. This cost-benefit analysis, however, was prepared by EPA 

because it was a requirement within the Executive Branch, not due to a specific 

3 Executive Order 12866. Section l(b)(6). 

8 
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87349.009

obligation in TSCA. What is important to recognize is that such a cost-benefit analysis 

would have been prepared by EPA under each of the Presidents of the last three decades 

and would still be required today under Executive Branch policy. 

Thus one ofthe central questions for Congress as it considers reform of TSCA is its 

perspective on the proper role of cost-benefit analysis in regulatory decisionmaking. The 

CUlTent unreasonable risk standard in Section 6 allows regulatory decisions to be made 

based on cost-benefit analysis. One of the most important strategic questions in any 

reform of TSCA is whether the Scction 6 standard should be changed to direct the 

Executive Branch to suspend its long-standing policies favoring cost-benefit analysis 

when EPA regulates existing chcmicals. 

Least Burdensome Alternative 

Section 6 provides that the regulatory approach selected by EPA to address an 

unreasonable risk shall "protect adequately against such risk using the least burdensome 

requirements." This provision is not inherently a significant constraint on EPA's 

authority as agencies routinely examine options that can achieve health and 

environmental objectives through measures that minimize social and economic 

disruption. Such an approach is often described as "smarter" regulation. 

As with cost-benefit analysis, this principle has also been enshrined in the Executive 

Branch policies that have guided regulatory policy for decades. As articulated in 

Executive Order 12866, agencies are expected to assess the costs and benefits of 

9 
17 


87349.010

"potentially effective and reasonably feasible alternatives" to a proposed regulation.4 

Executive Order 13563, issued in 2011, further refines this mandate by stating "Where 

relevant, feasible and consistent with regulatory objectives, and to the extent permitted by 

law, each agency shall identify and consider regulatory approaches that reduce burdens 

and maintain flexibility and freedom of choice for the public."s 

This is an area, however, where the Corrosion Pro()f Fitting decision imposed a 

significant burden on EPA's ability to utilize Section 6. The court interpreted the "least 

burdensome alternative" obligation in Section 6 to require EPA to assess each option 

potentially available that is less burdensome than tbe option that the Agency intends to 

pursue, Specitically, the court stated, 

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 under each option". 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.6 

This obligation sets up a task for EPA that goes well beyond the analytical task typically 

carried out by regulatory agencies under Executive Branch policies and other federal 

environmental statutes. 

4 Executive Order 12866, Section 6(a)(3)(C)(iii), 

5 Executive Order 13563, Section 4. 

6 Corrosion Proof Fitting, at p, 1217, 

10 
18 


87349.011

The general expectation for options analysis in federal regulatory contexts is that 

agencies must exanline a set of major altematives that are, as articulated by Executive 

Order 12866, "potentially effective and reasonably feasible." Instead, the Corrosion 

Proof Fitting court appears to say that EPA must calculate costs and benefits for each 

alternative, which would essentially mean all alternatives that are arguably less 

burdensome than the option EPA intends to pursue under TSCA. Given the broad range 

of potential actions that EPA could take under Section 6, this suggests that EPA would be 

compelled to undertake an assessment of costs and benefits tor a wide array of 

altematives, including variations on those altematives, proposed by opponents of a 

Section 6 rule in order for the Agency to have an adequate record for the rule. 

In my experience as Director ofOPPT, it was this aspect of the Corrosion Proof Fitting 

decision that had the most significant chilling effect on the Agency's willingness to 

pursue additional Section 6 rules in the wake of the court's decision. There was a strong 

concem among EPA lawyers, managers and staff that this part of the decision was a 

prescription for regulatory gridlock through so-called "paralysis by analysis" in future 

Section 6 rulemakings. Ironically, EPA viewed this part of the decision as a distortion of 

a reasonable regulatory principle - looking for "smart" approaches to achieving 

regulatory goals that enjoyed broad support in the Agency. 

Accordingly, an important issue for the committee to evaluate in its review of Section 6 is 

to consider the question of how to set a reasonable expectation that EPA should find 

effective regulatory strategies that minimize economic and social disruption, while at the 

11 
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87349.012

same time not imposing an overwhelming analytical burden that would stall necessary 

action. 

Procedural Aspects of Section 6 

One of the reasons that TSCA was considered an innovative statute at the time of its 

enactment was that it constituted a bit of an experiment in administrative law procedures. 

In the context of the Administrative Procedure Act, most agencies take action either 

through "adjudication" procedures, which tend to parallel trial-type proceedings in courts, 

or through "informal rulemaking" procedures, typically understood as notice and 

comment opportunities for the public. For the most part, EPA acts through informal 

rulemaking procedures, with the exception of administrative enforcement proceedings 

and pesticide cancellation and suspension actions. 

The procedures set forth in Section 6 ofTSCA create a hybrid process, incorporating 

elements for both informal rulemaking and adjudication. Section 6(c)(2) requires a 

notice and comment rulemaking process for all rules under the section but also calls for 

an "opportunity for a public hearing" subject to the procedural requirements of Section 

6(c)(3). At this hearing, parties may present oral and documentary submissions and, 

where there are material facts at issue. cross-examination of witnesses may occur. A 

transcript of the hearing is created for the record. EPA is allowed to set ground rules for 

how various parties may be represented and tor conduct of the hearing. Under Section 

6(c)(4). EPA is allowed to provide compensation for expert witnesses and attorney fees 

for parties that do not have adequate resources to participate in the hearing. 

12 
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87349.013

These procedures for cross-examination of witnesses were invoked during the course of 

the lO-year asbestos rulemaking. I was involved in the preparation for, and conduct of, 

the 1988 hearing on the asbestos rule. It was clearly an adversarial proceeding, in which 

attorneys for the asbestos industry challenged EPA staff witnesses, while Agency lawyers 

sought to protect these staff witnesses. While these procedures added time to the 

rulemaking and generated additional documents, they did not, in my view, add new 

information or uncover new issues that had not already been raised during the multiple 

rounds of public comment during the rulemaking. 

It is worth contrasting these procedures with the kinds of refinements of rulemaking 

processes that we see more often in current practice. It is much more common today than 

it was at the time of the asbestos rulemaking to provide an opportunity for peer review of 

major scientific and technical questions that are central to policy decisions on a rule. In 

contrast to the Section 6 process, which adds trial-type procedures onto notice and 

comment rulemaking on the same issues, peer review processes can provide new and 

valuable insights from credible experts that might not otherwise be part oftypical notice 

and comment processes. 

In evaluating Section 6, the committee may want to consider whether the procedural 

experiments placed in the statute in 1976 continue to have value today, or whether the 

experience with rulemaking over the last three decades suggests a different approach. 

13 
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87349.014

Conclusion 

Chainnan Shimkus. Ranking Member Tonko and members of the Committee, I thank you 

again for the opportunity to testify in this hearing. I applaud your efforts to obtain 

background infonnation on the strengths and weaknesses of TSCA in its current fonn as 

a context for consideration of possible statutory refonn. 

14 
22 

Mr. SHIMKUS. Thank you very much. 

Now I would like to recognize Mr. William Rawson, Partner and 

Chair, Chemical Regulations, Product Strategy, and Defense Practice with Latham and Watkins here in Washington, DC. Sir, you 

are welcomed. Again, your full statement is in the record. You are 

recognized for 5 minutes. 

STATEMENT OF WILLIAM K. RAWSON 

Mr. RAWSON. Thank you, Chairman Shimkus, Ranking Member 

Tonko, and distinguished members of the committee. Thank you for 

inviting me to testify today on the subject of the Toxic Substances 

Control Act. I have practiced environmental law, particularly in the 

area of TSCA, for 25 years, and have co-authored two TSCA desk 

books published by the Environmental Law Institute. I am testifying today solely on my own behalf. I do have some preparative 

remarks, and I will use those to keep me within the time limits. 

I do understand that the purpose of the hearing today is not to 

address specific legislative proposals or to advocate any specific 

changes, but rather to share perspectives on the current statute, 

particularly Section 6 and Section 18, and I will address in my remarks both sections. 

Starting with Section 6, it is certainly true that there have been 

a few rulemaking actions undertaken by EPA under that section, 

and this has contributed to the erosion of public confidence in the 

statute and the failed asbestos rulemaking. I would urge the committee to take a very close look at the corrosion-proof fittings decision, however, because I think it demonstrates that EPA in that 

rulemaking had committed procedures in such areas that compelled the court to set portions of the rule aside. 

I will address three requirements in Section 6. The first is least 

burdensome requirement. As. Mr. Greenwood has testified, that is, 

in fact, the way most agencies try to regulate, to engage in smart 

regulation, meaning impose the requirement that meets the regulatory objective while imposing the least burden. It is quite similar 

to the language that we see in Executive Order 13563, which directs agencies to identify and use the best and most innovative and 

least burdensome tools for achieving regulatory ends. The executive 

order directs each agency to tailor its regulations to impose the 

least burden on society consistent with obtaining regulatory objectives. So that part of the statute is good policy consistent with what 

we see in executive orders issued by this and previous administrations. 

Secondly, concerning unreasonable risk, as Mr. Greenwood has 

described, this also is a standard found common in many environmental health and safety statutes, and it also parallels language 

that we find in the executive orders, including the one cited in my 

testimony. It is very similar to the standard, for example, that EPA 

uses when regulating non-food use pesticides, and I will read that 

standard. It requires EPA to consider any unreasonable risk to 

man or the environment from the pesticide, and to take into account the economic, social, and environmental costs and benefits of 

the use of any pesticides. So we can see similarities between the 

standard in TSCA and the standard in other environmental statutes. And Executive Order 13563 similarly directs EPA and other 

23 

executive agencies to take into account benefits and costs, both 

quantitative and qualitative, and to propose or adopt a regulation 

only upon a reasonable determination that its benefits justify its 

costs. 

The third aspect of Section 6 I will address briefly is the fact that 

it places the burden on EPA to demonstrate the need for regulation. This also is not unique. When EPA promulgates a standard, 

for example, under the Clean Air Act, it typically carries the burden to demonstrate why the particular control or level of protection 

that is proposed is necessary to protect human health. EPA does 

apply very conservative health protection methodologies when making risk-based findings under TSCA or any environmental statute, 

and courts typically give EPA wide latitude to makes those kinds 

of judgments. 

I think it is important to recognize that before the failed asbestos 

rulemaking, EPA had successfully promulgated several Section 6 

rules, albeit on a much smaller scale. No legal challenge. It is important to note in the corrosion-proof fittings case that the court actually started with a presumption of validity of the rule and upheld 

portions of the rule, and set other portions, major portions aside because of the procedural assumption of errors to which I alluded 

earlier and that are described in my testimony. 

It is certainly true that conducting a rulemaking under TSCA or 

any environmental statute is very challenging, but one of the lessons of corrosion-proof fittings, in my judgment, is that we should 

not easily or lightly put procedural or substantive requirements 

aside, as they help ensure the quality or integrity of any rulemaking and any resulting regulatory decision. In my judgment, 

changes to Section 6 should not simply make it easier for EPA to 

ban chemicals, but should support sound regulatory decisions that 

meet all of the objectives of the statute. 

I would urge that the number of rulemaking actions taken under 

TSCA Section 6 is not necessarily the right metric for evaluating 

the adequacy of the statute, because it doesn’t recognize the many 

times EPA has evaluated chemicals and decided no action is needed because there were no significant risks or the chemical was a 

low concern for further action. It also doesn’t recognize what EPA 

has accomplished in other parts of the statute, voluntary product 

stewardship initiatives and the like. All of these are described in 

EPA’s Web site, and I would direct the committee’s attention to 

that Web site for more information. 

The big concern that I would raise with TSCA is that I feel EPA 

needs a strong mandate to do something about the backlog of 

chemical—assessments of existing chemicals. A clear mandate and 

adequate resources are needed, in my judgment, to enable EPA to 

assess in a timely manner the potential risks to health and the environment from chemicals that are present in commerce in significant quantities, and that mandate should direct EPA to prioritize 

so that the highest number of high priority chemicals can be addressed as quickly as possible, or within reasonable timeframes. 

I will quickly close with one comment on preemption, and that 

is it has played a very limited role under TSCA to date because it 

only comes into play when EPA has acted under Sections 4, 5, or 

6, and States that typically have not been active with respect to 

24 

testing TSCA Section 4 or new chemical regulation TSCA Section 

6, and relatively few actions have been taken under Section 6, putting aside the regulation of PCBs, so it hasn’t been a significant 

issue yet. But the preemption provision in TSCA is, in fact, similar 

to preemption provisions in other statutes and it is a well-accepted 

concept. 

Thank you very much. 

[The prepared statement of Mr. Rawson follows:] 

25 


87349.015

TESTIMONY OF 

WILLIAM K. RAWSON 

LATHAM & WATKINS LLP 

BEFORE THE 

COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY 

U.S. HOUSE OF REPRESENTATIVES 

"REGULATION OF EXISTING CHEMICALS AND THE ROLE OF PRE-EMPTION UNDER SECTIONS 6 AND 18 

OF THE TOXIC SUBSTANCES CONTROL ACT" 

SEPTEMBER 18, 2013 

INTRODUCTION 

Mr. Chairman and distinguished members of the Committee - good afternoon. I would like 

to begin by thanking the Committee for inviting me to testify today. I consider it a privilege to 

have this opportunity to contribute to the public discourse on the Toxic Substances Control Act 

(TSCA). I hope my testimony will prove useful to the Committee. 

I am a partner in the law firm of Latham & Watkins LLP. I have practiced in the 

environmental area, with an emphasis on chemical regulation under TSCA and other environmental 

statutes, since 1987. I have co-authored two editions of a TSCA Deskbook published by the 

Environmental Law Institute. My testimony is based on my experience representing and 

counseling companies and trade associations on issues arising under TSCA and other 

environmental statutes over the last 26 years. However, I am testifying today solely on my own 

behalf. 

All major stakeholders agree that improvements to TSCA are necessary to achieve the 

objectives of the statute and increase public confidence in federal chemical regulatory programs. 

Divergent views have been expressed in prior hearings before this Committee concerning what 

needs to be fixed and why. I understand the purpose of this hearing is not to advocate any specific 
26 


87349.016

amendments to TSCA or to address any specific legislative proposals, but rather to share 

perspectives on the current statute. 

As directed, my testimony will focus on EPA's experience assessing and regulating existing 

chemicals under TSCA section 6, and experience under TSCA section 18 pertaining to preemption. 

It is important to keep in mind that TSCA is only part of the story. EPA regulates the use, release 

and disposal of chemical substances under many other environmental statutes. Other federal 

agencies, including OSHA, FDA and CPSC, also have substantial responsibility for ensuring the 

safe handling and use of chemicals under their respective statutory mandates. 

Additionally, chemical manufacturers have implemented various voluntary initiatives and 

product stewardship programs over the years to support the safe manufacture and use of their 

products. Many of these voluntary initiatives have been undertaken in collaboration with EPA and 

other stakeholders. These initiatives and product stewardship programs help meet the objectives of 

TSCA, and provide additional context for a discussion about experience regulating chemicals under 

TSCA. 

Section 2 ofTSCA states that it is the policy of the United States that "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 fulfilling the primary 

purpose of this chapter to assure that such innovation and commerce in such chemical substances 

and mixtures do not present an unreasonable risk of injury to health or the environment." 

Similarly, Executive Order No. 13563, signed by President Obama on January II, 2011, states: 

"Our regulatory system must protect public health, welfare, safety, and our environment while 

promoting economic growth, innovation, competitiveness, and job creation." These similar 

pronouncements, made 35 years apart, give some indication of the concerns this Committee must 

address as it considers what amendments to TSCA might best promote the objectives of the statute. 

2 
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87349.017

SECTION 6: REGULATION OF EXISTING CHEMICALS 

Few rulemaking actions have been taken under section 6 (excluding regulation of PCBs). 

This has contributed significantly to the erosion of public confidence in TSCA, and is cited as 

evidence that the burdens on EPA when attempting to regulate under section 6 are too high. The 

failed attempt to regulate asbestos-containing products also is cited as evidence that section 6 is not 

workable. I will address first the issue of statutory authority. I then will address what I consider to 

be the greatest concern relating to EPA's exercise of its section 6 authority, which is the backlog of 

EPA assessments of existing chemicals. I believe EPA needs a stronger mandate to set priorities 

and complete safety assessments of chemicals in commerce, to determine whether and how 

chemicals should be regulated. 

Section 6(a) ofTSCA gives EPA authority to regulate the manufacture, processing, 

distribution, use or disposal of a chemical if the Agency has a "reasonable basis" to believe the 

chemical "presents or will present an unreasonable risk to health or the environment." Section 6 

enumerates various regulatory options - from an outright ban to warning and labeling requirements 

and provides that EPA may impose one or more of the enumerated requirements "to the extent 

necessary to protect adequately against such risk using the least burdensome requirements." 

When promulgating rules under section 6, EPA must take into account the health and 

environmental effects of the substance, the magnitude of exposure, the benefits of the substance, 

the availability of substitutes and their potential health and environmental impacts, and the 

reasonably ascertainable economic consequences of the proposed rule. Specific hearing 

requirements are set forth in section 6( c), and any rule that is promulgated must be supported by 

"substantial evidence" in the rulemaking record considered as a whole. 

The Agency also must determine whether the concern could be better addressed by EPA or 

another agency under another statute. If the risk of injury to health or the environment can be 

3 
28 


87349.018

eliminated or reduced under another statute administered by EPA, then section 6( c) requires EPA 

to utilize its authority under that statute unless the Agency determines that it is in the public interest 

to act under TSCA. If the chemical risk may be prevented or sufficiently reduced by action under a 

federal law not administered by EPA, the Agency must refer information on the chemical's risk to 

the agency administering the other law. Pursuant to section 9(a), EPA may not take action under 

TSCA Section 6 if the other agency finds no unreasonable risk or initiates regulatory action. 

As noted, Section 6 requires EPA to adopt the "least burdensome requirements" necessary 

to address the identified health or environmental risks. This precludes a ban of a product if a less 

burdensome approach would protect human health and the environment. Similarly, Executive 

Order 13563 directs executive agencies to "identify and use the best, most innovative, and least 

burdensome tools for achieving regulatory ends." The Executive Order compels each agency to 

"tailor its regulations to impose the least burden on society, consistent with obtaining regulatory 

objectives. " 

The "unreasonable risk" standard in section 6 is not unique to TSCA. For example, the 

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for non-food use pesticides requires 

EPA to consider "any unreasonable risk to man or the environment" and take "into account the 

economic, social, and environmental costs and benefits of the use of any pesticide." Executive 

Order 13563 similarly directs EPA and other executive agencies in their regulations to "take into 

account benefits and costs, both quantitative and qualitative." The Executive Order directs each 

agency to "propose or adopt a regulation only upon a reasoned determination that its benefits 

justify its costs." 

Section 6 of TSCA places the burden on EPA to demonstrate the need for regulation. This 

also is not unique. When EPA promulgates an air quality or emission standard under the Clean Air 

Act, for example, it typically carries the burden of demonstrating the need for the level of 

4 
29 


87349.019

protection and/or specific control measures that are proposed. Courts typically give EPA wide 

latitude to make these kinds of judgments. 

EPA applies numerous health-protective assumptions when making "unreasonable risk" 

findings, whether under TSCA or other environmental statutes. EPA typically sets the safe level in 

humans at a level 100- to IOOO-fold (or more) below a dose that produced no adverse effect in the 

most sensitive animal study, and uses conservative assumptions concerning level, frequency and 

duration of exposure. The end result is that EPA regulates based on theoretical upper bound 

estimates of risk, with the understanding that true risks are likely to be much lower than upper 

bound estimates, and could be zero. EPA has stated this explicitly in rulemakings under the Clean 

Air Act, for example. Again, courts give EPA considerable latitude to make these kinds of 

judgments. 

The failed effort to ban uses of asbestos is often cited as evidence that TSCA does not give 

EPA sufficient authority to regulate chemicals. A careful reading of the court's decision shows 

that EPA made procedural and substantive errors that compelled the court to set portions of the rule 

aside. EPA did not give proper public notice of a key element of its exposure analysis, that in some 

cases "completely altered" EPA's assessment, until after the hearings were closed.1 Asbestoscontaining friction products (primarily replacement drum and disk brakes) accounted for "the lion's 

share of the proposed benefits of the asbestos regulation," but a study commissioned by EPA raised 

significant concerns about the effectiveness of substitute products. One of the study authors 

testified that the "replacement/substitution of asbestos-based with non-asbestos brake linings will 

produce grave risks," and that "'the expected increase of skid-related highway accidents and 

resultant traffic deaths would certainly be expected to overshadow any potential health-related 

Corrosion Proo/Fittings v. EPA, 947 F.2d 1201, 1212-13 (5th Cir. 1991). 

5 
30 


87349.020

benefits of fiber substitution. ",2 Other equally significant errors are noted in the court's opinion. 

The ruling certainly was disappointing to EPA, which had spent 10 years on the asbestos 

rulemaking, but I would urge careful review of the court's decision before any conclusions are 

drawn. 

Before the failed asbestos rulemaking, EPA had successfully promulgated several section 6 

rules, albeit on a much smaller scale, without legal challenges, and without conducting a 

quantitative risk assessment for every alternative control measure (one of the complaints emanating 

from the Corrosion Prof Fittings decision). Further, the court in Corrosion Proof Fittings did not 

completely vacate the asbestos rule; it upheld EPA's ban on products not currently being produced 

in the United States, and the ban on unknown, future uses of asbestos. The court actually started 

with a "presumption of validity" in favor of EPA's rule, but found such fundamental errors in the 

rulemaking that all product-specific bans were struck down. 

Witnesses at the prior hearings of this Committee have noted that conducting a rulemaking, 

whether under TSCA or any other environmental statute, can be time-consuming and challenging 

for the Agency and can take several years. Nevertheless, I would submit that one lesson of 

Corrosion Proof Fittings is that procedural requirements and substantive criteria should not be 

lightly set aside, as they help ensure the quality and objectivity of regulatory decisions. 

Section 6 of TSCA was crafted to support sound regulatory decisions that protect human 

health and the environment while not placing undue economic burdens on companies that 

manufacture, process or use chemicals. The similarities to several provisions in Executive Order 

13563 are noteworthy and provide context for evaluating the requirements ofTSCA section 6. 

Changes to section 6 should not simply make it easier for EPA to ban the use of chemicals, but 

should support sound regulatory decisions that meet all the objectives of the statute. Decisions 

Id. at 1224 n. 25 (citing written testimony). 

6 
31 


87349.021

made under TSCA should be governed by the same principles that govern other environmental 

statutes, and fundamentally should remain risk-based. 

It remains true that very few rulemaking actions have been taken by EPA under section 6. 

That is not necessarily the right metric for evaluating the adequacy of the statute as a whole, as it 

does not account for assessments of existing chemicals and uses by EPA that did not result in 

regulation because chemicals or activities were found not to present significant risks or to be of low 

concern for further evaluation. It also ignores accomplishments under other sections of the statute, 

including significant new use rules promulgated under section 5(a) to curb uses of some existing 

chemicals. Further, it ignores voluntary product stewardship actions and other voluntary initiatives 

that have at times rendered formal action under section 6 unnecessary. Many of these activities 

addressing existing chemicals are described on EPA's website, and they are substantial. They have 

often involved partnerships with industry and other stakeholders, and international cooperation. 

But the lack of rulemaking actions under section 6 receives more attention, and continues to 

undermine public confidence. 

This leads to the concern I expressed at the beginning of this section of my testimony. 

There is still a backlog in EPA's assessment of existing chemicals. I believe addressing this 

backlog should be the top priority for bringing EPA's regulation of existing chemicals in line with 

regulation of new chemicals. A clear mandate and adequate resources are needed to enable EPA to 

assess in a timely manner the potential risks to health and the environment from chemicals that are 

present in commerce in significant quantities. Once risks have been assessed, action can be taken 

where necessary. Additionally, the public also can take comfort with respect to those chemicals 

and uses that EPA determines present low concern. 

All stakeholders recognize the need for EPA to prioritize its resources. I believe a rational 

prioritization scheme with reasonable timelines would give greater confidence to the public that 

7 
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87349.022

significant risks are being identified and addressed in a systematic and timely manner. Some 

chemicals and uses can be quickly identified as low concern. Others require more effort to 

characterize potential risks and ensure safety. Any new mandate should give EPA flexibility 

(indeed, should require EPA) to set priorities and direct resources accordingly, so that the greatest 

number of high priority chemicals can be assessed within reasonable timeframes. 

In a prior Administration, EPA announced a Chemical Assessment Management Program 

(ChAMP) that was intended to accelerate dramatically the preparation of screening-level 

assessments for approximately 7,000 chemicals for which periodic exposure information reporting 

was being required under the Inventory Update Rule, now called the Chemical Data Reporting 

Rule. EPA did this on its own, with no statutory mandate and no change in its authority under 

section 6. The initiative was replaced in the current Administration in favor of Chemical Action 

Plans that focused on a very short list of chemicals, and more recently EPA has implemented a 

TSCA Work Plan which also will address a relatively small subset of existing chemicals. This is 

not the first time EPA has abandoned one chemical risk management initiative for another. I 

believe it would be very helpful for EPA to have a strong mandate to increase the rate at which it 

identifies and assesses high priority compounds, with follow-through to completion. 

SECTION 18: PREEMPTION 

As you are aware, the concept of preemption is rooted in Article VI of the Constitution, 

which provides that the laws of the United States shall be the supreme law of the land, 

notwithstanding the laws of any states. The purpose of preemption is to prevent state and local 

laws that might thwart the effectiveness of a national legislative and regulatory scheme. 

Preemption discourages state law requirements that would hinder interstate commerce by placing 

varying requirements on companies operating across more than one state. Preemption provisions 

are found in several different Federal laws regulating products, including the Consumer Product 

8 
33 


87349.023

Safety Act (CPSA), the Food, Drug, and Cosmetic Act (FDCA), and the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA). 

TSCA section 18 preempts state and local law only when EPA has issued a rule under 

section 4 (testing), 5 (approval of new chemicals), or 6 (regulation of existing chemicals). If EPA 

has not acted, states and localities are free to act. If, however, EPA has issued a rule under section 

4, 5, or 6, states and localities must apply to EPA for an exemption from preemption prior to 

enacting additional restrictions. EPA may grant the exemption only ifthe state or local law would 

provide a higher degree of protection from risk of injury to human health or the environment than 

the TSCA rule and would not unduly burden interstate commerce. The state or local law also must 

not cause the manufacturing, processing, or distribution in commerce of the substance, mixture or 

article to be a violation of any TSCA requirement. 

Notably, several types of state laws are not subject to preemption and the exemption 

process. State or local laws governing the manner or method of disposal of toxic substances are 

not preempted where EPA has issued a relevant disposal rule pursuant to TSCA section 6(a)(6). 

State or local laws that are identical to a rule issued by EPA under section 5 or 6 are not subject to 

preemption. State or local laws that were adopted under the authority of another federal law such 

as the Clean Air Act also are not preempted. Additionally, a state or local law may prohibit the use 

of a substance or mixture, other than its use in the manufacture or processing of other substances or 

mixtures. 

As a practical matter, preemption has rarely come into play under TSCA because EPA has 

promulgated few rules under section 6 (other than regulation of PCBs), and states generally have 

not been in the business of regulating new chemicals (TSCA section 5) or requiring testing of 

existing chemicals (section 4). One TSCA preemption case is Rollins Environmental Services 

(FS). Inc. v. The Parish a/St. James, in which the Fifth Circuit Court of Appeals found that 

9 
34 


87349.024

preemption applied to a St. James Parish, Louisiana, ordinance prohibiting commercial solvent 

cleaning in certain areas as part of an effort to ban PCB disposal activities.3 EPA had promulgated 

comprehensive PCB disposal regulations under TSCA section 6(e)(I), and St. James Parish did not 

apply for an exemption. The court found that "[i]f every locality were able to dodge responsibility 

for and participation in this program through artfully designed ordinances, the national goal of safe, 

environmentally sound toxic waste disposal would surely be frustrated.,,4 Thus, preemption in this 

case met the goal of not allowing state law to thwart a national regulatory scheme. 

As noted, the CPSA, FDCA, and FIFRA also contain preemption provisions. A brief 

overview of these preemption provisions will provide context for evaluating preemption under 

TSCA. 

Preemption under the CPSA works in a manner similar to preemption under TSCA.5 If the 

CPSC has issued a rule pursuant to the CPSA that addresses the risk of injury associated with a 

consumer product, non-identical state and local standards relating to product performance, 

composition, packaging, labeling, etc., that address the same risks addressed by the CPSC are 

preempted. As with TSCA, states and localities are free to act ifthe CPSC has not. The CPSC 

may exempt non-identical state and local standards so long as the standard does not unduly burden 

interstate commerce and provides a significantly higher degree of protection from risk of injury 

than the CPSC's consumer product safety standard. 

Under the FDCA, no state or locality may establish any requirement that is not identical to 

an FDA regulation governing over the counter (OTC) drugs and medical devices.6 States and 

3 Rollins Environmental Services (FS), Inc. v. The Parish a/St. James, 775 F.2d 627 (5th Cir. 

1985). 

4 Id. at 637. 

5 15 U.s.C. § 2075. 

6 21 U.S.C. § 360k, 379r. 

10 
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87349.025

localities are free to act if FDA has not acted. States and localities may apply to the FDA for an 

exemption from preemption. The preemption provision for OTC drugs contains an exemption for 

product liability actions. 

Under FIFRA, a state may not regulate the sale or use of any federally registered pesticides 

or impose any packaging or labeling requirements that are different from those required by EPA 

under FrFRA.7 However, a state may permit registration for additional uses of federally registered 

pesticides to meet special local needs, subject to a right of cancellation by EPA. 

These other statutes demonstrate that preemption is an important concept, particularly in the 

area of product regulation where state laws or regulations could create conflicts with federal 

requirements or otherwise pose significant burdens on interstate commerce. 

I hope my testimony is helpful to the Committee. 

Thank you. 

77 U.S.C. § 136v. 

II 
36 

Mr. SHIMKUS. Thank you very much. 

I would like to now recognize Ms. Jennifer Thomas, Director of 

Federal Government Affairs for the Alliance of Automobile Manufacturers here in Washington, DC. Same thing, your written statement is in the record and you have 5 minutes. Thank you for coming. 

STATEMENT OF JENNIFER THOMAS 

Ms. THOMAS. Thank you, Chairman Shimkus, Ranking Member 

Tonko, and members of the subcommittee. My name is Jennifer 

Thomas and am I the Director of Federal Government Affairs to 

the Alliance of Automobile Manufacturers, which is a trade association that represents 12 auto makers that make roughly three out 

of every four new vehicles sold in the U.S. each year. On behalf of 

the Alliance, I appreciate the opportunity to offer our views on 

TSCA and the need for one national program for chemical regulation. 

Not only are auto makers producing more fuel efficient and safer 

cars than ever, we have also made tremendous strides in reducing 

the amount of substances of concern from autos. For example, for 

more than a decade, auto makers have maintained an industry 

focus, global substance of concern list, and tracking database to actively reduce their usage in global production. The industry has invested more than $30 million on these systems, which now tracks 

more than 2,700 substances, to ensure that restricted substances 

are not in our products. Auto makers have eliminated the use of 

lead wheel weights, mercury-containing switches, asbestos-lined 

brake pads, and are currently phasing out the use of deca as a 

flame retardant, and working to identify an alternative brake friction material to replace copper. But we recognize that there is more 

work to do. 

TSCA remains the only Federal environmental statute that has 

not been substantively revised. We support modernizing TSCA in 

part because inaction at the Federal level is creating an environment in which States feel compelled to go out on their own to regulate chemicals, creating a patchwork of State standards. As you 

might suspect, such a patchwork presents great obstacles to effective chemical management for large industry sectors, in particular, 

manufacturers of complex durable goods, such as autos. The Alliance strongly believes that modernizing TSCA to avoid a balkanized approach to chemical management is more in line with today’s 

manufacturing realities. 

The average auto has 30,000 unique components, and each individual component is comprised of multiple chemicals and mixtures. 

Many components are obtained from our suppliers as finished products, which are then integrated into the vehicle. Auto makers recent steps to streamline production and reduce costs through common design and platform sharing resulted in better products for 

our customers and allowed us to stay competitive in this global 

market. An overwhelming array of State chemical regulations, 

rather than one Federal chemical management program, increases 

costs, hinders flexibility, and reduces competitiveness. Multiple 

State programs also have the potential to conflict with stringent 

fuel economy and safety standards. To meet the aggressive 54.5 

37 

miles per gallon fuel economy standards by model year 2025, auto 

makers will be relying on lightweight materials like plastics that 

contain multiple chemical components. Auto makers spend billions 

of dollars annually on R&D to advance fuel efficiency, innovate new 

safety technologies, and develop more sustainable materials before 

the need of any regulation. A myriad of State programs has the potential to derail this progress by shifting the industry’s focus from 

R&D to regulatory compliance. We readily acknowledge that States 

have a very important role to play, and the Alliance supports a 

process by which States can address their specific chemical concerns with EPA in a common scientifically-based framework under 

TSCA. Legislative efforts to modernize TSCA should seek collaborations with States to achieve product safety, yet continue to maintain strong Federal preemption provisions. A unified national program would provide much-needed regulatory certainty while ensuring that products and chemicals are uniformly safe across all 50 

States. 

Moving forward, it is critical that any legislative efforts to modernize TSCA consider the unique concerns of complex durable 

goods manufacturers. Currently, article exemptions are in place for 

most TSCA requirements. However, we are noticing a significant 

trend at the State level targeting not just chemicals, but consumer 

products or articles. The Alliance urges the committee to consider 

establishing clear standards for the regulation of articles under 

TSCA and support the continued use of existing article exemptions 

in most circumstances. 

Finally, legislation modernizing TSCA should allow sufficient 

lead time to investigate and qualify viable alternatives, maintain 

a de minimus threshold of .1 percent for chemical control actions, 

and provide an exemption for service—for automotive service parts. 

Such an exemption would avoid any disruption in the supply of 

thousands—hundreds of thousands of replacement parts and allow 

auto makers to continue to fulfill customer warranties and replace 

existing fleet. 

The Alliance appreciates the opportunity to offer our views on 

TSCA and the need for one national program for chemical regulation. We stand ready to work with this committee on any efforts 

to modernize this important policy. Thank you again, and I look 

forward to any questions you might have. 

[The prepared statement of Ms. Thomas follows:] 

38 


87349.026

AUTO ALLIANCE 

DRIVING INNOVATION' 

STATEMENT 

OF 

THE ALLIANCE OF AUTOMOBILE MANUFACTURERS 

BEFORE THE: 

ENERGY AND COMMERCE COMMITTEE 

THE SUBCOMMITTEE ON ENVIRONMENT 

U.S. HOUSE OF REPRESENTATIVES 

SEPTEMBER 18,2013 

PRESENTED BY: 

Jennifer Thomas 

Director, Federal Government Affairs 
39 


87349.027

Summary 

Protecting consumers from hannful exposure to hazardous materials is a top priority for 

automakers. Not only are we producing more fuel-efficient and safer cars than ever, we have 

also made tremendous strides in reducing the amount of substances of concern from automobiles. 

Automakers have eliminated the use of mercury and lead wheel weights in automobiles, and are 

currently working to phase out deca-BDE flame retardants and copper-lined brake pads. For 

more than a decade, automakers and our suppliers have maintained a global substance of concern 

list and database that tracks more than 2,700 substances used in automotive components to 

ensure restricted substances are not in autos. Additionally, automobiles are among the most 

recycled consumer products in the U.S - roughly 86% of a vehicles material content recycled, 

reused, or used for energy recovery. 

However, more work remains, and the Alliance supports modernizing the Toxic 

Substances Control Act (TSCA) to keep pace with advances in science and technology. Inaction 

at the federal level to refonn TSCA is compelling states to regulate on their own, creating a 

patchwork of state standards. A single federal chemical management program could accomplish 

the goal ofproperJy managing hazardous materials in products while also creating a more 

predictable regulatory environment and more effectively address safety and risk issues from 

chemical uses nationwide. 

Moving forward, legislative efforts to modernize TSCA should consider the unique 

concerns of complex durable goods manufacturers, such as automobile manufacturers. The 

average automobile has 30,000 unique components and each component is comprised of multiple 

chemicals and mixtures. Each automaker works with a global network of more than 1,000 

suppliers, spanning multiple sectors. The Alliance urges the Committee to consider establishing 

clear standards for the regulation of articles under TSCA and support the continued use of 

existing article exemptions in most circumstances. Additionally, legislation modernizing TSCA 

should allow sufficient lead time to investigate and qualify viable alternatives. 

The Alliance stands ready to be productive partner in any efforts to modernize this 

important environmental policy. 
40 


87349.028

Testimony 

Thank you, Chairman Shimkus, Ranking Member Tonko and members of the 

Subcommittee. The Alliance of Automobile Manufacturers (Alliance) is a trade association of 

twelve car and light truck manufacturers including BMW Group, Chrysler Group LLC, Ford 

Motor Company, General Motors Company, Jaguar Land Rover, Mazda, Mercedes-Benz USA, 

Mitsubishi Motors, Porsche Cars, Toyota, Volkswagen Group and Volvo Cars. 

Together, Alliance members account for roughly 3 out of every 4 new vehicles sold in the 

U.S. each year. On behalf of the Alliance, I appreciate the opportunity to offer our views on the 

Toxic Substances Control Act (TSCA) and the need for one national program for chemical 

regulation. We commend the Committee for its thoughtful and thorough examination of this 

environmental policy. 

The greater automobile industry is a massive employer reaching well beyond the iconic 

names of auto companies familiar to us all. Auto manufacturing depends on a broad range of 

parts, components and materials provided by thousands of suppliers, as well as a vast retail and 

vehicle maintenance network of dealers. Nationwide, 8 million workers and their families 

depend on the auto industry. Each year, the industry generates $500 billion in paychecks, while 

generating $70 billion in tax revenues across the country. 

Protecting consumers and our employees from harmful exposure to hazardous materials 

is a top priority for automakers. In fact, we have a good story to tell. Not only are we producing 

more fuel-efficient and safer cars than ever, we have also made tremendous strides in reducing 

the amount of substances of concern from automobiles. For example: 

• For more than a decade, automakers have maintained the Global Automotive Substance 

List (GADSL), a longstanding industry-focused global substance of concern list, as well 

as a sophisticated tracking database - called the International Material Data System 

(IMDS) - to actively reduce industry-wide use of substances of concern in global 

production. The auto industry has invested more than $30 million dollars to build 

GADSL and IMDS, which now track more than 2,700 substances used in automotive 

components to ensure that restricted substances are not in our products. Without 

automakers developing a common list of substances to track and a common database for 
41 


87349.029

suppliers to report into, tracking and controlling such a large number of substances would 

not be possible. 

• In 2006, together with EPA, states, environmental groups and other industry stakeholders 

such as steelmakers and auto dismantlers and recyclers, automakers created the National 

Mercury Switch Removal Program to ensure the safe removal of mercury-containing 

switches in automobiles. More than 5 million switches have been collected to date, 

preventing approximately 11,000 pounds of mercury from being released into the 

environment. 1 

• Automakers eliminated lead wheel weights from all automobiles by the end of 2009, are 

currently phasing out the use of deca-BDE as a flame retardant, and are working with 

brake pad manufacturers to identify an alternative brake friction material with a smaller 

environmental impact than copper. 

Most importantly, automobiles are among the most recycled consumer products in the 

U.S. Through the recycling process, end-of-life vehicles are recycled into new vehicles, old 

consumer products are recycled into components of new vehicles, and parts of old vehicles are 

recycled into new consumer products. Approximately 86% of a vehicle's material content is 

recycled, reused or used for energy recovery.2 For example, used carpet becomes air cleaner 

assemblies and engine fan modules, and manufacturers build new tires with 10% recycled tire 

rubber material. 

But automakers recognize that there is more work to do. TSCA remains the only major 

federal environmental statute that has not been substantively revised. We support modernizing 

TSCA to keep pace with advances in science and technology and automakers want to be part of 

the solution. We understand that inaction at the federal level is creating an environment in which 

states feel compelled to regulate chemicals on their own, potentially creating a patchwork of 

state standards. As you might suspect, myriad of inconsistent or conflicting state chemical 

1 ELVS Mercury Switch Recovery Program Reporting at www.eqonline.com!services!ELVS-Mercury-SwitchRecovery-Program!annual-report.asp ?year=all 

2 SOciety of Automotive Engineers (SAE). 2011. "Vehicle Recycling, Reuse, and Recovery: Material Disposition from 

Current End of Life Vehicles" 
42 


87349.030

regulatory programs presents great obstacles to effective chemical management for large 

industry sectors, in particular manufacturers of complex durable goods, such as automobiles. 

We strongly believe that reforming the national program to avoid a balkanized approach 

to chemical management is more in line with today's manufacturing realities and will better 

protect the public while supporting U.S. competitiveness and jobs. Automakers design and build 

vehicles to synthesize a variety of systems and individual parts to meet an array of individual 

customer needs and demands and to comply with thousands of pages of international, federal and 

state regulations. The average automobile has 30,000 unique components and each individual 

component is comprised of multiple chemicals and mixtures. Each automaker works with a 

global network of more than 1,000 suppliers, spanning multiple sectors from electronics to 

textiles. Many automotive components are obtained from suppliers as finished products, which 

are then integrated into the vehicle. Government oversight of the construction and assembly of 

automobiles on a component-by-component basis is burdensome, inefficient, and unnecessary to 

effectively manage chemicals. An approach focusing on situations presenting a real potential for 

consumer exposure to substances of concern would be more effective than such an overly broad 

approach. And even more importantly, automakers simply cannot cope with a myriad of statespecific programs of this nature, each with its own unique hurdles. 

Ultimately, multiple state chemical regulatory programs will likely conflict with stringent 

federal environmental and safety standards. NHTSA, for example, sets vehicle flammability 

standards and EPA, CARB and NHTSA set greenhouse gas (GHG) emission and CAFE 

standards. To meet the aggressive 54.5 miles per gallon (mpg) average CAFE/GHG emission 

standards by MY 2025, automakers will rely on lightweight materials like plastics that contain 

multiple chemical components, such as flame retardants. Also, nanomaterials are used in electric 

and fuel cell vehicles. Automakers spend billions of dollars annually on research and 

development activities to advance fuel efficiency, innovate new safety technologies, and develop 

more sustainable materials before the need of any regulation. However, a patchwork of state 

programs has the potential to derail this progress by shifting the industry's focus from R&D to 

regulatory compliance. 

For these reasons, automakers seek a comprehensive and workable national program to 

regulate chemicals in commerce rather than a hodgepodge of overlapping state and federal 
43 


87349.031

regulations. We readily acknowledge that states do have a very important role to play and the 

Alliance supports a process by which states can address their specific chemical concems with 

EPA in a common, scientifically-based framework under TSCA. Legislative efforts to 

modernize TSCA should seek collaboration with states to achieve product safety through 

common chemical actions and requirements yet continue to maintain strong federal preemption 

provisions. 

A single federal chemical management program could accomplish the goal of properly 

managing hazardous materials in products while also creating a more predictable regulatory 

environment by eliminating conflicts and inconsistencies that make compliance unnecessarily 

burdensome and costly for both the private and public sectors. One way the auto industry has 

restructured itself to become one of the bright lights in a challenging economy has been its shift 

to fewer vehicle platforms. Reducing the number of vehicle platforms allows auto manufacturers 

to streamline the manufacturing process throughout production, lowering costs and ultimately 

resulting in better products for our customers at competitive prices. The public sector is under 

similar financial pressures to provide cost-effective services to the public. Reforming TSCA to 

make it an effective national program not only benefits the private sector by providing a unified 

and efficient regulatory compliance structure, but it also allows state and local governments to 

focus on other priority issues by freeing resources otherwise allocated to duplicative state 

chemical regulations. Most importantly, a unified national policy through TSCA reform would 

more effectively address safety and risk issues from chemical uses nationwide. 

Additional Considerations: 

Moving forward, it is critical that any legislative efforts to modernize TSCA consider the 

unique concerns of complex durable goods manufacturers as article manufacturers/assemblers. 

Currently, article exemptions are in place for most TSCA requirements. However, these are not 

statutory exemptions but rather they have been written into regulation by EPA and can be lifted, 

as has recently occurred with the proposed deca-BDE Significant New Use Rule (SNUR) and 

Test Rule. Furthermore, we are noticing a significant trend towards state legislation and 

regulations targeting not just chemicals but consumer products (Le., articles). In 2013, at least 16 

broad-reaching chemical regulation bills have been introduced by state legislatures across the 

country. While some had a specific focus, the definitions went beyond the scope of federal 
44 


87349.032

definitions and were broad enough to include consumer products and automobiles. The 

Alliance urges the Committee to consider establishing clear standards for the regulation of 

articles under TSCA and support the continued use of existing article exemptions in most 

circumstances. 

Additionally, legislation modernizing TSCA should allow sufficient lead time to 

investigate and qualify viable alternatives (typically 5 years in the auto industry and not all 

vehicles are reengineered at the same time). With roughly 250 million registered vehicles 

currently operating on U.S. roads3

, service parts for legacy vehicles should be exempted from 

any chemical substitution to avoid any disruption in the supply of hundreds of thousands of older 

model replacement parts, impacting automakers' ability to fulfill consumer warranties, recalls, 

service campaigns, or repairs of the existing fleet. This is a significant issue since the average 

age of the typical automobile on U.S. roads is over 11 years 01d4

• 

Finally, TSCAIEPA should maintain a minimum threshold of 0.1 % for chemical 

reporting and most chemical control actions. This is the de minimis level used by most world 

governments to effectively control the thousands of chemicals within thousands of products. 

We appreciate the opportunity to offer our views on TSCA and the need for one national 

program for chemical regulation. It might be counterintuitive to some that an industry that relies 

heavily on chemicals would support legislation that would provide EPA more authority and 

better tools to regulate chemicals. But it is entirely in keeping with our overall desire as auto 

companies to offer the best and safest products possible to our customers and protect our 

employees; we welcome an effective national program. The Alliance stands ready to work with 

the Committee on any efforts to modernize this important environmental policy. Thank you 

again and r will be happy to answer any of your questions. 

, Polk. 2013. Polk Finds Average Age of Light Vehicles Continues to Rise [Press Release]. Retrieved from 

https://www.polk.com/company/news/polk_finds_average_age_oUight_vehicles_continues_to_rise 

4 Ibid. 
45 

Mr. SHIMKUS. Thank you. 

Chair now recognizes Mr. Justin Johnson, Deputy Secretary for 

the Vermont Agency for Natural Resources from the great State of 

Vermont. Sir, you are welcome and you are recognized for 5 minutes. 

STATEMENT OF JUSTIN JOHNSON 

Mr. JOHNSON. Thank you, Chairman Shimkus and Ranking 

Member Tonko, and the other members of the committee. It is a 

real honor to come down and speak to you about this today. I am 

the Deputy Secretary of the Agency of Natural Resources in 

Vermont, but today I am representing the Environmental Council 

of the States, which is made up of the leaders of the State and territorial Environmental Protection Agencies. 

Just yesterday, ECOS passed a resolution on this matter at our 

annual meeting over in Arlington, and I will be summarizing that 

position today. 

First of all, I would say that ECOS members are very keen to 

see reform of TSCA. It is very important to us for a number of reasons, which I will spell out. In particular, we have four top issues 

of concern: preemption, chemical assessments, the safety standard, 

and CBI, which I know is not the specific topic today and you have 

addressed before, but that is also an important one. 

Preemption is the number one topic, simply because States do 

not want to lose the ability to act to restrict a chemical in order 

to prevent harm to the public or the environment. This ability to 

act is important to States as a backstop to either a Federal program that does not work as intended, or a Federal program that 

acts slowly or fails to act when reliable scientific data indicates 

that action is needed. Without this ability to act, the only recourse 

would be to come back to Congress to do what we are doing, and 

it is a very high bar indeed. Retaining our ability to act does not 

mean that 50 States with 50 different chemical laws is the outcome. States are only looking to have the ability to act on chemicals in a way that their legislatures, governors, and people deem 

appropriate. It is expensive and time consuming to take these actions, and the way States are these days, we are not looking for 

more work, but we will act if we need to to protect citizens. 

States have lost confidence that TSCA works as thoroughly or as 

quickly as it ought to, leaving States to pass their own laws and 

rules on chemical management. However, if TSCA did work thoroughly and quickly, there would be much less incentive for States 

to act with additional requirements. State authority would be preserved, but seldom invoked. As a practical matter, implementation 

of a comprehensively reformed TSCA will render the State implementation issue largely moot, as States will focus their increasingly 

limited resources on other priorities. 

During the last 20 years, however, States have acted to fill the 

regulatory void of the Federal level, illustrating the vitally important role States play in providing a backstop to Federal inaction. 

With regard to the current impact of TSCA Sections 6 and 18 on 

the exercise of States action or on common law authority, we suggest that because EPA has acted on so few chemicals under TSCA, 

preemption of State authority has not been an issue to date. 

46 

States believe that for TSCA to work well, there are at least 

three other key requirements. Chemical assessments need to be 

conducted. There are thousands of chemicals that the EPA hasn’t 

acted on. Currently, EPA must conduct reviews of new chemicals 

to determine if they are a threat. Because of the current TSCA requirements for EPA to generate most of the data itself, this burden 

is beyond the Agency’s capability and so very few get reviewed. 

Most chemicals simply pass into commerce. When this happens, 

States may see a problem with some of these and then act. The 

key, then, is for EPA to prioritize and review high priority chemicals, then it can focus on the chemicals of greatest concern. But 

EPA doesn’t currently have the resources to conduct this process, 

so industry should supply some or all of the needed data. This is 

why ECOS says that TSCA reform should ensure that the burden 

is effectively placed on manufacturers. 

The safety standard burden of proof should be less onerous. Currently, States think that the action standard the EPA is held to is 

too high in their ability to restrict a chemical’s use. Currently, 

TSCA’s safety standard requires EPA to prove that harm from a 

chemical has occurred before it can restrict use of the chemical. 

This is almost an impossible standard for EPA to meet. In our resolution, we ask that TSCA be reformed so that EPA can take expedited action when a chemical presents a very serious or immediate 

risk to public health or the environment, including the ability to 

impose interim conditions to be in effect until EPA has had the opportunity to make a safety determination. This will help alleviate 

State concerns about the effectiveness of TSCA. 

Finally, I will just say on confidential business information, 

States need access to confidential data to help us fulfill our requirements to protect citizens and the environment. We understand that 

States should have to follow Federal guidelines that restrict distribution of these materials, but we believe that that is an important step in making TSCA more open and available to people so 

they can understand the decisions that are being made. There are 

other issues, but during our resolution and with the permission of 

the committee, I would provide a copy of that final resolution as 

an addendum to my written testimony. 

Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Johnson follows:] 

47 


87349.033

Testimony 

Hearing on Regulation of Existing Chemicals and the Role of Pre-Emption 

under Sections 6 and 18 of the Toxic Substances Control Act 

Subcommittee on Environment and the Economy 

House Committee on Energy and Commerce 

Wednesday, September 18,2013 

by 

Justin Johnson, Deputy Secretary 

Vermont Agency for Natural Resources 

Main Points 

I. ECOS believes that new legislation is needed to strengthen the Toxies Substances 

Control Act (TSCA). 

2. The primary concerns of states are: 

a. That states should not be pre-empted by TSCA revisions beyond those currently in 

the statute; 

b. The need for EPA to conduct more chemical assessments; 

c. The safety standard burden of proof should be less onerous; 

d. States should have access to Confidential Business Information. 

Ladies and gentlemen of the committee, thank you for inviting me here today to talk 

about our organization's views on the Toxics Substances Control Act (TSCA). I am representing 

the Environmental Council of the States (ECOS), whose members are the leaders of the state and 

territorial environmental protection agencies, and I may make comments from my own state's 

point-of-view as well, which I will note at the time. 

My role in ECOS is as the Chairman of our Cross-Media Committee. OUf Committee 

works on issues such as chemical management and other matters that affect air, water, and waste. 

Over the past year, the committee has been intently interested in TSCA reform. OUf first 

resolution on this matter dates back to 2001, asking that states have access to confidential 

business information. During the ECOS Annual Meeting on September 17, we will be 

considering modifications to our resolution entitled "Reforming the Toxic Substances Control 

Act." Because I do not know the outcome of this discussion yet, I cannot address our changes in 
48 


87349.034

this written testimony. I will however discuss the outcome during my oral testimony. Instead, I 

will summarize the primary concerns of the states as expressed in a series of conference calls 

about the resolution that we've had during 2013. 

First, ECOS wants TSCA reform to occur and we seek a bi-partisan bill that will pass 

both houses and be signed by the President. We understand that we might not see every item we 

seek in the final bill, but some issues are of very high importance to states. Our resolution speaks 

for itself with respect to our priorities, but in this testimony I will focus on the top four issues of 

concern to ECOS. 

Pre-emption is our number one topic. States don't want to lose the ability to act to restrict 

a chemical in order to prevent harm to the public or the environment. States can agree, however, 

that a state requirement that makes it impossible for the manufacturer to comply with both state 

and federal rules should result in the federal rule taking precedence. This ability to act is 

important to states because it is the backstop to a weak federal program, or a federal program that 

does not work as intended, or a federal program that acts very slowly or one that fails to act when 

reliable scientific data indicates that action is needed. Without the state ability to act, the only 

resource would be for Congress to re-address TSCA, and that is a very high bar indeed. Even 

though states want to keep the ability to act, I expect that not all states will need to act, and that 

retaining our ability to act does not mean 50 states with 50 different chemical laws. It means that 

states can act on chemicals in a way that their legislatures, Governors, and people deem 

appropriate. 

This is where we find ourselves today. States have had a loss in confidence that TSCA 

works as thoroughly or quickly as it ought to, leaving states to pass their own laws and rules on 

chemical management. However, ifTSCA did work thoroughly and quickly there would be 

2 
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87349.035

much less incentive for states to enact additional requirements. State authority would be 

preserved but seldom invoked. As a practical matter, implementation of a comprehensively 

reformed TSCA will render the state preemption issue largely moot, as states will focus their 

increasingly limited resources on other priorities. During the past 20 years, however, states have 

acted to fill the regulatory void at the federal level, illustrating the vitally important role states 

play in providing a "backstop" to federal inaction and as laboratories of innovation. With regard 

to the impact of the current TSCA Sections 6 and 18 on the exercise of states action, or on 

common law authority, we suggest that because EPA has acted on so few chemicals under 

TSCA, preemption of state authority has not been an issue under the current law. 

States believe that for TSCA to work well there are at least three other key requirements. 

1. Chemical Assessments Need to be Conducted. There are thousands of chemicals that the 

U.S. Environmental Protection Agency (EPA) hasn't acted on. Currently, EPA must conduct 

reviews of new chemicals to determine if they are a threat. Because of the current TSCA 

requirements for EPA to generate most of the data itself, this burden is beyond the agency's 

capability and so very few get reviewed. Most chemicals simply pass into commerce. When 

this happens, states may see a problem with some of these and then act. The key then, is for 

EPA to prioritize and review high priority chemicals, perhaps by a set of prioritization 

criteria. Then it can focus on the chemicals of greatest concern. But EPA currently does not 

have the resources to conduct this process. So, industry should supply all the needed data. 

This is why ECOS says that TSCA reform should ensure the burden is effectively placed on 

manufacturers. 

2. The Safety Standard Burden of Proof Should Be Less Onerous. Currently, states think that 

the action standard that EPA is held to is too high, restricting its ability to limit a chemical's 

3 
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87349.036

use. Currently, TSCA's safety standard requires EPA to prove harm from a chemical has 

occurred before it can restrict use of that chemical. This is an almost impossible standard for 

EPA to meet. In our new resolution, we ask that TSCA be reformed so that EPA can take 

expedited action when a chemical presents a very serious or immediate risk to public health 

or the environment, including the ability to impose interim conditions to be in effect until 

EPA has had the opportunity to make a safety determination. This will help to alleviate state 

concerns about the effectiveness of TSCA. 

3. Sharing Confidential Business Information with States. States need access to confidential 

data submitted to EPA. This is to help us fulfill our requirements protect human health and 

the environment. We understand that states will have to follow federal guidelines that restrict 

distribution of these materials, rather than the state standards which are often more open. 

The other issues that our resolution addresses are also important to states although I am 

not detailing them here. With your permission, I will provide a copy of our final resolution as an 

addendum to my written testimony so that you can see these for yourself. 

There are two other issues that ECOS discussed in our many calls on TSCA reform that 

we did not address in our resolution, primarily because of time constraints. One of these is 

defining what are adequate resources for EPA (e.g., annual budget) needed to conduct the 

assessments, prioritizations and reviews. As managers of state agencies, we understand that 

much is expected of us and that our ability to succeed is sometimes limited by the resources at 

hand. The same is true at EPA. We want EPA to succeed in chemicals management. Part of the 

reason we did not address this issue in our resolution is because we do not have a number to 

suggest, or the information we need to develop such a number. 

4 
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87349.037

Our second unaddressed issue is deadlines for chemical reviews. There was discussion 

among the states about having a more rigid system of time lines for review of chemicals. Most 

states have deadlines for air or water permit issuance, and so states find the use of deadlines to be 

customary. Perhaps similar deadlines for EPA would be appropriate and would assure timely 

action, but we are not currently able to suggest to you what those deadlines ought to be. 

I am happy to take questions when you are ready. 

5 
52 

Mr. SHIMKUS. Thank you, sir. 

Now chair turns to—and I hope I don’t butcher it—Lemuel 

Srolovic. Close? All right. That is the last time I am going to try. 

Chief of the Environmental Protection Bureau of New York State 

Office of the Attorney General. Sir, you are welcomed. Your full 

statement is in the record and you are recognized for 5 minutes. 

Just hold on for one second. Let’s see if we can get—there should 

be a light that goes on if you press it. If not, just grab one of your 

other panelists’—— 

STATEMENT OF LEMUEL M. SROLOVIC 

Mr. SROLOVIC. A little help from the sister State here. Thank 

you. 

Chairman Shimkus, Ranking Member Tonko, and distinguished 

committee members, thank you for the opportunity to testify this 

afternoon on behalf of Eric T. Schneiderman, Attorney General of 

New York. 

For many decades, New York has been a leader in protecting 

public health and the environment from toxic chemicals. That exercise of traditional State power has allowed New York to protect its 

citizens and natural resources, and to serve as a laboratory for nationwide solutions to threats posed by toxic chemicals. 

For example, in 1970, the State of New York banned the use of 

the insecticide DDT, which was devastating many bird populations, 

including the American bald eagle. EPA followed New York’s lead 

in banning DDT. Now when you travel from New York City to Albany along the Hudson River, you can routinely see bald eagles 

along the way and it is a highlight of that trip. 

New York has taken other actions to protect public health and 

the environment by restricting the sale and use of products containing harmful chemicals. Some of those actions include to protect 

babies and young children, New York has banned bisphenol A, or 

BPA, in pacifiers and baby bottles for use in children under 3 years 

of age. BPA has been shown to mimic the behavior of estrogens, potentially causing changes in the onset of puberty and reproductive 

functioning. New York also restricts the concentration of lead, cadmium, mercury, and chromium in product packaging. Lead and 

mercury are probable human carcinogens, while cadmium and 

chromium are known human carcinogens. To protect New Yorkers 

that rely on groundwater for their drinking water supply, New 

York prohibits the sale or distribution of gasoline within the State 

containing methyl tertiary butyl ether, or MTBE. MTBE has been 

shown to have adverse health effects, and when in drinking water, 

may impart bad taste and odor. 

The goal of TSCA is to establish necessary and appropriate Federal restrictions on the manufacture and use of chemicals that 

present an unreasonable risk of injury to the health of Americans 

or the environment. Attorney General Schneiderman strongly supports this goal, and recognizes the critical contribution that TSCA, 

in partnership with State efforts, could make in ensuring the adequate protection of public health and the environment. 

Unfortunately in practice, TSCA has largely failed to live up to 

its goal because only a small number of chemicals have been tested, and just a handful have been restricted. 

53 

It is essential that TSCA be reformed to require EPA to increase 

its knowledge of the toxicity of the potentially dangerous chemicals 

on its inventory as quickly as possible, and to impose appropriate 

restrictions on their manufacture and use as necessary to adequately protect public health and the environment. 

Over on the Senate side, a pending bill, S.1009 proposes to reform TSCA in important respects. Attorney General Schneiderman 

believes that a number of these amendments represent critical improvements to TSCA; however, the Attorney General also believes 

that that legislation could be further improved. 

Protecting the Nation’s public health and the environment is best 

achieved through a dynamic Federal-State relationship in which 

the authority of States to enact enforced protections, which are at 

least as stringent as Federal protections, but may also be more 

stringent, is preserved. That relationship animates our national 

laws regarding air and water pollution, hazardous waste, pesticides, as well as TSCA. TSCA’s preemption provision preserves 

the States’ traditional authority to restrict chemicals that States 

have found dangerous, as well as allowing States to continue to 

serve as laboratories for nationwide solutions. 

In considering necessary reform of TSCA’s regulatory provisions, 

the traditional authority of States to take action to protect their 

citizens and the environment from threats posed by toxic chemicals 

should be preserved. 

In conclusion, achieving TSCA’s goal of ensuring the adequate 

protection of public health and the environment from toxic chemicals is critically important, as is preserving the authority of States 

to protect public health and the environment. Because TSCA has 

not met its goal, Attorney General Schneiderman strongly supports 

your efforts and offers the full assistance of our office to you and 

your colleagues as you review this important Federal law. 

Thank you, and I look forward to any questions. 

[The prepared statement of Mr. Srolovic follows:] 

54 


87349.038

Testimony to House Committee on Energy and Commerce, 

Subcommittee on Environment and the Economy 

Hearing on 

"Regulation of Existing Chemicals and the Role of Pre-Emption 

Under Sections 6 and 18 ofthe Toxic Substances Control Act" 

By 

Lemuel M. Srolovic 

Bureau Chief, Environmental Protection Bureau 

Office of N ew York State Attorney General Eric T. Schneiderman 

September 18,2013 
55 


87349.039

SUMMARY 

(I) New York Attorney General Eric T. Schneiderman strongly supports the goal of the 

federal Toxic Substances Control Act of 1976 (TSCA) and recognizes the critical contribution 

that this law - in partnership with state efforts - could make in ensuring the adequate 

protection of public health and the environment from toxic chemicals. 

(2) The State of New York has played and is playing a leading role in protecting our 

citizens and the environment from harms posed by toxic substances, including protecting our 

residents - particularly those who are most vulnerable - from carcinogens, chemicals that 

mimic estrogen, and other dangerous chemicals .. 

(3) In practice, TSCA has largely failed to live up to its goal. TSCA should be 

strengthened by requiring EPA to conduct expeditious safety reviews of the tens of thousands of 

chemicals to which Americans are exposed. Once EPA has done so, it should be required to 

timely impose restrictions on the manufacture and use of those chemicals as necessary to 

adequately protect public health and the environment. 

(4) In any reform of TSCA, it is critical to preserve the ability of states to protect 

their citizens and environment from chemicals that states have found dangerous. This goal can 

be achieved by allowing state restrictions to remain in place until EPA has imposed a restriction, 

and in some circumstances allowing a state restriction on a chemical to remain in effect even 

after EPA has imposed a restriction. 

(5) Because Attorney General Schneiderman believes that achieving TSeNs goal of 

ensuring the adequate protection of public health and the environment from toxic chemicals is as 

important as ever, he offers the full assistance of his office to this Subcommittee as you review 

this important federal law. 
56 


87349.040

TESTIMONY 

Introduction 

Good afternoon Chairman Shimkus, Ranking Member Tonko, and distinguished 

members of the Subcommittee on Environment and the Economy. Thank you for the 

opportunity to testifY today on behalf of Eric T. Schneiderman, Attorney General of New York, 

regarding the regulation of toxic chemicals. I would like to begin by discussing the role that 

Ncw York has played and is playing in protecting our citizens and the environment from harm 

posed by toxic substances. I will then discuss the need for strengthening the federal Toxic 

Substances Control Act of 1976 (TSCA), and the New York Attorney General's support for 

doing so. Lastly, I will discuss the Attorney General's views on the appropriate balance between 

federal and state restrictions on toxic chemicals. 

Actions by New York to Protect Human Health and the Environment 

For many decades, New York has been a leader in protecting public health and the 

environment from toxic chemicals. That exercise of traditional state power has allowed New 

York to protect its citizens and natural resources and to serve as laboratory for nationwide 

solutions to threats to human health and the environment posed by toxic chemicals. 

For example, in 1970 New York banned use of the insecticide DDT, which was 

devastating many bird populations, including American bald eagles, peregrine falcons, brown 

pelicans, and ospreys. Two years later, EPA followed New York's lead in banning DDT. 

Twenty years later, the American bald eagle was recovering, and was "up"-listed from an 

endangered species to a threatened species. 

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87349.041

New York has taken other actions to protect public health and the environment by 

restricting the sale or use of products containing harmful chemicals. They include the following: 

• To protect babies and young children from exposure to biologically active bisphenol 

A (BPA), New York has banned the chemical in pacifiers and baby bottles for use by 

children under three years old. N.Y. Envtl. Conserv. Law § 37-0501 et seq. BPA 

leaches into liquids and foods and has been shown to mimic the behavior of estrogens 

in the human body, potentially causing changes in the onset of puberty and 

reproductive functioning. 

• To protect babies and young children from exposure to biologically active tris(2-

choloroethyl) phosphate (TRIS), New York has banned the flame retardant chemical 

in products intended for use by children under three years of age, including toys, car 

seats, nursing pillows, crib mattresses, and strollers. N.Y. Envtl. Conserv. Law § 37-

0701 et seq. The Consumer Products Safety Commission classifies TRIS as a 

probable human carcinogen. Studies have shown that young children are often the 

group most highly exposed to TRIS, and estimate that children can ingest up to ten 

times as much of this chemical as adults do because of their tendency to put their 

hands and other objects into their mouths. 

• To protect humans from harm posed by pentabrominated and octabrominated 

diphenyl ethers (both of which are polybrominated diphenyl eithers or PBDE), New 

York restricts the concentration of these brominated flame retardants in products 

manufactured, processed or distributed in New York. N.Y. Envtl. Conserv. Law § 37-

011 I. PDBE has been correlated with lower birth weight in newborns. Animal 

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87349.042

studies indicate that pre- and post-natal exposures to PBDE may cause long-lasting 

behavioral alterations and can affect motor activity and cognitive behavior. 

• To protect humans and the environment from toxic metals in product packaging, New 

York restricts the concentration of lead, cadmium, mercury, and hexavalent 

chromium in inks, dyes, pigments, adhesives, stabilizers, or other additives in product 

packaging. N.Y. Envtl. Conserv. Law § 37-0205 et seq. EPA has determined that 

lead and mercury are probable human carcinogens while cadmium and chromium are 

known human carcinogens. Exposure to high levels of any of these heavy metals can 

permanently damage the brain, kidneys, and other vital organs. 

• To protect the public from a toxic and flammable dry cleaning solvent, New York 

restricts the use of n-propyl bromide in dry cleaning. See "Approved Alternative 

Solvents for Dry Cleaning" at http://www.dec.ny.gov/chemical172273.html. Npropyl bromide has been found to cause sterility in both male and female test animals, 

and to harm developing animal fetuses. In humans, the chemical can damage nerves, 

causing weakness, pain, numbness, and paralysis. As a result, New York will not 

issue an air facility registration to any facility proposing to use n-propyl bromide as 

an alternative dry cleaning solvent because n-propyl bromide does not qualify as an 

approved alternative solvent under 6 N.Y.C.R.R. Part 232. New York City also 

specifically bans n-propyl bromide under its fire code because of its flammability. 

N.Y.C. Admin. Code §§ 27-426, 27-427. 

• To protect New Yorkers that rely on groundwater for their drinking water supply, 

New York prohibits the import, sale, or distribution of gasoline containing methyl 

tertiary butyl ether (MTBE). N.Y. Agric. & Mkts. Law § 192-g. Studies of animals 

4 
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87349.043

have shown that exposure to large amounts of MTBE had effects on their nervous 

systems, and people exposed to MTBE have reported headaches, nausea, dizziness, 

and irritation of the nose and throat. MTBE in drinking water may also adversely 

affect taste and odor. 

• To protect New York's rich surface water resources - from Long Island Sound to 

Lake Erie and Lake Ontario - New York limits the phosphorus content of household 

cleaning products and the sale and use of phosphorus lawn fertilizers. N.Y. Envtl. 

Conserv. Law §§ 17-2103, 35-0105(2)(a). Phosphorus entering New York's waters 

has caused reductions in the oxygen that is necessary for fish to breathe and has 

contributed to algae that turns water green and degrades drinking water quality. 

The Federal Toxic Substances Control Act 

The goal of TSCA is to establish necessary and appropriate federal restrictions on the 

manufacture and use of chemicals that present an unreasonable risk of injury to the health of 

Americans or the environment. New York strongly supports this goal and recognizes the critical 

contribution that TSCA - in partnership with state efforts - could make in ensuring the 

adequate protection of public health and the environment from toxic chemicals. Unfortunately, 

in practice TSCA has largely failed to live up to its goal. 

The primary requirements ofTSCA are: 

Under § 8(b), EPA is required to maintain an inventory of chemicals currently 

manufactured or processed in the United States. 15 U.S.C. § 2607(b). 

• Under § 5, manufacturers must notify EPA before using a chemical that is not on the 

inventory or creating a new use of a chemical that is on the inventory. ld. § 2604. 

5 
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87349.044

• Under § 4, EPA is required to issue a rule requiring testing of a chemical that "may 

present an unreasonable risk of injury to health or the environment" or that is or will 

be "produced in substantial quantities" and will either enter the environment in 

substantial quantities or lead to human exposure in substantial or significant 

quantities, if there is insufficient data about the chemical. ld. § 2603. 

• Under § 6(a), if EPA finds that "there is a reasonable basis to conclude that the 

manufacture, processing, distribution in commerce, use, or disposal" of a chemical 

"presents an unreasonable risk of injury to health or the environment," EPA shall 

protect against that risk using "the least burdensome requirement" with respect to the 

chemical's manufacture, processing, distribution, use or disposal. ld. § 2605(a). 

TSCA has largely failed to meet the goal of keeping Americans and the environment safe 

from dangerous chemicals because only a small number of chemicals have been tested and only 

a handful have been restricted. For example, after TSCA went into effect in 1977, 60,000 

existing chemicals were placed on EPA's inventory but only about 200 of those chemicals were 

tested and only a handful were restricted. 

As a result of the failure of TSCA to fulfill its goal, the American public and our 

environment are currently being exposed to potentially hazardous chemicals on an ongoing basis, 

even though their toxicity is not yet fully understood. It is essential that TSCA be reformed to 

require EPA to increase its knowledge of these chemicals' toxicity as quickly as possible and to 

impose appropriate restrictions on their manufacture and use as necessary to adequately protect 

public and environmental health. 

The pending Senate bill, S. 1009, proposes several ways to accomplish that reform, 

including: 

6 
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87349.045

• Amending § 4 of TSCA to require EPA to classifY every chemical on the inventory as 

either low or high priority; 

• Amending § 6(a)-(c) to require EPA to make a safety assessment and safety 

determination about every high-priority chemical; 

• Amending § 6(c) to provide that, if EPA finds as a result of the safety determination 

that a chemical will present an unreasonable risk of injury to health or the 

environment under its "intended conditions of use," EPA is required to impose 

additional restrictions as "necessary"; and 

• Further amending § 6(c) to remove the "least burdensome requirement" provision, 

which has acted as a barrier to regulation. 

I believe that these amendments represent critical improvements to TSCA. However, I 

also believe that these amendments could be further improved by imposing deadlines on EPA for 

designating chemicals as low priority or high priority, for conducting safety assessments and 

determinations, and for imposing additional restrictions on chemicals that are found to present an 

unreasonable risk to health or the environment. 

Preemption of State Laws under TSCA 

Protecting the Nation's public health and the environment from the adverse effects of 

toxic chemicals is best achieved through a dynamic federal/state relationship in which the 

authority of states to enact and enforce protections which are at least as stringent as federal 

protections but may also be more stringent - is preserved. That relationship animates our 

national laws governing air and water pollution, hazardous waste, and pesticides as well as 

TSCA. 

7 
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87349.046

TSCA's preemption provisions allow a state to impose its own restriction on a dangerous 

chemical until EPA has restricted a chemical, exempt several categories of state restrictions from 

preemption even after EPA has imposed a restriction, and establish a preemption waiver process. 

These provisions help to ensure that states retain their ability to protect their citizens and 

environment from chemicals that states have found dangerous as well as allowing states to 

continue to be laboratories for nationwide solutions. 

§ 18(a)(I) ofTSCA provides that a state may regulate any chemical unless and until EPA 

regulates the chemical under § 6. 15 U.S.C. § 2617(a)(I). Once EPA regulates a chemical 

because it has found that the chemical presents an unreasonable risk, § 18(a)(2)(B) provides that 

a state may not enforce an existing regulation or establish a new regulation "which is designed to 

protect against such risk" after the effective date of that federal regulation. Id. § 2617(a)(2)(B). 

However, § 18(a)(2)(B) exempts a state restriction on a chemical from preemption if the 

state restriction is: (I) identical to EPA's restriction; (2) enacted pursuant to another federal law; 

or (3) a complete ban on in-state use of the chemical. Id. These exceptions provide important 

protections to states. For example, the exception for restrictions that are identical to EPA's 

restriction allows a state to enforce a restriction under its own law and administrative 

enforcement process rather than seeking to enforce it in a citizens' suit brought under TSCA in 

federal district court. 

In addition, § \8(b) provides that a state may seek a waiver from preemption if a state 

restriction: (I) would not create a violation of EPA's regulation; (2) provides a significantly 

higher degree of protection than EPA's regulation; and (3) would not unduly burden interstate 

commerce. Id. § 26 I 7(b). In considering necessary reform of TSCA's regulatory provisions, 

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87349.047

the authority of states to take action to protect their citizens and the environment from threats 

posed by toxic chemicals should be preserved. 

Conclusion 

In conclusion, achieving TSCA's goal of ensuring the adequate protection of public 

health and the environment from toxic chemicals is critically important, as is preserving the 

authority of states to protect public health and the environment from the risks posed by toxic 

chemicals. Because TSCA has not met its goal, Attorney General Eric T. Schneiderman strongly 

supports your efforts and offers the full assistance of our office to you and your colleagues as 

you review this important federal law. 

I would like to thank you Chairman Shimkus, Ranking Member Tonko, and the other 

members of this committee and subcommittee for your consideration of TSCA and its necessary 

reform. 

9 
64 

Mr. SHIMKUS. Thank you, sir, and now the chair recognizes Ms. 

Linda Reinstein, correct, President, CEO and Cc-Founder of Asbestos Disease Awareness Organization from California. You are welcomed and you are recognized for 5 minutes. 

STATEMENT OF LINDA REINSTEIN 

Ms. REINSTEIN. Thank you for giving me the honor and the opportunity to testify today at your critically important hearing. 

I know far too well that toxic chemicals are not just threats. 

They are a real part of life and death for many Americans. During 

the past 10 years since I have been coming to Washington, more 

than 100,000 Americans have lost their lives because of asbestos. 

I want to make it clear, I am neither a lobbyist nor an attorney. 

I am a mesothelioma widow. 

I co-founded the Asbestos Disease Awareness Organization back 

in 2004. We have become the largest independent non-profit organization in the United States dedicated to eliminating asbestoscaused diseases. 

It is important for me today. I want to dedicate my testimony to 

Janelle and to Michael. Tragically, Janelle lost her life to mesothelioma just a few months ago. She was only 37 years old. She has 

left behind her husband and an 11-year-old son. Michael, age 29, 

a mesothelioma patient, is fighting for his life and he faces limited 

treatment options. 

My husband, Alan, was diagnosed with pleural mesothelioma in 

2003. We had never heard of this asbestos-caused cancer, and we 

shortly learned it was incurable. Alan chose to undergo radical surgery. They removed a left rib, his left lung, resected his pericardium, and surgically replaced his diaphragm. When mesothelioma attacked his remaining lung, he was then tethered to oxygen 

and he felt like he was breathing through a pinched straw each 

breath, every second, every minute, every day. In 2006, my then 

13-year-old daughter and I were by his side as he took his last 

breaths and died. 

Sadly, our stories are far too common. Asbestos is a known 

human carcinogen, and it remains legal and lethal in the United 

States. The Toxic Substances Control Act, TSCA, has failed to protect public health and our environment. In 1989, EPA issued a 

final rule under Section 6 of TSCA banning asbestos-containing 

products. In 1991, however, this rule was overturned by the 5th 

Circuit Court of Appeals. As a result, there was no ban on the 

manufacture, importation, processing, or distribution in commerce 

of asbestos-containing products. 

Asbestos has been banned in 54 countries without an economic 

consequence. It is time for TSCA reform, and more importantly, the 

burden of proof should shift to the chemical manufacturers to prove 

their chemicals are safe. 

I want you to know that consumer, environmental, and occupational exposures continue. From 1900 to 2010, we have used more 

than 31 million tons of asbestos, and since 1965, nearly 1.4 million 

tons of asbestos have been used in friction products: brakes, clutches, and others. But I ask you today, each of you, do you know 

where asbestos is in your home, in your district, or inside the Capitol? 

65 

Your constituents can’t manage the toxic risks on their own. It 

was reported that 2,600 tons of asbestos debris were removed after 

the Joplin, Missouri tornado, and I want you to know that there 

are tons of toxic debris that littered the coastline after Hurricane 

Sandy. It was California’s Prop 65, not the EPA, that removed a 

child’s toy from the consumer shelves that was contaminated with 

asbestos. Horrifically, last year we imported 1,060 tons of asbestos 

to meet so-called manufacturing needs. 

Now I want to be clear about this also. I have tried for 2 years 

through FOIA requests to identify who is importing asbestos, what 

is being manufactured, and where is the end product being used? 

My questions have all gone unanswered. Due to trade laws such as 

U.S. Code Title 13, Chapter 9, Section 301(g), the information is all 

confidential. Yet asbestos has caused the largest manmade disaster. The CDC NIOSH statistics from 2000 to 2010 revealed 

43,464 Americans have died from mesothelioma and asbestosis, 

and those are just two of the asbestos-caused diseases. 

So when we think about cost benefit analysis and some of the 

other hoops that we have to jump, I want you to think about the 

lives that are claimed as you draft and pass meaningful TSCA reform. For Alan, Janelle, Michael, and the hundreds of thousands 

of other asbestos victims and their families, we deserve responsibility, accountability, and transparency, and without these three, 

no one is safe. No one. 

The asbestos facts are irrefutable. Every day, 30 Americans die 

from preventable diseases. We cannot alter history or bring back 

the dead; we can only learn and work to learn to save the future 

lives. It is time for Congress to protect public health and pass 

meaningful TSCA reform legislation which truly empowers the 

EPA to finally ban asbestos. 

As I have been saying for 10 years, one life lost to a preventable 

asbestos-caused disease is tragic. Hundreds of thousands of lives 

lost is unconscionable. Prevention remains the only cure. I have attached to my testimony a petition signed by 2,700 people who support a ban of asbestos, and I welcome your questions. Thank you. 

[The prepared statement of Ms. Reinstein follows:] 

66 


87349.048

Linda Reinstein - Summary 

The Toxic Substance Control Act ([SCA) bas failed to protect public health and our environment. All forms of 

asbestos can cause cancer and respiratory diseases, yet it is still legal and lethal in the United States, Asbestos, a 

known human carcinogen, has caused one of the worst man-made disasters in history. The facts are irrefutable, yet, 

each day, 30 Americans die from preventable asbestos-caused diseases. The WHO, ILO, EPA, and our Surgeon 

General all agree that there is no safe level of exposure to asbestos. 

Americans trust that their air, soil, and water are safe from toxic contaminants; however, the U.S. government's 

failure to ban asbestos is the ultimate example of TSCA's limitations. In 1989, the EPA issued a final rule under 

Section 6 ofTSCA, banning most asbestos-containing products. In 1991, bowever, most of the original ban on the 

manufacturc1 importation, processing, or distribution in commerce of asbestos-containing products was overturned. 

From 1900 to 2012, the U.S. Geological Survey (USGS) reported that we have used more than 31 million tons of 

asbestos. Those indestructible fibers remain forever in our communities. In the 30 year period beginning in 1965, 

nearly 1.4 million tons of asbestos was used just in friction products, such as vehicle brakes and clutches. In 2012, 

the USA consumed 1,060 tons of asbestos. 

Amerkans can't manage this ever-growing risk of asbestos exposure. In 2007, ADAO identified 5 consumer 

products, including a child's toy, that contained asbestos. Following tbe 2011 tornado in Joplin, Missouri, it was 

reported that 2,600 tons of asbestos debris were removed from the community. Last year, tons of toxic debris 

littered the coastline after Hurricane Sandy. Right here under the Capitol, 10 Architect of the Capitol employees 

were exposed to and sickened from asbestos while maintaining the tunnels. 

Congress should take responsibility for public health by drafting and passing meaningful TSCA reform 

legislation that truly strengthens protections for our families and environment by preventing the further use of 

asbestos. Americans have lost confidence in the chemical industries' ability to protect us from toxins. Congress 

needs to hold these industries accountable. We need to ensure that in the future, the process of approving chemicals 

is more transparent. The public deserves to have access to vital health and safety information. 

The only true measurement of strong TSCA Reform is the legislation's ability to empower the EPA to ban 

asbestos. 
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87349.049

DAD 

/lsbestcis Oiseltle /lwal'eness Or9aRizatioR" Voice of the Victims 

The Committee on Enerf,:ry and Commerce 

Subcommittee on Environment and the Economy 

"Reglllation of Existing Chemicals and the Role of Pre-Emption Hnder Sections 6 and 18 of the Toxic Sflbstanees Control Act" 

Linda Reinstein, President/Co-founder and Mesothelioma \X'idow 

Asbestos Disease Awareness Organization (ADAO) 

Wednesday, September 18, 2013 

I would like to thank Chairman Shimkus, Ranking Member Tonko and the entire Subcommittee on Environment 

and the Economy for the honor and opportunity to testify at this hearing, "Regulation of Existing Chemicals and 

the Role of Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act," I know far too well that 

toxic chemicals are not just "threats." They are a very real part of the life and death of many people, including my 

husband, 

LvIy name 1S Linda Reinstein. I am neither a lobbyist nor an attorney. I am a mesothelioma \vidow and Co~founder 

of the Asbestos Disease Awareness Organization (ADAO), Founded in 2004, ADAO is the largest independent 

non-profit organization in the U.S, dedicated to preventing exposure to eliminate asbestos-caused diseases. 

Since EPA Deputy Administrator John R, Quarles testified about the "Need for Toxic Substances Act'" in 1975, 

science and technology have advanced exponentially. Asbestos, a human carcinogen, has caused one of the worst 

man-made disasters in history. The facts are irrefutable, yet, each day, 30 Americans die from a preventable 

asbestos-caused disease. 

1 http://www2.epa.gov! aboutepa/ quarles-testifies-need-toxic-substances~act 

Asbestos Disease Awareness Oq,ranization is a registered 

Disease A,liareneu, EdJuatilJfl, 

. Redondo Beach 

w\\'w.Asb.£5MR.~g"L\\\'ar~{1~ 

Page 1 of 13 
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Honoring our ADAO tradition, I'd like to dedicate my testimony 

today to !:\VA asbestos victims,Janelle and rvfichael. Tragically, 

three months ago, Janelle lost her life to mesothelioma at the age 

of 37, leaving behind her husband and i1-year-old son. Michael, a 

29-year-old mesothelioma patient, continues to fight for his life 

and faces limited treatment options. Neither Janelle nor lvUchael 

ever worked with asbestos. The asbestos victim's profile has 

changed; once a blue-collar worker in his mid-sixties, now there is a new, younger patient profile emerging with no 

known occupational exposure - people like Janelle and Michael. It is no longer only at-risk workers being 

diagnosed; it's also their families: children who hugged their parents and spouses who washed their clothes. 

MES-O-THE-LI-O-MA - CAN'T PRONOUNCE IT - CAN'T CURE IT 

My husband, Alan, was diagnosed with pleural mesothelioma in 

2003. We had never heard of the asbestos-caused cancer, 

mesothelioma, and shortly learned it was incurable. Alan chose to 

have an extrapleural pneumonectomy, a radical surgery which 

removed a rib and his left lung, stripped off his pericardium and 

surgically replaced his diaphragm - all in hopes of more time with 

us. In 2005, the cancer came back on his remaining lung. Alan 

felt like he was breathing through a pinched straw, every breath, 

every minute, every day. \\'hen his oxygen levels became critically low, he was tethered to supplemental oxygen. He 

fought a hard battle with chemotherapy for nearly a year. In 2006, Alan took his last breaths with our then 13-yearold daughter and me by his side. Alan paid the ultimate price for his job his life. 

Asbestos Disease A\ .... areness 

Disease Awar.enfSJ, Dductlti()#, 

Boulevard, Suite 318 'Redondo Beach 

~vww.i\sb(,:"tosDiseas(,:J\watcness.otg 

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Our daughter was only ten years old when we began our arduous family battle to fight mesothelioma and work with 

Congress to ban asbestos. 

Today, I somberly represent Alan, Janelle, Michael and hundreds of thousands of other victims whose voices have 

been silenced by asbestos. I use the word "victim" because it is the only word that appropriately describes an 

individual exposed to asbestos; a patient, living or deceased, who was diagnosed with an asbestos~related disease; or 

a family member of those exposed or diagnosed. For each life lost, a shattered family is left behind. 

FROM MAGIC MINERAL TO DEADLY DUST 

Asbestos was once considered a "magic mineral" due to its light 

weight, tensile strength, heat resistance, and low cost. All six 

types of asbestos chrysotile, amosite, crocidolite, tremolitc, 

anthophyllite, and actinolite are carcinogenic. Asbestos fibers 

can be nearly 700 times smaller than a human hair and are 

odorless, tasteless, and indestructible. All forms of asbestos can 

cause meSothelioma and lung, gastrointestinal, laryngeal, and ovarian cancers, as well as non-malignant lung and 

respiratory diseases. 

The World Health Organization2

, International Labor Organization\ U.S. Environmental Protection Agency4 

(EPA) and Surgeon GeneralS all agree that there is no safe level of exposure to asbestos. Asbestos-related diseases 

are often misdiagnosed and under-reported. Exacerbated by a latency period of 10-50 years, late stage diagnosis 

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often limits patients' treatment options. i\Jost patients die within 6 to 12 months after diagnosis. Each death is 

preventable. 

DEADLY MISCONCEPTIONS 

lYlost Americans trust that their air, soil and water are safe from 

toxic contaminants; however. the Toxic Substances Control Act 

(TSCA)' has failed to protect public health and our enyironment. 

In fact, the U.S. government's failure to ban asbestos is the 

ultimate example ofTSCJ\'s limitations. Only fiYe minor 

asbestos-containing products were banned as part of the original 

1976 TSCA (i.e., corrugated paper, rollboard, commercial paper, 

specialty paper, and flooring felt.) The short version of our nation's failure to ban all asbestos in commerce goes 

like this: 

In 1979, EPA announced it would be exploring how TSCA Section 6 could be used to protect the public from 

exposure to asbestos. For seven years, the agency assembled and evaluated the scientific evidence. In 1986, EPA 

proposed for public comment a prohibition on the commercial manufacture, import, processing. and distribution in 

commerce of asbestos. The Agency noted that the "human health effects caused by exposure to asbestos are welldocumented ... [Moreover] it is well-reCObY11ized that asbestos is a human carcinogen and is one of the most 

hazardous substances to which humans are exposed in both occupational and non-occupational settings." For this 

reason, EPA indicated that permitting the continued use and import of asbestos posed an unreasonable risk of 

injury to human health. 

(, http://\w.lw.epa.gov/oppt/newchems/pubs/ chern-pmn/ appendix. pdf 

Asbestos Disease Awareness Organization 

Diseast Amarenns, Education, 

318 'Redondo Beach 

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The public's participation in EPA's mlemaking process (1986-1988) yielded more than 45,000 pages of comments 

and testimony. EPA noted that there was wide agreement that all types of asbestos fibers are associated with 

pulmonary fihrosis (asbestosis), lung cancer, and mesothelioma. Ultimately, the George H.W. Bush Administration 

concluded that a regulation banning asbestos was the appropriate step to protect public health. (54 Federal Register 

29460,July 12, 1989)7 

When EPA's final rule was issued, however, the Asbestos Information Association, the Asbestos Institute, 

Corrosion Proof Fittings, and other powerful interests filed a lawsuit to block the asbestos ban. The Canadian 

Government and the Province of Quebec tried to latch onto the lawsuit because they are major exporters of 

asbestos. The petitioners raised all sorts of procedural complaints about how EPA conducted the rulemaking 

process (e.g., designating a hearing officer rather than an administrative law judge to oversee the public hearing). 

The U.S. Court of Appeals for the Fifth Circuit labeled this legal strategy the "protest everything approach." (947 

F.2d 1201 (1991))8. Two key arguments made by the petitioners; however, did influence the Court: (1) the EPA did 

not provide the public with its methodology for estimating the benefits of an asbestos ban; and (2) the EPA did not 

"give adequate weight to statutory language requiring it to promulgate the least burdensome, reasonable regulation 

required to protect the environment adequately." 

The judges returned the regnlation to EPA for reconsideration, and the Administration did not appeal the Court's 

decision. That 30-year chronology of events leads public health advocates to ask: "If EPA can't ban a known 

: http://ww'W2.epa.gov/asbestos/asbestos-ban-and-phase-out-federal~regjster~nocices 

http://scholar.google.com/scholar_case?case::::6165892895625819539&q::::Corrosion+ ProoH Fittings+v. + EPA&hl=en&as_sdt=2,5&as_ v 

is=l 

Asbestos Disease Awareness Organization is a registered 501 (c) (3) nonprofit organization 

"United jor Asbestos Disease Awareness, Education, Advoca€)" Prevention, Support and a CHre" 

1525 Aviation Boulevard, Suite 318 . Redondo Beach' California' 90278 . 310.251.7477 

\v'Ww.AsbestosDiseaseAwan~ness.org 

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carcinogen---at which no level of exposure is safe---how can EPA regulate any toxic substance?~' ("The Failed EPA 

Asbestos Ban," Em,;ronmental Working Group, March 2004.)' 

Without a comprehensive ban on asbestos, companies continue to contaminate our communities with these deadly 

fibers. Without a comprehensive ban, asbestos continues to accumulate in our communities. The U.s. Geological 

Survey (USGS) reported that in 2012, 1,060 tons of asbestos was imported into the United States. We can't even 

manage that new additional risk because we don't know where the asbestos is being introduced and used. 

ASBESTOS: STILL LEGAL AND LETHAL IN THE UNITED STATES 

The collateral damage of asbestos consumption is staggering. USGS reported that from 1900 to 2012, we have used 

more than 31 million tons and imports continue. Furthermore, about 50 percent occurred between 1960 and the 

end of 2003.'0 From 1965 - 2000, nearly 1 A million metric tons of asbestos was used in friction products such as 

brakes and clutches, and insulation." Today, ships docked in U.S. ports still unload asbestos in the states of 

Louisiana, Texas, California, New Jersey, and more. 

Tbe United States remains dependent on imports to meet so-called manufacturing needs. USGS reported that in 

2012, "the chloralkali industry accounted for an estimated 57% of U.S. consumption; roofing products, about 41%; 

and unknown applications, 2%.,,12 Por the past two years, we have seen an increase in asbestos consumption in the 

chloralkali industry, even though viable and affordable asbestos substitutes exist. 

9- http://www.ewg.org/research!asbestos~thjnk-again/asbestos.still-not~banned 

10 http://pubs.er.usgs.gov/publication/cir1298 

1111 http://pubs.er.usgs.gov/publication/cir1298 

12 http://mincrals.usf.,rs.gov I minerals/ pubs/commodity I asbestos! mcs-2013-asbes.pdf 

Asbestos Disease Awareness Organization is a registered 501(c) (3) nonprofit organization 

"UnitedjorAsbesfoJ DiJNlSCAt/larenfSJ, Edl{(ofion, Adt'oraD', PrlNnfion, Support and a Cure" 

1525 Aviation Boulevard, Strite 318 . Redondo Beach' California 90278· 310.251.7477 

www.AsbestosDiseascAwarcness.org 

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In 2012, the US imported 1060 tons of chrysotile asbestos from Brazil who is the world's third largest asbestos 

producer. 

In response to this continued public health crisis, 18 months ago, I began my inquiry about the toxic asbestos 

import trade by asking three questions via a Freedom ofInformation Act (FOIA) request: 

Who are the U.S. companies and/or government agencies 

importing asbestos? 

\'V'hat asbestos~conta.ining products are being 

manufactured in the U.S.? 

Where are the asbestos-containing products being used .in 

or exported from the U.S.? 

I've filed FOIA requests and exchanged emails with government 

officials. The hurdles and obstacles have been frustrating and maddening, especially for a small non-profit in a 

home office without staff. 

I have been unable to get answers to any of my questions due to U.S. Code Tide 13, Chapter 9, Section 301(g), 

which protects the confidentiality of export data collected by the U,S, Census Bureau, This roadblock led me to 

different questions: \'\lhy is the United States "dependent on imports to meet manufacturing needs," as USGS 

states? 

To my dismay, the officials at USGS and the Census Bureau insist that information about asbestos imports cannot 

be disclosed, Importing and using a deadly chemical that has been banned in 54 countties across the globe, is 

granted a secret status? 1 support business, innovation, and transparency - but Americans are shutout from 

information needed to protect their health and our environment. 

Asbestos Disease Awareness 

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According to the Center for Public Integrity, the American Chemistry Council released a statement saying, 

"DiaphrabrtUs made of asbestos are a critical separation medium in the chlorine manufacturing process, Chlorine is 

essential for manufacturing life-saving medicines. producing solar celis, and providing safe drinking water," The 

statement asserted that chlorine producers "work to manage the risks and potential adverse effects to human health 

and the environment" and "workers potentially exposed to asbestos are protected by wearing appropriate personal 

protective equipment and following strict work processes,,,13 

Despite the irreversible, harmful health effects of asbestos exposure, the American Chemistry Council statement 

continues: "Employees in the chlor-alkali industry are given annual medical examinations to determine whether an 

employee has incurred any adverse effects due to any possible exposure." As an asbestos widow, that statement is 

alarming and distorted, If a medical examination results in an asbestos-disease diagnosis, it's too late to save that 

patient because the health effects are irreversible. There lS no cure for asbestosis or mesothelioma. 

~te have ignored the ~rorld Health Organization's Resolution stating: "The most efficient way to eliminate 

asbestos-related diseases is to stop using all types of asbestos."14 

ASBESTOS CAN TAKE YOUR BREATH AWAY, FOREVER 

The facts are clear: the tons of asbestos that have been mined in and imported to the U,S. have created a public 

health cdsis, Asbestos remains in our homes, schools, and buildings, and even on consumer shelves. \Vorkers and 

consumers cannot adequately identify the toxic fibers nor manage the risks of consumer) environmental and 

occupational asbestos exposure in products or places, 

!3 http://wvlw .pubEcintegrity ,org/health/ public-health! asbestos 

Asbestos Disease Awareness Org'J.uization is a registered 

DiJtau AWarfnU,f, Edu(ation, 

. Redondo Beach 

Page 8 of 13 
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87349.057

Members of the Commince, do you know where these nearly invisible, deadly fibers are in your home, child's 

school, on consumer shelves? Do you know where they are in your district, or here in the Capitol? Americans want 

to know where asbestos puts their communities at risk. 

CONSUMER, ENVIRONMENTAL AND OCCUPATIONAL EXPOSURE 

CONTINUES 

CONSUMER EXPOSURE: 

From 1965 2000, nearly 1.4 million metric tons of 

asbestos was used in friction products such as brakes and 

clutches, and insulation. 

In 2007, ADAO identified 5 consumer products, 

including a child's toy, that were contaminated with 

asbestos. 

ENVIRONMENTAL EXPOSURE: 

Natural and man-made environmental disasters have 

plagued us. It was reported that 2,600 tons of asbestos 

was collected after the 2011 Joplin, iVIissouri tornado and 

tons of toxic debris littered the coastline after last year's 

Hurdcane Sandy. 
76 


87349.058

W.R. Grace Vermiculite NUne, a man-made disaster in Ubby, bJT~ has been costly in dollars and lives. The 

federal government has spent more than $450 million to remediate the toxic areas in Libby, hIT and provide 

medical care to the residents. 

OCCUPATIONAL EXPOSURE, 

Although we have laws and regulations, workers are still being 

exposed on the job and the aRbestos fibers they have on their 

clothes and shoes, and in their cars are taken home. This takehorne toxin threatens thejr families with deadly hugs and chores. 

Occupational exposures can occur during auto repair work, 

maintenance, construction, abatement, and hazardous debris 

removaL 

The medical journal The Lancet reported that 9/11 first responders are now suffering from a variety of 

diseases and are 19% more likely to have cancer than other first responders. Asbestos was the primary 

insulation compound used when the \Vorld Trade Center was built, beginning in 1968. Due to the long 

latency period of asbestos-caused diseases, it will be decades before we can accurately calculate collateral 

damage from 9/11. 15 

Right here under the Capitol, ten federal employees were exposed and sickened by their work maintaining 

the tunnels. Asbestos dust was so thick that a worker was able to write his name on the pipe. One of their 

wives now has pleural thickening, an asbestos-related health condition, from washing her husband's 

contaminated clothes. 

15 http://www.the1ancet.com/themed-911 

Asbestos Disease Awareness 

Page 10 of 13 
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87349.059

AMERICANS REMAIN AT RISK TODAY 

Each year, an estimated 10,000 Americans die from asbestosrelated disease. Many physicians and public health experts 

indicate that this estimate is likely low due to underreporting and 

a focus limited to occupational surveillance. Annually, about 

3,000 Americans die from mesothelioma, 5,000 from asbestosrelated lung cancer, and 2,000 from other asbestos-related cancers or respiratory diseases. 

The Centers for Disease Control and Prevention's NIOSH 

statistics from 2000 to 2012 reveal that 43,464 Americans died 

from mesothelioma and asbestosis - just two of the asbestoscaused diseases. The top five states with the highest mortality 

were California, Pennsylvania, Florida, Texas, and New York. 

The Occupational Safety and Health Administration states that in 

the United States, "Asbestos is well recognized as a health hazard and is highly regulated, An estimated 1,3 million 

employees in the construction and general industry face significant asbestos exposure on the job," In May 2010, the 

United States President's Cancer Panel (PCP) released the landmark ZOO-page report entitled, "Reducing 

found to be 11 times more likely to develop mesothelioma, due to asbestos exposures at the site," 

16 http://deainfo,nci.nih,gov I advisory I pcpl annualReports/pcp08-09rpt/PCP _Report_08-09 _50S.pdf 

Asbestos Disease Awareness Organization is a registered 

Edu(otion, 

. Redondo Beach 

~:~1:\:,A~"Q~,~tQLl)j~~!1&[i.':Yg~ru;£~.&m 

Page 11 of 13 
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87349.060

HISTORY IS A GREAT TEACHER TO THOSE WHO LISTEN 

\Ve cannot alter history or bring back the dead, but we can learn from the past to save lives. Every day, 30 

Americans \\ill die from preventable asbestos-caused diseases, yet asbestos continues to be legal and lethal in the 

United States. We know so much and have done so little to mitigate this disaster. Human, environmental, and civil 

rights have all been compromised because of asbestos, and patients like Janelle, lYfichael, and Alan pay the price. I 

know too well that the only two ways to end asbestos-caused diseases are prevention and a cure, For each life lost, 

a shattered family is left behind. 

IRREFUTABLE ASBESTOS FACTS 

1. Asbestos is a known human carcinogen and there is no 

safe level of exposure. 

2. 54 countries have banned asbestos, but the United States 

has not. 

3, Asbestos imports and exposure continue. In 2012, the 

United States imported over 1,060 tons of asbestos, 

4, An estimated 10,000 Americans die each year from 

preventable asbestos-caused diseases, 

5. Americans cannot determine or manage consumer, environmental, and occupational asbestos risk. 

It is because of my husband, Alan, Janelle, {vflchael, and thousands of asbestos cancer warriors that I fight every Jay 

to protect and help families impacted by asbestos disease. They deserve responsibility, accountability, and 

transparency. Meaningful TSCA reform 

Page 12 of 13 
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Congress should take responsibility for public health by drafting and passing meaningful TSCA reform 

legislation that truly strengthens protections for our farnllies and the environment by preventing the further 

use of asbestos. 

Americans have lost confidence in the chemical industries' ability to protect us from toxins. Congress needs 

to hold them accountable. 

\Ve need to ensure that in the future, the process of approving chemicals is more transparent. The public 

deserves to have access to vital health and safety information. 

The only true measurement of strong TSCA Reform is the legislation's ability to empower the EPA to ban asbestos. 

One life lost to a preventable asbestos-caused disease is tragic; hundreds of thousands of lives lost is 

unconscionable. 

I have attached to this testimony a petition signed by over 2,700 people urging Congress to han ashestos. 

Asbestos Disease Awareness Organization is a registered 501 (c) (3) nonprofit oq,ranization 

"United for Asbestos DiJease Awareness, Education, Advocacy, Prevention, Support and a Cure" 

1525 Aviation Boulevard, Suite 318 .. Redondo Beach" California' 90278 ·310.251.7477 

www.AsbestosDiseaseA.wareness.org 

Page 13 of 13 
80 

Mr. SHIMKUS. Thank you. We appreciate your testimony. 

Now I would like to recognize myself for 5 minutes for the first 

round of questions. My first question goes to Mr. Greenwood. 

You mentioned this in your opening statement, but for clarification, TSCA Section 6 provides EPA broad authority to regulate 

chemicals if EPA reasonably believes a chemical ‘‘presents or will 

present an unreasonable risk of injury to health or the environment.’’ EPA imposed controls range from chemical bans to restricted uses to warning label requirements. What does unreasonable risk mean in the TSCA context? 

Mr. GREENWOOD. Mr. Chairman, as I indicated a little bit in my 

initial statement, it involves a balancing of multiple factors. I 

mean, you have to look at the risks. You have to look at product 

benefits. You look at alternatives, and then, of course, you look at 

costs. So I think the key thing there is it is a combination of those 

factors and an analysis. It does not necessarily require, for example, cost benefit analysis, but that is often done. 

It is useful to perhaps recognize since asbestos is such a topic 

here that a cost benefit analysis was done on asbestos under the 

executive order, not under TSCA, and the administration determined that despite the significant risks, that rule was worth sending out. So the point is I think what you look at here is both of 

the factors that were considered, but they still led to decision to try 

to ban asbestos. So that doesn’t necessarily, as unreasonable risk, 

mean you are doing less for more regulation. 

Mr. SHIMKUS. And you reiterated what you said in your opening 

statement. You have health and environmental risks, I think benefits, availability of alternatives, and economic consequences of the 

rule. That was the kind of four criteria that we use to evaluate 

that. And you believe this is a workable standard for TSCA? 

Mr. GREENWOOD. I think it is and can be. I mean, I think— 

again, as I mentioned and I think Mr. Rawson mentioned, too, you 

got to remember that the unreasonable risk standards is out there 

and in many ways the prevailing standard that exists for regulation of products. And so you see experiences in other parts of the 

government, including pesticides at EPA, where there has been a 

very active program with an unreasonable risk standard. So I think 

the issues that you see in TSCA, at least with Section 6, as I mentioned in my testimony have less to do with the unreasonable risk 

standard than they do with that interpretation of what least burdensome alternative is. 

Mr. SHIMKUS. And Mr. Rawson, Mr. Greenwood referred to you. 

Do you agree with that, those statements? 

Mr. RAWSON. I do. I think because you see the same standard in 

other statutes, including statutes administered by other agencies 

such as the Consumer Products Safety Act administered by the 

CPSC, and we see the basic criteria that make up the unreasonable 

risk standard in the executive order issued by this administration 

and similar executive orders issued by prior administrations. So I 

do think it is the right target to aim for. 

Mr. SHIMKUS. Having said that, do you think that the preemption provision similarly needs to be strengthened? 

Mr. RAWSON. Well, the preemption provision in TSCA acts similar to the preemption provisions in the Consumer Products Safety 

81 

Act and some other statutes. It basically says if EPA hasn’t acted, 

States are free to act. Where EPA has acted under particular sections, then States typically can’t act, although there are some exceptions. States can adopt identical laws to make them enforceable 

under State law. The States can actually prevent the use of the 

chemical within their boundaries, other than for the use to make 

other chemicals or mixtures. So there is still some latitude for the 

States. 

In terms of strengthening it, the one thing that the current preemption clause doesn’t do, it preempts State action when EPA acts 

to regulate. If EPA takes a hard look at a chemical and says this 

one is OK, this activity is safe, there is no risk, it doesn’t preempt 

us in the absence of regulation. It doesn’t prevent States from saying well, we are going to regulate it. So one thing that could be considered is when EPA takes a hard look, all the interested stakeholders have an opportunity to comment and have their say and no 

risk is found, you could argue that preemption could make sense 

there to have national uniformity. That is not the current approach. 

Mr. SHIMKUS. Thank you. Ms. Thomas, some people think TSCA 

Section 6 should not include any exposure of magnitude effect considerations. What else—what other considerations should be evaluated? 

Ms. THOMAS. Thank you for the question. While I am not a TSCA 

expert by any means, we would support that a process where active 

chemicals in commerce are evaluated, are prioritized, and assessed 

in a science-based, risk-based manner that takes into full account 

things like chemical use, hazard information, potential exposure, 

and the availability of alternatives. And we would be more than 

happy to work with you to try to find that right balance so that 

all of those things are accomplished. 

Mr. SHIMKUS. So if I can restate what you—you think that there 

is—a robust science assessment would be helpful in this process? 

Ms. THOMAS. Absolutely, yes. 

Mr. SHIMKUS. Great. I thank you for your answers. 

I would now like to yield to Mr. Tonko, the Ranking Member, for 

5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. I thank the witnesses again 

for their testimony, and particularly welcome Mr. Johnson and Mr. 

Srolovic from my home State who can provide an important State 

perspective. 

In recent years, it appears as though States have led the way on 

chemical regulation, as EPA’s program has faltered. It is vitally important that we hear from them today. Any effort to reform TSCA 

should protect the hard work States have devoted to protecting 

their citizens from the risks of dangerous chemicals, and learn from 

those success stories. 

Mr. Srolovic, can you describe briefly some of the chemical risks 

New York has been working to address? 

Mr. SROLOVIC. Yes, Ranking Member Tonko. Thank you. 

In New York, the most recent example I alluded to in my testimony was the risk to groundwater and public health posed by 

MTBE. That assessment led to the ban that was successfully defended from a challenge. I think overall, what we found, our kind 

82 

of lesson learned is that environmental laws work best when there 

is a strong State and Federal partnership, and the problem with 

chemical regulation is that we don’t have an effective Federal partner. And while New York continues to use its traditional authority 

to protect public health and the environment, we can’t do it alone. 

We need EPA to have a clear mandate and the authority and the 

resources to timely assess the myriad of chemicals in our society 

for risks to health and the environment, and to enact appropriate 

restrictions. 

Mr. TONKO. Thank you. EPA’s attempts to regulate asbestos 

have utterly failed in light of industry-backed litigation. Have the 

New York State regulations faced legal challenges, or Vermont, if 

you can share your story, either of you? 

Mr. JOHNSON. So Vermont has not had a successful challenge. 

We also banned MTBE in gasoline. The challenge for Vermont with 

its 620,000 residents and one toxicologist is that we just—we have 

looked at some chemicals, we have a lot of concerns, but we don’t 

have an ability. We just haven’t had an ability to do the work that 

we think ultimately ought to be done at the Federal level. We are 

absolutely in agreement in Vermont that a nationwide process 

would be the most appropriate one. It would work best for everybody if it was comprehensive and robust, but we will certainly be 

looking—you know, if this latest approach attempt to sort of reform 

TSCA doesn’t come to fruition, I think the pressure will be on in 

my legislature to do more in Vermont. I think it will take a lot of 

work, but we could be successful. 

Mr. SROLOVIC. The New York ban on MTBE, as I mentioned, was 

challenged by industry. My office successfully defended that 

through trial. The district court found that the exercise of New 

York’s traditional power to protect its groundwater and its public 

health were not in conflict with the approval or authorization of 

MTBE as a gasoline additive by EPA under the Federal Clean Air 

Act. So in that case, the court found, in fact, that there was no conflict between the State and Federal regimes, and that basic decision was just recently revisited by the U.S. Court of Appeals for the 

Second Circuit in a case involving New York City groundwater contamination, and again found that there was no conflict between 

these two programs. 

Mr. TONKO. Thank you. It is interesting to note that after New 

York acted to address the risks of the pesticide DDT, EPA followed 

suit. Mr. Srolovic, one of things this subcommittee should understand is what tools States need in a situation where Federal and 

State requirements are the same. If EPA adopts chemical regulations that mirror rules currently in place in New York, does New 

York still need authority to enforce the existing New York State requirements, or is it sufficient for the State to rely on Federal enforcement or the availability of citizen suits under TSCA? 

Mr. SROLOVIC. It is important for States to retain the ability to 

adopt under their own State laws the same requirements as the 

Federal requirements. And the reason for that primarily is that it 

then allows the State environmental agencies—in New York, it is 

the Department of Environmental Conservation—but the environmental regulatory agencies around the State do the bulk of day-today enforcement of our environmental laws, whether it is a State 

83 

standard or a Federal standard. And having the ability which is 

presently preserved under TSCA for States to adopt that same requirement under their own law is very important for enforcement 

around the country. 

Mr. TONKO. I see that I have exhausted my time, so I yield back. 

Thank you, Mr. Chair. 

Mr. SHIMKUS. Gentleman yields back his time. The chair now 

recognizes the gentleman from Pennsylvania, Mr. Murphy, for 5 

minutes. 

Mr. MURPHY. Thank you, Mr. Chairman, and I thank the distinguished panel for being with us today. 

Mr. Greenwood, I am just trying to get a sense from your testimony, a couple clarifications. Which is more important to help us 

get to the truth on chemical safety questions, peer review of data 

and scientific analysis, or cross examination requirements under 

TSCA’s Section 6C? 

Mr. GREENWOOD. Well, I guess I would opt for peer review. Let 

me amplify that a bit. I do think, particularly in the context of 

TSCA Section 6, by the time you get to this cross examination 

stage, there has been a fairly extensive airing of the issues, and at 

the point—at least with my experience with asbestos, by the point 

you were talking about cross examination, there was essentially everybody hunkered down in their own positions taking shots at each 

other. To me, a better approach is what we see often with peer review, which is more typical of what we see today in regulation, 

where experts come together, see if they can develop consensus, see 

if they can provide some useful advice to an agency. And my general sense is that is probably more valuable. 

Let’s say that peer review is not necessary every time, because 

depending on the issue and the rulemaking, you may not need 

that, but my general experience is that has been more successful. 

Mr. MURPHY. Let me ask also then about cost benefit analysis. 

Does that also proceed in any kind of a scientific version, and what 

kind of data is included in a cost benefit analysis? 

Mr. GREENWOOD. Well, the range of data could be quite extensive. Obviously you are looking at the most best available information you can find. For the cost side, it is often a little easier. The 

real challenge is usually how you articulate benefits, because the 

key aspect of cost benefit analysis is you try to monetize if you can 

and compare, as apples to apples, costs and benefits. And some of 

that is much easier to do for some benefits than others, and that 

becomes one of the difficult challenges, but it can work well. 

Mr. MURPHY. Thank you. Is the requirement that EPA consider 

the availability of viable substitutes for chemicals for specific uses 

appropriate? 

Mr. GREENWOOD. I think it absolutely is. It is critical, I would 

say, for at least two good reasons. One is it is critical in making 

a clear signal about whether there is going to be a technological 

issue. In other words, if you find that there are no alternatives, 

then you know you are entering a world in which you could have 

significant disruption, and that is an important thing to understand. 

The other thing about alternatives is it helps set up this question 

of shouldn’t there be some assessment of those alternatives to see 

84 

if they are better or worse, because the worst thing you want to 

do is push one chemical out of the economy and substitute another 

one that has got a bigger hazard. 

Mr. MURPHY. Let me ask another question about this scientific 

quality of these decisions with regard to when they try to make a 

good risk decision, how does a focus on conditions of use of a chemical affect that scientific quality? 

Mr. GREENWOOD. That is a very important question, and I think 

it comes up more and more, because the question is as you have 

a general concern about a chemical, you need to translate that into 

something that you can actually do. And part of that is to look, 

then, at uses of chemicals. Once you know what the uses are, you 

can then do better exposure assessments, because you have very 

tangible situations to look at. It is also, again, critical for this issue 

of alternatives. Once you know exactly what your use is and your 

technology, then you can begin to ask the question what really are 

the realistic alternatives for that particular function, that use, and 

that exposure? 

Mr. MURPHY. Thank you. 

Mr. Rawson, a quick question here. In your experience, we know 

that in the 37-year history of TSCA, EPA has only successfully imposed restrictions on, I think, five chemicals using Section 6. Does 

this mean that TSCA provides EPA inadequate authority to regulate, or there are some other issues there? 

Mr. RAWSON. Thank you. Well, it certainly reflects the track 

record, but my own personal view is it reflects more EPA’s reaction 

to the corrosion-proof fittings decision than problems with the statute itself. We have walked through the core elements of Section 6 

and shown how they are actually in line with the standard practice 

for most agencies trying to address unreasonable risk and where 

possible, use the least burdensome approach to address the problem. But of course, the approach has to address the problem. So 

that is fairly standard and what is in the statute is consistent with 

smart regulation. 

The problem with corrosion-proof fittings is that there are some 

really serious issues with the rulemaking. I don’t want to drag 

through those, but the Agency alters exposure assessment in very 

significant ways after the hearings were closed, and so nobody had 

a chance to comment. It was presented with really credible evidence that substitutes would actually cause more deaths than 

would be prevented by the rule. So these were big issues. We were 

all familiar with the adage that bad law makes—excuse me, bad 

facts make bad law. In this case, I think we had a situation where 

bad facts made for a very strong decision, and the Agency took that 

as saying that somehow now Section 6, because of this judicial 

gloss, is harder than what most agencies have to do. My feeling is 

that there are all too many statements in that decision that say if 

you had done it better, if you hadn’t made these egregious errors, 

the court would have been much more deferential. So I sort of feel 

like too much of a hard lesson was learned from that decision. 

Mr. SHIMKUS. Gentleman’s time is expired. Chair now recognizes 

gentleman from California, Mr. McNerney, for 5 minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. I thank the witnesses for coming today. 

85 

I would like to start with Mr. Greenwood. What would you—or 

how would you formulate an alternative to a least burdensome alternative? How would you formulate something better than that? 

Mr. GREENWOOD. Well, one of the things I think is worth looking 

at is the way the current executive order frames the issue. It basically says that you are supposed to be looking at alternatives that 

are potentially effective and reasonably feasible. There is kind of 

an implied rule of reason there. The agent has to look at large, 

broad options. He doesn’t have to look at every possible version, 

every possible variation, and I think—— 

Mr. MCNERNEY. So that has to be done in language, right, that 

can be followed? 

Mr. GREENWOOD. Yes. 

Mr. MCNERNEY. That is a bit of a challenge. Do you have a specific wording or specific language that you would want to use? 

Mr. GREENWOOD. Well again, I think if you use that language 

and then kind of focus on the way it has been implemented in executive orders, I think you find a system that works, because—just 

to give you a ballpark, it is very common for agencies to, let’s say, 

look at three or four large options, which is within the scope of 

their capability. They can analyze them, they can present the information. It goes to public comment. It is work. It takes a little bit 

of effort. It takes a bit of time, but it is not an impractical approach. 

Mr. MCNERNEY. Mr. Rawson, I believe you said that Section 6 

places the burden on the EPA to demonstrate the need for regulation. What would you think would be a better approach than having the burden on the EPA? 

Mr. RAWSON. So I actually think that is fine. I think it is fairly 

typical that the burden is on the Agency to justify its action. But 

I think the burden should often be on industry to supply much of 

the information, the test data, to provide information on exposure 

and other information that would support that decision. So my 

view of the world is that industry should supply much of the information, the Agency should make the decision about risk, and then 

if it finds a significant risk, propose the least burdensome approach 

that would address that risk. 

Mr. MCNERNEY. Well the opposite would be to require industry 

to prove that their chemicals are safe. 

Mr. RAWSON. Right. That is effectively what is happening right 

now with new chemical regulation, because with new chemicals 

companies have to—and this was covered by the previous hearing, 

of course, they have to provide a pre-manufacture notice. Typically, 

EPA either gets the information it wants or the restrictions it 

wants, or the PMN is withdrawn. But with the universe of existing 

chemicals and all the myriad uses and so on, it is just not practical 

at this point in time to have industry prove a negative for every 

chemical for every use. What we really need, in my judgment, is 

EPA to have a mandate and the resources to prioritize and address 

in a reasonable timeframe the high priority chemicals, hopefully 

identify that most uses of most chemicals don’t pose unreasonable 

risks, and then focus on the ones that might. 

Mr. MCNERNEY. Well, the European countries, at least some of 

them, appear to have the mandate that you are talking about. 

86 

Mr. RAWSON. What they have is a mandate under their current 

program, known as REACH, a requirement that industry assemble 

chemical safety reports, dossiers, on their chemicals. But in only 

very limited circumstances will there be a requirement to seek authorization to continue uses. It is a very narrow subset of chemicals 

for which that approach would be taken. 

Mr. MCNERNEY. Well, I believe that you implied in your opening 

remarks that the EPA asbestos rule—overturning of the EPA asbestos rule had a chilling effect on that Agency’s ability to conduct 

further rulemaking. Is that—did I hear you right about that? 

Mr. RAWSON. Yes, and Mr. Greenwood was there at the time. He 

was head of OPPT, and he has described that in his testimony. So 

certainly the Agency read that opinion and thought wow, this is 

hard. Maybe we shouldn’t try to do this. Maybe we should act in 

other ways. I wasn’t there. When I read the opinion, I am more 

struck by the errors, procedural and substantive errors that really 

forced the court’s hand. And I would urge, there are some statements. I will just read one statement. This is in the conclusion 

where the court sort of tries to say to the Agency look, you can do 

this again, just follow some of the things I have said. And the court 

said EPA does not have the duty under TSCA of affirmatively seeking out and testing all possible substitutes. But when an interested 

party comes forward with credible evidence that the planned substitutes present a significant and even greater toxic risk than the 

substance in question, the Agency must make a formal finding on 

the record, otherwise the court can’t evaluate. So to me, again, 

what I feel is that bad facts made a strong decision. I think it was 

premature to conclude that Section 6 just couldn’t work anymore. 

Mr. MCNERNEY. All right. Thank you, Mr. Chair. 

Mr. SHIMKUS. Gentleman’s time is expired. Chair will now recognize the gentleman from Mississippi, Mr. Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman, and thank you for holding this very important hearing. 

If I could, I will start with Mr. Greenwood, and my question 

would be should overall statutory standards for science and data 

quality in regulatory decision-making be made more stringent? 

Mr. GREENWOOD. I think these questions about data quality, 

there are already some restrictions under the Information Quality 

Act that actually have been incorporated into many agencies’ procedures, so I think you are seeing some of that. I do think it is difficult to, in a sense, regulate or legislate good science, so I think 

to some extent, this is one of these things where if you have a robust process where good science can be heard—we mentioned peer 

review earlier—I think these are the sorts of mechanisms that will 

help improve better science and how decisions are made. 

Mr. HARPER. What was the take home lesson for EPA in the 

1991 corrosion fittings court decision? 

Mr. GREENWOOD. Well, I think we just heard my view and Mr. 

Rawson’s view of how we reacted. The Agency reacted, I think, very 

strongly with a notion that as we read the opinion, we were seeing 

this as a case that says you need to evaluate each individual option 

that is less burdensome, and that one of the things we were afraid 

of was a tactical approach that we would see with industry would 

continue to put in front of us more and more alternatives and opVerDate Aug 31 2005 12:09 Apr 24, 2014 Jkt 037690 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 F:\113-83~1\113-83~1 WAYNE
87 

tions and suboptions. And with TSCA being as broad as it was, you 

could do almost anything. The ability to do that was very real, so 

this is one of those issues that it was interesting at the time, it was 

the consensus of the lawyers, the managers, and the staff that this 

was a new world. This was a new set of burdens on the Agency 

that we weren’t really quite ready for. Remember that at the time, 

the executive order that we were operating under required that we 

develop alternatives and look at options. We did that. However, 

that was not enough for this court. 

Mr. HARPER. Mr. Rawson, if I could ask you, some States have 

been more active than others, obviously, in regulating chemicals. 

Have any State requirements for chemicals been preempted by 

TSCA in its 37-year history? 

Mr. RAWSON. By and large the answer is no, because preemption 

is triggered under three sections, Section 4, testing, and Section 5, 

new chemicals, and States typically haven’t been active in those 

areas. And then Section 6, where we have heard that EPA has promulgated very few regulations, apart from the PCP regulations. 

There is at least one case out of Louisiana where a parish’s attempt to prevent the siting of a PCP disposal facility was preempted, but there are other cases where narrow regulations at the 

State level governing the disposal of PCPs were not preempted. But 

by and large, thus far preemption has not been a significant factor. 

Mr. HARPER. Well, let me ask you—in your opinion, of course— 

if TSCA is amended to require EPA to more systematically assess 

the safety of chemicals in commerce, do you think TSCA’s preemption provision similarly needs to be strengthened? 

Mr. RAWSON. As I suggested earlier, an argument could be made 

that right—well, right now preemption only is triggered when EPA 

acts by regulation. That is similar to what happens, for example, 

with the CPSC. When CPSC promulgates a regulation governing a 

product, States can only do the same thing. They can’t do something different. There is an obvious reason for that. 

But what we don’t have here is a situation where EPA takes a 

very hard look, everybody with an interest comments, and concludes this product is safe, no regulations are required. That 

doesn’t have a preemptive effect. One could argue that if it is done 

right once, it doesn’t have to be done 50 other times. One could also 

argue the opposite, that States should be free to be more stringent. 

Under the current approach, by the way, they have the ability 

to petition the EPA for an exemption to be more stringent, and 

they have the ability to just simply say you can’t use the chemical 

in our State. So there are—there is latitude now, even when EPA 

has acted, for some State role. 

Mr. HARPER. Ms. Thomas, if I could ask you, how are your members affected under current TSCA by California’s green chemistry 

law? 

Ms. THOMAS. That is a great question. Thank you very much. 

So we are seeing a trend at the State level towards going beyond 

regulating just chemicals and starting to regulate consumer products, and they are using broad definitions of consumer products 

that would capture autos. A perfect example is the California Safe 

Consumer Products regulations, which would give the Department 

of Toxic Substances authority to regulate up to 10 components in 

88 

a 3-year period to undergo alternative assessments, and the way 

component is designed—defined, it would capture things, complex 

things like vehicle assemblies, transmissions, which in itself is a 

very complex component made up of multiple subcomponents and 

materials, and more importantly, the likelihood of exposure is minimal to nonexistent. So the idea of having to do an alternatives assessment for a transmission would be extremely costly and take 

many years, so imagine that times 10 in a 3-year period. So it is 

simply not feasible and very, very complicated. 

Mr. HARPER. And who would you expect would ultimately bear 

that cost, additional expense? 

Ms. THOMAS. We would, the auto makers. 

Mr. HARPER. OK. All right, I yield back. 

Mr. SHIMKUS. Gentleman’s time is expired. Chair now recognizes 

the gentlelady from Colorado, Ms. DeGette, for 5 minutes. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. I want to 

thank all the witnesses for being here. Sometimes I feel like I am 

in that movie ‘‘Groundhog Day’’ because I have been on this committee for 16 years now. I can’t tell you how many hearings we 

have had where the witnesses come in and say, you know, there 

is consensus. Everybody agrees we need to figure out what to do 

about TSCA. Maybe we will have the magic moment this year, and 

I would be certainly happy to work with you, Mr. Chairman. I 

think everybody agrees, we need to do something, particularly 

about Section 6. 

And you know, when I was sitting here thinking when you talk 

about Section 6 of TSCA, I mean, the reason we have seven options 

for controls of chemicals in TSCA is they are all supposed to be actual regulatory options, not barriers towards trying to regulate and 

to enforce against potentially dangerous chemicals. You know, Section 6, ever since the asbestos debacle, has just really not been an 

actual regulatory option for the EPA, and that is a problem. It is 

a problem because for whatever reason, whether you think the 

court decision was proper or not, the EPA doesn’t feel like they can 

go back and go through that same regulatory process again. So I 

think we really need to think about why that section doesn’t work 

on its own and what we can do, especially after you hear testimony 

like Ms. Reinstein gave us today about the very real health effects 

that asbestos is having. And I want to thank you for sharing that 

human moment with us. 

Mr. Greenwood, in your testimony you said accurately that many 

Federal laws share a common pattern of weighing health and environmental risks against the cost and benefit of action, as well as 

the availability of alternatives. Under the Clean Air Act, the EPA 

sets national ambient air quality primary standards that protect 

public health regardless of cost, but implements those standards 

who state implementation plans that incorporate cost benefit analysis. And so I am wondering, could a framework where chemical 

determinations are made based only on health risks but are implemented considering the cost or benefit of different options be more 

effective? What do you think about that? 

Mr. GREENWOOD. I mean, I think that is an option that is worth 

considering. You mentioned the Clean Air Act. Essentially that is 

what you have in the Safe Drinking Water Act as well. 

89 

Ms. DEGETTE. Right. 

Mr. GREENWOOD. So that is a model. I think one of the questions 

will be kind of what factors distinguish those things that are the 

health-based criteria from those things that would be this unreasonable risk notion. 

Ms. DEGETTE. Right. 

Mr. GREENWOOD. And so I think that is a key factor, but certainly, that is a model that could be considered. 

Ms. DEGETTE. Well you know, one thing that the EPA says when 

thinking about how they are going to have reform is they say 

chemicals should be reviewed against safety standards that are 

based on sound science—that is a radical concept, by the way, 

sometimes in this committee—and reflect risk-based criteria protective of human health and the environment. What do you think 

about that standard? Mr. Greenwood, what do you think about 

that? 

Mr. GREENWOOD. Well, I think—— 

Ms. DEGETTE. That is what the EPA says that their guidelines 

should be. 

Mr. GREENWOOD. Well, I think that is what they think they do, 

and that is exactly what their guideline is. But I think that is certainly part of at least a component of the unreasonable risk standard that we think of as this notion of looking at the risks through 

looking at exposure and hazard, and then perhaps getting into the 

risks of the alternatives. So I think it is consistent with unreasonable risk in that sense. 

Ms. DEGETTE. OK. So Mr. Srolovic, New York has been really 

successful in placing restrictions on dangerous chemicals. What 

was the process that New York used in making those determinations? 

Mr. SROLOVIC. The restrictions at the State level in New York 

have been legislative decisions, so those bans or restrictions that I 

mentioned work through our State legislation process. 

Ms. DEGETTE. OK, but I assume the legislature used some kind 

of a basis for making those determinations? 

Mr. SROLOVIC. Indeed. They—— 

Ms. DEGETTE. Let me ask you this. Is it a cost benefit analysis 

or an analysis of alternatives? Do you know? 

Mr. SROLOVIC. It includes those considerations, certainly. When 

the—for example, the BPA ban was passed, all the voices were 

heard: industry, producers, users, the medical community. So there 

in essence was a legislative hearing process that led to the legislature making that balance that considered all of those factors. 

Ms. DEGETTE. And they used—did they use science? 

Mr. SROLOVIC. Indeed. 

Ms. DEGETTE. OK, just checking. 

Mr. Johnson, you know, you talked about the need for States to 

know about some disclosure. That got me to thinking about the 

EPCRA statutes that relate to storage of chemicals. We could do 

something similar with TSCA for chemicals—for disclosure of 

chemicals, right, where you are letting people know what those 

chemicals are but maybe not disclosing proprietary information? 

Mr. JOHNSON. Right. I think there is a balance in there that 

was—there was attempt to achieve, originally. The problem was, 

90 

from what I understand, is that you—for a long time, companies 

take the box that said confidential—the material is automatically 

confidential without any much review and today, as a State official, 

I can go on the Internet and read material about chemicals that 

EPA, by statute, cannot talk to me about because it is confidential. 

Ms. DEGETTE. Right, right. OK. Thank you. Thanks, Mr. Chairman. 

Mr. SHIMKUS. Gentlelady’s time is expired. Chair now recognizes 

the gentleman from Ohio on the top panel, Mr. Latta, for 5 minutes. 

Mr. LATTA. Well, it is good to know we have two Ohioans here 

on the committee, Mr. Chairman. Thanks very much, and thanks 

very much for our panel for being with us today. 

If I could ask a couple questions to you, Ms. Thomas, if I may. 

Are some of the public policies in conflict with others when it 

comes to designing and producing a new car or truck, and kind of 

following up on that, how often does that happen, and is it the Federal that are really conflicting with the State, or vice versa? 

Ms. THOMAS. Thank you, Congressman. Yes, multiple State laws 

and regulations have the potential to comply with Federal environmental and safety standards. You know, a good example is in order 

to meet the aggressive fuel economy standards for model years 

2017 through 2025, my members are going to be relying heavily on 

lightweight materials like plastics that contain chemicals like 

flame retardants in them. And NTSA, under DOT, also has authority to regulate the flammability standards, so we comply with those 

standards by using flame retardants. But then at the State level, 

you are seeing bills banning different flame retardants that are 

used in different products, but in the same way, so the problem becomes when they—when requirements for a couch are misapplied 

in error to an automobile, which obviously is very different from a 

couch. 

Mr. LATTA. Let me follow up. On page four of your testimony, 

you—it calls for continually—pardon me, continuation of regulatory 

exemption for articles. Would you want these exemptions to preempt States, or should States be allowed to regulate beyond those 

exemptions on the articles? 

Ms. THOMAS. Yes, so I am happy to be here today to talk about 

the proactive steps that my companies have been taking to reduce 

substances of concern from their vehicles. We work with our suppliers on maintaining a tracking database for—to ensure that restricted substances of concern do not end up in our vehicles. 

But the reality is a car is a very complex product with thousands 

of components, each made up of multiple chemicals and mixtures, 

so any requirements at the State level become very challenging, because they each have their own hurdles. So we would like to see 

a strong Federal approach that focuses on specific applications with 

potential for actual consumer exposure. We believe that would be 

a more effective approach than an overly broad one. 

Mr. LATTA. Thank you. 

Ms. THOMAS. And yes, Federal action should preempt State action on that regard. 

Mr. LATTA. Thank you. 

91 

Mr. Johnson, on the last page of your testimony you have a couple things you say. The second one of the unaddressed issues is 

timelines for chemical reviews. And you also state—you say that 

perhaps similar deadlines to the EPA would be appropriate and 

would ensure timely actions, because States are doing certain 

things when it is coming to set deadlines for air and water permit 

issuance. But you say in the last line then that you are currently 

unable to suggest what those deadlines ought to be. Any idea, 

though, because are we running the situation where it is dragging 

on too long on the Federal side and we need to get these things 

resolved, and what would you personally like to suggest? 

Mr. JOHNSON. I appreciate the question. You know, it is a bit of 

a challenge. Our members passed the resolution without any ‘‘no’’ 

votes, and they are a pretty broad group, the States. I think that 

the biggest concern for us is that when you look at your—and it 

has already been stated here, 37 years, five chemicals, it seems to 

us that it needs to be quicker than that. You know, when EPA is 

in a process of reviewing a chemical, I think certainly for my State 

of Vermont, if EPA could get through that process—I don’t know 

whether it is somewhere 6 months, 2 years to get through all the 

processes that would need to happen, and make a regulatory decision on that that was transparent and open, then that would, I 

think, make it much easier for us to address issues of concern from 

the people in my State. Because what happens is they come in year 

after year just asking the State to do something, and we are ever 

hopeful that something might happen at the Federal level, but 3, 

4, 5, 6 years later, it starts to get difficult to sort of just defer to 

the Federal EPA on these things. 

Mr. LATTA. Thank you very much, and Mr. Chairman, I see my 

time is expired and I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes gentleman from Texas, Mr. Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman, for holding the third 

hearing on TSCA reform. Just for the panel, I have a district in 

Houston in East Harris County. It is home to one of the largest collection of chemical plants in the country, and seeing TSCA that 

works for the affected is important by this important statute, including industry and employees and workers and consumer advocates is vital to our constituents and the regional economy. 

Mr. Rawson, are you aware of any voluntary safety initiatives or 

product stewardship programs run by the chemical manufacturers? 

Mr. SHIMKUS. Can you check your microphone? 

Mr. RAWSON. Thank you. Yes, there are quite a few. Some in collaboration with EPA and other stakeholders that are described in 

EPA’s Web site, initiatives to phase out certain chemistries without 

having to determine that they present an unreasonable risk, but 

because sufficient concerns have been raised, and there are many 

private—I shouldn’t say private. There are many product stewardship initiatives that are not done with the Agency but are just part 

of the good practices of a company. So to my view, this is certainly 

an important part of making sure that chemicals or manufacture 

processed and used safely. 

Mr. GREEN. So EPA has collaborated with chemical manufacturers in promoting some of the programs and—— 

92 

Mr. RAWSON. Yes, it has, and in many cases, with other stakeholders at the table. 

Mr. GREEN. OK. Do you know how many rulemaking actions 

have been taken by the EPA under Section 6 since the corrosionproof fittings ruling? 

Mr. RAWSON. I cannot think of one. They tried for many years 

with respect to grout materials, but ultimately it was a very long 

process and controversial, but ultimately became unnecessary because personal protective equipment was developed that made it 

unnecessary. 

Mr. GREEN. OK. So are the requirements for rulemaking under 

Section 6 too burdensome for EPA to regulate? 

Mr. RAWSON. Well, so we can have a range of opinions at the 

table. My view is that the statute creates the right target. Corrosion-proof fittings read EPA the riot act a little bit, and so—and 

the Agency concluded let’s not try that again. My feeling is they 

gave up a little bit too quickly. But if there are ways we can make 

easier without—easier to make good decisions. To me, the goal here 

is to make good decisions that meet all the objectives of the statute, 

not just to make it easier to ban chemicals. So that is what we 

want to do. If we make changes, we want to make sure that anything that is done helps EPA make good decisions to consider all 

the factors, unreasonable risk, safety of alternatives, et cetera. 

Mr. GREEN. So you testimony is we really need a structure for 

EPA to do it? They have enough—do you think they have enough 

resources to be able to do it if we gave them a statutory structure? 

Mr. RAWSON. I think they could use some more resources, and 

particularly as described in my testimony, I think it would be helpful if they really sped up the review of existing chemicals. And you 

know, we hear over and over again with five in 37 years, and that 

is the number regulated, but they have actually assessed hundreds, 

thousands. We need a much more transparent way to keep track 

of that so people can have more confidence in what is being done, 

and a greater through put. 

Mr. GREEN. OK. Mr. Greenwood, are the requirements for rulemaking in Section 6 too burdensome for EPA to regulate chemicals? 

Mr. GREENWOOD. Pardon me? I didn’t—— 

Mr. GREEN. Is the rulemaking requirements in Section 6 too burdensome for EPA to regulate chemicals? 

Mr. GREENWOOD. Well I think—as I have indicated a couple 

times now—I think there is a problem with the least burdensome 

alternative finding, the way it has been interpreted. I think unreasonable risk can work as a framework for it. I do think some of the 

procedural parts of it also may not be necessary. 

Mr. GREEN. If there was one change in Section 6, what would it 

be that you could suggest? 

Mr. GREENWOOD. Well, I would try to fix the corrosion-proof fitting determination on least burdensome alternative. 

Mr. GREEN. Ms. Reinstein, back in 2008 I was acting chair of the 

subcommittee, and I actually introduced a bill to ban asbestos in 

TSCA, and I ended up getting a lot of contacts from, you know, asbestos is a substance that comes out of the ground in California 

and different places. But one, I would like to thank you for your 

93 

leadership and I am sorry about learning of the passing of your 

husband. I also represent not only an industrial area, but a lot of 

seafarers, and over the years, asbestosis is something that is part 

of their life and their families. Can I ask how did consumers first 

learn about the dangers of asbestosis or asbestos? 

Ms. REINSTEIN. How can consumers learn about the dangers? 

That is a very mystifying question and it is very important because 

although there are 10,000 Americans that die every year, because 

the nature of the disease latency period makes it very difficult for 

the workers and families. So I think we obviously have to work 

with the medical community, but also go back to labor unions and 

increase awareness. And that is what ADO has been trying to do 

is work with the congressional leadership and unions to indeed just 

do that. But you are right, it is an ongoing problem. 

Mr. GREEN. Which professions are more exposed—American 

workers exposed to asbestos? I know, like I said, people work on 

ships. Our ships used to be covered with asbestos because of the 

threat of fire. Any other professions? 

Ms. REINSTEIN. That is another great question. If you use the 

NIOSH database, you can actually sort by industry and you can 

clearly see that there is a large group between ship building, obviously anyone who served on ships like the veterans, as well as construction and also the auto industry. Those three groups of workers 

have been most plagued by asbestos exposure. 

Mr. GREEN. OK. Mr. Chairman, I know I am out of time and I 

appreciate your patience. 

Mr. SHIMKUS. Gentleman’s time is expired. Chair now recognizes 

gentleman from Ohio, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON OF OHIO. The other gentleman from Ohio. 

Mr. SHIMKUS. Last, but not least. 

Mr. JOHNSON OF OHIO. There you go. Mr. Johnson—that is odd 

for me to say. I don’t say that very often. I can tell by your accent 

you are from the other side of the family, I think. Do the States 

participate in EPA’s implementation of TSCA today, and if so, how? 

Mr. JOHNSON. Well, they have in a fairly small way. I mean, I 

think the biggest challenge for the States is because EPA has been 

so challenged to get to chemicals, one of the things that States 

have really felt is necessary is a better way for States to sort of 

be the petition or somehow to get the chemicals that are coming 

up and being raised as of concern among citizens in States to get 

EPA to look at those. It is a challenge because I think as has already been mentioned, new chemicals there is somewhat of a process for, but we have this huge group of chemicals that got grandfathered in 37 years ago, and I think certainly amongst the people 

in our States, the idea that they may be dangerous but we don’t 

know, but they are in commerce and we will get back to them 

maybe never is just not an answer. 

Mr. JOHNSON OF OHIO. Well maybe I am a little unclear. Are 

they delegated any authority under TSCA today or do they have to 

go ‘‘Mother, may I’’ to—— 

Mr. JOHNSON. Well, what happens today is because EPA hasn’t 

really assessed a lot of chemicals, they don’t have to go to EPA to 

do it. They go to the State legislature and if they can pass a regulaVerDate Aug 31 2005 12:09 Apr 24, 2014 Jkt 037690 PO 00000 Frm 00097 Fmt 6633 Sfmt 6633 F:\113-83~1\113-83~1 WAYNE
94 

tion like California or New York or Oregon or Washington or 

Maine have done—— 

Mr. JOHNSON OF OHIO. So they have to assume the authority? 

Mr. JOHNSON. Then they would assume it, yes. 

Mr. JOHNSON OF OHIO. Do the States engage in chemicals management? 

Mr. JOHNSON. Some States do and some States don’t. It is—except for California, which is at the moment or is just about to roll 

out a pretty comprehensive regulation that is—they spent the last 

3 years working on that would be sort of more of a system approach, most States have done it on a chemical-by-chemical basis 

because of a particular concern raised. And as was mentioned earlier, it usually goes through the legislature. People come in and say 

we need you to do something about this chemical, and so I would 

say that that has been—in those States that have done it, there is 

certainly a way to do it, but it is not particularly efficient and it 

means you have a spotty landscape. 

Mr. JOHNSON OF OHIO. Why do you think some States have engaged more actively in chemical management than others? 

Mr. JOHNSON. Part of it is resources. Some bigger States have 

just been in a better position to do it, because they have been able 

to bring some resources to bat, either through their health department or their environmental regulatory agency. Some States have 

just had individual legislators who have a particular interest who 

have been able to bring something forward and get it passed. 

States like mine have been somewhat reticent to get into the business of regulating chemicals, because we haven’t worked out how 

we would actually pay for it. And we quite honestly think that it 

makes sense to do it at the Federal level. Our market in Vermont 

is pretty small, and we don’t want to somehow isolate ourselves by 

having a block to commerce that would just have us cut out of the 

market. Although we don’t have a lot of industry, we do have an 

IBM chip manufacturing plant and the semiconductor industry is 

one of the ones a bit like the car industry, a lot of components involved in there. But it is really a resource issue. 

Mr. JOHNSON OF OHIO. One final one for you, Mr. Johnson. Do 

some of the concerns that States have addressed fall under laws 

other than TSCA or agencies other than the EPA, for example, 

FDA or OSHA? 

Mr. JOHNSON. They do, although in pesticides, for instance, and 

Food and Drug Administration there has been a lot more activities 

by those agencies. It is sort of the reverse, generally pretty good. 

I think people feel confident. The American people seem pretty confident in those agencies, with the occasional sort of thing that 

stands out as an issue, whereas TSCA is almost the other way. It 

is like generally not confident with the occasional thing that stands 

out as being OK. 

Mr. JOHNSON OF OHIO. Sorry I didn’t have any questions for the 

rest of you. It was just more comfortable family to family here, so 

thank you. 

Mr. JOHNSON. I appreciate it. 

Mr. JOHNSON OF OHIO. Mr. Chairman, I yield back. 

95 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes ranking member of the full committee, Mr. Waxman, for 5 

minutes. 

Mr. WAXMAN. I thank you, Mr. Chairman. 

Today the subcommittee continues its oversight work on the 

Toxic Substances Control Act, tackling two important and related 

issues: EPA’s authority to regulate harmful chemicals, and the 

ability of States to take action when necessary. 

EPA’s regulation of chemicals can be an important part of protecting families from harmful environmental exposures and pollution. Unfortunately, TSCA has so far fallen short of its objectives. 

Its failures have meant avoidable suffering, disease, and death. Asbestos is one of the clearest examples. Over the course of 10 years, 

EPA undertook a rulemaking and built an exhaustive record in an 

attempt to regulate this dangerous toxin, but the court threw it out 

and essentially, EPA gave up hope of using TSCA to address chemical risks. 

Mr. Rawson, you suggested in your testimony that you agree 

with the court’s decision to throw out EPA’s asbestos rule. Specifically, Mr. Rawson seems to argue that the automobile brake pads 

should remain on the market unless EPA can prove that brake 

pads not containing asbestos are safe to use. 

Ms. Reinstein, you know firsthand the terrible suffering associated with exposure to asbestos, and what can you tell us about the 

health risks posed by exposure to asbestos from brake pads? 

Ms. REINSTEIN. Thank you, Ranking Member Waxman, and you 

are also my Congressman so it is lovely to finally meet you in person. 

We know that asbestos is a carcinogen causing disability and 

deaths. I can only tell you that those who are diagnosed with these 

diseases and their entire families suffer. We have many asbestos 

victims who have changed brakes and have inhaled and obviously 

been exposed to asbestos. And again, the latency period complicates 

it. There is no cure for any of these diseases; however, prevention 

is a cure. Substitutes do exist. 

Mr. WAXMAN. In your view, if Congress were to consider TSCA 

reform legislation, should we ensure that EPA be able to put an 

end to the ongoing asbestos exposures in this Nation? 

Ms. REINSTEIN. I think that if there is a bill passed that can’t 

do that, it needs to go back to the wood shed. Clearly, any TSCA 

reform must ban asbestos. 

Mr. WAXMAN. Thank you. Ms. Thomas, you represent 12 major 

automobile manufacturers. Do your manufacturers still use asbestos brake pads and linings on new cars? 

Ms. THOMAS. To the best of my knowledge, no. 

Mr. WAXMAN. Do you or your members have concerns about the 

safety of non-asbestos brake pads? 

Ms. THOMAS. I am sorry, repeat that question one more time. 

Mr. WAXMAN. Do you or your members have concerns about the 

safety of non-asbestos brake pads? 

Ms. THOMAS. No. 

Mr. WAXMAN. But my understanding is that brake pads containing asbestos remain on the market today. Asbestos can still be 

96 

found in imported brake pads sold in the aftermarket. Isn’t that 

correct? 

Ms. THOMAS. Yes, that is my understanding. 

Mr. WAXMAN. Now, Mr. Rawson, I would like to go back to you. 

Let’s put aside whether the court decided the asbestos case correctly or EPA built the best record it could over the course of its 

10-year effort. Do you think that this was a good policy outcome? 

Do you believe it was good for the public for asbestos to remain on 

the market? Public health advocates and State regulators remain 

concerned about asbestos in brake pads. For example, some States, 

including California, have passed bans on asbestos brake pads. 

Mr. RAWSON. Thank you for the question. First of all, I obviously 

don’t take lightly the hazards of asbestos and share the sympathies 

of everybody in this room for all families who suffered losses as a 

result. So I take that as seriously as everybody else. At the time 

of the rulemaking, new cars were already not using asbestos in 

brake pads. 

Mr. WAXMAN. Well what do you think the policy ought to be? Do 

you think it was a good policy outcome? 

Mr. RAWSON. I am trying to answer that. 

Mr. WAXMAN. Do it very quickly, because my time is running out. 

Mr. RAWSON. The issue was with replacement brakes, using nonasbestos brake pad on a car engineered for a brake pad could cause 

many more deaths than it would prevent. An EPA study said that 

and EPA experts said that the loss of life from putting the wrong 

brake pad on the car would far outweigh any benefit of the rule. 

The problem was EPA didn’t answer that. Had they answered 

that—— 

Mr. WAXMAN. Let me ask Mr. Srolovic, how important is it to 

maintain the ability of States to take actions like that to address 

health risks from chemicals when EPA can’t? It is an important 

issue. I can’t support legislation that would undermine the few protections that are in current law or that would preempt successful 

State efforts to protect the public. What do you think? 

Mr. SROLOVIC. Congressman, I think it is very important to preserve the traditional power of States to take legislative regulatory 

action under their traditional powers to protect their citizens and 

their environment from the hazards posed by toxic chemicals. 

Mr. WAXMAN. Thank you. Well, I appreciate that. I am sorry to 

have cut you off, but my time is already over and I have to yield 

back to the chairman to call on another member. 

Mr. SHIMKUS. And he knows how tough I am on time, so thank 

you. I thank the ranking member. Chair now recognizes my colleague from Illinois, Ms. Schakowsky, for 5 minutes. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. I had some questions for Mr. Greenwood which really go back to the history of 

TSCA. 

You made the argument that the EPA struggled over resource allocation in the early years of TSCA, and here we are almost 40 

years later and I can’t imagine that efforts by this body to get funding—by this body to gut EPA funding—we are talking about cutting, including the interior and environmental appropriations bill, 

by 34 percent, a 34 percent cut to the EPA have made it much better. 

97 

But here is my question. What TSCA-related risks to human 

health and the environment can be anticipated if the EPA were severely underfunded? 

Mr. GREENWOOD. That is a major question. It is hard to translate 

that, a budget cut into specific actions. I think the budget situation 

at EPA, as I understand it, is that they are very limited on what 

they can do on new chemicals. The staffing is as lean as it can 

be—— 

Ms. SCHAKOWSKY. I am sorry, on new chemicals? 

Mr. GREENWOOD. On new chemicals. And as to existing chemicals, they have started to lay out a fairly, I think, constructive plan 

with a list of 83 work plan chemicals that they are trying to address, and they have a budget for it and I think it is something 

that I think we all would like to see progress. They are going to 

be using good science to assess and then decide what they can do 

from a risk management point of view. My guess is that that is the 

area that is most likely to be hurt if there are severe budget cuts, 

and I think it is not in the interest of most of us. 

Ms. SCHAKOWSKY. Thank you. It seems to me that the EPA’s effort to address asbestos is illustrative of some of the underlying 

problems of TSCA and the existing chemicals. As you said in your 

testimony, asbestos was seen as a test case to prove the efficacy of 

TSCA. Still, it took 10 years from the advance notice of proposed 

rulemaking to the official ban, and that ban was overturned in 2 

years and despite the findings that there are no safe levels for asbestos, many products from kids’ toys to car brakes, which we were 

just talking about, have been found to contain asbestos since 1991. 

And as Ms. Reinstein said, 30 Americans die each day from preventable asbestos-caused disease. So what does the asbestos case 

tell us about TSCA and how should the law be changed, amended, 

fixed to ensure that dangerous products, you know, many years 

and decades later aren’t still on the market? 

Mr. GREENWOOD. Well, I think that the case has told us that 

there are parts of the structure of the statute that prevent problems from getting decisions made. I have mentioned this now multiple times. The least burdensome alternative—— 

Ms. SCHAKOWSKY. I apologize for coming so late. 

Mr. GREENWOOD. No, that is OK. Least burdensome alternative 

provision and how it was interpreted by the court, I think most of 

us felt that EPA at the time after the decision came down was a 

surprise and was something that would have long term effects. I 

think it is important to recognize though that we didn’t necessarily 

think that the other parts of the statute couldn’t work. I don’t recall any discussion where people thought that unreasonable risk 

was an inappropriate standard. It was very focused on this one 

issue, so I think for most of us at EPA at the time, that was the 

major takeaway message of concern. 

Ms. SCHAKOWSKY. Thank you. Again, I apologize for having you 

repeat it, but I appreciate your indulgence. 

Thank you. I yield back, Mr. Chairman. 

Mr. SHIMKUS. Gentlelady yields back her time. The chair wants 

to thank the panelists here today. Again, this is the third of a set 

of hearings on TSCA. As my colleague from Colorado said, this is 

one everybody would like us to do something on, hopefully someVerDate Aug 31 2005 12:09 Apr 24, 2014 Jkt 037690 PO 00000 Frm 00101 Fmt 6633 Sfmt 6633 F:\113-83~1\113-83~1 WAYNE
98 

thing positive, and it is kind of exciting to open up the can of 

worms and start pulling them out and see what works and what 

doesn’t. So I appreciate your attendance and look forward to working with you. I appreciate the involvement of the Minority and the 

very active questioning and the like. 

I would like to ask unanimous consent for a letter to Mr. Waxman from Californians for a Healthy and Green Economy, as well 

as a press statement from CHANGE to be submitted into the 

record, also a letter from the American Alliance for Justice that 

was sent to myself and Mr. Tonko concerning State tort law to be 

submitted for the record, and a resolution from ECOS, which they 

have been very helpful over my time as a chairman in dealing with 

issues, referenced by Mr. Johnson in his testimony. That will all 

be submitted into the record. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. And with that, I would like to declare the hearing 

adjourned. 

[Whereupon, at 3:52 p.m., the subcommittee was adjourned.] 

99 


87349.071

Opening Statement of the Honorable Fred Upton 

Subcommittee on Environment and the Economy 

Hearing on "Regulation of EXisting Chemicals and the Role of Pre-Emption under 

Sections 6 and 18 ofthe Toxic Substances Control Act" 

September 18, 2013 

(As Prepared for Delivery) 

Today's hearing, the third of an ongoing examination of the Toxic Substances Control Act, gives us a 

chance to think through two values that should always guide our policy decisions: respecting the authority 

of the states and facilitating interstate commerce. Getting this balance right is a matter of justice because 

government decisions are only just when they are made at the right level of government. 

This subcommittee's first hearing this Congress was entitled, "The Role of the States in Protecting the 

Environment." We saw firsthand just how seriously state officials take their duty to protect the 

environment, and how they each apply distinct local knowledge and experience to find the optimum policy 

outcome for the people they serve. 

Meanwhile, in four different centuries, each with its own set of technologies and challenges, this 

committee has been the main steward of the power vested in Congress to regulate commerce among the 

states. 

Why is that important? 

No matter how dedicated we are to respecting the primary role of the states in governing Americans, we 

all recognize the importance of issues only Congress can tackle. The Standard Time Act is just one 

example. And TSCA is in the same family. A system shared by all states that imbeds safety in the 

invention, manufacture, and use of chemicals and chemical based-products is the very purpose of TSCA. 

Can the states and members of Congress find common ground on chemical safety regulation? It is 

imperative that we do so. Our duty at the state and federal level must represent consumers, workers, and 

the general public who want and need protection from unreasonable exposure risks, but also want and 

need an Integrated U.S. market for products that contain chemicals. All states, all consumers, and all 

workers are better off if we share, and don't impede, that market. 

Let's ensure that the national government's scrutiny of chemicals and the products they go into is 

objective and thorough, and that any necessary restrictions are in place. But let's also avoid excess 

regulation. That way, the states can be confident that they don't have to reinvent the wheel and shoulder 

this regulatory responsibility one by one. 

Finding this balance, and understanding what's at stake, is our purpose today in this ongoing effort. 

### 
100 


87349.062

September 17, 2013 

The Honorable Henry Waxman 

Member, Subcommittee on Environment and Economy 

United States House of Representatives 

2204 Rayburn House Office Building 

Washington, DC 20515 

CH~NGE Californians for a Healthy & Green Economy 

RE: Hearing on Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of 

the Toxic Substances Control Act 

Dear Congressman Waxman: 

Californians for a Healthy and Green Economy (CHANGE) is a statewide coalition of 37 environmental health and 

environmental justice groups, health organizations, labor advocates, community-based groups, and others who are 

concerned with the impacts of toxic chemicals on human health and the environment. 

We have closely tracked chemicals policy in California and in Washington DC and are have a deep and direct 

interest in the central topiC of discussion in the Subcommittee on Environment and Energy hearing on September 

1S'h, specifically the issue of pre-emption. With the lack of action by the EPA due to the failure of the Toxic 

Substances Control Act (TSCA), the states have stepped in to fill that void and protect their citizens. CHANGE has 

advocated strongly for the legislation in California which arguably provides the strongest protections of any state in 

the country. While we understand that this hearing is not about any specific legislation, we are deeply concerned 

about the preemption language in the Senate Chemical Safety Improvement Act (S.1 009 - CSIA). As the 

subcommittee considers the very important issue of pre-emption and the states' right and responsibility to act when 

the federal government fails to, we urge you to protect the leadership role CA has played in protecting our citizens 

from exposure to toxic chemicals. 

We are writing to encourage you to attend the hearing and to consider the concerns expressed in our official 

statement (attached) on the CSIA, which provides detail and analysis on key shortcomings of the bill, including 

preemption of state laws. We deeply appreciate your efforts to solve the problem of widespread exposure to harmful 

chemicals while protecting states' rights and look forward to working with you moving forward. 

Sincerely, 

j(~ 

Kathryn Alcantar 

Campaign Director 

Californians for a Healthy and Green Economy 

changecalifornia@gmail.com 

510-655-3900, x315 

encl: CHANGE Statement on the CSIA July 24, 2013 

cc: 

Congresswoman Lois Capps, CA-24 

Congressman Jerry McNerney, CA-9 

Congresswoman Doris O. Matsui, CA-6 

Asian and Pacific Is!ander Obesity Prevention Alliance * Bayview Hunters Point Community Advocates * B!ack Women for WeUness .. Breast Cancer Action ~ 

Breast Cancer Fund" California Healthy Nail Salon Collaborative * California latinas for Reproductive Justice ~ California Pan·Ethnic Health Network * 

Californians Against Waste * Californians for Pesticide Reform * Center for Environmental Health' Center for Race, Poverty and Environment * Clean Water 

Action ~ Coalition for Clean Air " Commonweal .. Communication Workers of Amefica~ District 9* Communities tor a Better Environment * East Yard 

Communities for Environmental Justice * Environment California * Environmental Working Group * FOIWard Together" Green Schools initiative • Green 

Healthy World * Healthy Children Organizing Project* Institute de Educacion 

Safe ~ Movement Strategy Center * Pesticide Action Network North America ~ 

Health Network * Silicon Valley T oxics Coalition * United Steel Workerswww.changecalifornia.org 
101 


87349.063

CH~NGE Californians for a Healthy & Green Economy 

Californians for a Healthy and Green Economy (CHANGE) 

Opposes the Chemical Safety Improvement Act of 2013 (S.1009 LautenberglVitter) 

Unless Substantial Changes Are Made to Protect Public Health, Workers and Communities 

July 24, 2013 

Californians for a Healthy and Green Economy (CHANGE - http://www.changecalifornia.org/) is a statewide 

coalition of 37 environmental health and environmental justice groups, health organizations, labor advocates, 

community-based groups, parent organizations, faith groups, and others who are concerned with the impacts of 

toxic chemicals on human health and the environment. 

There is widespread agreement across the political spectrum that chemicals policy in the United States is broken 

and needs a comprehensive upgrade. The primary law that regulates industrial chemicals in the U.S., the Toxic 

Substances Control Act (TSCA), dates to 1976 and is ineffective and outdated. The Chemical Safety 

Improvement Act (CSIA - S.1009), introduced in the U.S. Senate on May 22, 2013 with bi-partisan support, 

reflects this consensus about the need for reform. 

Increasing scientific research clearly indicates that many chemicals can be harmful to public, environmental, 

and occupational health. Y ct industrial chemicals that have been identified by authoritative scientific bodies as 

hazardous remain under-regulated and are commonly found in many products Americans use every day at 

home, work and in the community. Basic health and safety data about the effects of exposure to many of these 

chemicals is not available to the public because chemical manufacturers are not required to conduct adequate 

studies before bringing their chemicals to market, or the information is inappropriately protected as a trade 

secret, or toxicity studies simply have not been done. 

CHANGE recognizes that a bipartisan effort to address the shortcomings of TSCA is an important development. 

However, the CSIA as written fails to solve the problem: the pervasive, ongoing, and indiscriminate exposure 

to toxic chemicals for everyone on Earth. 

It is undeniable that hundreds of hazardous andlor under-studied chemicals are now routinely found in human 

tissue in biomonitoring studies. It is equally clear that these hazards are plausibly linked to many diseases and 

adverse health endpoints. CHANGE is not the first to note that we are in the middle of an uncontrolled 

chemistry experiment. Thesc substances do not belong in our bodies. We must reduce exposure to bazardous 

chemicals, even as we continue to learn more about their influences on the health of people, environments, and 

organizations. 

CHANGE strongly opposes the CSIA unless significant amendments are made. The language of this bill does 

not advance prevention, protect public health, nor reduce harm. The CSIA does not fix many of TSCA's 

significant problems that have left the public unprotected from toxic chemicals. Specific shortcomings include: 

Contact: Kathryn Alcantar, CHANGE Campaign Director~ ~aJ.!gecaliforflia@.Q..Rl-,~j!.,-om or 510,655,3900 x315 www.changecalifornia.org 
102 


87349.064

CH8NGE 

Californians for a Healthy & Green Economy 

L The CSIA's safety standard fails to shift the burden of proof about chemical heallb and safety onto the 

chemical manufacturers to demonstrate their products are safe. The bill too closely parallels the failed language 

ofTSCA hy saying a chemical must not pose an "unreasonable risk to human health or Ibe environment under 

intended uses." We support the language oflbe 1996 Food Quality Protection Act, as well as Ibe introduced 

Sale Chemicals Act (S.696), bolb of which call for "reasonable certainty of no harm." That language provides a 

much higher margin ofheallb and safety, and level of protection for Ibe public, as it shifts the burden of proof 

onto Ibe manufacturer to demonstrate "reasonable certainty of no harm." Surely this is the standard we want for 

our children. 

2. The CSIA does not adequately consider aggregate exposure, which is Ibe reality in the world today. We 

know from biomonitoring studies that everyone is exposed repeatedly to multiple environmental chemicals. By 

not requiring an assessment of cumulative exposure, Ibe CSIA repeats the mistake in TSCA by looking at one 

chemical at a time wilbout acknowledging cumulative impacts from ongoing exposures. 

3. There is no mandate that disproportionately-affected communities and vulnerable populations receive added 

protections. Over-exposed and burdcned fence-line communities, workers who handle chemicals, and people at 

sensitive developmental stages, such as infants and pregnant women, are more vulnerable to harm from 

chemical exposures than the general population. They require a law Ibat protects their ability to Ibrive and 

attain their right to good health by addressing Ibe impacts of disproportionate exposures that lead to actual 

reductions in toxic chemicals in their home and work environments. 

4. The CSIA effectively curtails the rights of states to determine their own standards of protection in 

environmental, occupational, and olber public health arenas. The bill would prohibit states from taking action 

once Ibe U.S. EPA designated a chemical as eilber a high or low priority, or if EPA simply began a safety 

determination process. A waiver provision for states to act is limited and cumbersome and is unlikely to 

sncceed in many cases. We need a federal law that is as protective as possible, but states absolutely must retain 

the right to set a higher bar than federal minimums. 

Furthermore, under the CSIA, "no State or political subdivision of a State may establish or continue to 

enforce ... " current laws that in any way pertain to a chemical that EPA begins to address. This means that 

current and proposed regulations that offer real preventive action about chemicals would be invalidated. This 

would be particularly harmful in California, affecting occupational heallb regulations (e.g., registering the 

presence of carcinogens in occupational settings, Ibe 200-plus permissible exposure limits/PELS unique to the 

state), environmental health regulations (e.g., the Safer Consumer Products Regulations) and public health 

activities (e.g., about lead). 

5. The CSIA has no timelines or milestones for EPA action, instead calling for EPA action "from time to time" 

or in a "timely manner." We know from experience that regulatory action to prevent or reduce harm from 

chemicals is a long process in Ibe best of circumstances. EPA must have firm deadlines and deliverables to 

advance its obligations under any new law. 

6. The CSIA requires the use of cost-henefit analysis at the critical regulatory decision-making point where a 

phase out or ban of a chemical is contemplated. While the bill provisions state that only heallb considerations 

can be factors in making a "safety determination" (which we support), it must also be the case Ibat regulatory 

decisions, including but not limited to phase-out or bans of problematic chemicals, should also be based solely 

on health factors. Traditional cost-benefit analyses are unlikely to adequately consider externalities such as 

costs to the public health, the need for environmental remediation, decline in property values, and reduced 

2 
103 


87349.065

CH~NGE Californians for a Healthy & Green Economy 

productivity at work, for example. The end result will mean some of the most toxic chemicals will remain in 

commerce despite their failure to meet the safety standard. 

7. The CSIA makes an unsupportable assumption that lack of information equals a lack of harm. Any bill 

reforming TSCA should require a minimum toxicity data set be submitted and reviewed before any chemical is 

designated as a "low priority." 

8. Confidential Business Information (CBl) provisions in the CSIA include a "gag rule" on medical 

professionals who receive information necessary to treat patients who may have been harmed by exposure to 

toxic chemicals. This restricts health care providers from carrying out their mission to "do no harm." The 

CSIA's CBI provisions also impair thc ability of public health practitioners to do their job, and reduce the rightto-know for workers, employers, and other members of the public. 

9. The CSIA makes no special provisions for nanomaterials despite the fact that they are insufficiently studied, 

differ structurally from their parent compounds, and may present new health hazards and risks. 

10. There is no language in the CSIA that allows the EPA to collect fees to help pay for safety assessments or 

determinations. Coupled with the lack of enforceable deadlines, this ensures that meaningful action to reduce 

exposure to toxic chemicals will be extremely modest. 

II. The CSIA has no provisions that support the development of green chemistry-based alternatives. The bill 

needs meaningful incentives in the bill that strengthen innovation in the marketplace for non-toxic and lesstoxic alternatives that promote safety and economic growth. 

### 
104 


87349.066

AMERICAN 

ASSOCIATION fur 

~ ~JUSTICE Fonnerly the Association ofTriallawyers of America (AllA®) 

September 18, 2013 

The Honorable John Shimkus 

Chairman 

Subcommittee on Environment and Economy 

House Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Shimkus and Ranking Member Tonko: 

The Honorable Paul Tonko 

Ranking Member 

Subcommittee of Environment and Economy 

House Committee on Energy and Commerce 

2 I 25 Rayburn House Office Building 

Washington, DC 20515 

The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America 

(A TLA), hereby submits comments in relation to the Energy and Commerce Committee Subcommittee 

on the Environment and the Economy's hearing titled "Regulation of Existing Chemicals and the Role of 

Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act." AAJ, with members in 

United States, Canada and abroad, is the world's largest trial bar. It was established in 1946 to safeguard 

victims' rights, strengthen the civil justice system, promote public safety and protect the constitutionally 

mandated right to a trial by jury. 

AAJ has seen time and again how dangerous chemicals in our drinking water, children's toys and 

consumer products can disastrously impact the lives of American families. As advocates for the people 

harmed by toxic chemicals, AAJ strongly supports efforts to reform the Toxic Substances Control Act 

(TSCA), but in order for reform to effectively protect the American public, it is imperative 

that Americans' access to state courts is protected. Accountability achieved through our civil 

justice system is a vital component of the effort to protect the public from toxic chemicals and to shed 

light on products harmful to human health. The civil justice system serves to complement and enhance 

regulatory efforts by providing an additional layer of accountability and safety. This is especially true 

when federal agencies are underfunded, have limited access to information or have insufficient resources 

to adequately enforce safety measures. Any effort to reform TSCA must specifically preserve the ability 

of individuals to pursue their rights under state law. 

State Tort Law Complements Federal Regulation 

Strong federal oversight is essential to ensuring public health, but federal standards but should not prevent 

Americans from seeking necessary recourse when dangerous substances cause harm. There are practical 

limits to how effective regulation alone can be in protecting the public. Just because a chemical is 

deemed "safe" by a federal regulator should not mean that the manufacturer's duty to protect the public 

ends. If it turns out that a manufacturer learns additional information about the safety of its product, or 

the manufacturer hid information from the public and injuries occur as a result, individuals should have 

the right to hold that manufacturer accountable. 

State tort law is critical to shedding light on new information regarding the dangers of products. The 

limits on federal resources, rapidly changing technologies and the ever-expanding proliferation and use of 

www.justice.org.7776thStreet.NW.Suite 200 • Washington, DC 20001·202-965-3500 
105 


87349.067

chemicals, can prevent sufficient testing or regulation at the federal level. And state tort law is the only 

way for consumers to hold manufacturers accountable when they fail to behave in a reasonable manner 

given the available technology and information, even if that technology or information is not reflected in 

the current health and safety standards. Manufacturers should compensate individuals and families who 

are injured as a result of a chemical producer's failure to act responsibly, even if they are not subject to 

fines or other sanctions for violating a particular regulatory requirement. 

State Tort Law Ensures Accountability 

Federal health and safety laws generally do not provide compensation for those injured by regulated 

entities; state tort law is the only mechanism that allows injured individuals the right to recover for harms 

wrongfully perpetrated against them. If a company poisons the groundwater with a harmful chemical that 

causes a person to get cancer, that company will be responsible for paying for that person's medical 

care. If the right to hold corporations accountable is preempted by federal law and individuals are unable 

to file claims against the companies that harm them, manufacturers will no longer be held responsible. As 

a result, medical and other costs that would typically be paid by the responsible party will shift to 

government agencies, such as Medicare and Medicaid, and taxpayers. This contrasts starkly with the 

historical common law tradition of a person or business who commits a tort taking responsibility as a 

matter of basic justice and fairness. 

State Tort Law Provides a Safety Net when Federal Regulation is Insufficient 

State-based tort law also provides an additional safety net when federal regulations are out of date or 

inadequate. Regulatory policy needs to be continually revised to reflect the most up to date information 

about risks, and what new technologies will sufficiently protect us from that risk. However, even in the 

best of economic times, federal regulatory agencies can go decades without updating a particular 

regulation to reflect the most current information or practices. In times of budgetary shortfalls, federal 

agencies will often lack the necessary funds to provide for adequate enforcement of their various 

standards. When regulations become ineffective or out of date, state tort law assumes the crucial role of 

filling these inevitable regulatory gaps. 

State tort law requires companies or manufacturers to meet basic standards of reasonable behavior and to 

provide additional protections to consumers beyond compliance with federal regulations. This function, 

in particular, highlights the complementary roles of the tort and regulatory systems in ensuring public 

health and safety. When regulations fail and enforcement is unavailable, state-based tort law is the only 

remedy to ensure that companies and manufacturers can be held accountable for the harm that they 

cause. If weak federal standards preempt state tort law, manufacturers operate without sufficient 

incentive to update their products to reduce health and safety risks to consumers and the environment. 

AAJ looks forward to working with the committee on safeguarding the public health and ensuring 

citizens' rights to access the civil justice system. 

Sincerely, 

Linda Lipsen 

Chief Executive Officer 

American Association of Justice 

www.justice.org.7776thStreet.NW.Suite 200 • Washington, DC 20001 • 202-965-3500 
106 


87349.068

ECOS 

~ 

Resolution Number 10-8 

Approved August 30, 2010 

Whitefield, New Hampshire 

Revised September 17,2013 

Arlington. Virginia 

As certified by 

R. Steven Brown 

F..xecutive Director 

REFORMING THE TOXIC SUBSTANCES CONTROL ACT 

WHEREAS, U.s. daily production and importation in 2005 of chemicals increased by 80% from 

42 billion to 74 billion pounds from 2002 levels; and 

WHEREAS, there are significant impacts to public health and the environment as a result of 

chemical pollution and states incur significant responsibilities and costs addressing those 

impacts; and 

WHEREAS, the Toxic Substances Control Act (TSCA) enacted in 1976, authorizes U.s, EPA to 

control chemicals that pose an unreasonable risk to public health or the environment, and remains 

U.S. EPA's primary authority to control the safety of chemicals in commerce; and 

WHEREAS, legal and procedural hurdles under TSCA prevent the U.S. EPA from taking quick 

and effective regulatory action to protect the public against well-known risks, even in those cases 

where the U.S. EPA has adequate data on a chemical; and 

WHEREAS, in January 2009, the U.S. General Accounting Office (GAO) added U.S. EPA's 

regulatory program for assessing and controlling toxic chemicals to its list of "high risk" 

programs, finding that: 

• U.S. EPA has been unable to keep its existing assessments current or to complete assessments 

of important chemicals of concern; and 

• U.S. EPA requires additional authority to obtain health and safety information from the 

chemical industry and to shift more of the burden to chemical companies to demonstrate the 

safety of their products; and 

• TSCA does not provide sufficient chemical safety data for public use by consumers, 

businesses and workers; and fails to create incentives to develop safer alternatives. (More 

than 16,000 of the roughly 84,000 chemicals included on the TSCA inventory are classified 

as confidential); and 

WHEREAS, U.S. EPA, the National Conference of State Legislatures, and a coalition of 13 states 

have each separately announced guiding principles for TSCA reform to strengthen TSCA's 

effectiveness; and 
107 


87349.069

WHEREAS, on May 22,2013, Senate Bill 1009, the "Chemical Safety Improvement Act of 20 13 

(CSIA)," was introduced in the U.S. Senate to modernize the Toxic Substances Control Act; and 

WHEREAS, although CSIA contains a number of improvements compared to TSCA, the 

Attorneys General and environmental agency leaders from a number of states have strongly 

objected to the state preemption provisions of CSIA noting that the proposed language would 

unnecessarily restrict the states' ability to take actions necessary to protect public health and the 

environment; and 

WHEREAS, states have an important stake in shaping TSCA reform. 

NOW, THEREFORE, BE IT RESOLVED THAT: 

ECOS commends the bipartisan effort in the U.S. Senate led by Senator Vitter and the late 

Senator Lautenberg to propose changes to TSCA. 

ECOS commends U.S. EPA, the National Conference of State Legislatures, the Product 

Stewardship Institute, the National Pollution Prevention Roundtable, individual states and others 

for their leadership in support ofTSCA reform that will strengthen chemicals management. 

ECOS supports congressional action on TSCA reform that: 

• ensures the burden is effectively placed on manufacturers to prove that existing and new 

chemicals are safe; 

• provides U.S. EPA with adequate authority to ensure that existing and new chemicals are safe 

and to take action when they are not; 

• establishes a streamlined process for U.S. EPA to share data with states, including 

confidential business information provided to U.S. EPA; 

• ensures the preservation of state authority to protect citizens and the environment from toxic 

exposures and to manage chemicals of concem, and only restricts that authority if compliance 

with both state and federal law would be impossible; 

• enhances timely state/federal consultation and coordination in areas of particular concem to 

the states, including the development and implementation of hot spot action plans, 

prioritization of the most severely impacted communities and providing a source offunding 

to state and local govemments to conduct chemicals management technical assistance; 

• expands the scope of risk -based safety standards to include hazard assessment; 

• authorizes U.S. EPA to require a safer altematives assessment for any chemical U.S. EPA 

identifies as a Priority Chemical, such as Persistent, Bioaccumulative and Toxic (PBT) or 

"very Persistent and very Bioaccumulative chemicals;" 

• expands U.S. EPA's authority to oversee the risk and environmental health impacts of 

engineered nanomaterials and other emerging technologies; 
108 


87349.070

• authorizes U.s. EPA to take expedited action when a chemical presents a very serious or 

immediate risk to public health or the environment; 

• provides U.S. EPA with authority to impose interim conditions and to take expedited action 

until a safety determination is made, when data or information suggests significant concern 

about a chemical; and 

• enhances the safer alternatives assessment to encourage a process of continuous improvement 

and establishment of a set of criteria for performing assessments that, at a minimum, relies on 

consideration of the impacts through the life cycle of the chemical. 
109 


87349.072

FRED UPTON, MICHIGAN 

CHAIRMAN 

Mr. Mark A. Greenwood 

Principal 

ONE HUNDRED THIRTEENTH CONGRESS 

HENRY A. WAXMAN, CALIFORNIA 

RANKING MEMBER 

(:ongttSS of tur Wnitdl ~tatrs 

~ouS'e of l\tprtS'tntatibtS' 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HOUSE OFFICE BUILDING 

WASHINGTON, DC 20515-6115 Mlljorlty (.20;(/22&,7917 

MUlOri!y (202)225-3041 

October 29, 2013 

Greenwood Environmental Counsel PLLC 

888 16th Street, N.W., Suite 800 

Washington, D.C. 20006 

Dear Mr. Greenwood: 

Thank you for appearing before the Subcommittee on Environment and the Economy on Wednesday, 

September 18, 2013, to testilY at the hearing entitled "Regulation of Existing Chemicals and the Role ofPr .. 

Emption under Sections 6 and 18 of the Toxic Substances Control Act." 

Pursuant to the Rules ofth. Committee on Energy and Commerce, the hearing record remains open for 

ten business days to permit Members to submit additional questions forthe record, which are attached. The 

format of your responses to these questions should be as follows: (1) the name of the Member whose question you 

are addressing, (2) the complete text of the question you are addressing in bold, and (3) your answer to that 

question in plain text. 

To facilitate the printing of the hearing record, please respond to !bese questions by the close of business 

on Tuesday, November 12, 2013, Your responses should bee-mailed lathe Legislative Clerk in Word format at 

Nick.Abraham@mail.hou,e.goY and mailed to Nick Abraham, Legislative Clerk, Committee on Energy and 

Commerce, 2125 Rayburn House Office Building, Washington, D.C. 20515. 

Thank you again for your time and effort preparing and delivering testimony before Ibe Subcommittee. 

i erely, 

suman 

~~s Subcommittee on Environment and the Economy 

ce: The Honorable Paul Tonko, Ranking Member, 

Subcommittee on Environment and the Economy 

Attachment 
110 


87349.073

Greenwood Environmental Counsel PLLC 

November 5, 2013 

The Honorable John Shimkus 

Chairman 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

U.S. House of Representatives 

2 I 25 Rayburn House Office Ruilding 

Washington, DC 205 I 5-6115 

Re: Additional Questions 

Dear Chainnan Shimkus: 

N\x'~ SUIt\.' 1)00 

20006 

Thank you for the opportunity to testify at the Subcommittee's hearing entitled "Regulation of 

Existing Chemicals and the Role of Pre-Emption under Section 6 and 18 of the Toxic Substances 

Control Act," held on September 18, 2013. In response to your request, I am enclosing for the 

hearing record my responses to some additional questions posed to me in your October 29,2013 

letter. 

Thank you again for the opportunity to provide testimony to your Subcommittee. 

Sincerely, 

/Yja.lLf~ 

Mark Greenwood 

Greenwood Environmental Counsel PLLC 
111 


87349.074

U.S. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Environment and tbe Economy 

Hearing on "Regulation of Existing Cbemicals and tbe Role of 

Preemption under Sections 6 and 8 of tbe Toxic Substances Control Act" 

September 18, 2013 

Responses from Mark Greenwood to 

Additional Questions for the Record 

Questions provided by The Honorable John Shimkus: 

1. Some think that the Corrosion Proof Fittings case retlects failure of TSCA, others assert 

parts of TSCA, such as Section 5 dealing with new chemicals, have been a success. What is 

your view? 

One of the unfortunate aspects of the TSCA program's history is that EPA's ability to use the 

broad regulatory authorities in Section 6 became, in the minds of many people, the sole measure 

of whether the larger TSCA program has been successful. The record of EPA action under 

Section 6 clearly indicates that this provision has not been the highly effective regulatory 

authority that many people thought it might be in 1976, when TSCA was passed. That 

conclusion, however, should not be drawn too broadly. 

The historical record shows that EPA has taken many actions on chemicals in commerce, using 

other parts of the TSCA statute. Some examples are worth noting: 

a. New Chemical Regulation under Section 5: While public records are limited on how 

many new chemical Pre-Manufacture Notices (PMNs) EPA has reviewed, available 

information suggests that EPA has evaluated approximately 40,000 chemicals through 

the new chemical program since 1976. Approximately 10% of those chemicals have 

been identified as having risk concerns warranting action by the Agency. Thus several 

thousand chemicals have been subject to TSCA actions that vary from Section 5(e) 

Orders requiring testing and control measures to voluntary withdrawal of the PMN, 

avoiding manufacture or import of the chemical in the United States. 
112 


87349.075

b. Significant New Use Rules under Section 5: Under Section 5, EPA is able to regulate 

chemicals through Significant New Use Rules (SNURs) that require notification of EPA 

and a regulatory review of a chemical whose use is both "new" and "significant". EPA 

has used this authority to establish protective conditions for the use and management of 

specific existing chemicals that will then avoid the notification obligations in a SNUR for 

those chemicals. Many of these SNURs have been issued to extend the obligations in 

Section 5( e) Orders to the full range of parties who might manufacture or process a 

particular chemical. EPA has estimated that it has issued approximately 350 of these 

SNURs for chemicals that are in commerce in the U.S. Thus, the SNUR authority in 

TSCA, rather than Section 6, is the dominant tool that EPA uses to regulate existing 

chemicals. 

2. You suggested that the Corrosion Proof Fittings case chilled EPA's enthusiasm for using 

section 6. Is your concern with how the Court interpreted the least burdensome 

requirement or with its inclusion in the statute? 

The "least burdensome altemative" language in the TSCA statute is a reasonable, and not 

historically controversial, consideration for the regulation of existing chemicals. It is a key 

component of what policymakers call "smarter regulation" - finding effective ways to achieve 

regulatory objectives with strategies and tactics that minimize cost and social disruption. 

EPA's concern about the Corrosion-Proof Fittings decision was how the court interpreted the 

"least burdensome alternative" language in Section 6, not the fact that the provision was included 

in the statute. The surprising part of the court's opinion was the language indicating that the 

Agency needed to assess the full costs and benefits of each option that was arguably less 

burdensome than the approach proposed in the TSCA rule. This requirement to examine each 

option was potentially an obligation to examine all options proposed by stakeholders, including 

those opposed to any form of regulation. This appeared to be an analytical morass for the 

Agency that would require major investments of resources and time to establish a record for a 

Section 6 rule. Such an approach contrasted with how EPA and other agencies were operating, 

and are operating today, under Executive Orders guiding regulatory policy. Those Executive 

Orders allow agencies to identify a finite set of reasonable regulatory alternatives for evaluation. 

It should be noted that some commentators on TSCA have suggested that EPA should have 

tested the Corrosion-Proof Fittings court's interpretation of Section 6 by initiating other rules 

that interpreted the "least burdensome alternative" requirement more in line with Executive 

Order policy. This reflects a misunderstanding of how federal agencies operate, and must 

operate to maintain their obligations to the public and to taxpayers. When it is acting 

responsibly, the federal government does not generate regulations to "test legal theories." EPA 

2 
113 


87349.076

regulations must address and remedy environmental problems, while deploying the resources of 

the Agency (including the time and energy of EPA staff) in a responsible way. 

In the wake of the Corrosion-Proof Fittings decision, it had to be assumed by EPA that 

opponents of a future TSCA Section 6 rule would try to find every way possible to bring a 

challenge to that rule in the Fifth Circuit Court of Appeals, where the Corrosion-Proof Fittings 

case would be the law of the Circuit on Section 6. In addition, there is a natural, and I would say 

responsible, instinct for an agency to address any arguable defect in the record for a rule, even if 

that meant taking more time to analyze an additional objection (or in this case option) proposed 

by opponents of a rule. EPA recognized that these inevitable dynamics would create a prudent 

path for future regulation under Section 6 that would make EPA more conservative about when it 

had enough information to support a rule, before facing the judicial gauntlet created by the 

Corrosion-Proof Fittings decision. 

3 
114 


87349.077

FRED UPTON, M!CHIGAN 

CHAIRMAN 

Mr. William K. Rawson 

ONE HUNDRED THIRTEENTH CONGRESS 

HENRY A. WAXMAN. CALIFORNIA 

RANKING MEMBER 

<!Congrt5S5S of tUt Wnittb ~tatt5S 

1!?OU5C of l\cprc5cntatibc5 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HOUSE OFFICE BUILDING 

WASHINGTON, DC 20515-6115 Majofily 12(121225-2927 

Mmoflly11021225-3641 

October 29,2013 

Chemical Regulation, Product Strategy 

and Defense Practice 

Latham & Watkins, LLP 

555 11th Street, N.W" Suite 1000 

Washington, D.C. 20004 

Dear Mr. Rawson: 

Thank you for appearing before the Subcommittee on Environment and the Economy on Wednesday, 

September 18, 2013, to testifY at the hearing entitled "Regulation of Existing Chemicals and the Role of PreEmption under Sections 6 and 18 of the Toxic Substances Control Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains open for 

ten business days to permit Members to submit additional questions for the record, which are attached. The 

format of your responses to these questions should be as follows: (I) the name of the Member whose question you 

are addressing, (2) the complete text oftbe question you are addressing in bold, and (3) your answer to that 

question in plain text. 

To facilitate the printing oflhe hearing record, please respond to these questions by the close of business 

on Tuesday, November 12, 2013. Your responses should be e-mailed to the Legislative Clerk in Word format at 

NickAbraham(mmail.hQuse.gov and mailed to Nick Abraham, Legislative Clerk, Committee on Energy and 

Commerce, 2125 Rayburn House Office Building, Washington, D.C. 20515. 

Thank you again for your time and effort prepating and delivering testimony before the Subcommittee. 

i rely, 

alnn8fl 

~~s Subcommittee on Environment and the Economy 

cc: The Honorable Paul Tonko, Raaking Member, 

Subcommittee on Environment and the Economy 

Attachment 
115 


87349.078

"Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of the 

Toxic Substances Control Act" 

September 18,2013 

Questions for the Record for William Rawson 

1. Question by Chairman John Shimkus 

Why do you think the Toxic Substances Control Act (TSCA) included a pre-emption 

provision when environmental statutes enacted around that time actually allowed the states 

to act more stringently than the Federal Government? What is different about TSCA? 

The preemption provision in the Toxic Substances Control Act struck a reasonable balance 

considering the nature of the actions EPA can take under the Act and the purposes of preemption 

generally. Similar approaches are taken in other federal statutes discussed in my written 

testimony. 

Preemption applies only when EPA takes action under section 4 (testing of existing chemicals), 

section 5 (approval and regulation of new chemicals) or section 6 (regulation of existing 

chemicals). States had not historically been active in these areas. It would be burdensome, 

disruptive and wasteful to have conflicting federal and state chemical testing requirements, and 

equally problematic to have differing federal and state standards for approving new chemicals. 

Further, developing such programs would be very costly to the states. Similarly, while EPA has 

taken few actions under section 6 for reasons addressed at the hearing, once EPA has taken 

action under section 6 following a public process that gives all interested stakeholders 

opportunity to participate, it would be very costly and very burdensome to interstate commerce if 

states could then pursue their own rulemakings and impose different and conflicting 

requirements. Having said that, the preemption provision in TSCA allows for various exceptions 

and exemptions described in my written testimony and discussed further below. 

In short, the scope of preemption in TSCA was tailored to fit the nature of the actions EPA was 

authorized to take under the Act, applies to only a subset of those actions, and appears designed 

to avoid conflicting state standards where such conflicting standards could be particularly 

burdensome and disruptive to interstate commerce. And as noted, the Consumer Product Safety 

Act (CPSA)l, the Food, Drug, and Cosmetic Act (FDCA)2, and the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA)3 contain preemption provisions that operate in a similar 

manner to TSCA. Three of these statutes' four preemption provisions were enacted at about the 

same time as TSCA. 

1 15 U.S.c. § 2075. 

'21 U.S.C. §§ 360k, 379r. 

'7 U.S.c. § 136v. 
116 


87349.079

2. Question by Chairman John Shimkus 

TSCA Section 18 includes exceptions to the general pre-emption accorded to rules issued 

by EPA under Sections 5 and 6. Please discuss these exemptions to the Section 18 

preemption provisions. Do you consider these exemptions to be broad? 

I do consider the exemptions and exceptions to be broad enough to serve their intended purposes. 

Exemptions may be granted if EPA determines the proposed state or local action would provide 

a higher degree of protection and would not unduly burden interstate commerce. Among the 

exceptions, state and local laws governing disposal are not preempted, reflecting the local 

impacts of disposal activities. States also are permitted to enact rules identical to EPA rules, 

which would make them subject to state as well as federal enforcement. States also are not 

precluded from adopting rules under authority granted by other federal laws, such as the Clean 

Air Act, and a state or local law also may prohibit the use of a substance or mixture, other than 

its use in the manufacture or processing of other substances or mixtures. Finally, the preemption 

provision does not apply at all to actions taken by EPA under section 8 (various chemical-related 

reporting and information-gathering requirements), such that states are not preempted from 

imposing information-gathering requirements of their own. 

I consider these various exemptions and exceptions to be quite broad. I also consider them for 

the most part to be in line with the objectives ofTSCA, stated in section 2(b), to prevent 

unreasonable risks to health or the environment without impeding unduly technological 

innovation, and with the statement in Executive Order 13563 (January 11,2011), that "Our 

regulatory system must protect public health, welfare, safety, and our environment while 

promoting economic growth, innovation, competitiveness, and job creation." However, the 

ability of a state or local jurisdiction to ban a particular use of a substance even after the 

responsible federal agency has conducted an open and transparent review and determined that 

the use is safe, raises obvious concerns. As I stated in my oral testimony, one could argue that 

preemption should apply to situations where EPA has determined through a public process that 

no action is needed to protect health and the environment. 
117 


87349.080

FRED UPTON, MICHIGAN 

CHAIRMAN 

Ms. Jennifer Thom.s 

ONE HUNDRED THIRTEENTH CONGRESS 

HENRY A. WAXMAN, CALIFORNIA 

RANKING MEMBER 

(:Ongtt£i£i of tbe I1ntteb ~tate£i 

~ouue of l\epreuentatibeu 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HOUSE OFFICE BUILOING 

WASHINGTON, DC 20515-6115 ilO2122S-:?'m 

11(2) 225-3641 

October 29, 2013 

Director, Federal Government Affairs 

Alliance of Automobile Manufacturers 

803 7th Street, N.W" Suite 300 

Washington, D.c' 20001 

Dear Ms. Thomas: 

Thank you for appearing before the Subcommittee on Environment and the Economy on Wednesday, 

September 18, 2013, to testifY at the hearing entitled "Regulation of Existing Chemicals and the Role of PreEmption under Sections 6 and 18 of the Toxic Substances Control Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains open for 

ten business days to pennit Members to submit additional questions for the record, which are attacbed. Tbc 

fonnat of your responses to these questions should be as follows: (1) the name of the Member whose question you 

are addressing, (2) the complete text of the question you are addressing in bold, and (3) your answer to tbat 

question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions by the close of business 

on Tuesday, November 12,2013. Your responses should be e-mailed to the Legislative Clerk in Word format at 

Nick.Abraham@maiLhouse,gov and mailed to Nick Abraham, Legislative Clerk, Committee on Energy and 

Commerce, 2125 Rayburn House Office Building, Washington, D.C. 20515. 

Thank you again for your time and effort preparing and delivering testimony before the Subcommittee. 

~nnan ~, Subcommittee on Environment and the Economy 

co: The Honorable Paul Tonko, Ranking Member, 

Subcommittee on Environment and the Economy 

Attachment 
118 


87349.081

-

11/12/13 

AUTO ALLIANCE 

DRIVING INNOVATION< 

Responses to Questions for the Hearing Record 

Jennifer Thomas, Director of Federal Government Affairs 

Alliance of Automobile Manufacturers 

Hearing entitled: "Regulation of Existing Chemicals and the Role of Preemption under Sections 6 and 

18 of the Toxics Substances Control Act" 

House Committee on Energy & Commerce 

Subcommittee on Environment & the Economy 

September 18, 2013 

Submitted by the Honorable John Shimkus 

Q: Some proposed state laws introduce concerns by how they define "consumer products." Can you 

give some examples? 

Autos are regulated by the federal government separately from other consumer products, because of 

the complexity and longevity of vehicles and the acknowledgement that as such, they need to be 

considered differently from other consumer products such as beauty and cleaning products. But there 

has been a noticeable trend in state legislation and regulation moving towards a more broad definition 

of "consumer product" that would capture automobiles. An approach which may be feasible for 

simpler products can be totally infeasible for a complex product such as an automobile, which has 

thousands of components designed to last many years. Product development and testing times are 

substantially longer and more extensive for complex products. They should not be treated in the same 

way. 

For example, under California's Safer Consumer Products regulations, the Department of Toxic 

Substances Control can subject up to 10 components in a vehicle for review in a three year period. 

Component is defined in such a broad way to even include an assembly, such as a transmisSion, which is 

itself a complex durable good consisting of multiple subcomponents, substances, and materials. Having 

to conduct an Alternatives Assessment for a chemical of concern in an electric motor, for which the 

likelihood for exposure is minimal to nonexistent, would likely take years and potentially millions of 

dollars to complete. Now imagine conducting alternative assessments for essentially 10 unique complex 

durable good assemblies in a three year period (and multiply that by fifty states). It is infeasible and 

unnecessary. 

A federal approach focusing on specific applications related to actual consumer exposure to chemicals 

of concern would be much more effective. 

Allianoo of Automobile Manufacturers 

BMW Group. Chrysler Group LLC • Ford Motor Company. General Motors Company. Jaguar Land!rover. 

Mazda. Mercedes"Benz USA. Mitsubishi Motors. Porsche. Toyota. Volkswagen. Volvo 

803 7th Street N.W, Suite 300, Washington, DC 2000}' Phone 202.326.5500. Fax 202.326.5567 • 

www.autoalliance.org 
119 

Æ 


87349.082

Q: Why are effective replacements important to you? 

The average automobile has 30,000 unique components and each component is made up of multiple 

chemicals and mixtures. These complex parts must meet an array of stringent environmental, safety, 

performance, and reliability standards and be compatible with each other. Potential substitutes or 

alternatives must go through rigorous testing to ensure the integrity, performance, safety, and durability 

of the vehicle is not jeopardized. Once a suitable akernative is identified, implementation of alternative 

materials can take years, as a typical product development cycle in the auto industry is five years. 

Additionally our customers require service and replacement parts for the life of a vehicle -10+ years. 

With the typical car comprising 30,000 parts, and multiple generations of particular models on the road 

at a time, redesigning service parts is impractical. Regulations need to be forward-looking allowing the 

focus of chemical replacements on upcoming product. 

Q: What have state-specific carve-outs from preemption -like those for California in the Clean Air Act 

- meant for your members? Please give examples. 

State specific carve-outs defeat the goal of a single, national program. The goal should be to create an 

effective national policy so states do not feel the need to go out and regulate on their own. A 

patchwork of laws of regulations increase compliance costs and is less effective than a national program 

protecting all of our citizens.