S. HRG. 113–724 

STRENGTHENING PUBLIC HEALTH PROTECTIONS 

BY ADDRESSING TOXIC CHEMICAL THREATS 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 31, 2013 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
STRENGTHENING PUBLIC HEALTH PROTECTIONS BY ADDRESSING 

TOXIC CHEMICAL THREATS 
U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

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

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

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96–018 PDF 2015

S. HRG. 113–724 

STRENGTHENING PUBLIC HEALTH PROTECTIONS 

BY ADDRESSING TOXIC CHEMICAL THREATS 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 31, 2013 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

MAZIE K. HIRONO, Hawaii 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 
(III) 

C O N T E N T S 

Page 

JULY 31, 2013 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 24 

Merkley, Hon. Jeff, U.S. Senator from the State of Oregon ................................ 26 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 26 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 27 

Fischer, Hon. Deb, U.S. Senator from the State of Nebraska ............................. 34 

Udall, Hon. Tom, U.S. Senator from the State of New Mexico ............................ 35 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 39 

Gillibrand, Hon. Kirsten, U.S. Senator from the State of New York .................. 41 

Manchin, Hon. Joe, U.S. Senator from the State of West Virginia ..................... 386 

Sessions, Hon. Jeff, U.S. Senator from the State of Alabama, prepared statement ...................................................................................................................... 520 

WITNESSES 

Troncoso, Michael A., Senior Counsel, Office of the Attorney General, California ..................................................................................................................... 50 

Prepared statement .......................................................................................... 53 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 82 

Senator Vitter ............................................................................................ 85 

Dorsey, H. Michael, Chief, Homeland Security and Emergency Response, 

West Virginia Department of Environmental Protection ................................. 100 

Prepared statement .......................................................................................... 102 

Responses to additional questions from Senator Vitter ................................ 105 

Zarker, Ken, Manager, Pollution Prevention and Regulatory Assistance Section, Washington State Department of Ecology ................................................. 108 

Prepared statement .......................................................................................... 110 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 128 

Senator Vitter ............................................................................................ 132 

Rosenberg, Daniel, Senior Attorney, Natural Resources Defense Council ......... 145 

Prepared statement .......................................................................................... 147 

McGarity, Thomas O., Joe R. and Teresa Lozano Long Endowed Chair in 

Administrative Law, University of Texas School of Law .................................. 157 

Prepared statement .......................................................................................... 159 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 175 

Senator Vitter ............................................................................................ 177 

Fisher, Linda J., Vice President and Chief Sustainability Officer, DuPont ....... 182 

Prepared statement .......................................................................................... 184 

Owens, Stephen A., Squire Sanders (US) LLP ..................................................... 188 

Prepared statement .......................................................................................... 190 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 198 

Senator Vitter ............................................................................................ 199 

Reinstein, Linda, President, Co-Founder, Asbestos Disease Awareness Organization ..................................................................................................................... 208

Prepared statement .......................................................................................... 210 

Response to an additional question from: 
Page

IV 

Reinstein, Linda, President, Co-Founder, Asbestos Disease Awareness Organization—Continued 

—Continued 

Senator Boxer ............................................................................................ 301 

Senator Vitter ............................................................................................ 303 

Greenwald, Robin L., Of Counsel, Weitz & Luxenberg ........................................ 304 

Prepared statement .......................................................................................... 306 

Responses to additional questions from Senator Boxer ................................ 323 

Duvall, Mark N., Principal, Beveridge & Diamond, P.C. ..................................... 328 

Prepared statement .......................................................................................... 330 

Response to an additional question from Senator Boxer .............................. 336 

Responses to additional questions from Senator Vitter ................................ 337 

Cook, Kenneth A., President, Environmental Working Group ............................ 345 

Prepared statement .......................................................................................... 347 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 361 

Senator Vitter ............................................................................................ 366 

Buermeyer, Nancy, Senior Policy Strategist, Breast Cancer Fund ..................... 398 

Prepared statement .......................................................................................... 400 

Responses to additional questions from Senator Boxer ................................ 411 

Vickers, Susan, RSM, Vice President of Community Health, Dignity Health ... 415 

Prepared statement .......................................................................................... 417 

Responses to additional questions from Senator Boxer ................................ 422 

Gorsen, Maureen F., Esquire, Partner, Alston & Bird LLP ................................ 426 

Prepared statement .......................................................................................... 428 

Response to an additional question from Senator Boxer .............................. 435 

Responses to additional questions from Senator Vitter ................................ 440 

Borak, Jonathan, M.D., FACOEM, FACP, DABT, Clinical Professor of Epidemiology and Public Health, Clinical Professor of Medicine, Yale University . 443 

Prepared statement .......................................................................................... 445 

Responses to additional questions from Senator Vitter ................................ 450 

Corbin-Mark, Cecil D., Deputy Director/Director of Policy Initiatives, We Act 

for Environmental Justice ................................................................................... 454 

Prepared statement .......................................................................................... 456 

Felix, Dorothy, President, Mossville Environmental Action Now ....................... 463 

Prepared statement .......................................................................................... 465 

Hackman, Andrew R., Vice President of Government Affairs, Toy Industry 

Association ............................................................................................................ 473 

Prepared statement .......................................................................................... 475 

Responses to additional questions from Senator Vitter ................................ 481 

Miller, Ansje, Eastern States Director, Center for Environmental Health ........ 487 

Prepared statement .......................................................................................... 489 

ADDITIONAL MATERIAL 

EPA submission: Essential Principles for Reform of Chemicals Management 

Legislation ............................................................................................................ 523 

Testimony of Dr. Paul A. Locke, Associate Professor at Johns Hopkins 

Bloomberg School of Public Health ..................................................................... 525 

State Officials, Legal Experts, and Health, Environmental, and Consumer 

Groups That Have So Far Issued Statements Opposing Impacts of S. 1009 .. 527 

Letter from the American Chemical Society ......................................................... 534 

Letter from the American Chemistry Council ....................................................... 535 

Letter from the American College of Occupational and Environmental Medicine ........................................................................................................................ 537 

Letter from Building and Construction Trades ..................................................... 539 

Letters from the International Association of Bridge, Structural, Ornamental 

and Reinforcing Iron Workers ............................................................................. 540 

Letter from the International Association of Machinists and Aerospace Workers .......................................................................................................................... 546 

Letter from Sheet Metal, Air, Rail and Transportation ....................................... 547 

Letter from Past-Presidents of the Society of Toxicology ..................................... 548 

Letter from Third Way ............................................................................................ 550 

Chicago Tribune article, May 8, 2012: Big Tobacco wins fire marshals as 

allies in flame retardant push ............................................................................ 553 
(1) 

STRENGTHENING PUBLIC HEALTH PROTECTIONS BY ADDRESSING TOXIC CHEMICAL 

THREATS 

WEDNESDAY, JULY 31, 2013 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m. in room 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the Committee) presiding. 

Present: Senators Boxer, Vitter, Carper, Cardin, Udall, 

Gillibrand, Merkley, Inhofe, Barrasso, and Fischer. 

Also present: Senator Manchin. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Good morning, everybody. 

We have a very interesting day ahead of us today. We also have 

a lot of running back and forth to do. So I am going to lay down 

the rules. 

We have two votes at 10:45, which means we can go here until 

11. Then we are going to recess until 1, because the President is 

coming to meet with the Democratic Caucus. So all of you wonderful panelists and colleagues know there is going to be a lot of back 

and forthing. But we will get through this today, because this is 

an exceedingly important time. 

I am also going to be moving this gavel. At the end of 5 minutes, 

I am going to go like that, even on myself, which is very difficult. 

But I am going to do that because of the terrible schedule that we 

have. 

We also have colleagues who are very prominent in other committees, the chairman, ranking member, so they will be running in 

and out. So forgive us if we look hectic, but we are focused on this 

issue. 

So I will start by saying good morning, everybody, and we will 

focus today on how to protect the American people from harmful 

chemicals while allowing companies who act responsibly to sell 

their products. 

Our dear friend, the late Senator Lautenberg, and I have worked 

on these issues for a decade, introducing many bills together on 

TSCA reform. In 2005, we introduced S. 1391, in 2008, S. 3040, in 

2011, S. 847, in 2013, S. 696, the Safe Chemicals Act of 2013. In 

May, the month after Senator Lautenberg and I introduced our 
2 

final TSCA reform bill together, S. 696, he introduced S. 1009 with 

Senator Vitter. 

We will look at multiple bills today to reform TSCA to determine 

what we support and what we oppose, so we can move forward to 

make the American people safer. And that is the key. All the bills 

agree on one principle: protecting people from harmful chemicals is 

important. The devil is in the details, and that is why I fully support S. 696, where the details support that principle. 

It is clear that TSCA is broken. In a key decision by the courts, 

EPA’s plan to phaseout asbestos uses was overturned. Despite the 

court’s recognition that EPA concluded that asbestos is a potential 

carcinogen at all levels of exposure, regardless of the type of asbestos or the size of the fiber. So now EPA, after that decision, faces 

terrible problems in addressing dangerous chemicals. 

I very much want to reform this law so it works as intended, and 

it is better than current law. I want to be very clear. When respected voices from all over the Country tell us to protect the rights 

of the people we represent, I say yes. That means ensuring that a 

chemical safety bill truly protects our families in California and all 

across this great Nation. We have heard from a wide range of 

voices in opposition to S. 1009. California EPA has written to express serious concerns about the effects of S. 1009 on California’s 

ability to protect its residents. 

The Asbestos Disease Awareness Organization wrote: ‘‘Asbestos 

victims are outraged to see their suggested amendments from prior 

bills regarding asbestos stripped from S. 1009.’’ Environmental 

health and justice groups, 24 of them, said S. 1009 would offer too 

many secrecy protections for chemical companies and could limit 

the ability of doctors, nurses and first responders to obtain vital information. Thirty-four legal experts said S. 1009 as drafted takes 

a step backward. And the American Association for Justice says S. 

1009 is lacking in several areas vital to the protection of public 

health. 

I ask to put these statements into the record, as well as letters 

from attorneys general from across the Nation and the National 

Conference of State Legislatures, expressing similar concerns with 

S. 1009. 

[The referenced information follows:] 
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Senator BOXER. When people in our States vote for their specific 

protections from harmful toxins, their rights must not be preempted. I hope we all agree that victims who suffer harm from 

dangerous chemicals have a clear right to hold the industry accountable in order to prevent further injuries and death. 

Let me summarize a Sunday L.A. Times story headline, ‘‘Landmark California Regulations Under Federal Fire.’’ California officials, this is from the story, objected that S. 1009 not only would 

prohibit the State from imposing its own rules, but it could invalidate several other laws, including California’s Global Warming Act 

of 2006. Attorney General Harris described the measure as a nowin that puts Californians at risk for toxic chemicals. Her office 

says, S. 1009 would impair the voter-approved Prop 65, which protects Californians from cancer. 

I have listened to breast cancer victims, asbestos victims, advocates for infants and children, communities surrounded by industrial facilities, and our States, who want to safeguard their citizens, 

as well as those who fight for the rights of injured victims. I have 

also listened to industry and I appreciate those who look to provide 

consumers with greater confidence in their products. 

I believe if we embrace the principle of protecting the most vulnerable through science, fairness for industry, fair respect for our 

States and victims, we can have a strong, bipartisan TSCA bill 

come right out of this Committee. Just like the EPA seal of approval can carry weight, the Energy Star certification carries 

weight. Everyone on this Committee knows how much I treasure 

bipartisanship. This Committee has been the leader in bipartisanship, whether it has been transportation with Senator Inhofe, 

water with Senator Vitter, formaldehyde standards, lead-free 

plumbing, I know we can get a good bipartisan bill out of here if 

we work together. 

And I turn to Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you very much, Chairman Boxer, for convening this important hearing today on Toxic Substances Control 

Act. 

In the last few years, this Committee has extensively discussed 

the need for a substantive reform of TSCA, which is 37 years old, 

and by now antiquated at best. It is unfortunate, of course, that 

today is our first TSCA discussion in a very, very long time without 

the voice that has been the strongest advocate for meaningful reform of this law, Senator Frank Lautenberg. I again want to express my sympathies to the Lautenberg family, as well as all the 

citizens of New Jersey who lost a true champion for this and other 

important causes. 

I want to thank all of our witnesses in advance. It is my hope 

that this hearing will be very constructive and continue in the bipartisan spirit that Frank and I began on this critically important 

issue. While I understand the purpose of this hearing is to discuss 

a number of previous reform efforts, I am very thankful to be able 

to say that I worked hand in hand with Frank on this, his legacy 

issue, and that we found the first every bipartisan compromise to 
25 

help overhaul and significantly strengthen Federal chemical regulations that would benefit every citizen in every State. 

The bill we co-authored, the Chemical Safety Improvement Act, 

is a carefully crafted compromise that provides real opportunity to 

significantly overhaul a major environmental law for the first time 

in decades. The good news is that the bipartisan support for the 

Lautenberg-Vitter bill continues to grow. That legislation is supported by the editorial boards of the New York Times and the 

Washington Post. Both previous heads of the EPA’s Chemical Regulatory Office under Presidents Bush and Obama support the bill, 

one of whom we are fortunate to have here today testifying before 

us. 

So far four unions, which include the nearly 3 million workers 

who encompass North America’s building trades union within the 

AFL–CIO, have endorsed the bill. People in the public health and 

environmental community also endorse it, including the Environmental Defense Fund and the American College of Occupational 

and Environmental Medicine, the Nation’s largest medical society 

dedicated to promoting the health of workers through preventive 

medicine, clinical care, research and education. 

Now, I fully recognize that issues have been raised, some legitimate and some not, with the Lautenberg-Vitter bill Such should be 

expected from efforts as complex as reforming a major environmental law. I believe these issues fall into two broad categories: 

misimpressions or actual distortions regarding our bill, and second, 

very legitimate suggestions for revisions. So let me briefly address 

each of these in turn. 

Regarding the first category, I want to be very, very clear, as I 

have been. In no way, shape or form did Frank and I intend this 

legislation to eliminate private rights of action under State tort 

law, and in no way did we intend to remove the authority of any 

State to protect their water, air or citizens. As a matter of fact, 

there is clear language in the bill explicitly protecting those rights. 

But we are certainly open and we are working to make that even 

more crystal clear. 

Regarding the second category, very legitimate suggestions for 

revision, I am excited to announce today that Senator Tom Udall 

and I have been meeting with all interested parties, including 

many folks testifying at this hearing today, and we have been 

meeting with Senate offices on both sides of the aisle who are fully 

engaged in this effort. That will be a path forward that clarifies 

and addresses these issues we are talking about. 

Both Tom and I and our staffs have been speaking to everyone 

who has chosen to be engaged and serious on the issue. We are 

making real progress. 

I am excited for today’s hearing, and we both plan to use what 

we hear to strengthen the first real shot at updating this broken 

law, so we can get this done for everyone, for every citizen, certainly in Frank Lautenberg’s memory and certainly for his family 

and kids and grandkids. 

The bill Frank and I were able to introduce is the product of discussions that began over a year ago, and was the product of a lot 

of hard work and a lot of good faith work. I certainly urge all of 
26 

us to come together and unite around this opportunity to pass 

major TSCA reform. 

Thank you, Madam Chair. 

Senator BOXER. Thank you so much. 

And now we will turn to Senator Merkley. 

OPENING STATEMENT OF HON. JEFF MERKLEY, 

U.S. SENATOR FROM THE STATE OF OREGON 

Senator MERKLEY. Thank you very much, Madam Chair. I applaud the work that has been done. This is certainly extremely 

close, was extremely close to Frank’s heart. He spoke so many 

times passionately here, we can almost feel him in the room. I applaud you, Senator Vitter, for working on this, and look forward to 

exploring the work that you and Senator Udall are continuing to 

do to try to address some of the concerns that have been expressed. 

I am going to be very brief, because I want to get to the panel. 

I look forward to this process, it is very important to the health of 

our Nation to be able to have a systematic way of examining the 

impact of chemicals that are widely dispersed. 

Senator BOXER. Thank you so much, Senator Merkley. 

Senator Inhofe. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chairman. 

It is funny that you would say that, Senator Merkley, when you 

said that you can kind of feel his presence in this room. I was 

thinking that, I was thinking the same thing. 

I must take this opportunity to talk about my friend, Frank Lautenberg, and his decades-long commitment to exploring the appropriate Federal role in chemical safety and security. I can remember 

when Frank and I started working on TSCA reform a decade ago, 

when I was chairman of this Committee. And then when I was 

ranking member of this Committee, we agreed that the thousands 

of chemicals in commerce are the backbone of the American economy, left unchecked these rules can ultimately yield in an unworkable patchwork of State regulations, neither creating needed business certainty nor providing adequate protection to the public. 

In our many discussions on these issues, Frank would readily 

admit that TSCA was in desperate need of modernization. We 

agreed on that, and that any reform package needed to improve 

public protection while providing essential regulatory certainty for 

the growing chemical and manufacturing industries, a cornerstone 

of his State’s economy. 

Although we disagreed on many issues, and I am sure that Senator Vitter went through the same thing in his negotiations with 

him, TSCA reform was something we always agreed needed to happen. As ranking member, he and I went back and forth a number 

of times over the years. But we weren’t ever able to broker an effective compromise. 

Earlier this year, when we were on the floor, Frank told me that 

he and Senator Vitter were close to an agreement. While I was concerned that he might have been embellishing, as he was known to 
27 

do occasionally, today proves that we are in a different place, a historic place. I am proud to be one of the bill’s strongest supporters. 

I congratulate the Ranking Member for his perseverance, for 

working closely with Frank to come up with this bill. I don’t think 

we can understand the magnitude of this opportunity in a time of 

such partisan fighting over environmental laws. Here we have a 

bill, if enacted, would represent the first major overhaul of any environmental law since 1990. Everyone agrees that TSCA needs to 

be amended. Now we have a bipartisan bill that has the support 

of 26 Senators, industry and others that were mentioned by Senator Vitter. 

I am sad that Frank Lautenberg is no longer here with us so 

that he can see this bill cross the finish line. But if he were here, 

I think he would be pleased with this hearing. In the second panel, 

we are going to hear from Steve Owens and Linda Fisher, who 

served as the head of the Office of Chemical Safety and Pollution 

Prevention at the EPA under both President Obama and President 

Bush respectively. In those capacities, they were responsible for implementing TSCA. 

Today, despite being on opposite sides of the aisle, they both 

agree that it is time to bring TSCA into the 21st century and believe that Frank’s bill will be a significant improvement compared 

to current law. 

I know that the Chairman of the Committee and some others 

may have some issue with certain aspects of the bill. But this bill 

is a compromise, a compromise requires flexibility. This bill is the 

product of everyone’s flexibility. If we start trying to stretch one 

side or another, it is going to lose what it has right now, and that 

is bipartisan support that should make the bill passable. 

We need to fix the dysfunctional law and use the bipartisan compromise that recognizes the decades of work Frank put into this for 

his legacy and the good of the Country. 

Last, TSCA must be reformed because the recent boom in natural gas production, the result of hydraulic fracturing and horizontal drilling, has helped feed aggressive expansion of the U.S. 

manufacturing and chemical sectors. Chemical manufacturers 

alone have recently announced the $72 billion in new investments 

that will create up to 310,000 new jobs. 

If we do not update TSCA, or if we take reform down a different 

path than the one charted by Senator Lautenberg, then this renaissance of activity in the future of our Nation’s dominance of the 

international chemical and manufacturing sector will be at risk. So 

regulatory uncertainty chills innovation and this reform bill charts 

a steady course for the future. I am anxious and eager to see this 

legislation pass the Senate. 

Senator BOXER. Thank you, Senator. 

We turn to Senator Cardin. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Madam Chair. 

And let me just state the obvious. I think now it is agreed by 

every member of this Committee that the TSCA law today doesn’t 
28 

work. It is broken. It is not protecting the public. And we have a 

responsibility to act. 

I could cite the fact that there have been studies showing 212 industrial chemicals commonly found in the human body of most 

Americans. These are dangerous toxins that are currently in our 

bodies, being transmitted to babies when they are born. 

So we have a responsibility to pass a framework to protect the 

public from these toxins. 

So I come to this hearing wanting to make sure that we get this 

job done. And I also want to acknowledge our former colleague, 

Frank Lautenberg. I sat next to him on this Committee. He was 

passionate about our children and our grandchildren. He was passionate about public health issues. This is one area that he devoted 

a large part of his career to correct, a bill that was not working, 

in order to help public health. 

Senator Vitter, I want to thank you for reaching out to Senator 

Lautenberg and bringing forward a bipartisan bill that sets up a 

framework which is certainly much preferred over the current law. 

And that gives us a way, I think, to move forward. So I agree with 

you. I am optimistic that we should be able to use that framework 

to move forward with legislation that cannot only pass this Committee but can pass the U.S. Senate and House, to be signed by 

President Obama. 

The compromise that you brought forward needs further change. 

I am very pleased to see that you have reached out to Senator 

Udall and other members of this Committee to look at the legitimate concerns that have been raised in the bill that is brought forward. 

Madam Chair, I am going to ask consent that a letter from the 

attorneys general of California, Connecticut, Delaware, Hawaii, 

Maryland, Massachusetts, Oregon, Vermont and Washington be 

made part of our record. 

Senator BOXER. Without objection. 

[The referenced information follows:] 
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Senator CARDIN. Doug Gansler, the Attorney General from Maryland, joined this letter, saying that they have deep concerns about 

the unduly broad preemption language in S. 1009. I could cite 

many examples of concerns that we have, and we could talk about 

BPA in plastics and baby bottles that has been brought to national 

attention, and many of our States have acted to protect the public 

health of their citizens. That is federalism, that is how we get to 

know what we can do nationally by how our States act, whether 

it works or not and then use that as a way to strengthen our national laws. 

The Attorney General of Maryland points out that the compromise bill could affect the health quality of Marylanders by preempting in areas where Maryland has acted on flame retardant 

products, on the sale of lead-containing children’s products. Maryland has been one of the leaders, because we have had a serious 

problem of lead poisoning in our State. So we are acting in that 

area. Or children’s jewelry, Maryland has acted. I would not want 

to see us pass legislation that would prevent our State from protecting our citizens, but also recognizing that there would be other 

challenges that come out in the future, and we want our States to 

be aggressive and moving forward on that. 

Let me mention one other area that I hope we will look at very 

carefully. That deals with the standard that is used, and the burden of proof. The standard, as I understand it, that is used in the 

bill refers to unreasonable risk, which is standard I think has been 

somewhat outdated. In our Food Quality Act, we use reasonable 

certainty of no harm, which I think is safer standard for us to use 

when it comes to public health concerns. 

So I would hope that we would have some discussion as to what 

the appropriate standard should be and who has the burden of 

proof. 

These are some issues that I hope our Committee will have an 

opportunity to review. I hope the witnesses today will help us in 

sorting through how we should act. Senator Vitter, as you pointed 

out, it has been 37 years since we have last passed a bill that regulates these chemicals. Let’s make sure we get it right this time, because it may be 37 years before we get back to it again. 

[Laughter.] 

Senator CARDIN. With that, I look forward to hearing the witnesses and our hearing. 

Senator BOXER. Thank you, so much, Senator. 

Senator Fischer, followed by Senator Udall. 

OPENING STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM THE STATE OF NEBRASKA 

Senator FISCHER. Thank you, Madam Chair, and thank you, 

Ranking Member, for holding the hearing today. I would like to 

thank all the witnesses that are going to be coming forward and 

answering questions and having a discussion on this very important topic. 

Like many of my colleagues, I am very encouraged by the bipartisan process on the Chemical Safety Improvement Act. I sincerely 

appreciate the efforts of the late Senator Lautenberg, Senator 

Vitter and their staffs in finding the common ground needed to ad-
35 

vance our chemical safety laws. This common ground has eluded 

Congress for far too long. The bipartisan solution is both remarkable and it is refreshing. 

With that, Madam Chair, I would ask that my complete opening 

statement be included in the record and we move on in the interest 

of time. Thank you. 

[The prepared statement of Senator Fischer follows:] 

STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM THE STATE OF NEBRASKA

Chairman Boxer and Ranking Member Vitter, thank you for holding this hearing 

today to discuss the importance of updating our Nation’s chemical safety laws. I 

would also like to thank our witnesses for being here. I appreciate their willingness 

to share their time and expertise with our Committee. 

In Nebraska, where we utilize more than 90 percent of our land for farming and 

ranching, we are keenly focused on finding solutions to feed and sustain a growing 

and hungry world. As a result, we have a strong appreciation for the role chemicals 

play in enhancing our productivity and efficiency. Innovation in chemical products 

will continue to facilitate a healthier and more sustainable future, improving lives 

across the globe. 

Nebraskans also understand the risks that chemicals can pose to our health and 

environment. Effectively managing these risks to ensure safe use of chemicals and 

protection of health and safety is essential. That is why we need a strong, effective, 

and balanced approach to chemical regulation. 

Like many of my colleagues, I am very encouraged by the bipartisan progress on 

the Chemical Safety Improvement Act. I sincerely appreciate the efforts of the late 

Senator Lautenberg, Senator Vitter, and their staffs in finding the common ground 

needed to advance our chemical safety laws. This common ground has eluded Congress for far too long, and their bipartisan solution is both remarkable and refreshing. 

They have sought to strike the right balance between enhancing chemical safety 

and promoting chemical innovation and economic growth, and this is what we need. 

Our regulatory system must be predictable and manageable for industry, while increasing consumers’ confidence that the chemicals used to make products are safe. 

I am also encouraged by the support of so many groups, from environmental and 

public health advocacy organizations to industry trade associations. I look forward 

to hearing more from these stakeholders today and working with my colleagues to 

pass the Chemical Safety Improvement Act. 

Senator BOXER. Senator, thank you very much. 

Senator Udall, followed by Senator Barrasso. 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Thank you, Madam Chair, and thank you very 

much for holding this important hearing. Let me say to both the 

Chairman and the Ranking Member, it has been a pleasure working with both of you on constructive suggestions to improve this bill 

and to move forward. I look forward to doing that in the future. 

Our current law on chemical safety, the Toxic Substances Control 

Act of 1976, is broken. And it is a weak statute that desperately 

needs fixing to protect our families. It gives us no confidence that 

our everyday products are safe and clearly, we must improve it. 

I am particularly interested to hear from our witnesses today 

and I want to make sure they hear from me as well. A lot of focus, 

attention and concern has been given to the compromise Lautenberg-Vitter legislation in the last month or so. I think the surprise 

of a compromise, bipartisan bill on such a controversial topic added 

a lot to the urgency many felt to make comments. 
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I know that at times, Senator Lautenberg had nearly given up 

hope for a bipartisan agreement. But he was a fighter, and he 

never stopped trying. We will all be lucky if we have a fraction of 

the perseverance he had. 

I know his widow, Bonnie Engelbart-Lautenberg, has a statement. I just want to read a small portion of that, because it shows 

the passion that Frank put into this compromise legislation. 

Bonnie said, ‘‘In the last few months of his life, Frank did something that has become all too rare in Washington. He negotiated 

bipartisan legislation to solve a major problem facing our Country. 

Frank worked with Senator Vitter to develop the Chemical Safety 

Improvement Act, a bill that would for the first time require testing of tens of thousands of chemicals that are used in everyday 

products. Frank was proud of his work on this new bill. In fact, 

after a meeting with Senator Vitter, Frank told me that this bill 

would be bigger and save more lives than his law to ban smoking 

on airplanes.’’ 

Madam Chair, I would ask that her full statement be inserted 

into the record. 

Senator BOXER. Without objection. 

[The referenced information follows:] 
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Senator UDALL. Let me make sure that everyone hears from me 

as a co-sponsor of this bill. I am fully committed to working with 

you and everyone else to improve this bill where there are legitimate concerns. This is a very important part of the process to pass 

substantial legislation. 

But I urge you to be constructive in your criticism, and help us 

improve the bill. And I would underline improve there. 

When I was deciding whether or not to co-sponsor the Lautenberg-Vitter bill, I based my decision on two very important questions: is this bill better than current law, and No. 2, do we have 

a political opportunity to enact this as law? 

On the first question, is it better than current law, I believe it 

is. It takes important strides toward fixing the main elements of 

TSCA that have kept the EPA from effectively evaluating and regulating hazardous chemicals. The Chemical Safety Improvement 

Act strikes the least burdensome requirement that has crippled 

TSCA from banning dangerous chemicals such as asbestos. 

It would for the first time mandate safety reviews for all chemicals currently in commerce. It would for the first time require an 

affirmative finding of likely safety as a condition for market entry 

of new chemicals. And it would for the first time allow EPA to require testing by issuing orders, instead of having to use the time 

and resource-intensive rulemaking process. And it would eliminate 

the requirement that EPA first show likely risk to high exposure 

to required testing. 

It would substantially increase access to chemical information by 

the public, State governments and medical and health professionals 

that currently cannot be disclosed based on confidential business 

information claims. Since its introduction, many experts have had 

the opportunity to examine and review it. As I said, this is an important part of the process, to solicit and receive feedback on legislation. 

As a result, I believe there are many things we need to improve 

in the bill, such as more firm deadlines and timetables, and better 

confidence that vulnerable populations will have adequate protections. 

And wanting to hear the witnesses, Madam Chair, at this point 

I would just ask that my whole statement be put in the record and 

I would yield back. 

[The prepared statement of Senator Udall follows:] 

STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO

Thank you, Madam Chair, for scheduling this important hearing. 

Our current law on chemical safety, the Toxic Substances Control Act of 1976, is 

a broken and weak statute that desperately needs fixing to protect our families and 

loved ones. It gives us no confidence that our everyday products are safe, and we 

desperately need to improve it. 

I’m particularly interested to hear from our witnesses today and want to make 

sure they hear me as well. 

A lot of focus, attention, and concern have been given to the compromise Lautenberg-Vitter legislation in the last month or so. I think the surprise of a compromise, 

bipartisan bill on such a controversial topic added a lot to the urgency many felt 

to make comments. 

I know that at times, Senator Lautenberg had nearly given up hope for a bipartisan agreement on this topic. But he was a fighter and he never stopped trying. 

We will all be lucky if we have a fraction of the perseverance that he had. 
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Let me make sure that everyone hears me as a cosponsor of this bill—I am fully 

committed to working with you and everyone else to improve this bill where there 

are legitimate concerns. This is a very important part of the process to pass substantial legislation. But I urge you to be constructive in your criticism and help us 

improve this bill. 

When I was deciding whether or not to cosponsor the Lautenberg-Vitter bill as 

it was being introduced, I based my decision on two very important questions that 

I asked myself: 

(1) is this bill better than current law, and 

(2) do we have a political opportunity to enact this as law? 

Is this bill better than current law? I believe so. 

It takes important strides toward fixing the main elements of TSCA that have 

kept the EPA from effectively evaluating and regulating hazardous chemicals. 

CSIA strikes the ‘‘least burdensome’’ requirement that has crippled TSCA from 

banning dangerous chemicals, such as asbestos. 

• It would for the first time mandate safety reviews for all chemicals currently 

in commerce. 

• It would for the first time require an affirmative finding of likely safety as a 

condition for market entry of new chemicals. 

• It would for the first time allow EPA to require testing by issuing orders instead of having to use the time- and resource-intensive rulemaking process and 

would eliminate the requirement that EPA first show likely risk to high exposure 

to require testing. 

• It would substantially increase access to chemical information by the public, 

State governments and medical and health professionals that currently cannot be 

disclosed based on confidential business information claims. 

Since its introduction, many experts have had the opportunity to examine and review it. As I said, this is an important part of the process—to solicit and receive 

feedback on legislation. As a result, I believe there are many things we need to improve in the bill, such as more firm deadlines and timetables and better confidence 

that ‘‘vulnerable populations’’ will have adequate protections. 

With these types of improvements, I think we can make it that much better than 

current law, but also improve the answer to my second threshold question: Do we 

have the political opportunity to enact this as law? 

On that answer . . . Yes. 

I appreciate what Senator Lautenberg did to make the necessary compromises to 

negotiate with Senator Vitter, and I appreciate the willingness that Senator Vitter 

has made to engage in this process. 

I was a cosponsor of the original Lautenberg chemical bill—the Safe Chemicals 

Act. I believe that bill was also an improvement to current law, but that bill and 

discussion over it stalled for too long. That bill didn’t have what this one does—bipartisan acceptance. At 25 Democrat and Republican cosponsors, this bill has the 

most bipartisan cosponsors of any environmental bill before this Committee. 

And so we need to work from the Chemical Safety Improvement Act, S. 1009. I 

am committed, as a cosponsor and Chairman of the Subcommittee on Toxic Substances, to an improved version of this bill. 

My staff and Senator Vitter’s staff have been meeting with other Senate offices 

and a variety of stakeholders to hear their thoughts and concerns with the legislation. We have begun the process of thinking through creative solutions to address 

some of these issues and are optimistic that there is a path forward. 

I’m hopeful that over the coming weeks we will be able to work with, you, Madam 

Chair, and anyone else who is interested, to improve the bipartisan bill before us, 

and that when we return from our August recess we will have a version that we 

can move forward with. 

Senator BOXER. Thank you very much. 

Senator Barrasso, to be followed by Senator Gillibrand. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Thank you, Madam Chairman. 

I first would like to say that I am very grateful for the work that 

Ranking Member Vitter and the late Senator Lautenberg did on 

their Chemicals overhaul bill. I believe they have created a bill 

that is the foundation for major reform of our chemicals policy. 
40 

It should not be underestimated the tireless work that was put 

into this negotiation, and Senator Lautenberg in particular dedicated his career to modernizing TSCA. Although I am not a cosponsor of the bill and more work needs to be done, I am pleased 

that this work led to a historic bipartisan agreement. 

Madam Chairman, I want to read to you what others have said 

about this important piece of bipartisan legislation. The New Star 

Ledger stated on June 2nd that ‘‘This is a breakthrough bill that 

deserves our support. Its flaws can be fixed, and it has opened up 

a path to reform that never existed before. As written, this compromise would be a substantial improvement over the status quo.’’ 

And then the New York Times, they stated on May 29th that the 

bill ‘‘deserves to be passed, because it would be a significant advance over the current law.’’ The Washington Post stated ‘‘Its authors were right to balance a legitimate interest in maintaining an 

innovative and profitable chemical industry against public health 

demands.’’ And that ‘‘Senators will have the option of tinkering 

with it on the floor, but they shouldn’t let this unexpected opportunity go by.’’ 

I agree. I believe we should not let this opportunity go by. 

Madam Chairman, we need to protect our children, families, seniors, no matter what. I doubt that there are any in this room who 

would not support that goal. Children need safe drinking water, 

life-saving medicines and safe food to eat. 

What role has the chemical industry played in providing these 

things? Well, chemistry using chlorine plays an important role in 

producing 93 percent of the top selling medications in the United 

States. Children benefit from some of these drugs, including those 

that treat epilepsy, asthma and depression. The antibiotic 

Vancomycin, made with chlorine chemistry, has saved the lives of 

patients suffering from serious, stubborn bacterial infections. 

Chemicals provide prosthetic devices, such as polyvinyl chloride, 

PVC, which is a common chlorine-containing plastic used to construct prosthetic legs and arms for children who lose limbs or have 

birth defects. Thanks to these devices, many of these children can 

lead normal lives and participate in most activities. 

PVC is used to make blood bags, IV fluid bags and tubing to deliver needed care for young patients. Incubators for prematurely 

born infants are constructed of chlorine-based polycarbonate plastic. The chemicals industry also makes the plastics used to manufacture child car seats and safer playground equipment. 

It is not to say that it is a completely rosy scenario for today’s 

children; there are still areas of concern, such as increased rates 

of childhood obesity, low birthweight babies. We must be ever vigilant. We need a strong and viable regulatory framework or framework that will spur advancements to help our children, not get in 

the way of them. We need a framework that can provide the next 

series of advancements that can make the future better for all 

Americans. 

We must not enact policies that hamstring new chemical development that would prevent those new advancements. Otherwise, the 

next childhood vaccine or the next bicycle helmet, the next prosthetic leg, will not be there when our families need them the most. 
41 

So Madam Chairman, I look forward to working with my colleagues on advancing the Lautenberg-Vitter bill to accomplish 

these things in the not too distant future markup through regular 

order. Let’s not let this bipartisan opportunity go by the wayside. 

Let’s not snatch defeat from the jaws of victory by starting from 

scratch with an entirely new product. 

It is time to move forward with this important bipartisan legislation. I thank you, Madam Chairman, and look forward to the testimony. 

Senator BOXER. Thank you, Senator. 

Senator Gillibrand. 

OPENING STATEMENT OF HON. KIRSTEN GILLIBRAND, 

U.S. SENATOR FROM THE STATE OF NEW YORK 

Senator GILLIBRAND. Madam Chairwoman, thank you so much 

for holding this hearing today on the proposal to reform our Nation’s toxic chemical laws. 

While the members of this Committee may support different approaches to addressing this issue, we can all agree that the Toxic 

Substances Control Act, TSCA, is broken, and in serious need of reform and modernization. I am pleased today that our colleagues on 

both sides of the aisle share this goal and that we have a historic 

opportunity to come together and tackle this in a very serious way. 

This should not be a partisan issue, because the effects of inaction are felt by households in each and every one of our States. We 

are all familiar with the staggering statistics, the 84,000 chemicals 

in commerce, the EPA has only been able to require the testing of 

200 of them, and only banned five chemicals under the current 

TSCA framework. This has left families across the United States 

vulnerable to exposure to potentially dangerous chemicals that may 

lead to devastating health effects, including hormone disruption, 

learning disabilities and various forms of cancer. 

I co-sponsored both the Safe Chemicals Act and the Chemical 

Safety Improvement Act because I believe there are positive elements to both. The Chemical Safety Improvement Act, negotiated 

by Senators Lautenberg and Vitter, was a strong and encouraging 

start. But we need to continue to work in a bipartisan way with 

common purpose. 

We all know that no legislation is perfect or solves any problem 

entirely. But that should not stop us from doing what we can when 

we can, and continue to find ways to improve this bill as we move 

legislation through Committee and on the Senate floor. 

The Chemical Safety Improvement Act is no different, and while 

there are several issues that concern me that must be addressed 

in this bill as it moves forward, there are also many positive elements to the bill, including new authority for the EPA to require 

testing and requiring an affirmative safety determination before a 

chemical can be used in commerce, among others. My staff and I 

have met with many of the stakeholders who were involved in 

TSCA reform, some of whom are testifying today. They have all 

shared very similar concerns, such as where in the process State 

preemption occurs, deadlines for EPA action and ensuring that 

EPA actions are made solely on the basis of protecting human 

health and the environment. 
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Madam Chair, I would like to ask unanimous consent at this 

time to enter into the record a letter that my office received this 

morning from the New York State Attorney General, which outlines their analysis of both positive elements of the Chemical Safety Improvements Act as well as those elements like State preemption that must be fixed to ensure that New York State can continue 

to be a leader in protecting our families from potential toxic chemicals not regulated by the Federal Government. 

Senator BOXER. That will be included. 

[The referenced information follows:] 
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Senator GILLIBRAND. Thank you, Madam Chairwoman. 

I am committed to working with you, Madam Chairwoman, as 

well as our Ranking Member Vitter and other members on the 

Committee to address the issues we hear about from our witnesses 

today. If we can set our politics aside and commit ourselves to fixing TSCA’s fundamental flaws, our Country will be better for it, 

and families across the United States will have the confidence of 

knowing that they are protected from harmful exposure to toxic 

chemicals, and their children will be safe. 

I know that is what Frank Lautenberg would have wanted us to 

do, and the best way for this Committee to honor his legacy is to 

build on the progress he has made by working together, both 

Democrats and Republicans, to find that common ground. 

Madam Chairwoman, I would also like to submit Bonnie Lautenberg’s statement for the record, which I think has already been 

submitted. 

Senator BOXER. We have already put that in. Thank you. 

Senator GILLIBRAND. And again, thank you for your leadership 

and your determination on such a vital issue for our States and for 

the whole Country. 

Senator BOXER. Thank you, Senator. 

I am going to ask unanimous consent to place into the record a 

letter that just came to my attention from the National Caucus of 

Environmental Legislators, who wrote to convey their deep concerns with S. 1009 as it is currently written. It is a letter sent to 

myself and Senator Vitter. And among others, we have legislators 

from Alaska, California, Connecticut, Delaware, Idaho, Illinois, 

Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, 

Montana, New Hampshire, New Jersey, New Mexico, New York, 

North Dakota, Ohio, Oregon, South Dakota, Tennessee, Virginia, 

Washington State. We will place that into the record. 

[The referenced information was not received at time of print.] 

Senator BOXER. And anybody, any other colleagues that have 

anything to add to the record, on either side of this, or on all sides 

of it, that would be fine. So you let me know about that. 

So now we are going to turn to our esteemed panel. We have 

here Mr. Michael Troncoso, Senior Counsel, Office of the Attorney 

General of California. I am very proud that you are here, and I am 

proud of Kamala Harris. She was the first one to point out the preemption in this bill so we can take a look at it. And colleagues on 

both sides seem ready to fix that problem. I credit Kamala for really being the first one to get out there with it, and the L.A. Times 

for making sure we all understood it. 

Mr. Michael Dorsey, Chief of Homeland Security and Emergency 

Response, West Virginia Department of EPA, sir, welcome. And 

Mr. Ken Zarker, Manager, Pollution Prevention and Regulatory Assistance Section, Washington State Department of Ecology. 

Welcome to you all. Why don’t we start with you, Mr. Troncoso? 

STATEMENT OF MICHAEL A. TRONCOSO, SENIOR COUNSEL, 

OFFICE OF THE ATTORNEY GENERAL, CALIFORNIA 

Mr. TRONCOSO. Madam Chair and Ranking Member Vitter, distinguished members of the Committee, thank you so much for the 

opportunity to be here today. 
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My name is Michael Troncoso. I serve as Senior Counsel to the 

Attorney General in the State of California, Kamala Harris. The 

Attorney General asked me to testify today to speak with the Committee about the potentially crippling effects, I would say, that the 

preemption provisions in particular of the current draft of the bill 

face to California law, and we believe, to laws across the States 

that are with respect to creating protections against the harmful 

effects of toxic chemicals. 

We believe as it is currently written, the bill will not create additional protections, but may, to the contrary, really roll back the authority and the role of the States in protecting our environment 

and the health and welfare of our citizens and vulnerable populations in particular. My comments today, as I noted, will focus on 

the preemption provisions. 

We believe that these provisions threaten to strip away the 

States’ ability in significant ways to regulate toxic chemicals. For 

example, the States have long enjoyed the authority to adopt protections to where the Federal Government has adopted none. We 

have enforced within our own borders State toxic requirements 

that are identical to Federal provisions. And we have banned the 

in-State use of dangerous chemicals. 

Preempting the States from these traditional activities and exercises of our police powers in the absence of any enforceable Federal 

rule, as this draft would do, we believe, creates a regulatory vacuum that endangers public health and public safety. Some have argued that the bill’s waiver of preemption provisions cures this problem. But the bill’s waiver provision, in our view, is sufficiently onerous as to be illusory. 

It does not allow the States to adopt and enforce the stricter 

standard than the Federal Government in important instances. The 

waiver provision also requires a high showing of ‘‘compelling State 

or local interest’’ that would justify a waiver to allow the State to 

regulate. 

All of this will likely lead to needless litigation, as we have experienced in many contexts at the State level, and in our view, imperil the application of well-established State law. 

I would like to illustrate very briefly for the Committee, if I may, 

how this preemption provision might impact California, in particular, and our ongoing efforts to regulate dangerous chemicals. In 

2003, California passed a statewide ban on certain flame 

retardants known as polybrominated diphenyl ethers, or PBDEs. 

PBDEs are found in foams, in furniture, upholstery and carpeting 

and electronic circuit boards. 

PBDEs accumulate in the body over time. The cutting edge 

science and recent studies which are in my written testimony describe potential disruptions to thyroid hormones, potential harm to 

developing fetuses, and even potential of causing cancer. 

This is an example of a State ban of a certain chemical known 

to be a toxic. Under Senate Bill 1009, if PDBEs are identified as 

a high priority chemical, our State would lose its ability to ‘‘establish’’ any restrictions concerning their use, including their in-State 

use within California. This could occur significantly before any enforceable Federal action is taken, thus creating the regulatory vacuum that I described. 
52 

I have another example which involve California’s strong laws 

against volatile organic compounds, or VOCs. VOCs are a critical 

ingredient for the creation of ozone, which is related to the development of asthma and other respiratory illnesses, which we have experienced this very significant problem with in California, as 

Madam Chair knows. 

Consumer products such as cleaning products contribute a significant amount of these VOCs to the ambient environment. So 

California enacted regulations limiting the use of VOCs in consumer products. Our Department of Public Health in California estimates that this will result in a 48 percent decrease in VOC emissions from such products. 

The bill, however, we believe, would preempt application of these 

regulations at a very preliminary stage of the assessment that 

would be conducted by the EPA, putting people across our State potentially at risk for additional respiratory illness. 

Finally, I want to talk briefly about California’s Proposition 65. 

It was enacted by California voters directly in 1986 and requires 

that businesses warn a consumer before selling a product that exposes them to a carcinogen. Prop 65 in practice has led to the reformulation of many products that were later, and at the time, proven 

to be dangerous. In exercising our authority, as borne out by my 

written testimony, we have eliminated products from the market 

that included lead-covered bounce houses for children. As the father of a 17-month-old and a 4-year-old, I will tell you, this is an 

important role for the States. We urge the Committee not to roll 

back those protections. 

And we appreciate your time. 

[The prepared statement of Mr. Troncoso follows:] 
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Senator BOXER. Thank you so much. 

So now we turn to Mr. Michael Dorsey, Chief of Homeland Security and Emergency Response, West Virginia Department of Environmental Protection. 

STATEMENT OF H. MICHAEL DORSEY, CHIEF, HOMELAND SECURITY AND EMERGENCY RESPONSE, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION 

Mr. DORSEY. Thank you, Madam Chairman, members of the 

Committee. 

I was delighted to hear every single one of you acknowledge the 

fact that TSCA needs to be repaired or replaced. That eliminated 

my first paragraph. 

I am here today as a representative of the State of West Virginia 

to urge your support for the Chemical Safety Improvement Act, or 

CSI. I think the CSI is the best and perhaps the last chance to 

make needed repairs to TSCA. I am aware of objections to the bill 

brought forth by other States’ organizations. However, I do not 

think that any of these objections are insurmountable, especially 

given that even the severest critics praise the bill for its bipartisan 

effort to address the problems. 

The bill states in its findings section that, ‘‘Scientific understanding of chemicals has evolved greatly since 1976, requiring 

that Congress update the law to ensure that chemical regulation in 

the United States reflects modern science, technology and knowledge.’’ Sometimes it is easy to forget just how far science has progressed since 1976, with chemical analysis, epidemiology, environmental modeling and other disciplines that are so far advanced 

that they are barely recognizable today as what they once were. 

The ‘‘best available science’’ of today is far better than it was 37 

years ago. While this is not to imply that TSCA scientists haven’t 

kept up with scientific trends and equipment, much of what was 

accomplished with existing chemicals under this law was done long 

ago. The public, the regulated community and those in State and 

local government need and deserve the most accurate and scientifically defensible information on chemicals we can possibly have. I 

think that is possible with this bill. 

Notwithstanding the programs in California, Washington and a 

few other locations, most of the Country, West Virginia included, 

lacks the resources and/or personnel to develop and implement 

chemical testing programs of their own. Because of this, we look to 

the Federal Government to perform this important work for us. I 

understand the reason that the more fortunate areas have forged 

ahead on their own. And I understand their concern that their efforts not be undermined. But I strongly believe that protective language is in place or that stronger language can be forged that will 

protect existing programs and allow the program to move forward 

for the rest of us. 

In fact, West Virginians have good reason to be concerned that 

we are able to maintain a level of independence in the evaluation 

process. As development of Devonian Shale, most recognizably 

known as the Marcellus Shale Gas Reserves progresses, we may 

need to evaluate and regulate chemicals used in the development 

and production of those reserves. 
101 

Consistency is important in any program, and it is especially important in programs that cross State lines and EPA regional lines. 

TSCA, for all its shortcomings, has been fairly consistently applied 

across State and regional borders. I understand it is important to 

protect the independence of programs that already exist, and I believe that can be done with this bill. But I just as strongly believe 

that a clear and consistent Federal program that actually does 

what TSCA was supposed to do can only benefit the citizens of this 

Country. 

I also envision the CSI as having a positive influence on both innovation and competition in the chemical industry. Green chemicals are desirable to the industry on two levels. First, the consumer 

has become far more concerned about environmental and health effects on what he or she is buying. They are more likely to buy products that have been shown to be safe by an agency they trust. 

Second, the short and long term environmental effects of a chemical are of great concern to the industry due to accidental releases. 

The easier to remediate a release is, the less expensive it is. Chemical companies know and appreciate the cost of long remediation 

costs. 

Finally, I appear before you today as a greybeard. I have been 

around long enough to see some State and Federal laws, rule and 

regulations come to life and become implemented and others slowly 

die and become forgotten. I have also seen laws with good intentions fail. TSCA is one of those failed laws. It was passed for good 

reasons, and it still has an important role to play in our Country. 

Perhaps its role is more important today than it ever has been. 

Some of what has been accomplished has been very good, such as 

the regulation of PCBs, the elimination of lead-based paint, the 

regulation of asbestos. 

But in the area the citizens most need protection it has failed. 

It has failed to adequately test and evaluate chemicals that have 

entered into our lives. The CSIA is the most viable chance to fix 

TSCA that has come along in my career. 

There are problems, of course. There are always problems with 

any legislation. This legislation deserves the chance to have the 

problems ironed out and become law. If passed, it will still require 

a great deal of effort to care for it, to avoid falling into the same 

fate as TSCA. It must be managed and evaluated and adapted as 

needed to correct flaws that are not apparent to us today. But it 

is worth doing. 

Thank you for the opportunity to appear here today. 

[The prepared statement of Mr. Dorsey follows:] 
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Senator BOXER. Thank you so much, Mr. Dorsey. 

And now we will turn to Mr. Ken Zarker, Manager, Pollution 

Prevention and Regulatory Assistance Section, Washington State 

Department of Ecology. 

STATEMENT OF KEN ZARKER, MANAGER, POLLUTION PREVENTION AND REGULATORY ASSISTANCE SECTION, WASHINGTON STATE DEPARTMENT OF ECOLOGY 

Mr. ZARKER. Thank you, Chairman Boxer and Ranking Member 

Vitter, for the opportunity to testify on this important issue of protecting human health and reducing toxic chemical threats. 

I also want to thank the members of the Committee for stepping 

forward to engage the States in meaningful dialog, and particularly 

the late Senator Frank Lautenberg. 

Today I will focus my comments on why State programs are important, what States are doing and why Washington and other 

States are compelled to act and will continue to act in the absence 

of a Federal solution. I will just briefly summarize my points, I provided written testimony. We also provided additional written testimony and comments on the Chemical Safety Improvement Act in 

the spirit to help improve this bipartisan approach. 

One trend is very clear: the States have stepped up to fill the 

Federal gaps that exist under the Federal current system. In recent 

years, 77 chemical restriction bills have been passed by the States, 

including 31 bills alone specifically addressing mercury. Bills at the 

State level have typically passed with strong bipartisan support. 

My job and that of colleagues around the Country is to protect 

people and the environment from toxic threats. This job is becoming more challenging with an outdated Federal system. 

I would like to share a few of the States’ principles on TSCA reform. I think it is helpful to revisit that. Again, we need a strong 

prevention-based approach that protects the most vulnerable and 

ensures the safety of chemicals in commerce; preserves the States’ 

authority to act and act as co-regulators; ensure EPA has adequate 

data to make safety determinations; require manufacturers to generate adequate data to show that chemicals meet the safety standards; include principles of alternative assessment and life cycle 

thinking; require EPA to make safety determinations in an efficient and timely manner; share information and coordinate with 

the States and Federal programs. 

Ultimately, we need a stronger Federal TSCA that improves the 

safety of chemicals and restores trust in our institutions to protect 

our communities and economies from toxic threats. The States need 

a modernized TSCA to help us avoid the types of legacy problems 

in our States. In my written testimony, I provided two brief examples, just in Washington State alone, one related to recontamination of the Puget Sound after spending millions of dollars to clean 

that up, and new sources of PCB contamination in the Spokane 

River. These PCBs are coming actually from current products on 

the market. 

States have demonstrated smart solutions that we can bring to 

the table. Over 10 years ago, Washington State became increasingly concerned with persistent, bioacumulative and toxic chemicals. In 2000, we were the first State to target these chemicals and 
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adopt regulations to phase them out. Our State became the first in 

the Nation to ban decaBDE, a commonly used flame retardant. As 

a result, EPA also took action on similar chemicals. 

There are many similar examples around the States. I’d like to 

shift my final thoughts to the States’ role in developing a Federal 

solution. Several States have been working together to provide a 

voice throughout this dialog. As a rest, here are a few ideas that 

we would offer to enhance and make a more workable solution. 

Again, increasing all efforts to address all chemicals in commerce. Focus on chemicals of concern. Prioritization is the first 

step, including making sure that we have an adequate set of data 

to help us with that prioritization. 

Conducting safety assessments and safety standards determinations. Authorizing EPA to share confidential business information 

with the States. Provide specific milestones for EPA with adequate 

funding. And integrate new tools, such as alternative assessment 

and life cycle assessments. 

We also believe that State grants for technical assistance could 

enhance our role with working with small to medium size businesses. And addressing some overlapping regulations relating to 

polychlorinated biphenyls, or PCBs, waste and residuals. 

In terms of State preemption, I think it is still early to be discussing this conversation, until we can get some structural fixes to 

the bill. Preemption is really about accountability. I think if we 

have a good Federal system, then it is likely that the States will 

have greater confidence in the system and we can deploy our resources more efficiently. 

States must have the authority to establish programs. 

Thank you for your time. 

[The prepared statement of Mr. Zarker follows:] 
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Senator BOXER. Thank you so much. 

I have to be tough with this because of our situation today. 

I want to thank the three of you. If I could just say, all of you 

really added a lot. And I want to say to the two Majority witnesses 

on either side of Mr. Dorsey, what I really appreciate is your specifics, in your written testimony, your specific examples of why it 

is essential that we allow States to have States’ rights. And Mr. 

Dorsey, I appreciate your willingness to say, we can work with this. 

Because that is critical. 

Because if we don’t fix these problems, we are not going to have 

a bill. Too many States are objecting. Not only the attorneys general, who wrote to us, and they are very respected and they represent huge populations in America, but also the State legislatures 

who are fighting the battles have written to us. So we need to fix 

it. And I believe we can fix it. 

So my first question is to the two who said that this preemption, 

to quote Mr. Troncoso, is crippling. Will you work with me, with 

Senator Vitter, with others, to make sure that we do allow States’ 

rights? Will you work with us? Mr. Troncoso. 

Mr. TRONCOSO. Absolutely. I would be happy to work with the 

Committee in any respect that is helpful. 

Senator BOXER. And Mr. Zarker, will you as well? 

Mr. ZARKER. Will do. 

Senator BOXER. And Mr. Dorsey, we will run it by you as well. 

Because I think that your attitude today is terrific, which is, look, 

if other people have problems, we should try to solve them. 

So let’s just say S. 1009 became a law, which I do not see happening until it is fixed, and I think most people have said it has 

to be, even the Ranking Member. If S. 1009 becomes law, and EPA 

listed a chemical as a low priority chemical due to a lack of data 

and took no other action, how long would States be preempted from 

enforcing or creating protections against that particular chemical, 

under the way it is written now? 

Mr. TRONCOSO. Madam Chair, I believe it would be in perpetuity. 

I don’t know that there is a bounded duration. 

Senator BOXER. That is my read. 

Mr. TRONCOSO. If it is a low priority chemical and it is not going 

to be subject to a later safety determination, my belief is it would 

be barred going forward. 

Senator BOXER. Well, if we add up all the population from the 

attorneys general who wrote to us, and there were two other States 

who were planning to sign but didn’t sign, but sent separate letters, like New York, it is the majority of the population of the 

Country that has concerns about this. So it is often said that States 

are the laboratories of democracy and that Federal law should set 

a floor, not a ceiling, on the level of protection. I certainly believe 

that is true. I think it is our job to set a minimum standard. 

But if the States in their wisdom and the people vote for Prop 

65, what right does anyone sitting up here to overturn the will of 

the people in our States? And yet this bill, as written, according to 

Kamala Harris, could possibly impact Prop 65. Do you agree with 

that, that Prop 65 could be imperiled here, a bill that passed with 

huge support of the people of the State in a vote? 
137 

Mr. TRONCOSO. Madam Chair, absolutely. I believe that, the way 

that we read the bill, and I think it is quite clear from the express 

preemption provisions in Section 15 in particular, that if a chemical is listed in a certain way by EPA, preemption would kick in 

at the State level. And any State application of Prop 65 to any of 

those chemicals, whether it is a low priority chemical or high priority chemical, depending on the point of the process that we are 

at, I think we run a serious risk of preemption in our ability. 

Senator BOXER. So it could drive an arrow through the heart of 

Prop 65. 

Let me ask you further, because you alluded to this issue. We in 

California took, with your leadership, your meaning our State’s 

lawyers, took action against this inflatable bounce house toy that 

young children often played in. Could you describe these bounce 

houses, and if there was no right for you to act, they would still 

be going. Explain the dangers that kids faced in that situation. 

Mr. TRONCOSO. I will explain it, Madam Chair, about the case 

and then relate to some personal experience in this respect. 

Back in 2010, we first brought this case. It is not bounce houses 

generally, it was the vinyl that was being used in the manufacturing. 

Senator BOXER. The vinyl in the bounce house. 

Mr. TRONCOSO. That is correct. And the vinyl had a very high 

concentration of lead in it. Anyone that is a grandparent or parent 

knows that when you get a small child, like my 17-month-old goes 

in and he sits there, he can’t really bounce much, but he will lick 

the vinyl. Who knew that it was laden with lead? Completely unnecessary exposure. 

So under Prop 65, our Right to Warn law, we took some action 

against those manufacturers that were putting these into commerce without an appropriate warning. We were able to get an 

agreement that they would reduce the level of lead. 

Senator BOXER. We know what happens when kids are exposed 

to lead, what happens to their IQ, what happens to their bodies. 

So I just want to thank you very much, and again, if you could say 

to the Attorney General of California, because I know she helped 

organize the letter from all these attorneys general, because she 

feels so strongly about it, how much I appreciate her work. 

I think with this testimony that we have heard from all three of 

you, we can fix the problems in this bill and make it work for our 

States. And most importantly, for the people of our States and the 

families and the children. 

Senator Vitter. 

Senator VITTER. Thank you, Madam Chair, and I thank you and 

the witnesses for bringing up Prop 65. I think it is a perfect example of one of the misimpressions I was talking about in my opening 

statement. 

Frank and I talked specifically about Prop 65, and we never intended to neuter Prop 65 in any way. We thought that was clear 

in our language, but Senator Udall and I are going to make it crystal clear in our manager’s amendment. I think that is a very good 

example of a misimpression or a concern that was never our intent 

to foster. 
138 

Senator BOXER. I just wanted to ask you, what do you mean, 

manager’s amendment? 

Senator VITTER. We are working on proposed revisions to the bill 

to address all of these concerns. 

Senator BOXER. I just want to make it clear that I will be working the manager’s amendment with you. That is where we are, unless you don’t like it and I get somebody else who does, like Senator Barrasso. 

Senator VITTER. Fine. Well, we are here. Senator Udall and I are 

here to listen to all legitimate concerns. 

Senator BOXER. As we all are, of course. 

Senator VITTER. And we have been meeting actively with folks 

with those concerns. And we are compiling clarifications to the bill. 

I think this is a great example of one of those clarifications. It is 

going to be crystal clear what our original intent was. Certainly 

Frank nor I wanted to neuter Prop 65 in any way, so we will make 

that crystal clear. 

Mr. Dorsey, you mentioned a few times that you thought the 

Lautenberg-Vitter bill was ‘‘the most viable chance to fix TSCA’’ 

that has come along during your career. Why don’t you elaborate 

on that, and what would be the impact on your and other States 

if we miss the opportunity and this present law continues for the 

foreseeable future? 

Mr. DORSEY. Senator Vitter, when we began the hearing, Senator 

Boxer recited a litany of efforts that had taken place over the years 

to fix TSCA. They have all failed. I sit here today looking at this 

group, and I’ll be retired in 17 months and 1 day—— 

Senator VITTER. Not that you are counting, obviously. 

Mr. DORSEY. Not that I am counting. 

[Laughter.] 

Mr. DORSEY. But it is so encouraging for me to sit here and see 

bipartisan support for something to fix TSCA. I think it is probably 

the best effort that I have ever seen and has the most bipartisan 

support for and effort to fix this. 

Now, I sit here and quite frankly, the States of California and 

Washington have Prop 65 and other laws that will allow them to 

take these huge strides. In West Virginia, we have what we refer 

to as no more stringent than language, which allows us to be no 

more stringent than the Federal Government. We are not the only 

State, there are a number of other States out there that do the 

same thing. 

So we rely on the Federal Government to take some of the bigger 

steps when it comes to epidemiology, chemical safety, things along 

those lines, to help us protect our citizens. 

Senator VITTER. Great. Let me follow up on that. Why don’t you 

elaborate on how and to what extent West Virginia, your State, has 

tried to regulate any chemicals, and what was the outcome of the 

State’s work? 

Mr. DORSEY. Many, many years ago, the one that comes immediately to mind to me is PCBs, polychlorinated biphenyls. Back 

when EPA was still rummaging around, trying to come up with a 

solution for those, I personally tried to take a rule package to our 

legislature to have them regulated as hazardous waste in West Virginia. In the meantime, EPA regulates them under TSCA. I was 
139 

told, no, if the Federal Government is regulating those, we are not 

going to regulate them as a State. 

It has worked out in the long term fairly well, but we were denied the opportunity to regulate those chemicals because of that no 

more stringent than language. 

Senator VITTER. And for a State like West Virginia, for the vast 

majority of States, why don’t you describe the significance and importance of the Federal role in terms of resources, expertise, et 

cetera, and your reliance on it? 

Mr. DORSEY. I mentioned it briefly in my talk, and it is in my 

written testimony. States like West Virginia, and most States 

throughout the Country, just simply do not have the resources. We 

have a few epidemiologists within our agency and other agencies, 

but we just don’t have the personnel, the money and the expertise 

to do the work that needs to be done on a large scale across the 

board to protect the citizens. 

Senator VITTER. Thank you very much. 

Senator BOXER. Senator Vitter, I am so encouraged by your commitment to make sure that State law to make sure that State laws 

are not preempted. So when you and Senator Udall have fixed the 

bill or rewritten those sections, because my reading of the bill is 

it is endemic throughout the bill, it is not just in one place. So the 

whole bill has to be looked at. 

We wrote, I just want you to know, my commitment is to send 

it to the 10 attorneys general who have written to us and said they 

have huge problems with preemption, to make sure that their concerns are met. And I am looking forward to seeing that rewrite. 

That would be wonderful. And if it is written in the right way and 

the AGs believe it, that would be an enormous step forward. So let 

me just go on record as saying that. 

OK, let’s see now. I think we are going to go to Senator Udall. 

Senator UDALL. Thank you, Madam Chair. I think what you 

have just said is very important. We look forward to working with 

you on constructive changes. I don’t think that Senator Lautenberg 

and Senator Vitter ever thought that this was going to be a perfect 

bill, that you would unroll it and there weren’t going to be any 

changes. As I have said earlier, many of us realize that as you 

move along in the legislative process, there may be language that 

you did not intend it to be that way but that you can work to 

change it. We look forward to working with the Chairwoman and 

the Ranking Member to get that done. 

I think some of these, to turn to the witness from West Virginia, 

some of these questions have been asked and answered, but I 

wanted to emphasize this again. You see the array up here of what 

we are dealing with. I have New York on my left and California 

on my right. But then we have smaller States that are out there, 

like West Virginia and like New Mexico, who don’t necessarily step 

into this situation of regulating chemicals. We don’t produce a lot 

of chemicals in New Mexico, and so we don’t have the kind of resources that these larger States do. 

So how many chemicals do you analyze on a yearly basis? 

Mr. DORSEY. We have a number of programs, Senator. Our Resource Conservation and Recovery Act program, which is our haz 

waste program, has a list of chemicals we have adopted to Federal 
140 

law. And the list of chemicals, there are several thousand in there. 

We have our brownfields program and our Superfund equivalent, 

which is tied into our brownfields program. So there are a lot of 

chemicals out there that we are regulating. 

But I think that the common number that people would talk 

about that TSCA grandfathered in was 62,000. So we do what we 

can, we run our authorized programs from the Federal Government 

and we look at those chemicals. But nothing really above that. 

Senator UDALL. When I say analyze, are you really in the business in the State of West Virginia in terms of analyzing chemicals? 

What you talked about is adopting what other agencies have done. 

I am talking about analyzing chemicals, how many chemicals has 

the State of West Virginia prohibited in commerce. 

Mr. DORSEY. I misunderstood your question, Senator, I apologize. 

None, to my knowledge. 

Senator UDALL. And do you feel adequately protected by other 

State laws and what other States may be doing? 

Mr. DORSEY. The problem there is, we just don’t know. And we 

find out on a regular basis that there are things out there that we 

were not aware of. 

Senator UDALL. And I think you find yourself in the situation 

that many small States do, that we would like to see something at 

the national level and see TSCA fixed and see an aggressive effort 

to deal with toxic chemicals. 

Let me just, Mr. Troncoso, talk a little bit about this attorneys 

general letter. I was a former attorney general back in the old 

days. So I am very interested in your analysis and very much appreciate the attorneys general stepping forward on this. At the bottom of the letter it states that S. 1009 would preempt States from 

enforcing existing laws or adopting new laws regulating chemicals 

that EPA designates as high priority. And I would like to clarify 

here on the reading of our bill. 

Existing State prohibitions or restrictions on a chemical would 

remain in place until EPA made a final safety determination on 

that chemical. Only new State prohibitions or restrictions on a 

chemical would be precluded by an EPA prioritization decision. 

State requirements, whether new or existing, that do not directly 

prohibit or restrict a chemical, would never be preempted, including requiring reporting on a chemicals’ use or presence in products, 

warning labels, such as under California’s Proposition 65, which we 

have had a little bit of discussion about here, limits on exposure 

levels or releases, monitoring, et cetera. And States could also 

apply for waivers. 

So balancing the Federal and State standards on chemicals and 

consumer products is a very challenging task. I think that is the 

big task that is before us and that you are helping us with. Some 

States have strict laws and other States produce most of the chemicals in interstate commerce. My State is in the middle, we do not 

have the resources of California and we have very little chemical 

production. 

So I am trying to reconcile a variety of interests here, and I hope 

that, and I think you have said this in questions from the Chairman, that you will work with us through this issue in terms of the 

trickiness. Is that correct? 
141 

Mr. TRONCOSO. Yes, Senator. As you know, and I will resist calling you General, Senator, the attorneys general have a terrific 

record of working on a bipartisan basis together through the National Association of AGs, and forming working groups. We will be 

happy to work with the Chairman. 

Senator UDALL. Thank you. 

Senator BOXER. Thank you, Senator. 

We go to Senator Barrasso. 

Senator BARRASSO. Thank you, Madam Chairman. 

Mr. Troncoso, you state in your written testimony and you said 

it today, you said, as written, S. 1009 will not give us more protection. As written, S. 1009 will not give us more protection. I don’t 

think anyone would question Senator Lautenberg’s record in defending people from the risk of harmful chemicals. So just to give 

you a chance to clarify that statement, in terms of Senator Lautenberg negotiating a bill that was designed to provide more protection 

for children, seniors and families from harmful chemicals, does 

your statement go too far? 

Mr. TRONCOSO. Thank you, Senator, for that question. I think 

our State joins in full complement all of the statements made about 

Senator Lautenberg’s work and his commitment to these issues. 

We share the goal that the Committee has of reforming TSCA in 

a way that will increase protection. 

Our fear, though, Senator, is that in significant respects, the preemption provisions roll back important State protections that have 

been demonstrated to result in significant harms to people in our 

State and harms in particular to children. 

Senator BARRASSO. Your quote was, ‘‘will not give us more protection.’’ Will not give us more protection, none. And I just want 

to know if that went too far. 

Mr. TRONCOSO. Senator, I believe within the context and as amplifying now, with respect to the preemption provisions, I think 

with respect to those, I stand by that statement, sir. 

Senator BARRASSO. The entire bill doesn’t do any good, that is 

your testimony today. 

Mr. Dorsey, you said you came to us today as a greybeard. Given 

your years of service, do you recall opportunities like this where 

Congress can move a major bipartisan reform on chemical policy? 

When is the last time you saw it? What will happen if we don’t 

really advance this bill, if we just scrap it and start from scratch? 

Mr. DORSEY. Well, the last time was probably in the 1980s, the 

Superfund Reauthorization Amendments, 1984, that may be, as a 

greybeard, my mind slips sometimes. I may have missed a call 

there. But it has been a while. As I said before, I don’t anticipate 

seeing it happen again before I am gone. 

Senator BARRASSO. Do you agree with Mr. Troncoso’s statement 

that ‘‘As written, S. 1009 will not give us more protection’’? 

Mr. DORSEY. I can’t speak for California or Washington, but I 

think in West Virginia it will give us additional protection. 

Senator BARRASSO. Can you elaborate further as to the provisions in this bill that you will find most beneficial to protecting 

public health and safety at home? 

Mr. DORSEY. The main thing that I see is that it actually does 

the analysis on the chemicals that needs to be done, whereas TSCA 
142 

didn’t do that. That may be a simple statement, but it has profound 

meaning. 

Senator BARRASSO. Mr. Zarker, you said starting this effort will 

put us on the road toward a more sustainable economy and keep 

the United States as a global chemical producer, all while keeping 

good-paying jobs in our States. So unemployment is at 7.5 percent, 

this is not including the people who have given up looking for 

work, folks look for work want a strong economy, a strong chemical 

industry to provide new and innovative life-saving products. New 

products create jobs, bring down unemployment. 

I am wondering what you think of in terms of, what is the sustainable economy that you are advocating for? Does it exclude certain products and the jobs that go with making those products from 

the marketplace? 

Mr. ZARKER. Thank you, Senator. That is a great question. I 

think that we have opportunity here within TSCA reform to send 

the right market signal for new products and services. We realize 

that the chemical infrastructure and this industry cannot be 

changed overnight. Typically those plants are put in place for 40, 

50 years. But by reforming TSCA today and including incentives 

for innovation and green chemistry, I think that will send a very 

strong signal to the market and the industry will want to position 

itself globally to lead in that area. That is the opportunity I see. 

Senator BARRASSO. It is curious, because I am a doctor, have 

practiced medicine for 25 years. We are able to detect chemicals in 

small, minute amounts, that we weren’t able to detect in the past. 

I am wondering if this is driving some of the efforts. Because we 

really don’t know that some of these things actually do harm at 

low, low, low doses. 

Mr. ZARKER. You are correct. We have the ability to detect these 

materials to the picogram level. This is an example going back to, 

I mentioned the Spokane River, where we have a paper company 

that recycles paper and uses it as raw material. It comes into their 

plant. And unfortunately, PCBs get into the wastewater and can be 

detected. They have done everything they can to get it out of the 

system. But there are current provisions under TSCA that allow inadvertent PCBs to be included in products today that come into the 

U.S., probably through pigments. So it is a problem. 

Senator BARRASSO. Thank you. Thank you, Madam Chair. 

Senator BOXER. Thank you so much. Senator Gillibrand. 

Senator GILLIBRAND. Thank you, Madam Chairwoman, again, for 

holding this hearing. 

Obviously the issue of preemption is a non-starter. I think there 

is some clarity here on the Committee on a bipartisan basis that 

if we don’t fix that part, this bill is never going forward. I think 

that is essential. Because for those of us who care deeply about 

protecting our children, we want to make sure States that have 

done good work in regulating harmful chemicals can keep those 

standards in place. I agree with Senator Boxer that the Federal 

Government’s role is to set the floor, not the ceiling. 

So setting the floor in States like yours that say, you can’t exceed, I think is absolutely essential. I would be so dismayed having 

a child in any State that can’t regulate these harmful chemicals. 

I would be so concerned about their well-being. And I would like 
143 

you to submit for the record all the bounce houses that have lead 

in them and how I can make sure my children do not participate 

in those bounce houses. 

[Laughter.] 

Senator GILLIBRAND. So assuming we can deal with this preemption issue, Mr. Troncoso, do you have specific suggestions for the 

Committee about how you would change that provision specifically 

to ensure that there is no preemption of right to know laws, like 

Proposition 65? 

Mr. TRONCOSO. Thank you, Senator, for that question. I think 

our office has a lot of experience in working with the legislature 

both at the State and Federal level on these issues. I think there 

are many examples in other Federal statutory schemes, where you 

have much less onerous preemption provisions. So I am happy to 

work with you on that. 

Senator GILLIBRAND. I would like you to submit your recommendations for the record when you have time to consider it, for 

all of you actually, how you would write and fix language specifically about preemption to make sure good work has been done in 

other States is not harmed or undermined in any way. I think that 

is essential. 

So assuming we can address this issue, Mr. Troncoso, what areas 

of the CSIA do you feel would aid EPA in regulating hazardous 

chemicals? What parts do you think we should build on that are 

useful? 

Mr. TRONCOSO. I would join in the comments that we have heard 

from the bipartisan consensus here at the Committee. I think that 

having a more comprehensive, rigorous testing program at the Federal level is a good thing. I think we have been calling for that for 

some time at the State level. The State really has filled in the gaps 

in a lot of respects. 

Because of this testing at the State level, which wasn’t done at 

the State level, many of the examples in my testimony, the bounce 

houses in particular, were only uncovered because of testing at the 

State level. So we would like to see a more rigorous Federal program that can exist in a complementary fashion and cooperative 

fashion with the States. 

Senator GILLIBRAND. And I would like your recommendations 

submitted for the record on that as well. 

Mr. Zarker, again, assuming you can address the issue of preemption, what are the areas of the CSIA do you feel would aid the 

EPA in regulating hazardous chemicals, and what would your No. 

1 priority be to fix language within the CSIA? 

Mr. ZARKER. Well, if we can address the preemption issue, I 

think that would be No. 1, to give us more confidence, if the States 

can continue to act. Second, I think there are some very important 

issues related to privatization, and within privatization looking at 

addressing persistent, bioacumulative and toxic chemicals first. 

One of our concerns is that there are so many chemicals that 

need to be evaluated, how can we move through that list in a rapid 

and efficient manner, and make sure the EPA has the resources to 

be able to do that. Because otherwise we could be here for a long 

time trying to go through the inventory. 
144 

Senator GILLIBRAND. More broadly, what do you think are the 

principles or requirements that an effective chemical safety act 

would need to have to be able to be useful? 

Mr. ZARKER. One of the things I mentioned was the idea of the 

States as co-regulators, helping to find a role for the States in the 

future. Our State environmental programs are mature, we have resources at different levels. But we feel that a State-Federal partnership is really important going forward. TSCA wasn’t set up that 

way originally. Most States think of it as a black box. We have an 

opportunity to real enhance that role and the States can contribute 

to that effort. 

Senator GILLIBRAND. An issue that we haven’t raised today, you 

mentioned that TSCA should be used to promote innovation and 

green chemistry as a strategy for future economic growth. How 

would you see green chemistry being implemented within the 

CSIA? 

Mr. ZARKER. Again, if we go back to looking at prioritization, one 

idea to think about is how we prioritize chemicals, and maybe a 

simple analogy is red, yellow and green. So red chemicals, avoid 

and move away from toward yellow, safer choices in the market, 

and moving toward green. That is an emerging area of science and 

really offers opportunities for our researchers in the universities 

and to train our next generation of chemists to be able to think 

about these things as they are designing new molecules. 

Senator BOXER. That is extremely interesting. I want to thank 

our panel. 

I wanted to say to Senator Vitter, Senator Udall and Senator 

Gillibrand, during this time, we found that, because Senator Udall 

makes a point that, what good does Prop 65, what good does it do 

his people. I am going to give you a specific case in point. Under 

65, they test a lot of products in California. They tested baby bibs 

in 2007. They found out they contained lead. So they were banned 

in California and guess what, taken off all the shelves nationwide. 

So I think it is important that the States that do move more aggressively do have an impact on our people all over this great Nation. I don’t know about the bounce houses, we have asked about 

that, Senator Gillibrand, whether or not as a result of this they 

have changed the vinyl in the bounce houses, that they have taken 

the lead out. 

But I am so encouraged that we seem to have this bipartisan 

agreement, and we are going to fix preemption. I am so grateful to 

all of you for being here today. We all are going to make sure that 

the attorneys general who have written to us so eloquently about 

preemption will take a look at the new language that we can agree 

on here and make sure it does what we say. The devil is in the details always. 

I am not gray, I amazingly turned blonde instead of gray. 

[Laughter.] 

Senator BOXER. But I have to admit, I have been here 20 years. 

So the devil is in the details. Thank you all very, very much, and 

I will ask the next panel to come forward, please. 

Our friends are coming forward, I want to announce for Senators 

who are here, our vote begins in just about a few minutes. So I am 

going to start this, and if people could sit really fast, my goal is 
145 

to get through this entire panel. I may not be able to do that. Paul 

will let us know when the vote starts. 

First we are going to hear from Mr. Daniel Rosenberg, Senior Attorney, National Resources Defense Council. Please get started 

while your colleagues are getting seated, because we must move 

along. Go ahead. 

STATEMENT OF DANIEL ROSENBERG, SENIOR ATTORNEY, 

NATURAL RESOURCES DEFENSE COUNCIL 

Mr. ROSENBERG. Chairman Boxer, Ranking Member Vitter and 

members of the Committee, thank you for the opportunity to testify 

on this important issue. 

The Toxic Substances Control Act is the one foundational environmental law from the 1970s that is almost universally considered 

to be broken. For years it has been a virtually dead letter in dealing with chemicals that were already on the market when the statute was enacted. The law makes it difficult for the Environmental 

Protection Agency to obtain the information it needs to adequately 

assess newer chemicals. 

The result is that public exposure to potentially harmful substances has grown even as science has learned more about the 

manifold ways chemicals can affect human development, contribute 

to disease and harm the environment. 

Virtually every witness invited to testify before the Committee on 

the issue TSCA over the past several years has agreed that the law 

needs to be substantially reformed. It sounds like we are going to 

hear that again today. The most recent proposal before the Committee, I think you all know, to reform TSCA is the Chemical Safety Improvement Act, S. 1009. 

Ever since the bill was introduced, NRDC has had two major 

points about this bill, and they need to be understood together. 

First, the bill as currently drafted has fundamental weaknesses 

that would prevent it from enhancing chemical safety. Second, we 

are willing to work to improve the bill. The CSIA has opened the 

door to developing an effective bill that could garner broad support. 

NRDC does not want to walk by that door or slam it shut. 

I discuss a number of the billings failings at length in my written 

testimony, but let me mention some of the key ones here. First, 

CSIA does not set any deadline or minimum requirements for 

prioritizing, assessing or making decisions on whether to regulate 

chemicals. Enforceable deadlines, which should include minimum 

requirements, are the key to statutory effectiveness, as experience 

has long shown. In a world of competing priorities and political 

pressures, nothing happens without a deadline. 

Second, the CSIA requires EPA to develop multiple overlapping 

frameworks, procedures and criteria. The result would be to tie 

EPA in knots for several years before it could even begin to 

prioritize which chemicals to assess. It is not clear how much of 

this is by design. What is clear is that the bill as currently drafted 

will require EPA to spend a lot of time and resources reinventing 

the wheel, not once, but multiple times instead of reviewing or regulating chemicals. 

Third, the CSIA would vastly broaden the current State preemption provisions of TSCA. Among other problems, States could be 
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prohibited from imposing new restrictions on high priority chemicals used before EPA takes any action. Think about that. Under 

the bill, EPA recognizing a high priority threat is actually a signal 

for States to stop taking action, even though EPA may be years 

away from even proposing any protection. How does that help the 

public? 

Fourth, the CSIA does not require that EPA safety standards or 

determinations be protective of vulnerable populations, including 

women, children and workers. This is in the context of retaining 

the problematic safety standard of unreasonable risk that is currently in TSCA. And the CSIA contains no mechanism for expediting action on chemicals known to be unsafe, including asbestos 

and PBTs. 

As I have said, these problems do not mean that work on this 

bill should stop. The CSIA takes some steps in the right direction 

in terms of requiring EPA approval of new chemicals, making it 

easier for EPA to get information from chemical companies, and removing cost as a factor in risk assessment. But the bill is written 

in a way that raises questions about whether those provisions 

would work as advertised, and then negates their overall impact 

because of the problems I have just enumerated. 

The reaction to this should not be to throw up our hands, but to 

roll up our sleeves. This Committee should make TSCA reform top 

priority. CSIA signals both that many members believe it is worth 

trying to make progress and that there is still a lot of work to be 

done. NRDC looks forward to working with any and all Senators 

who are interested in pursuing real reform, reform that will truly 

advance and enhance protection of the public, while giving the 

chemical industry the certainty it seeks from an efficient and effective process for prioritizing, assessing and regulating chemicals. 

Thank you again for inviting me here to testify. 

[The prepared statement of Mr. Rosenberg follows:] 
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Senator BOXER. Thank you very much to the NRDC. 

Mr. Thomas McGarity, Professor of Law, University of Texas in 

Austin. 

STATEMENT OF THOMAS O. McGARITY, JOE R. AND TERESA 

LOZANO LONG ENDOWED CHAIR IN ADMINISTRATIVE LAW, 

UNIVERSITY OF TEXAS SCHOOL OF LAW 

Mr. MCGARITY. Thank you, Madam Chairman, and I thank all 

the Committee members who are here for inviting me. 

I am pleased to speak about the need to fix TSCA. I think there 

is general agreement that TSCA is a broken statute. Unfortunately, in looking at S. 1009, as written, I think it may make a bad 

situation worse. But I agree with most of the folks who have talked 

today that it can be fixed. 

One of the provisions in TSCA that really hasn’t been broken and 

we haven’t seen much controversy about is the preemption section. 

It has a preemption section that has worked reasonably well. I 

wrote a book about preemption several years ago. I didn’t have to 

talk about TSCA in that book, really much at all, because it had 

a preemption provision that was working reasonably well. 

We have heard from the States’ attorneys general and various 

representatives of the States about the problems of S. 1009 by way 

of preempting State regulatory agencies. Let me speak then about 

the provisions in S. 1009 that I think could deprive victims of their 

day in court. 

S. 1009 will require State courts to admit EPA safety determinations as evidence in both civil and criminal trials, and, this is interesting, preclude State judges and juries from concluding that a 

chemical declared safe by EPA is unsafe for purposes of imposing 

liability on manufacturers, et cetera. I have been teaching torts 

and environmental law for 36 years now, so I do have some gray 

hairs as well. I have never seen a proposal for such an intrusive 

interjection of Federal law into the day to day administration of 

justice at the State level. 

Now, as I said, I wrote a book about it several years ago. I 

haven’t seen any evidence that the rules of evidence in the State 

courts are giving problems. I think the provisions basically are a 

gift of partial immunity to the manufacturers who are fortunate 

enough to have their chemicals declared safe by EPA. 

Now, the bill also addresses grandfathered chemicals, and that 

is great. The bill needs to address grandfathered chemicals, those 

chemicals that have been around that we haven’t gotten testing for. 

It gives the appearance of a systematic mechanism for prioritizing 

and evaluating the tens of thousands of chemicals that haven’t 

been tested, but I think appearances can be deceiving in this regard. 

We have a number of jobs that EPA has to do before it ever 

starts requiring testing, much less taking a chemical off the market 

or regulating a chemical. So we have to have a chemical assessment framework created. We have to have criteria for evaluating 

the quality of individual studies promulgated. We have to have a 

risk-based screening process set up. We have to have a sciencebased methodology for conducting safety assessments, and a struc-
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tured evaluative framework for deciding what action to take based 

on these safety assessments. 

Take it from someone who has been observing this for over 35 

years, if the statute does not subject EPA to reasonable and judicially enforceable deadlines, the agency will be evaluating methodologies and conceptualizing frameworks for the next decade or 

two. I saw it at EPA when TSCA was first enacted in 1976, and 

we spun our wheels for well over a year as the program office conceptualized about what TSCA was supposed to be doing. 

I think that the safety test set out in S. 1009 takes away the 

least burdensome requirement. But that doesn’t really go to the 

heart of what I think is the problem with Corrosion-Proof Fittings, 

which is the unreasonable risk test. I think the bill could be much 

improved by changing that standard to one that we put in the Food 

Quality Protection Act back in 1996, ‘‘reasonable certainty of no 

harm,’’ which is also in the Food, Drug and Cosmetics Act. 

One thing that hasn’t been mentioned, and I think this has always been a problem with TSCA, is that we have had judicial review that has been incredibly activist. We have had essentially one 

case that neutered Section 6, and it was written by the Fifth Circuit. What contributed to that, I think, is the designation of the 

standard of review in TSCA of being the ‘‘substantial evidence’’ 

test, which is usually used for formal adjudications, and not rulemaking. 

I think if you just changed the test to ‘‘arbitrary and capricious,’’ 

which is usually the test for rulemaking, you would send a message 

to the courts that we don’t want you intruding so much with this 

new statute. I think that is very important. 

Thank you very much. 

[The prepared statement of Mr. McGarity follows:] 
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Senator BOXER. Thank you so much. 

Our next speaker is Ms. Linda Fisher, Vice President of Safety, 

Health and Environment, and Chief Sustainability Officer at the 

DuPont Company. 

Senator CARPER. Madam Chairman, could I just say a brief word 

before she speaks? 

Senator BOXER. Very brief word, Senator. 

Senator CARPER. I just want to welcome you all. I especially want 

to welcome Linda, whom I have known for forever, and the great 

work that you did at the EPA when Christie Whitman was EPA 

Administrator. Thank you for that and wearing the white hat at 

DuPont. Thanks very much. 

Senator BOXER. Thank you for being here representing DuPont. 

STATEMENT OF LINDA J. FISHER, VICE PRESIDENT AND 

CHIEF SUSTAINABILITY OFFICER, DuPONT 

Ms. FISHER. Thank you, Madam Chairwoman, Ranking Member 

Vitter and members of this Committee. My name is Linda Fisher 

and I am the Vice President and Chief Sustainability Officer at DuPont. 

It is a pleasure to testify before you today on the importance of 

reforming TSCA. 

DuPont, as you know, is a broadly diverse company. We operate 

in over 90 countries around the world. We have about 620 employees whose responsibility it is to keep DuPont in compliance with 

the emerging growth of product regulations globally. 

Like my colleague, Steve Owens, next to me, I did have the privilege of serving at EPA as the Assistant Administrator for what was 

named during my tenure the Office of Prevention Pesticides and 

Toxic Substances. Steve then changed the name. So I have had the 

experience of working both as a regulator and a regulated entity 

under this statute. I can tell you, it doesn’t matter where you said, 

TSCA is a very difficult statute. So I am very grateful for the work 

up here in the Congress to reform TSCA that was begun under the 

late Senator Lautenberg and has continued under your leadership, 

Chairman Boxer. 

TSCA is a critically important statute to protecting public health 

and the environment. It is a critically important statute to American jobs and innovation. So I want to express my appreciation for 

the work, Senator Vitter, that you have done with Senator Lautenberg to introduce the Chemical Safety Improvement Act with bipartisan support. 

With each passing year, TSCA becomes more and more outdated. 

Our scientific understanding of chemicals and the public awareness 

of exposure has changed significantly since enactment. Governments around the world with economies as diverse as China, 

Korea, Turkey, Canada, not to mention the EU, have all passed 

comprehensive regulatory programs. But their regulations are not 

as transparent as our programs here at home. So it is very important that we give EPA the tools they need to become a leader, a 

global leader in chemical regulation. 

Without effective EPA regulation, we do see increasing numbers 

of State by State, chemical by chemical bans and restrictions. That 
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makes it very difficult and introduces a lot of uncertainty into our 

business. 

In addition, consumers are more and more asking for data 

around the safety of products. Many of our customers are responding to concerns by doing their own bans. So we as an industry are 

subject to a lot of ‘‘private regulations’’ which are taking over because of the lack of a strong Federal program. 

It is time to reform TSCA. I think the Chemical Safety Improvement Act gives us the vehicle to do that. It does it a number of 

ways. First of all, it is the first time that EPA would be directed 

to systematically review and regulate all existing chemicals that 

are not under TSCA, and it would bring the U.S. up to pace with 

other countries. It streamlines the data gathering authority to 

make it much easier for EPA to get data from companies. 

It streamlines EPA’s authority to identify and act on chemicals 

that pose safety concerns. It separates the safety assessment and 

safety determination on high priority chemicals from the risk management process. I think that is a big step forward. Although it 

wisely, I think, leaves in place the current safety standard. 

The challenge to the implementation of Section 6, to me, was 

never the safety standard. It was the ‘‘least burdensome’’ requirements that made Section 6 unmanageable. I think the bill addresses this by providing clear authority for the agency to separate those 

decisions. 

However, I think as the bill goes through Congress, it will be important to both clarify and ensure that the provisions of the new 

Section 6 do not create the ‘‘paralysis by analysis’’ that has hindered EPA in the past. 

I think the CBI improvements in this bill are significant. They 

do balance our need for CBI with the importance of being able to 

share data, particularly with State governments. I think opening 

up the ability for EPA and State governments to look at and analyze data at the same time will allow a much more collaborative 

approach to setting standards. I don’t think that should be underappreciated. 

We understand that there are stakeholders that you noticed earlier, who have concerns about the bill. We would be happy to work 

with everybody to address some of the changes that need to be 

made to get this bill through Congress. 

We do have a very unique opportunity before us to pass comprehensive TSCA reform. I would really hate to see this opportunity pass. So I look forward to working with you, Madam Chairman, and other members of the Committee, so that we can make 

the improvements to TSCA that are so necessary. 

[The prepared statement of Ms. Fisher follows:] 
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Senator BOXER. We look forward to that. 

Mr. Owens, Of Counsel, Squire Sanders, LLP. 

STATEMENT OF STEPHEN A. OWENS, SQUIRE SANDERS (US) 

LLP 

Mr. OWENS. Good morning, Chairman Boxer, Ranking Member 

Vitter and members of the Committee. I appreciate the opportunity 

to be here with you today. 

I want to thank you also for your leadership on this very important issue and for your efforts to reform the Toxic Substances Control Act. 

As Linda mentioned, from July 2009 until late 2011, I served as 

the Assistant Administrator in charge of EPA’s Office of Chemical 

Safety and Pollution Prevention, appointed by President Obama 

and confirmed by the U.S. Senate. I am now with the law firm of 

Squire Sanders, based in our Phoenix, Arizona office. 

Although I am a former EPA official, my testimony represents 

my own personal views and not the views of EPA or any other organization or entity. 

Prior to joining EPA, I served as Director of the Arizona Department of Environmental Quality in the cabinet of Governor Janet 

Napolitano. As DEQ director, I was active in the environmental 

counsel of the Environmental Council of the States, which is the 

national State environmental directors’ association. I served as 

ECOS’ president during my final year in office. 

As the father of a child with asthma, protecting children from exposure to toxic chemicals and pollutants was one of my top priorities at both DEQ and EPA. As Assistant Administrator, I was responsible for EPA’s implementation of TSCA. I helped develop the 

Obama administration’s principles for TSCA reform. 

During my time at EPA, we took a number of important actions 

to use the existing authority under TSCA more fully. While we 

made some progress using TSCA’s authority, it was and is abundantly clear to me that TSCA is fundamentally flawed and must 

be fixed if the American people are going to be assured that the 

chemicals to which their families and children are exposed every 

day are in fact safe. 

Simply put, it is time to bring TSCA into the 21st century. TSCA 

is 37 years old, and it is clearly showing its age and its limitations. 

When TSCA was enacted in 1976, it grandfathered roughly 62,000 

chemicals without any evaluation whatsoever. Few of those chemicals have been evaluated since. 

In fact, TSCA does not require EPA to conduct safety assessments or make safety determinations about any chemicals at all. 

It puts the burden on EPA to demonstrate essentially that a chemical is unsafe before the agency can take action on it. 

In addition, TSCA does not give EPA adequate authority to require testing of chemicals or reevaluate existing chemicals as new 

concerns arise or science advances. As a result, as has been said 

here today, EPA has been able only to require testing on just a little more than 200 of nearly 85,000 chemicals that are now listed 

on the TSCA inventory. 

It has also proven difficult to take action on chemicals found to 

cause unreasonable risk. EPA has significantly limited or banned 
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only five chemicals under TSCA because of the tough obstacles the 

law creates to quick and effective actions. Actually one of those five 

was asbestos, and we all know what happened there. 

One reason for this is the requirement for EPA to use the least 

burdensome alternative to address a chemical risk. Indeed, the 

hurdles in TSCA are so high that EPA has not even attempted an 

action under TSCA Section 6 in the last 22 years. 

Because of its many shortcomings, TSCA really should be called 

the Toxic Substances Conversation Act. 

[Laughter.] 

Mr. OWENS. There has been a lot of talk about regulating chemicals over the years, but not much real action, although EPA has 

certainly tried enough. 

I believe that TSCA should be revised consistent with the Administration’s TSCA reform principles. Chemicals should be prioritized 

and reviewed against a risk-based safety standard that is protective of human health and the environment, including vulnerable 

populations. Industry should be required to provide data to demonstrate that their chemicals meet the safety standard. EPA should 

have greater authority to obtain chemical data and to take action 

to address unreasonable risks. Requirements for confidentiality 

claims should be tightened, and EPA should be allowed to share 

critical data with States under appropriate safeguards. 

The introduction of the Chemical Safety Improvement Act by a 

bipartisan group of Senators was a significant breakthrough in the 

effort to strengthen chemical regulation and protect the public from 

unreasonable chemical risks. As the EPA Assistant Administrator 

charged with TSCA’s implementation, like Linda, I know first-hand 

the statute’s many shortcomings. The Chemical Safety Improvement Act is, in my opinion, a significant improvement over the current outdated law. 

Finally, Madam Chair if I may just take a moment, I would like 

to say that one of the great joys I had while I was at EPA was getting to know the late Senator Frank Lautenberg and having the opportunity to work with him on chemical safety issues. We all miss 

him very, very much, and I know that his presence is felt very 

much in this room. 

Thank you again for the opportunity to be here, and I look forward to answering any questions you may have. 

[The prepared statement of Mr. Owens follows:] 
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Senator BOXER. Thank you. Our next witness, Ms. Linda 

Reinstein, Executive Director and Co-Founder, Asbestos Disease 

Awareness Organization. She took action after suffering a grievous 

loss, and we are very honored that you are here with us. 

STATEMENT OF LINDA REINSTEIN, PRESIDENT, CO-FOUNDER, 

ASBESTOS DISEASE AWARENESS ORGANIZATION 

Ms. REINSTEIN. Thank you very much for giving me the honor 

and the opportunity to testify. 

I know far too well that toxic chemicals are not just threats. 

They are a real part of life and death for many Americans. I want 

to make it clear: I am neither an attorney nor a lobbyist. I am a 

mesothelioma widow and the co-founder of the Asbestos Disease 

Awareness Organization, ADAO. Founded in 2004, we are now the 

largest independent, non-profit organization dedicated to eliminating asbestos-caused disease. This is about people. 

I would like to dedicate my testimony to Janelle and Michael. 

Tragically, Janelle lost her mesothelioma battle just last month at 

the age of 37, and leaves behind a husband and a son, age 10. Michael is 29 years old, fighting for his life with limited treatment options. 

Neither Janelle nor Michael worked with asbestos. Not at all. No 

longer is it just workers that are being diagnosed, but it is their 

families. It is children who have hugged their parents or spouses 

who have washed their clothing. 

My husband Alan was diagnosed with pleural mesothelioma in 

2003. We had never heard of the disease and thought asbestos had 

been banned. We shortly learned Alan’s disease was incurable. He 

chose to have an extrapleural pneumonectomy. They removed a rib, 

his left lung, stripped off his periocardium and surgically replaced 

his diaphragm in hopes for more time. 

When mesothelioma attacked his remaining lung, it felt to Alan 

that he was breathing through a pinched straw every breath, every 

day. When his oxygen levels became critically low, he was then 

tethered to supplemental oxygen in hopes for more time. 

In 2006, Alan lost his fierce battle. His breath ceased in front of 

my daughter, who was then 13, and me by his side. TSCA has 

failed to protect public health and our environment. Asbestos is a 

known carcinogen, and has caused one of the worst man-made disasters in history. The facts are irrefutable. Thirty Americans die 

every day from these preventable diseases. The WHO, ILO, EPA, 

our Surgeon General all agree there is no safe level of asbestos. 

The fibers are odorless, indestructible, nearly invisible and can be 

700 times smaller than human hair. 

It is clear all forms of asbestos can cause cancer or respiratory 

diseases. Yet it remains legal and lethal in the U.S. today. Ships 

dock in our ports and unload asbestos in the States of Louisiana, 

Texas, California and New Jersey, just to name a few. USGS keeps 

us informed and it is reported that over 1,000 metric tons of asbestos was used in 2012. And the chloralkali industry is actually using 

more in the last 2 years. There are viable and affordable substitutes that indeed exist. 

Without regulation, Americans cannot manage the risk of asbestos or any other toxic chemicals. I ask you, do you know where the 
209 

asbestos is in your home, in your cars? In Washington, and maybe 

on consumer shelves? We know consumer, environmental and occupational exposure continues. We identified five consumer products 

on the store shelves, one was a child’s toy. Thanks to Prop 65, we 

were able to remove that toxic toy from commerce. 

It was reported that 2,600 tons of asbestos debris was removed 

after the Joplin, Missouri tornado. Toxic debris, tons of it, litters 

the coastline after Hurricane Sandy. Right here under the Capitol, 

10 AOC employees were exposed to asbestos. It was so thick they 

could write their name on the pipe. Each year, an estimated 10,000 

Americans die from these preventable diseases. And I am here to 

tell you that for each life lost, a shattered family is left behind. 

Prevention is the only cure. 

Americans need and deserve legislation to prevent toxic exposure. But S. 1009 is worse than the current law. It is fatally 

flawed. It would be nearly impossible to ban asbestos. The lack of 

deadlines would definitely compromise safety. And we do not need 

to lose Prop 65 and have preemption impact laws. 

Congress should draft and pass meaningful TSCA reform that 

truly strengthens the protection for our families and the environment by preventing further use of asbestos. One life lost to a preventable disease is tragic. Hundreds of thousands of lives lost is 

unconscionable. I have attached a petition with over 2,500 signatures in support of a U.S. ban of asbestos. I would welcome any of 

your questions. 

Thank you very much. 

[The prepared statement of Ms. Reinstein follows:] 
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Senator BOXER. Thank you. Our vote started at 10:15. We are 

going to move forward with this panel. Ms. Robin Greenwald, Of 

Counsel, Weitz & Luxenberg. 

STATEMENT OF ROBIN L. GREENWALD, OF COUNSEL, WEITZ & 

LUXENBERG 

Ms. GREENWALD. Thank you, Madam Chairman, Ranking Member Vitter and members of the Committee, for the opportunity to 

testify today. 

I have practiced in the field of environmental law for almost 30 

years of my legal career, and I am also a mother. Much of my work 

has been driven by the belief that we all have an obligation to protect public health for all segments of our population. 

I wholeheartedly support efforts to reform the Toxic Substances 

Control Act. While my support for TSCA reform is unwavering, my 

view is that the recently proposed bill, S. 1009, as it is currently 

written, takes chemical safety reform several steps backward. 

While CSIA as currently drafted has numerous flaws, I am going 

to focus my comments on a few of the infirmities. 

No. 1, the bill attempts to have EPA solely occupy the field of 

toxic substance regulation, but provides no assurances that there 

will be any better protection for the public health after enactment 

than before. Number two, the bill precludes people from bringing 

actions against chemical manufacturers for injuries, wiping out 

State statutory and common law, and by making EPA safety determinations dispositive of the chemical safety. 

No. 3, the bill takes the unprecedented step of preempting States 

from enforcing existing laws and/or promulgating new laws designed to supplement Federal laws regulating toxic chemicals. And 

No. 4, the bill effectively blocks any other entity from evaluating 

any chemical deemed by the EPA as a low priority substance, even 

after other health evidence comes to light. 

To summarize, the bill essentially banks on the assumption that 

chemical manufacturers will always act in the interest of public 

safety by being candid and forthright and disclosing all information 

they have amassed about their chemicals and their potential danger for use. History teaches all of us that industry cannot necessarily be trusted to place public health above their bottom line. 

For example, chemical manufacturers engaged in a widespread 

cover-up of the evidence they had of vinyl chloride’s health risk. 

When people increasingly became sick from exposure to vinyl chloride in the workplace, lawsuits were filed that uncovered decades 

of deceit by the chemical industry about the dangers of vinyl chloride. 

Industry leaders knew and failed to disclose as early as the 

1950s, when a Dow Chemical toxicologist admitted privately to his 

counterpart at B.F Goodrich, ‘‘We feel quite confident that 500 

parts per million is going to produce rather appreciable injury 

when inhaled 7 hours a day, 5 days a week for an extended period. 

As you can appreciate, this opinion is not ready for dissemination 

yet, and I would appreciate it if you would hold it in confidence, 

but use it as you see fit in your own operations.’’ 

We now know the evidence to support the finding that vinyl chloride causes cancer of the lungs, liver and brain had existed decades 
305 

earlier, but had been intentionally suppressed by the very industry 

that this bill would shield from liability. 

Neither OSHA nor EPA can bring this type of information to 

light. They don’t have the funds or the authority to dig into the 

closets of large corporations to find suppressed health studies. 

However it is largely disclosed through litigation, the judicial process upon which all citizens rely and what allows victims of 

wrongdoings to unveil information that would otherwise never been 

seen. How else would this evidence ever be uncovered? 

The multilayered preemption language woven throughout this 

bill does not simply prevent State agencies from duplicating the 

work of the EPA, it would rather eviscerate State laws, including 

the ability of citizens to bring a lawsuit against a chemical company under his or her State. Under this section, if the EPA takes 

any action on a chemical, State laws and State tort liability would 

be wiped out and Americans would have no remedy if they are 

harmed or killed by a toxic chemical. 

Further, Section 15 of the bill effectively bars individuals from 

bringing suits for injuries caused by exposure to approved chemicals by providing an EPA safety determination for a high priority 

substance shall not only be per se admissible in any State or Federal court, but also determinative of whether the substance meets 

the safety standard. By dictating the admissibility and weight that 

the EPA safety determination must be given, must be given in a 

judicial proceeding, the proposed bill effectively shields the chemical industry from lawsuits for injuries caused by their products. 

Such preemptive treatment in the environmental law arena is 

unprecedented, as there is good reason why such sweeping preemption language exists nowhere else. Federal statutes quite properly 

set the floor for regulatory compliance. They should not impose a 

ceiling, as such would strip the States of their police power to protect their citizenry. The bill in several ways steps back in time to 

an era where industry safety claims about their products went unchallenged. The public health and welfare should not be entrusted 

to chemical manufacturers regulated by a Federal agency with limited powers and resources. 

Thank you. 

[The prepared statement of Ms. Greenwald follows:] 
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Senator BOXER. OK, we are going to finish this panel and then 

we will ask you to take a lunch break and we will be back at 1 

o’clock to start our questions. 

Let’s move to Mr. Mark Duvall, Principal, Beveridge & Diamond, 

P.C. 

STATEMENT OF MARK N. DUVALL, PRINCIPAL, BEVERIDGE & 

DIAMOND, P.C. 

Mr. DUVALL. Thank you, Madam Chairwoman and members of 

the Committee, for inviting me to provide testimony today. 

Although I represent a variety of clients on TSCA issues, I am 

appearing here today solely in my personal capacity. The views I 

express today are my own. For clarity, in my appearance here 

today I am not representing my law firm or any client of my law 

firm. 

I have worked with the Toxic Substances Control Act for 30 

years. We have heard today a lot about the preemption provision 

of S. 1009. Let me add my perspective. 

It is a strong preemption provision. That is appropriate for a 

statute such as TSCA, that is largely aimed at managing the risks 

of chemicals that may become components of products distributed 

across the Nation. State product restrictions effectively become national standards. Since manufacturers generally cannot vary the 

content of their products by State, it is better for EPA to set national standards. 

The CSIA shifts the focus of regulation of chemicals in products 

from individual States to the national level. At the same time, it 

creates an important role for States in EPA’s evaluation and regulation of chemicals. Under the bill, States have access to confidential business information, thus facilitating dialog with EPA. 

A State many nominate a chemical about which it has concern 

for immediate prioritization. And it may provide critical data to inform EPA’s decisionmaking process. 

In evaluating CSIA’s preemption provision, it is also important 

to recognize the limited scope of that provision. First and foremost, 

it does not preempt any State or local requirements that apply to 

multiple chemicals. Instead, at most, it preempts the application of 

those requirements to specific chemicals after EPA takes action on 

those chemicals. 

Second, it does not apply to State or local requirements related 

to water quality, air quality or waste management. Thus, State environmental laws will generally remain unaffected. Third, it does 

not apply to State or local requirements related to the end of life 

of chemicals or products. Thus, recycling, product take-back and 

disposal restrictions will not be preempted. 

Fourth, it does not preempt reporting requirements. This means 

that most State green chemistry laws will not be preempted. For 

example, under the proposed California Safer Consumer Products 

regulations, responsible entities must notify the Department of 

Toxic Substances Control if they sell a listed priority product containing a chemical of concern. That is a reporting requirement. So 

is the requirement that they prepare and submit an alternatives 

analysis. 
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Only a DTSC restriction on their use of a chemical in a priority 

product would be preempted by EPA action on that chemical. That 

restriction would come only after DTSC’s evaluation of the alternatives analysis and might not come at all, since the notification 

and alternatives analysis requirements are intended to encourage 

responsible entities to redesign their priority products or to remove 

them from the market. 

Fifth, the scope of a safety determination limits the scope of preemption. The safety determination addresses some uses but not 

others. State restrictions on the uses not addressed would not be 

preempted. 

Sixth, the provision allows for waivers. If EPA agrees that certain criteria are met, it may waive preemption at a State’s request. 

One criterion is that compelling State or local conditions justify 

that waiver. OSHA has determined under its preemption provision 

that the phrase ‘‘compelling local conditions’’ does not require 

uniquely localized risks. In its view, compelling local conditions are 

conditions which exist locally. EPA is likely to agree. 

The preemption provision would also not have a significant impact on tort suits. It would not preempt them, nor would it determine their outcomes. It is clear that there is no intention to preempt tort suits, since the provision also relates to the use of safety 

determinations in tort suits. To clarify the intended scope, it may 

be appropriate to amend it to refer to State or local ‘‘statutes and 

administrative actions,’’ rather than the broader term ‘‘restrictions.’’ 

The provision would make a safety determination determinative 

of whether the chemical meets the TSCA safety standard. That 

would not control the outcome of tort suits. There the question is 

usually whether the defendant violated a common law duty, not 

whether it met the safety standard under an amended TSCA. 

In conclusion, the preemption provision of the Chemical Safety 

Improvement Act will help level the playing field for products sold 

throughout the Nation without crippling State green chemistry 

laws, or limiting tort suits. Thank you for considering this testimony, and I welcome your questions. 

[The prepared statement of Mr. Duvall follows:] 
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Senator BOXER. Thanks. I wanted to clarify, so you are not representing your law firm? 

Mr. DUVALL. I am not. I am appearing on my own behalf. 

Senator BOXER. I appreciate it. But the fact that they sued to 

overturn Prop 65, you are not involved in that lawsuit? You weren’t 

involved in that lawsuit that your firm was to overturn Prop 65? 

Mr. DUVALL. I am not involved in any lawsuit individually. 

Senator BOXER. Fine. Not individually, but the firm is, and we 

will put that in the record. 

Mr. Ken Cook, you will be our final speaker, President and CoFounder, Environmental Working Group. 

STATEMENT OF KENNETH A. COOK, PRESIDENT, 

ENVIRONMENTAL WORKING GROUP 

Mr. COOK. Chairman Boxer, distinguished members of the Committee, thank you for this opportunity to testify. I want to submit 

my prepared testimony for the record and summarize it very briefly 

and depart just a little bit from the comments to summarize some 

of what I have heard and suggest maybe a way forward here. 

When Senator Lautenberg, and years ago, Senator Jeffords, I 

think that would be the absolute embodiment of bipartisanship, introduced what was the Kid Safe Chemicals Act, it was met, for the 

most part, with some polite and some not so polite criticism by industry. To me, the most important development with the development of S. 1009 is that we now have a much clearer idea of specifically what it is many in industry have been seeking beneath the 

principles that have been enunciated over the years. 

And that is a very helpful development, because now we can look 

at all of the ideas that have been offered in these different categories: exposure, safety standard, preemption and so forth, and 

have a pretty good idea of what the range of views are and the 

range of opportunities. 

My organization maintains the chemical industry archives, the 

records of industry’s deliberations over the years, some of which 

were cited earlier today. My organization has also done the most 

extensive work on asbestos in terms of its public health impacts. 

And we have tested the umbilical cord blood of 20 babies, the first 

time anyone has done that, and we have found hundreds and hundreds of toxic chemicals. 

So we have a broad interest and broad research experience in 

this. When we looked at S. 1009, of course, we saw one basic problem. We felt it was going to be tying the agency in knots still, in 

some different ways than it is tied in knots now, but still tied in 

knots against a much weaker safety standard than we think. We 

agree with Senator Cardin, we think it should be reasonable certainty of no harm, as previous versions of the bill provided. 

And that combined with preemption really resulted in a situation 

where literally this reform bill, in our view and the view of many 

people, put us in worse shape than, unbelievably enough, TSCA, 

the worst environmental statute on the books. 

Let me suggest some topics that we can move forward on and 

look at the best thinking and see where we can find common 

ground. I disagree with Mark on preemption but I think we have 

heard today in the hearing, there is tremendous interest in dealing 
346 

with this issue. Maybe it was unintended, what have you, and 

there may be other sections of the bill where there was some unintended framing that we can easily deal with. 

We need to deal with asbestos, for goodness sake. We need to 

ban asbestos. Two, we need to understand more about chemical exposure. We may be trying to regulate a lot of chemicals that people 

aren’t exposed to. Shouldn’t we know that before we move ahead? 

Shouldn’t we be much more intensive in our work trying to understand what is in people, what products these chemicals are used 

in? 

I had the good fortune and the bad fortune to marry an environmentalist, Deb Callahan, who is used to scoring people in this body 

for their votes. And when I told her that the children’s play tunnel 

that our little boy, who is now 5, and he doesn’t smoke in there, 

but it has flame retardants in it, we don’t allow him to smoke in 

there, I don’t know where he smokes, but we don’t allow him to 

smoke in the play tunnel. It has flame retardants in it. 

And when I told her that, she has a way of looking at me as if 

it is my responsibility and I find a score card forming in her head 

about my performance on chemical reform, and it is not very good. 

We need to know what people are exposed to and we need to have 

a much better idea of what the intended use of these chemicals 

really is. And time after time, when EPA does try and take a step, 

they find that they can’t figure out how exposures have happened, 

because they don’t know how the chemicals are used. 

Clearly, we need the kind of data call-in authority in TSCA that 

the agency has for pesticides, straightforward. That is really the 

least we can do. The public can’t quite believe that the agency 

doesn’t have the ability, the power now, to say to a company, by 

the way, that stuff that’s in my child, in his umbilical cord blood, 

can you test to see if it is neurotoxic? And the agency says, well, 

sure. I have to publish a regulation. We will give a comment period 

before we can even ask for the study. So I am grateful that we 

have made some progress. We have all seen the need to do that. 

And then finally, we do need some minimum data submitted for 

these chemicals. And we have a reasonable belief that there are 

many sources of that data. 

[The prepared statement of Mr. Cook follows:] 
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Senator BOXER. Thank you all. You have been incredibly important to this hearing. I ask unanimous consent to put in the record 

a letter from Trevor Schaefer on the importance of addressing disease clusters as we move forward. 

[The referenced information follows:] 
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Senator BOXER. So we will see you at 1 o’clock and we will all 

have questions for you. Thank you. We stand adjourned until 1. 

[Recess.] 

Senator BOXER. The hearing will resume. 

Senator Manchin, you are recognized for 5 minutes. Thank you 

for being here. 

OPENING STATEMENT OF HON. JOE MANCHIN, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator MANCHIN. Thank you so much, Senator, and thank you, 

Chairman Boxer and Ranking Member Vitter, for holding the hearing today and allowing me to speak about an incredibly important 

piece of legislation, the Chemical Safety Improvement Act. 

I also want to thank Mike Dorsey from West Virginia, who I understand was here earlier, from the Department of Environmental 

Protection, and testified about support for the CSIA earlier today. 

We all agree that the Toxic Substance Control Act, TSCA, is inadequate, and it is long past due to reform this law. Senator Lautenberg had worked for many years to do just that. I don’t think anyone here today can question his dedication to protecting the health 

and safety of Americans. 

That is why I was disheartened when I read news reports that 

said members questioned Senator Lautenberg’s faculties during the 

CSIA negotiations. He entered into these negotiations with all his 

years of experience, skills and wisdom, because he knew that it 

was time to craft a bipartisan TSCA reform bill. To suggest otherwise and to attack the integrity of such a strong defender of public 

health is something that should offend all Americans. 

Let me be clear: Frank Lautenberg, a champion of public health, 

safety and the environment, aligned with the Senate, negotiated 

the agreement before you because he knew it was time to fix this 

broken system in a way that could pass Congress and make Americans safer. To say anything else is not fair and is certainly not true 

and it dishonors the legacy of Senator Lautenberg, a great and 

proud American. 

Some people have also argued the bill is worse than current law. 

That is just another cheap attempt to try and distort the tireless 

work that Senator Lautenberg gave to the bill. When Senator Lautenberg met with Senator Vitter, he toughened many of the most 

important provisions in this bill. He increased States’ rights under 

preemption. He ensured that doctors and private citizens, including 

parents and workers, would have greater access to confidential 

business information to guarantee that those potentially exposed to 

harmful chemicals could receive the best possible treatment. 

Most importantly, he crafted a safety standard that unlike current law, and unlike what Senator Vitter wanted, is based solely 

on human health and the environment, and includes no cost benefit 

analysis. 

CSIA will establish for the first time an effective framework for 

the EPA to ensure that the chemicals we use every day are safe 

for people and for the environment. CSIA will require safety evaluations for those new chemicals and the thousands of currently untested chemicals we encounter daily. It will allow the EPA to take 

meaningful action against chemicals that pose a threat to human 
387 

health and safety. And it will allow State and local governments 

to weigh in on the whole process. 

I would like to talk a little more about the last statement. CSIA 

balances State authority within a greatly strengthened Federal system that will allow industry to produce safer chemicals nationally. 

It also forces the Federal Government to finally step up and protect 

the health and safety of all Americans, including those in smaller 

States like West Virginia, where there are just not sufficient resources for us to be able to test and regulate the chemicals that 

need to be regulated. 

These new protections will not come at the expense of the goodpaying jobs provided by the chemical industry. However, on the 

contrary, CSIA will finally provide the regulatory certainty that we 

need for continued economic growth, innovation and job creation. 

The chemical industry directly employs over 9,000 hard-working 

people in my State of West Virginia and hundreds of thousands 

more across the United States. More than 48,000 West Virginians 

are employed by sectors that rely on the chemical industry for their 

business. And one-quarter of our Nation’s GDP comes from these 

chemical-reliant industries. 

CSIA will protect not only these jobs and their contributions to 

the American economy, but also protect the welfare and well-being 

of the American public. 

I have been in the legislative process since 1982, Madam Chairman, working with colleagues on both sides of the aisle to reach 

commonsense compromises. Never once have I ever had a perfect 

bill before me. I don’t know what a perfect bill even looks like, but 

I know when I decide to vote for a bill I ask myself three things. 

Will this improve the quality of life for my constituents? Is it better 

than the status quo? And have we worked as hard as we can to 

preserve our core beliefs? 

For me, CSIA is a yes on all three of those. Senator Lautenberg 

was a smart legislator who knew it was time to move past partisan 

politics and craft a bill that would finally protect all Americans. We 

all know that Senator Lautenberg viewed TSCA reform, he viewed 

this bill as his legacy. He worked tirelessly for years leading up to 

his final days in the Senate to craft this bipartisan legislation that 

will protect the health and safety of all Americans. I am proud to 

be a small part of this legislation, and I will continue to fight for 

the legacy of my friend, Senator Lautenberg. 

I look forward to continuing to work with my colleagues on both 

sides of the aisle and I am very encouraged by the commitment 

that Senator Vitter and Senator Udall have made to move CSIA 

forward in truly a bipartisan manner. I encourage the Committee 

to send this bill to the floor. Thank you, Madam Chair. 

[The prepared statement of Senator Manchin follows:] 

STATEMENT OF HON. JOE MANCHIN, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

Thank you, Chairwoman Boxer and Ranking Member Vitter, for holding this 

hearing today and for allowing me to speak about an incredibly important piece of 

legislation—the Chemical Safety Improvement Act. 

I also want to thank Mike Dorsey, from the West Virginia Department of Environmental Protection, who came to Washington to testify about his support for CSIA 

earlier today. 
388 

We all agree that the Toxic Substances Control Act—TSCA—is inadequate and 

that it is long past due to reform this law. Senator Lautenberg had worked for many 

years to do just that—I don’t think anyone here today can question his dedication 

to protecting the health and safety of Americans. That’s why I was disheartened 

when I read news reports that some members of this Committee questioned Senator 

Lautenberg’s faculties during the CSIA negotiations. He entered into these negotiations with all his years of experience, skills, and wisdom, because he knew that it 

was time to craft a bipartisan TSCA reform bill. To suggest otherwise and to attack 

the integrity of such a strong defender of public health is something that should offend all Americans. 

Let me be clear, Frank Lautenberg, a champion of public health, safety and the 

environment, a lion of the Senate, negotiated the agreement before you because he 

knew it was time to fix this broken system in a way that could pass Congress and 

make Americans safer. 

To say anything else is not fair, not true, and dishonors the legacy of Senator 

Lautenberg, a great and proud American. Some of the same people have also argued 

that this bill is worse than current law. That is just another cheap attempt to try 

and distort the tireless work Senator Lautenberg gave to the bill. 

When Senator Lautenberg met with Senator Vitter, he toughened many of the 

most important provisions in this bill. He increased States’ rights under preemption. 

He ensured that doctors and private citizens, including parents and workers, would 

have greater access to confidential business information to guarantee that those potentially exposed to harmful chemicals could receive the best possible treatment. 

Most importantly, he crafted a safety standard that, unlike current law and unlike 

what Senator Vitter wanted, is based solely on human health and the environment 

and includes no cost-benefit analysis. 

CSIA will establish, for the first time, an effective framework for the EPA to ensure that the chemicals we use every day are safe for people and for the environment. CSIA will require safety evaluations for both new chemicals and the thousands of currently untested chemicals we encounter daily. It will allow the EPA to 

take meaningful action against chemicals that pose a threat to human health and 

safety. And it will allow State and local governments to weigh in on the whole process. 

I’d like to talk a little more about that last statement. CSIA balances State authority within a greatly strengthened Federal system that will allow industry to 

produce safer chemicals nationally. It also forces the Federal Government to finally 

step up and protect the health and safety of all Americans, including those in smaller States like West Virginia, where there are just not sufficient resources to test 

and regulate the chemicals that need to be regulated. 

These new protections will not come at the expense of the good paying jobs provided by the chemical industry, however. On the contrary, CSIA will finally provide 

the regulatory certainty we need for continued economic growth, innovation, and job 

creation. The chemical industry directly employs over 9,000 hardworking people in 

my State of West Virginia and hundreds of thousands more across the United 

States. More than 48,000 West Virginians are employed by sectors that rely on the 

chemical industry for their business, and one-quarter of our nation’s GDP comes 

from these chemical-reliant industries. CSIA will protect not only these jobs and 

their contributions to the American economy, but also protect the welfare and well 

being of the American public. 

I have been in the legislative process since 1982, working with colleagues on both 

sides of the aisle to reach commonsense compromises, and never once have I had 

a perfect bill before me. I don’t know what a perfect bill looks like, but I know when 

I decide to vote for a bill I ask myself three things: will this improve the quality 

of life of my constituents; is it better than the status quo; and have we worked as 

hard as we can to preserve our core beliefs. For me, CSIA is a yes on all three of 

those. Senator Lautenberg was a smart legislator who knew it was time to move 

past partisan politics and craft a bill that would finally protect all Americans. 

We all know that Senator Lautenberg viewed TSCA reform—viewed this bill—as 

his legacy. He worked tirelessly for years leading up to his final days in the Senate 

to craft this bipartisan legislation that will protect the health and safety of all 

Americans. I am proud to be a small part of this legislation, and I will continue to 

fight for the legacy of my friend Senator Lautenberg. I look forward to continuing 

to work with my colleagues on both sides of the aisle and I am very encouraged by 

the commitment that Senator Vitter and Senator Udall have made to move CSIA 

forward in a truly bipartisan manner. I encourage the Committee to send this bill 

to the floor. 
389 

Senator BOXER. Thank you, Senator. We all wish so much that 

Senator Lautenberg could be here with us. I want to say, I worked 

with him for 20 years and wrote four TSCA bills with him, four, 

and worked with him on numerous other things. I want you to 

know what a tough loss it is for all of us on this Committee. This 

morning each of us spoke about his legacy and each of us is going 

to work to make sure that that legacy is addressed. And his spirit 

will certainly guide us in every way. 

I want to thank you for coming, I want to thank you for your 

work. We look forward to working with you. 

I want to also say, the West Virginia witness was just terrific. 

He was clear, he made his point and he also said he felt that we 

can really fix the major problems that a lot of us have with the bill 

in terms of States’ rights and victim rights. You would have been 

proud of him, he had your message on why this is key to the 

States. I want to thank you for recommending him if you did, in 

fact. 

Senator MANCHIN. Yes, we did. I want to thank both of you, Senator Vitter and Madam Chairman, for allowing me to speak. And 

also for committing to continue on Frank Lautenberg’s work. I appreciate it very much. 

Senator BOXER. Thank you so very much. 

Now we are going to turn back to our esteemed panel. Ms. Fisher 

and I were talking, and she said she felt the way the bill was drafted, S. 1009, that there was no problem getting the regulations up 

and running at EPA. Others of you said you looked forward and 

thought it would be a terrible tangle and very difficult. Ms. Fisher, 

why do you think that the way the bill is currently drafted it would 

be easy to get this up and running and the chemicals rated, et 

cetera? The parts about the bill you like. I know you represent a 

chemical company, but it is OK. I want to know what parts you 

like. 

Ms. FISHER. That is actually two questions. 

Senator BOXER. Just answer whatever you think I asked you. 

[Laughter.] 

Ms. FISHER. Very good. We were talking about the number of 

rulemakings, guidance, frameworks that EPA has to do first. I understand there is concern about that. My suggestion is two-fold. 

Number one, we get EPA to do a workload analysis, so we all know 

how long it will take to do those. I think I made the point, people 

have said it could take as much as 5 years before EPA moves on 

any chemical. That is not what we at DuPont want. We want EPA 

to be able to move ahead and regulate chemicals. It is why we are 

here. 

So if we set up so much process that it will take 5 years to get 

the first decision, I think we all need to sit down and look at that. 

I think we ought to start with EPA doing their workload analysis, 

then we can all take a look at it and ask, ‘‘Does that make sense?’’ 

That was the point I was trying to make. 

Senator BOXER. What I think I will do is I will ask them to respond to that, both S. 1009 and the last Lautenberg-Boxer bill 

under that one and how we would move forward. I think it was Mr. 

Rosenberg who talked about some of the problems getting this 

thing up and going under S. 1009. Could you comment on it? 
390 

Mr. ROSENBERG. Yes, thank you, Senator. Yes, the bill contains 

a requirement, numerous requirements for EPA to take up a number of procedural steps before EPA can even move forward with 

prioritizing chemicals, let alone assessing them and potentially regulating them, et cetera. A number of those steps, they have to set 

up, I think it is five different frameworks, they have to develop procedures and processes and criteria. There is a whole long section 

of the bill that is mostly laden with those requirements. 

Senator BOXER. Mr. Rosenberg, would you do me a favor? Would 

you take a look at S. 1009 and circle the parts that you feel add 

a burden? Then I can share that with Senator Vitter and Senator 

Udall, who are the proponents of this bill as it stands. 

Mr. ROSENBERG. Yes, we would be happy to do that. 

Senator BOXER. Mr. McGarity, you said something that was very 

interesting to me. You said that you have looked at legislation over 

many, many years, and you never saw such a sweeping, and I don’t 

remember exactly your words, provision that would prevent victims 

the ability to hold industry accountable. Am I right in remembering 

that about your testimony? 

Mr. MCGARITY. Yes. I said I had never seen a more intrusive provision when it comes to the operation of the civil justice system in 

the States. There are, of course, laws out there that preempt, but 

there are really very few laws that explicitly preempt State litigation. There are laws that preempt State law and the Supreme 

Court in the Cippollone case—— 

Senator BOXER. So it isn’t only the preemption of State law, 

which we have already ascertained in my case could overturn 

maybe even our global warming law, which certainly I don’t think 

is the intent. Although, maybe it was. 

But the bottom line here is, we have a preemption of State law 

but we also have, you are saying, a preemption of the right of a 

State to—— 

Mr. MCGARITY. Of individuals who are harmed to sue in State 

courts. Well, it doesn’t stop them from suing, but it says, once EPA 

has made a determination, that is determinative, and Federal court 

rules and State court rules to the contrary don’t matter. 

Senator BOXER. Would you do me a favor, Mr. McGarity, because 

we are going to try to get a good bill that we can move forward 

on. Would you look at some of the other Federal statutes, whether 

it is food safety or the other laws, FDA, where you see language 

that could, from your perspective, would work for victims? Because 

I have heard of horrific situations where victims have gone blind, 

and worse. They always have that right to move forward and hold 

the company accountable. 

So would you work with us on that and get that answer into us 

in the next week or so? 

Mr. MCGARITY. Sure. 

Senator BOXER. That would be very, very helpful. My time has 

expired, so I will turn to Senator Vitter. 

Senator VITTER. Thank you, Madam Chairman, and thanks to all 

of you for your testimony. I want to particularly highlight the testimony of two folks who were in charge of this exact set of rules and 

regulations in law at the EPA, Steve Owens and Linda Fisher, one 
391 

under a Republican Administration, the other under a Democratic 

Administration. I think they have particularly significant insight. 

So I want to ask both of you this. One complaint we have heard 

is that our Lautenberg-Vitter bill relies on the same broken safety 

standard as current law, and in particular does not decouple cost 

benefit from safety assessments. However, both the bill’s safety assessment and determination sections, the language clearly states 

that the Administrator shall make determinations ‘‘based solely on 

considerations of risk to human health and the environment.’’ 

So I would like to ask both of you, I know you have reviewed this 

bill, do either of you see any ambiguity in that, or interpret that 

as not completely decoupling those different things, safety assessment versus cost? 

Mr. OWENS. I will go first, Senator, thank you for the question. 

I think in the bill, I think it is very clear, and I think at least in 

my time at EPA as the Assistant Administrator, if I were looking 

at that language, along with the folks in our office there, as well 

as the General Counsel’s office at EPA, we would interpret it as 

meaning that, the safety determination is based purely on considerations of human health and the environment and not on the cost 

benefit analysis. 

Senator VITTER. OK, great. And Linda? 

Ms. FISHER. Senator, I would agree with what Steve said. I think 

you have made it clear that those are decoupled. I think that is a 

big step forward from the current law, and I think you have made 

it clear that the cost benefit analysis really goes to the risk management decision piece, not the safety standard and the safety determination piece. 

Senator VITTER. Great. Steve, you have unique experience, both 

at EPA and at the State level, which is very important. So I want 

to ask you, from the EPA perspective, do you believe the framework of the Lautenberg-Vitter bill is implementable for the agency 

and fixes many of the issues that have long been very problematic 

in terms of existing TSCA? 

Mr. OWENS. Yes, Senator, as I said, I think the Chemical Safety 

Improvement Act is a significant improvement over current TSCA, 

with all the problems that we have experienced over the years. 

There are a number of things that are very important in there, the 

safety determination, the safety assessments, the prioritization, removal of the least burdensome requirement, and I could go on and 

on. 

But I will also say that I think that there do need to be some 

tweaks made to it. One of the things that was mentioned here this 

morning is the absence of any deadlines, for example, for EPA action. Linda Fisher and I have been talking about that. As I often 

said when I was at EPA, I learned very quickly that speed is not 

a virtue of the Federal Government. Without deadlines, sometimes 

agencies don’t act. I don’t know if you need to give EPA a deadline 

for every single task in there, but at least giving them some general direction from Congress as to when to act and when to achieve 

certain goals would be very useful to the agency. 

Senator VITTER. Great. And certainly, let me underscore what 

some others, and I think Linda said, certainly not anybody’s goal 

who has been involved in this bill to have EPA spinning its wheels 
392 

in initial assessments for a decade or more. That is not anyone’s 

goal, no one wants that. 

Steve, let me ask you, from the State perspective, in your case, 

Arizona, what do you think this framework would mean to chemical regulation on the ground in a State like Arizona? 

Mr. OWENS. In a State like Arizona, Senator, I think it would be 

a major benefit to the State. Our State is like New Mexico and 

West Virginia and others, where we have a small, relatively small 

environmental regulatory agency without a lot of technical expertise or resources. We didn’t have it when I was there and it is certainly much less so now, given the recent budget issues that the 

State of Arizona has experienced. 

So from the State of Arizona’s perspective, I think this would be 

a significant benefit. 

Senator VITTER. If I could just ask one more question, Madam 

Chair, to Mark Duvall. 

Senator BOXER. Yes. 

Senator VITTER. Mark, I think you have seen, and we have distributed to anybody who is interested and wants to participate in 

good faith, our language to make crystal clear what was always our 

intent, which is that we are not trying to shut down any private 

causes of action, we are not trying to have any significant impact 

there. Are you confident we will meet that goal with that clarifying 

language? 

Mr. DUVALL. Yes, Senator, I am. It strikes me that whether or 

not Congress intended to preempt tort suits is a matter of congressional intent which is best expressed in the language of the bill 

rather than legislative history. And a savings clause and using 

terms such as ‘‘statutes and administrative regulations’’ is much 

clearer than broader terms such as ‘‘restrictions.’’ 

With those kinds of changes and the savings clause for good 

measure, I think it will be absolutely clear to everyone that there 

is no intention to preempt tort suits. 

Senator VITTER. And that is what we in fact have. So thank you. 

Thank you, Madam Chair. 

Senator BOXER. Thanks. I think it is important to know that the 

differences in the witnesses that were selected today, not to cast 

aspersions on anyone, because everybody is speaking your heart 

and what you think. So I think it is important to note that each 

of the Minority witnesses work with, in some capacity or other, the 

very companies that will be affected by this. I think it is important 

to note the Majority witnesses represent the public. 

I say this because I think the public needs to know this. For example, where Mr. Owens did have an esteemed career in public 

service, he did leave it behind. And we call it the revolving door, 

and a lot of people do it. It is fine. But I think it is important to 

know that the law firms of your, I am sorry, the clients of your law 

firm include Ashland, Inc., British Petroleum, DuPont, Bayer Corporation, a billion dollars of fighting against asbestos claims. I just 

think it is important to note. 

Because what is important to me is to do the best thing for the 

public. And at the end of the day, I believe what is good for the 

public is even good for the companies. That is my experience. We 
393 

have great success in our great State. We have tough laws. The 

companies are proud, they are proud to run a very good shop. 

Now, I very much wanted to put this legislation on the fast 

track. As soon as we take care of State preemption, the right of victims, and the devil is in the details, one person here said, oh, there 

is no preemption with the right to sue, but we have Mr. McGarity 

who said in the clearest terms this is the most sweeping preemption of the right to sue. So clearly, do we believe, OK, the lawyer 

who represents the companies or a lawyer who is a professor? It 

is up to you. 

But I frankly want to put it through many more hands so that 

I know what I am doing, and I am not going to be pushed into a 

bill that hurts the people I represent and the families I represent. 

So this is going to be the last round of questions for this panel. I 

am sure you will be relieved to know that. 

Ms. Reinstein, how did you feel when you saw that S. 1009 failed 

to include authority for EPA to quickly address health threats from 

the worst of the worst chemicals, such as asbestos, which we know 

can kill people? What was your response? 

Ms. REINSTEIN. Madam Chair, it was devastating. We have 

worked so hard in the last 10 years to work to pass legislation that 

would indeed ban asbestos. But it came at a horrific time, when 

Janelle Beadle was nearing the end of her life. I sat there and wondered, how on earth could our amendments be stripped from S. 

1009? 

Expedited action is not just smart, it is essential. What we are 

faced with now is a bill that is not going to work for asbestos, and 

I think for those of us who have buried loved ones, we want a bill 

that works for asbestos but other chemicals as well. I was devastated. 

Senator BOXER. OK. Ms. Fisher, do you believe that families and 

other people who live near chemical plants should be protected 

from the harmful health effects caused by dangerous chemicals released by those plants? 

Ms. FISHER. Yes, I do. 

Senator BOXER. That is excellent. So will you work with us as we 

craft the next iteration of the TSCA bill to ensure that we do protect those families? 

Ms. FISHER. I would be happy to work with you. 

Senator BOXER. OK. I have a minute and a half left. So I would 

like to say to Mr. Cook and Ms. Greenwald and to Mr. McGarity, 

if you have anything to add, this would be the moment, if you have 

30 seconds that you wanted to add, this would be the moment. 

Mr. COOK. I want to thank both of you for this hearing and for 

getting the facts on the table, getting the information in front of 

everyone. We really need to have a robust debate about this. 

Senator BOXER. And we sure are having it. 

Mr. COOK. And we are having it now. I very much appreciate 

that. I do want to make sure that people understand that from our 

perspective and a lot of other people who have looked at the bill, 

there are many, many issues beyond preemption that we are concerned about. We didn’t spend as much time on those issues today, 

but we look forward to working with you. 
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Senator BOXER. Well, you were very good in your testimony on 

those, and believe me, they matter to me a lot, the deadlines, the 

clarity, the fact that we protect the most vulnerable. That is missing from S. 1009. 

Ms. Greenwald, anything to add? 

Ms. GREENWALD. Thank you, Madam Chairman. I would just like 

to add two things. I want to go back to what your opening remarks 

were today, that this statute should set the floor but not the ceiling, for regulations. These companies operate all over the world 

now, in different States, where they have different Clean Water Act 

rules, different Clean Air Act rules, different RCRA rules. And they 

operate just fine. They figure out, when they go to Michigan versus 

California, how to operate and how to make sure they comply with 

those State laws. There is nothing unique about making that same 

provision true for this chemical bill. 

The last thing I would like to mention is the 15(e), which is the 

private right of action, this statute strips individuals of their rights 

to bring a private lawsuit. Because in the real world of litigation, 

a plaintiff cannot prove his or her case when the determination of 

the agency is per se admissible and determinative. Just can’t happen. 

Senator BOXER. Thank you for that. 

I have run out of time. Thanks to the panel. This is the last 

round of questioning. Senator Vitter. 

Senator VITTER. Thank you, Madam Chairman. 

First of all, let me just respond to some of your thoughts before 

your questions. I think your remarks which you claim weren’t 

meant to be disparaging, I think they obviously were. I think it is 

a difference in perspective. I don’t consider the affected companies 

the enemy. I consider them important partners. No partner should 

just get anything, everything they want. But for this system to 

work, they have to be active participants and partners. I think that 

is a goal of our approach, without giving them any carte blanche 

in whatever way. 

Second, I point out that Mr. Owens served under the Obama administration’s EPA. I am sure he took his duty very seriously to 

uphold the interests of the public, as did Linda under a different 

Administration. Third, I would also point out, if you are talking 

about motives and backgrounds, that there are several groups on 

the left who pure and simple fund-raise off the broken TSCA system, fund-raise off partisan divisions and benefit from that stalemate. I don’t think that stalemate benefits the public, but I know 

it benefits them in many instances, and they actively fund-raise off 

that. 

Let me go to my questions. If I could get 5 minutes on my clock, 

since prefatory comments don’t seem to count against the time. 

Senator BOXER. Well, they did against my time. 

Senator VITTER. No, they didn’t. 

Senator BOXER. They did count. 

Senator VITTER. Mr. Owens, you worked for the Obama administration. I would like you to specifically compare the LautenbergVitter bill to what you attach with your testimony, which is the Administration’s Essential Principles for Reforms of Chemical Man-
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agement Legislation. That was put forth by the Administration 

some time ago, I think during your tenure. 

Mr. OWENS. Yes, Senator, as I mentioned in my testimony and 

my written statement as well, I had the privilege of working on the 

development of those principles, starting almost the day I got to 

EPA. I think that the Chemical Safety Improvement Act is consistent with those principles. There are a couple of things that the 

principles call for, including a sustained source of funding for the 

agency, that aren’t in the Act, and I hope that Congress will deal 

with that, as well as a more explicit promotion of green chemistry. 

But I think everything else in the Act is perfectly consistent with 

the Obama administration’s TSCA reform principles. 

Senator VITTER. OK, thank you. You also testified that the current TSCA places big legal and procedural requirements on EPA to 

request the generation and submission of data on potential health 

and environmental effects of existing chemicals. Would the Lautenberg-Vitter bill improve EPA’s ability to get what it needs in that 

regard? 

Mr. OWENS. Oh, absolutely, Senator. That is one of, I think, 

there are a lot of good selling points about this bill. But that is one 

of the big ones, which is that it would give EPA authority to issue 

orders to require testing of chemicals. Currently the way it works 

is that EPA has to either do testing requirements by lengthy and 

complicated rulemaking, but even before you get to that point, the 

agency has to make a determination that either there is an actual 

risk presented by a chemical or that there is significant enough exposure that testing is required. It is sort of a catch-22, or it puts 

the cart before the horse, whatever you want to say. I think this 

bill fixes that. 

Senator VITTER. OK. And Mr. Duvall, in the letter that some of 

the States’ attorneys general sent to Senator Boxer, there was an 

attachment that included examples from some of the States of their 

State regulations. They assert that all of this would be preempted. 

I think they are wrong in almost all instances. Could you characterize the examples provided by the AGs in this letter? 

Mr. DUVALL. Certainly, Senator. There is a long list of examples 

given, all of which are asserted as being preempted or potentially 

preempted by this bill. Yet I would point out that some of them 

concern products that are no even subject to TSCA’s jurisdiction. 

I mention the California Safe Cosmetics Act and the bans on the 

use of bisphenol A in food packaging in Washington and Vermont. 

I would also note that a number of these products are regulated 

by the Consumer Product Safety Commission, such as art and craft 

supplies. Lead in children’s products, cadmium in children’s products, phthalates in children’s products are all regulated under the 

Consumer Product Safety Act as amended by the Consumer Product Safety Improvement Act. Washington State has acknowledged 

that its statute banning those three chemicals is preempted by that 

statute. 

Some provisions may be preempted were EPA to take action on 

the specific chemicals. But by and large, many of these provisions 

would not be preempted by the bill. 

Senator VITTER. OK, thank you. 

Senator BOXER. Thank you. Senator Carper. 
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Senator CARPER. Thanks. Madam Chairman, I thank you and 

Senator Vitter both for putting this together. I know the hearing 

is not over but this has been just a terrific hearing. It is an important hearing and it is on a very difficult day, and I salute you both 

for making it work. Thank you all for your patience and for bearing 

with us. 

A couple of you, Ms. Fisher and Mr. Owens, bring, well, you all 

bring unique perspectives to this important issue. But Ms. Fisher 

and Mr. Owens, you both served, as I understand, as EPA employees, fairly senior employees who led the Toxics office under two different Presidents, two different Administrations, one Democrat and 

one Republican. 

So what I want to ask you to do is answer a question or two 

based on that unique experience. A number of concerns have been 

raised about the Lautenberg-Vitter bill. Some are very serious. 

Some may be less so. But they need to be addressed. When you 

think about the concerns being raised here, or maybe not here 

today, what are the issues you think are the most readily addressed, and what are a couple that are really hard? And the couple that are really hard, what is your advice on how to address 

them? Just briefly mention some of the issues that are fairly readily addressed, not as difficult, and some that are really, really 

tough. And for the ones that are really tough, how do we address 

them? 

Ms. FISHER. I will start. I think Steve raised the issue, and we 

talked earlier, Senator Carper, while you were out of the room, 

about the need for more clarity around what I call pace of program 

or deadlines, how quickly should EPA review and make a 

prioritization determination of the potentially 7,000 active chemicals in commerce. 

I think it can be helpful to have thoughtful deadlines, because 

as Steve was pointing out a few minutes ago, it does help drive 

agency action. It has to be thoughtful. Too often, quite honestly, I 

think the Congress passes deadlines that, going into the statute, 

people know the agency cannot make. That makes life quite complex. 

So I think getting a common understanding of how long it is 

going to take and identifying some opportunities to put in place 

meaningful, thoughtful deadlines is appropriate. I think that also 

helps the Congress think about, will the agency have the right 

amount of resources to fulfill the goals that we have all set forth. 

So I think those two areas go together. 

Earlier, some of the others raised the issues around the preemption provisions, and I think there are fixes to those. I know both 

Senator Boxer and Senator Vitter have expressed a lot of openness. 

So those are just two issues that I would bring out. 

Senator CARPER. Good, thanks. Mr. Owens, what are a couple of 

the most difficult issues for us to resolve, and how might we resolve them? What might be reasonable common ground? 

Mr. OWENS. There is one issue, preemption, which is an answer 

to both those questions. I think we heard some things today that, 

some pieces of the preemption question, like clarification about 

Proposition 65, or things like that, that clearly was not the intent 

of the bill. Those can be pretty easily clarified, I think. I think as 
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Linda mentioned, trying to wrestle with the preemption issue, finding that sweet spot, where this bill can be allowed to move forward, 

will be a real challenge for this Committee. I am very hopeful that 

you can do that. 

It was referenced at one point, the second issue I will bring up 

is, some references to the fact that this really doesn’t do anything 

to make risk management actions by the agency easier. The bill 

definitely does that. It removes the least burdensome alternative 

requirement. But to the extent people seem to think that it is the 

same old, same old TSCA, maybe some tweaking of the language 

in there to make it a little less clunky could be useful. I think it 

is a vast improvement over TSCA the way it is written now. But 

to the extent those issues have been raised here, they could be allayed by doing that. 

Senator CARPER. Thank you. One last question. This is for you, 

Mr. Owens. EPA currently has a work plan in place for dealing 

with top priority chemicals. I just ask, how would the LautenbergVitter bill impact EPA’s current work on these top priority chemical substances? 

Mr. OWENS. I will take a shot at that. The work plan chemical 

effort that EPA is undergoing now actually is an outgrowth of an 

effort that we started when I was there to do prioritization on 

chemicals. We developed a framework, to use that word, for 

prioritization of chemicals, and then after I left the agency, for family reasons, they began to work and develop their list of work plan 

chemicals. 

I think actually it will help implementation of this bill, if it becomes law. Because EPA has experience with those chemicals. It 

has developed an analysis of those chemicals already, and it is sort 

of a template for going forward, both in terms of prioritizing and 

conducting assessments of chemicals. 

Senator CARPER. Good. Thanks very much. Thanks, Madam 

Chair. 

Senator BOXER. Would you like another minute? 

Senator CARPER. No, we will just let these folks go. Thank you. 

Senator BOXER. Thank you, Senator Carper, for those questions. 

They did build on some of the conversations I was having with Ms. 

Fisher before. 

I want to thank this panel. Each of you, you just added tremendously to this task we have to find the sweet spot so we can get 

a good bill out of here. 

I wanted to put in the record the risk management guidance 

from the Obama administration, just noting that it mentions children’s health. And I read the risk management section of the S. 

1009, I don’t see the word children. So that might be an area we 

could really make an improvement, working together going forward. 

I want to ask each of you, are you each willing to work with us 

and stand by to help us as we move forward on this? I want to do 

it quickly and I want to do it right. Is that a yes from everybody 

on the panel? 

Thank you all, very, very much. And we will call up the next 

panel. 
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Senator VITTER. Madam Chair, if I can just address the last 

issue. 

Senator BOXER. Yes. 

Senator VITTER. The present version of Lautenberg-Vitter specifically talks about vulnerability of any sub-populations. That is 

clearly going to be about children, women, pregnant women. If you 

want to make that explicit, we can put in an explicit list. But clearly, when you are talking about potentially vulnerable sub-populations, that is obviously going to go to children, women, pregnant 

women, et cetera. 

Senator BOXER. Yes. I am talking about your risk section, not 

your other section. It is missing from the risk section. So we have 

to fix that. And I think we can. 

Thank you, everybody, very much. 

We will have our final panel, Ms. Nancy Buermeyer, Senior Policy Strategist at the Breast Cancer Fund; Ms. Susan Vickers, Vice 

President of Community Health, Dignity Health; Ms. Maureen 

Gorsen, Partner, Alston & Bird, LLP. Again, thank you to this 

panel, and thank you for your patience. You have been here since 

9:30 in the morning. Thank you. 

And, I am so sorry, Dr. Jonathan Borak, Clinical Professor of Epidemiology and Public Health, Clinical Professor of Medicine at 

Yale; Mr. Cecil Corbin-Mark, Deputy Director, We Act For Environmental Justice; Ms. Dorothy Felix, President, Mossville Environmental Action Now; Mr. Andrew Hackman, Vice President of Government Affairs, Toy Industry Association; Ms. Ansje Miller, Eastern States Director, Center for Environmental Health. 

So we are going to start with you, Nancy Buermeyer, and I know 

you do our State proud. You are a senior policy strategist at the 

Breast Cancer Fund. Welcome. 

STATEMENT OF NANCY BUERMEYER, SENIOR POLICY 

STRATEGIST, BREAST CANCER FUND 

Ms. BUERMEYER. Thank you very much. Good afternoon. I would 

like to thank Chairwoman Boxer, Ranking Member Vitter and 

members of this Committee for this opportunity to testify. I am 

honored to be here. 

I am here to state in no uncertain terms that the 1976 Toxic 

Substances Control Act is hurting us. In fact, it is killing us. There 

are certain groups of people in certain stages of life that are disproportionately affected by exposures to toxic chemicals. 

For instance, the young woman working at an automobile factory 

who is exposed to toxic chemicals from heated plastics every day 

on the job, she is at five times higher risk for being diagnosed with 

breast cancer, the over 60 men diagnosed with breast cancer after 

being exposed to drinking water contaminated with toxic solvents 

at the U.S. Marine Corps’ Camp Lejeune, the young daughters and 

granddaughters who are starting puberty in elementary school, 

sometimes as young as 6 and 7 years old, and as a result are now 

at higher risk for developing breast cancer later in life. 

Today I would like to bring those voices into the room. I represent the Breast Cancer Fund, the only national organization focused solely on preventing breast cancer. We do that by working 

to eliminate exposures to toxic chemicals and radiation linked to 
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the disease. Reform of the outdated and ineffective way industrial 

chemicals are managed in this Country has long been a priority of 

our organization. The Breast Cancer Fund serves on the steering 

committee of Safer Chemicals Healthy Families, a coalition of over 

450 organizations and businesses working to reform TSCA. 

Despite all of our advances in detection and treatment, we have 

not been able to stem the tide of women and men diagnosed with 

breast cancer. In fact, we are losing ground. Today, an astonishing 

one in eight women will be diagnosed with breast cancer in her 

lifetime. This represents a 40 percent increase over the risk women 

faced 40 years ago. And women want to know why. 

A strong and rapidly growing body of scientific evidence points 

to toxic chemicals found in a wide range of sources. Industrial 

chemicals, like formaldehyde and vinyl chloride, known and suspected carcinogens, can be found in products that we use every day, 

from cleaning products to plastics, from furniture to shower curtains and more. 

There is a lot we did not know about chemicals in 1976 when 

TSCA passed. We now know that timing of chemical exposure is of 

particular importance. Early life exposures, even fetal exposures, 

can have disastrous effects on long-term health and later life disease. In addition to pregnant women and children, there are other 

populations that are particularly vulnerable to chemical exposures. 

Workers are the canary in the coal mine for the danger chemicals 

pose to the broader population. 

Fence line communities, those living next to chemical plants or 

other sources of chemical exposures, are another disproportionately 

exposed population that must be considered and protected when 

evaluating the safety of chemicals. And breast cancer is not the 

only concern. Diseases and conditions such as asthma, infertility, 

learning disabilities and other cancers have also been linked to 

chemicals. Yet the EPA does not have the authority to ban hazardous chemicals that can increase our risk for disease. This must 

change. 

Congress has a moral imperative to pass legislation that provides 

the public real protection from dangerous chemicals. Current law 

does not meet that goal. The recently introduced Chemical Safety 

Improvement Act unfortunately does not meet that goal in its current form. While we understand that in the legislative process 

there is always give and take, we must not compromise public 

health. 

Creating workable and health protective legislation is doable. We 

look forward to working with the Chairwoman and all the members 

of the Committee to create a bill that protects every American, including the most vulnerable among us, pregnant women, children, 

workers and communities disproportionately endangered by chemical exposures. We owe it to ourselves and to future generations to 

get this right. 

Thank you for this opportunity, and I look forward to your questions and working with you further. 

[The prepared statement of Ms. Buermeyer follows:] 
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Senator BOXER. Thank you so much. Ms. Susan Vickers, Vice 

President of Community Health/Dignity Health. 

STATEMENT OF SUSAN VICKERS, RSM, DIGNITY HEALTH, VICE 

PRESIDENT OF COMMUNITY HEALTH 

Ms. VICKERS. Madam Chair, Ranking Member Vitter, thank you 

for the opportunity to testify today. 

I am a Sister of Mercy as well as Vice President of Community 

Health for Dignity Health. Our mission is to deliver compassionate, 

high quality, affordable care in the communities we serve, with 

particular focus on the needs of the poor, vulnerable and 

disenfranchised. We are committed to preventing the diseases that 

are disabling patients and driving up the cost of health care for 

families across the Nation. That is why I am here today. 

We are deeply concerned that our current law, TSCA, is woefully 

inadequate to protect the public from hazardous chemicals. We believe the moral and operational imperatives are here now for 

stronger chemical regulation. 

As the Committee works to modernize TSCA, be assured that 

Dignity Health supports your leadership and welcomes the muchneeded debate and bipartisan dialog that the Chemical Safety Improvement Act has generated about the need to fix our current system. But please be clear about our position. S. 1009, as currently 

written, falls well short of strengthening public health protections 

and addressing toxic chemical threats. We strongly believe that it 

must be significantly amended to strengthen, rather than weaken, 

TSCA. 

Let me briefly address three of the significant shortcomings in 

the legislation by way of policy recommendations that should be 

part of any final TSCA reform legislation. First, and we have heard 

this from other panelists, vulnerable populations should be adequately defined and explicitly protected. Such vulnerable populations as developing embryos, infants, pregnant women and people 

who live in communities with significant existing chemical and 

non-chemical environmental exposures must be protected. 

Evidence clearly shows that these groups are not only disproportionately exposed to chemicals, but also more biologically susceptible to the impacts of toxic exposures. And those impacts can be 

long-lasting and costly. 

Second, all chemicals should be assessed based on adequate information to determine the extent to which they pose risks to 

human health or the environment. A thorough safety review of all 

chemicals is necessary, and there must be a minimum set of 

screening criteria in order to decide whether a chemical is of high 

or low priority. 

As written, the bill allows a chemical to be deemed of low priority based only on available data, which unfortunately are inadequate for most chemicals. Once a chemical is designated a low priority, the EPA would not be able to require additional safety data 

and States would be prohibited from taking action. We have heard 

that this must be amended to preserve State authority to take action on chemicals determined either high or low priority. 

Third, there must be a clear and direct path to get dangerous 

chemicals out of the marketplace. One of the flaws of TSCA is that 
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the standard for action is so high that few chemicals have been 

phased out of commerce despite clear evidence of harm or potential 

for harm. S. 1009 requires an extra level of analysis. These cumbersome provisions could have the perverse impact of slowing down 

action on chemicals most in need of regulation. 

We urge the Committee to work together to strengthen what is 

currently the most viable vehicle for TSCA reform, the Chemical 

Safety Improvement Act, so that it provides the strongest protections to human health and the environment. 

Thank you for the invitation to provide testimony and for the 

leadership of this Committee. Be assured that we are willing to 

work with you as you advance comprehensive chemical policy that 

protects the health of our people and our planet. Thank you. 

[The prepared statement of Ms. Vickers follows:] 
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Senator BOXER. Thank you, Sister, for this, and for your life’s 

work. 

Ms. Maureen Gorsen, lawyer, partner in the law firm of Alston 

& Bird. 

STATEMENT OF MAUREEN F. GORSEN, ESQUIRE, PARTNER, 

ALSTON & BIRD LLP 

Ms. GORSEN. Madam Chair, members of the Committee, thank 

you very much for asking me to testify today. I hope that my testimony will be useful to the Committee. 

I am an environmental lawyer, have been an environmental lawyer for 20 years. Half of that time I have been in California public 

service, the other half of that time in private sector representing 

industry. I was the General Counsel of Cal/EPA, I was also the Director of the Department of Toxic Substances Control, where I led 

the Green Chemistry Initiative that California is so famous for. 

And in previous administrations, I was general counsel of the resources agency as well as I served as a California State Parks and 

Rec commissioner, which was the most fun position I had. 

I am very excited to be here. We really are making history today. 

This bill really strengthens TSCA in a marvelous and wonderful 

way. When I led the California Green Chemistry Initiative in 2006, 

we really didn’t hold out much hope for Federal leadership on this 

issue. Things seemed to be at a stalemate, and we really felt we 

needed to take this on ourselves. 

What I see in this bill is a sea change. The idea that the burden 

of proof to prove something is safe is on the manufacturer as opposed to the government was a heretical notion in 2006. We didn’t 

dare hope that the Federal law would change in that direction. The 

grandfathering provision that now EPA will have the ability to examine the 10,000 active chemicals in commerce, that also was not 

within the realm of possibility at that time. 

California has a new bill. It was passed in 2008, the California 

Safer Products Consumer Act. It has authorized California State 

government to look at every chemical ingredient in the products 

sold in California and require a lot of information from manufacturers. None of the activities that the California government is involved in now are preempted by this statute. The law is intended 

to take effect starting October of this year. California starts to implement it in 2014. And they only think they will be able to handle 

three to five chemicals in the first round, in the first 5 years. 

So overall, giving EPA authority to now look at the 10,000 chemicals that are currently in commerce can only benefit California. It 

is highly unlikely that they would both look at the same three to 

five chemicals in the first few years. So the idea of preemption 

probably won’t occur. 

To the extent that California is preempted, it is only once EPA 

acts. So once the EPA makes a decision, a safety determination, 

which is years down the road, and they will decide the scope of that 

preemption. So there are total preemption statutes and there are 

partial preemption statutes. This is a narrowly customized partial 

preemption in that EPA will decide the scope of the preemption 

when they make their decision. 
427 

I don’t think we are in a race to the bottom. I don’t see EPA setting standards lower than California. But even if they don’t see eye 

to eye and California wants to take something more restrictive 

than what EPA wants to do, I think the waiver provision is not illusory. I think that California will be able to advocate and get the 

higher standards that it wants. 

The words in this bill are compelling local interest. There is a 

similar preemption in the Clean Air Act for products. And California, that statute, the Clean Air Act is a total preemption for 49 

States with a partial preemption for California. California can receive a waiver if they can prove compelling and extraordinary circumstances. So that standard is arguably higher than the standard 

here which is compelling local interest. 

EPA has granted California a waiver over 50 times under the 

Clean Air Act, so California has been able to meet that standard 

many, many times. 

Last, with respect to vulnerable populations, California has a 

biomonitoring program and a Cal-Enviro Screen program that are 

going to be producing a lot of data about what is in people’s bodies 

based on demographic data in California. I think that information 

will benefit the EPA safety determinations and risk prioritizations, 

and similarly, the data that EPA is able to garner will inform California as it implements those programs. 

I think we are at an amazing point in history and I am very 

happy to be here, and I am happy to answer any questions that 

you have. 

[The prepared statement of Ms. Gorsen follows:] 
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Senator BOXER. Thank you so much. 

Our next witness is Dr. Jonathan Borak, Clinical Professor of 

Epidemiology, Yale School of Medicine. 

STATEMENT OF JONATHAN BORAK, M.D., FACOEM, FACP, 

DABT, CLINICAL PROFESSOR OF EPIDEMIOLOGY AND PUBLIC HEALTH, CLINICAL PROFESSOR OF MEDICINE, YALE 

UNIVERSITY 

Dr. BORAK. Thank you, Madam Chairman and the members of 

the Committee, for giving me this opportunity to comment on the 

Chemical Safety Improvement Act. 

My comments are made on behalf of the American College of Occupational and Environmental Medicine, also known as ACOEM. 

They also reflect my personal views. Let me first introduce 

ACOEM, the American College of Occupational and Environmental 

Medicine, which is a professional organization of more than 4,000 

occupational physicians and other health care professionals. 

ACOEM provides leadership to promote optimal health and safety 

of workers, workplaces and environments. 

As for myself, I am Clinical Professor in Epidemiology and Medicine at Yale University and Adjunct Professor at the Johns Hopkins University. I have listed a number of other of my credentials 

that I am simply going to bypass at the moment in the pursuit of 

brevity. 

The Chemical Safety Improvement Act represents an important 

and overdue upgrade to the Toxic Substances Control Act. Most importantly, it provides a mechanism that allows the EPA to more effectively identify and label those chemicals in commercial use that 

pose potentially significant risk and harm to health and the environment. As the Committee knows well, the original TSCA legislation grandfathered more than 60,000 chemicals without adequate 

review of their potential risks. Under CSIA, those chemicals will be 

subject to agency scrutiny. 

Under CSIA, EPA would determine whether a chemical poses an 

unreasonable risk solely on the basis of its effects on human health 

and the environment. This is an important change from TSCA, 

which also required a cost benefit analysis. This promises to 

streamline the assessment process and make it more responsive. 

Likewise, major improvement in CSIA is the removal of the least 

burdensome requirement for the methods implemented by EPA to 

protect and manage against unreasonable risks. The historical failure to ban asbestos is evidence of the need for such a change in 

the law. 

The stratification of chemicals into two groups, high and low priority, will be a hopefully efficient, albeit simple way to prioritize 

those chemicals that may pose unreasonable risks, and which 

therefore require additional safety measures. By such 

prioritization, greater scrutiny and research efforts can be focused 

on specific agents for which such efforts are most needed. 

Importantly, the safety assessments under Section 6 would specifically conifer ‘‘the vulnerability of exposed sub-populations’’ 

which my ACOEM colleagues and I presume is reference to at least 

children, pregnant women and their fetuses. Such concerns for chil-
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dren and pregnant women are currently found only with regard to 

radon and lead in Title 3 and Title 4 of TSCA. 

Notably, TSCA Title 1, the Control of Toxic Substances, does not 

require EPA to consider vulnerable sub-populations. CSIA addresses that important deficiency. 

I also note that while CSIA is an important step in modernizing 

TSCA and the regulation thereby of chemicals more generally, it is 

neither perfect nor complete. In particular, CSIA would be improved by more explicit discussions of vulnerable sub-populations, 

which I hope would extend beyond pregnant women and children. 

Depending on the specific chemicals of concern, relevant sub-populations might include workers and others with risks of unique or 

significantly greater than ambient exposure levels. 

Likewise, sub-populations characterized, for example, by age or 

co-existing medical conditions may be uniquely vulnerable to certain types or specific exposures. Also, depending on the characterization and risks of such vulnerable sub-populations, it would be 

important to ensure the safety measures are in fact adequately protective. 

In addition, while recognizing the difficulties of imposing fixed 

schedules on processes as large and complex as the proposed TSCA 

reforms, CSIA would be improved by the setting of more specific 

performance deadlines. 

Nevertheless, as currently written, CSIA is an important step in 

addressing and correcting serious flaws in the current TSCA. It is 

also an example of the substantial benefits that we all derive from 

bipartisan legislative cooperation. Accordingly, ACOEM urges support for the bipartisan Chemical Safety Improvement Act, and we 

offer our services in the future to assist in any further modifications and changes that are deemed useful and warranted. 

Thank you. 

[The prepared statement of Dr. Borak follows:] 
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Senator BOXER. Thank you. 

Now we turn to Mr. Cecil Corbin-Mark, Deputy Director, We Act 

for Environmental Justice. Welcome, sir. 

STATEMENT OF CECIL D. CORBIN-MARK, DEPUTY DIRECTOR/ 

DIRECTOR OF POLICY INITIATIVES, WE ACT FOR ENVIRONMENTAL JUSTICE 

Mr. CORBIN-MARK. Good afternoon, Chairwoman Boxer. Thank 

you for the opportunity to present. 

I am definitely thankful for the opportunity to present testimony 

here today and for your leadership in protecting vulnerable communities across this Country. Likewise, my thanks go out to Senator 

Vitter, the Ranking Minority Member on the Committee for his efforts of having worked to bring a bipartisan bill to this body. 

And to my very own Senator from the great State of New York, 

Senator Gillibrand, who serves on this Committee. I want to thank 

you all for your attention and time. 

We Act for Environmental Justice, the organization that I lead, 

is a 25-year-old people of color organization based in northern Manhattan working to build healthy communities by assuring that people of color and/or low-income folks participate meaningfully in the 

creation of sound and fair environmental health and protection 

policies and practices. 

I am also a member of the Steering Committee of the Safer 

Chemicals Healthy Families campaign, a national effort to protect 

families from toxic chemicals. And I co-chair the Just Green Partnership and Alliance, more than 50 organizations working to build 

a healthy economy that provides good jobs, producing clean products and services in which our workplaces, schools, homes, communities and bodies are free of toxic chemicals in New York State. 

Last, I serve on the board of directors of three really incredible 

organizations that are all working around these issues: the Center 

for Environmental Health, Clean and Healthy New York and 

Friends of the Earth USA. 

So as a guy from Harlem here to talk to you about the Toxic Substances Control Act, to me the answer is simple: chemicals impacted not only me and my family, but many of my neighbors and 

many of the people that I work with in the environmental justice 

movements around this Country. One of the earliest impacts for me 

really came from my son. He attended LaSalle Academy in New 

York City. One year while I was actually at a conference in San 

Francisco, his mother phoned me to say that he had suffered an 

asthma attack. He was not a traditional asthma sufferer and in 

talking to him we began to unravel some of what might be at the 

source of this problem. He remembered actually the smell, the very 

strong smell of sort of pesticides in the boy’s locker room, and that 

had started him sneezing. 

Obviously I can’t say with certainty that the lingering pesticide 

residue and the chemicals that are in there were the things that 

caused his attack. But no one can also say beyond a shadow of a 

doubt that that wasn’t the culprit either. 

I live in Harlem, in New York, and my family has lived in the 

same neighborhood for nine decades. It is a community that is 

about seven and a quarter square miles, about more than 650,000 
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people, mostly mid- to low-income folks, predominantly African 

American and Latino. It is known for its richly diverse population 

and cultural history. While downtown may be known for Broadway, 

the Empire State Building, Statue of Liberty, soon the iconic Freedom Tower, uptown our neighborhoods have auto body shops and 

dry cleaners co-located with residential apartments, diesel bus depots across the street from parks and bedroom windows. Nail salons and dollar stores abound with products that contain ingredients capable of disrupting people’s reproductive systems and their 

neurological systems. 

So while I am describing my place, my hometown, I could be 

talking about many places across this Country. Unfortunately, far 

too often in the environmental justice movement, we have called to 

attention the fact that there are too many toxic chemicals in our 

neighborhoods, and vulnerable populations need to be the ones that 

are at the center of how we look forward to reshaping the Toxic 

Substances Control Act. 

By this standard and many others, the Chemical Safety Improvement Act, S. 1009, falls far short of what vulnerable populations 

need. As currently written, S. 1009 requires the USEPA to access 

exposures of sub-populations to chemicals during the course of a 

safety assessment, but it doesn’t explicitly require that that safety 

determination protect those vulnerable populations from those exposures. 

Another unacceptable omission for many of us in the vulnerable 

population ranks is the lack of definition for vulnerable populations. I have learned the hard way that sometimes if it isn’t in 

the definition in the legislation, it doesn’t exist. Clearly, the drafters of this legislation did not intend for pregnant women, developing children, African Americans with respiratory illnesses, 

Latinos over the age of 65, indigenous peoples with compromised 

immune systems, Asian Americans with chemical sensitivity and 

other vulnerable populations such as workers to not exist. 

The Chemical Safety Improvement Act must define those vulnerable populations and explicitly require that they be protected from 

the multiple and aggregate exposures that they are subject to. 

[The prepared statement of Mr. Corbin-Mark follows:] 
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Senator BOXER. Thank you very much. 

We have a vote, so we are going to get through the panel first. 

We are now going to turn to Ms. Dorothy Felix, President, 

Mossville Environmental Action Now. Welcome. 

STATEMENT OF DOROTHY FELIX, PRESIDENT, MOSSVILLE 

ENVIRONMENTAL ACTION NOW 

Ms. FELIX. Thank you, Chairperson Boxer, Ranking Member 

Vitter, who represents my State of Louisiana and members of the 

Environment and Public Works Committee, for holding this important hearing. 

My name is Dorothy Felix, and I am the President of Mossville 

Environmental Action Now. My organization works to achieve environmental justice in the historic African American community of 

Mossville, Louisiana. 

I appreciate this opportunity to share with you the urgent need 

for legislation that protects the health of people who are living in 

polluted communities. I speak to you today out of concern for the 

future of my community of Mossville and communities across this 

Country where indigenous people and people of color are disproportionately harmed by toxic pollution. 

Mossville has been home to my family and neighbors for several 

generations. I treasure my childhood memories of growing up in 

this small, rural community. I remember a time when the air was 

healthy to breathe, the waterways were clean and full of fish, and 

the soil produced vegetable gardens and fruit trees. I regret that 

my grandchildren and great-grandchildren will never see and touch 

the natural beauty that was once Mossville. 

Today, Mossville is a different place as a result of weak environmental laws. These laws authorize no less than 14 industrial facilities to release toxic pollution around our homes, churches and playgrounds. Inside the historic boundaries of Mossville are three 

chemical manufacturers, one oil refinery and one oil production facility. Within one-fourth of a mile from Mossville are seven chemical manufacturers. There is one coal-fired power plant and one industrial gas supplier. 

These 14 industrial facilities release toxic pollution in Mossville 

that is scientifically known to harm human health. By harm to 

human health, I mean that Mossville residents suffer from exposure to dioxins, a group of dangerous chemicals, causing hormone 

disruptions. 

A toxic exposure investigation by the agency for Toxic Substances 

and Disease Registry revealed that Mossville residents have levels 

of dioxins in their blood that are three times higher than the national average. These dioxins are also different from those comprising the national background exposure, but identical to the 

dioxins emitted by several Mossville area facilities. 

In Mossville, we breathe toxic chemicals that the EPA has detected in the air at concentrations 100 times above the Louisiana 

health-based ambient air standard. Toxic fumes and odors force us 

to stay indoors. Our local waters have no fishing and no swimming 

warnings because of toxic chemical pollution. 

An entire section of Mossville has been moved out by companies 

responsible for leaking ethylene dichloride underground where an 
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aquifer supplied residents with well water. We need help that 

eliminates disproportionate toxic exposures. 

Unfortunately, the Chemical Safety Improvement Act, S. 1009, is 

not helping. It weakens and eliminates the protection that the Safe 

Chemicals Act of 2013 can provide to polluted communities. A key 

protection is Section 34 of the Safe Chemicals Act, known as Toxic 

Hot Spots. This section protects our right to a healthy environment. 

Under this bill section, a community’s exposure to one or more 

chemicals that is significantly greater than average exposure in the 

United States compels the EPA to reduce the disproportionate pollution. After more than 40 years of Federal environmental lawmaking, the Safe Chemical Act is an important step to remedying 

the pain and injustice that have resulted from permitting toxic pollution. 

I urge this Committee to pass legislation that closes the gap between environmental law and environmental justice. No one in this 

Country should be denied the right to live in a healthy environment. Thank you. 

[The prepared statement of Ms. Felix follows:] 
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Senator BOXER. Thank you so much, Ms. Felix. And we turn now 

to Mr. Andrew Hackman, Vice President of Government Affairs, 

Toy Industry Association. 

STATEMENT OF ANDREW R. HACKMAN, VICE PRESIDENT OF 

GOVERNMENT AFFAIRS, TOY INDUSTRY ASSOCIATION 

Mr. HACKMAN. Good afternoon, Chairman Boxer, Ranking Member Vitter and members of the Committee. The Toy Industry Association appreciates this opportunity to provide our perspective on 

the critical issue of reforming the Toxic Substances Control Act. 

The Toy Industry Association represents over 600 manufacturers, 

distributors, retailers and inventors of toys. Our mission is to bring 

safe and fun play to kids every day. Our association represents 

over 85 percent of the 3 billion toys that are sold in the United 

States each year. We support over 320,000 jobs here in the U.S., 

and we account for nearly $12 billion in wages for American workers. 

Now, as an industry that is focused on children, and as parents 

ourselves, we take our commitment to safety as our top priority. 

We have a strong track record of protecting children’s safety, and 

we created the first ASTM toy safety standard over 35 years ago. 

We share parents’ interests and concerns about the chemicals 

and their safety that go into everyday products. That is why we are 

here today in support of S. 1009. We support the Committee moving forward with a bipartisan effort to reform the Toxic Substances 

Control Act. And we support specifically the Federal Government 

taking action quickly to address some of the uniformity issues that 

we have seen between a patchwork of State-based chemical requirements. They are impacting our ability to sell uniformly safe 

toys in the United States. 

We also believe that if reform is considered, it must be done in 

a risk-based way that considers sound science and the weight of 

the evidence. Now, let me be clear: our industry is doing everything 

we can to protect kids. There is a stringent Federal network of 

safety requirements in place. Our companies also perform rigorous 

internal safety assessments of the materials and the chemicals that 

go into our products. We require third-party testing that considers 

the safety of those chemicals. In addition to internal safety requirements, we also have to meet a strong network of Federal safety 

laws and regulations, including the Consumer Product Safety Improvement Act that was signed into law in 2008. And it made our 

ASTM toy safety standard mandatory Federal law. 

Now, it is under this ASTM process that we work with medical 

experts, government agencies and consumer groups to ensure that 

we have the most protective standard possible or children. We consider new risks to children, including the risks from chemicals. It 

is under this Federal network of safety regulations that it is illegal 

for us to sell a toy to a child that exposes them to a chemical that 

is known to cause harm. 

Now, our industry supports strong Federal regulation for safety. 

We have been uniquely impacted by State requirements impacting 

chemicals and products that come into contact with children. We 

understand this interest in kids. As parents ourselves, we want to 

protect our kids whenever possible. 
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However, as you look at varying differences between State-based 

regulations, differences in definitions and scope result in extreme 

and high testing costs for our companies. They are duplicative and 

they are not improving safety. 

One of our members, for example, who makes products in Michi- gan, specifically told us that they have to spend over $175,000 on 

testing costs to comply and to document the fact that they don’t 

have a chemical of concern in their products that they knew was 

not in there in the first place. They have to do this for a paperwork 

requirement. 

As you look at the State of Washington, they have a chemical 

safety improvement act for children, and it requires data reporting. 

That testing requirement has cost our industry over $27 million, 

and we don’t want to duplicate that from State to State. So we appreciate that this Committee is considering this activity. We believe that as you consider TSCA reform, limited preemption, not to 

take States’ rights away, but to ensure that there is coordination 

and consistency between activity that is taking place at the State 

level and at the Environmental Protection Agency. We believe that 

a uniform approach to regulating chemical safety will help provide 

a more predictable regulatory environment for our companies. It 

will allow us to invest additional resources in protecting safety and 

it will help States continue to focus on truly protecting public 

health. 

This is consistent with how the Consumer Product Safety Improvement Act had limited preemption for States, where there is 

a specific risk addressed at the Federal level. 

And the final point I want to make on reform to the Toxic Substances Control Act is that we support a risk-based approach, one 

that uses sound science and the weight of evidence. Again, this is 

how the Consumer Product Safety Commission approaches regulating our industry, and we believe it is the most effective and efficient way to address this issue. 

As a father myself of a 4-year-old little girl named Natalie, she 

asked me to say that today, we are proud of the fact that our industry is committed to safety. I go to bed at night confident in the 

fact that our companies are working diligently to improve our safety standard and make toys safer. We support the Committee moving forward in a bipartisan manner that includes risk and limited 

preemption. We believe that will give States greater faith in the 

fact that the Government is on the job addressing safety in chemicals. We also believe that it will help us make better, sound decisions about safety within the supply chain. The safety determinations and assessments will help us understand greater the risks to 

chemicals in consumer products and help us make stronger, better 

decisions. 

We look forward to working with the Committee on this effort, 

and we appreciate the time today. 

[The prepared statement of Mr. Hackman follows:] 
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Senator BOXER. Thank you to the Toy Industry. 

And our last witness is Ansje Miller, Eastern States Director, 

Center for Environmental Health. 

STATEMENT OF ANSJE MILLER, EASTERN STATES DIRECTOR, 

CENTER FOR ENVIRONMENTAL HEALTH 

Ms. MILLER. Thank you, Chairman Boxer and Ranking Member 

Vitter, for the opportunity to speak before you today. I also want 

to give a shout-out to my Senator, Senator Gillibrand. 

I am Ansje Miller, I am the Eastern States Director for the Center for Environmental Health. 

Our organization is committed to empowering parents to act as 

guardians for their children. Children aren’t just little adults. Their 

bodies are still developing, so they are particularly vulnerable to 

chemical exposures, especially at critical windows of development. 

And anyone here with a toddler can attest to the fact that anything 

within reach will end up in that kid’s mouth. 

So they have exposures that are very different from adults. Most 

Americans believe that if a product is on the store shelf, it has 

been tested for safety. But as many previous witnesses before me 

testified, this is simply not true. For 37 years, TSCA has been a 

stunning public health failure, exposing American families to toxic 

chemicals. During that time, States have stepped into the regulatory void with laws to protect children and families. One such 

law has been talked about a lot today, which is California’s Prop 

65. 

Since 1996, the Center for Environmental Health has protected 

children and families from toxic chemicals using Prop 65. Under 

this law, we secure companies legally binding commitments to nationwide changes in their production practices, ending health 

threats from children’s and other products. Our work has eliminated toxic chemicals and counties everyday products like this Curious George doll, which has high levels of lead in its face, and this 

lunch box, that is the safe version. That is the after. 

Senator BOXER. Oh, good. Oh, this is the bad one. And this is 

after 65? 

Ms. MILLER. Exactly. That is after. 

Senator BOXER. No preemption, sir. 

[Laughter.] 

Ms. MILLER. Do I get my time back for this? 

[Laughter.] 

Senator BOXER. Yes, yes. 

Ms. MILLER. So this lunch box, this is before, and this is the 

after. And combined with other State laws on public health, the results of our work have paved the way for Federal laws, like the 

Consumer Product Safety Improvement Act and numerous State 

and Federal regulations. Dozens of State laws like Prop 65 and 

those listed in the AG’s letter effectively protect people’s health and 

serve as laboratories where critical reforms take shape for national 

consideration. 

I would like to share a story about why State laws are important. 

Marilyn Furer was a 66-year-old retired postal service worker from 

Illinois. In 2007, she noticed that her grandson Jensen’s plastic 

baby bib, made out of the same material as the lunch box which 
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she read about in a news story, might have lead in it. It looked 

very much like this. She contacted her government officials and unfortunately, they couldn’t help her. So she contacted us. We took 

the baby bib, along with a bunch of others, and tested it with an 

independent lab, and found that it did indeed have very high levels 

of lead. So we did a report, used California’s Prop 65, and with an 

agreement with Wal-Mart—go, them—within a week they agreed 

to take the leady baby bibs out of their shelves nationwide. And 

this is something that the Senator referenced earlier today. So now 

when parents like Marilyn go to the store to buy a baby bib, they 

find something like this, which looks very much like the leady one, 

you could never tell the difference, and it costs the same price. So 

Marilyn was a hero. 

Despite this important success, the States cannot address all of 

TSCA’s deficiencies. American families are counting on Congress to 

address those deficiencies with an all of the above approach that 

protects people nationwide from toxic chemicals, while preserving 

the States’ rights to address Federal gaps that leave our children 

vulnerable to toxic chemicals. 

TSCA clearly failed Marilyn and her grandson. As founding 

members of Safer Chemicals Healthy Families, CEH has been 

working to fix TSCA. But the current version of the Chemical Safety Improvement Act would also fail Marilyn. As previous witnesses 

have mentioned, CSIA contains a number of fatal flaws. To spotlight a few, it lacks deadlines for regulatory action. It is based on 

a safety determination standard that fails to ensure safety. It provides no specific protections for vulnerable populations like children, workers and people living in contaminated communities. And 

it allows companies to conceal data about the health hazards of 

chemicals. 

In short, CSIA would not provide EPA the legal tools and the financial resources necessary to protect families like Marilyn’s from 

toxic chemicals. And instead, CSIA would tie the hands of the 

States, concentrating regulatory power in the exclusive hands of 

the EPA without the resources to adequately do the job. 

If the CSIA were in place as drafted when Marilyn contacted us, 

children across the Country would still be at risk of lead poisoning 

from their bibs at every meal. Given the success of State laws, it 

is imperative that CSIA preserve States’ Tenth Amendment rights 

to enforce their own laws, protecting their citizens from the toxic 

chemicals that will inevitably slip through CSIA’s cracks. 

If the current version of CSIA, with its many deficiencies and 

preemption provisions, is adopted, Congress will be putting millions of American children and families at risk. 

I would like to thank the members of the Committee for the efforts to address this important issue and pledge my organization’s 

commitment to working to improve this Act. 

[The prepared statement of Ms. Miller follows:] 
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Senator BOXER. Thank you. We will be back after we vote. It 

could be 15 minutes, it could be a half-hour, depending on how 

many votes. So we stand adjourned, subject to the call of the Chair. 

Don’t move, though, especially you, Ms. Gorsen, I have some great 

questions for you. 

[Laughter.] 

[Recess.] 

Senator BOXER. We are going to finish this panel. 

Ms. Gorsen, I promised you I would ask you some questions. Do 

you still live in my State? 

Ms. GORSEN. Yes. 

Senator BOXER. Your testimony disagrees vehemently on every 

point with the Attorney General, Kamala Harris, and eight other 

attorneys general, plus a couple of others that privately contacted 

us. 

And you called S. 1009 marvelous. And if you read what Kamala 

Harris and these other AGs said, they found it anything but marvelous. She said it would cripple California, California’s ability to 

protect its citizens. So I am going to send you this letter from 

Kamala Harris as well as the letter from the other AGs, as well 

as a letter from State legislatures from across the Country. 

Would you be willing to, because you are very good at argumentation, I say that as a compliment, would you, next to every 

point they make, refute it, not with rhetoric, but with fact? 

For example, when you said waivers, what is wrong with waivers, we have one in the Clean Air Act, this has nothing to do with 

the Clean Air Act, and you should know that, you are an attorney. 

And the waiver in the Clean Air Act is completely different. 

Now, you may be able to find some other waivers in some other 

acts that would work. So would you be willing to give us a little 

more of your time and go through that, as we seek to move forward 

on this legislation? 

Ms. GORSEN. Yes, I would be happy to. 

Senator BOXER. I greatly appreciate it. 

Ms. Miller, you know, speaking of heroes, the work you do qualifies you do as one of my heroes. You are sitting next to the Toy 

Industry. What a perfect combo. The Toy Industry, and believe me, 

I can’t tell you how I have enriched the toy industry, having two 

kids and four grandkids, and how much pleasure toys have given 

to my children. But also, understanding that at one time a rubber 

ducky, which was the most lovely little thing, they didn’t ban what 

goes in there, phthalates, under this law, TSCA, we banned it 

under other law. And you know the danger of that situation, because as Ms. Miller pointed out, and of course, Mr. Hackman, you 

know, we all know, anybody who has been around kids, it all goes 

in the mouth. The dangers of that. 

Toy companies didn’t help us. Toy companies fought us. So I 

guess what I want to ask Ms. Miller, if she could look at Mr. Hackman as a friend right now, as a fellow parent, and convince Mr. 

Hackman why it is important to preserve Prop 65 in its entirety. 

Make the case in 1 minute. 

[Laughter.] 

Ms. MILLER. That is the most on the spot I have been in a long 

time. 
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Senator BOXER. You did it in your testimony. 

Ms. MILLER. I would make the argument that we need to protect 

Prop 65 for all the reasons that are on the table right here, and 

if we go back to my office, I could fill this whole room with stuff 

that, unfortunately, Federal law hasn’t been protecting us from. We 

have a lot of examples of toys that are on the shelves that are 

toxic. Prop 65 is a fantastic tool that has enabled us to work with 

manufacturers to get them to take toxic chemicals out of the products throughout the Country. 

Senator BOXER. And I would argue that the more confidence people have in what is on the shelf, the better off you are. The worst 

thing that happens is a gigantic crisis, and people say, gee, can I 

really trust the companies. So I think if we do this TSCA reform 

in the right way, if we add children to the risk section, I think that 

is a big step forward. So we need to add children to the risk section, we need to protect States’ rights, we need to protect victims’ 

rights, we need to set some deadlines. 

I think what has happened to me, just listening to everyone, including the chemical company representatives, the certainty of 

doing this the right way, making sure it works, and making sure 

that we do protect the most vulnerable, and that includes, Ms. 

Felix, those communities that frankly have been ignored. Because 

I have that in my State, too. Entire neighborhoods where the industrial polluters exist. And they are the ones that are suffering. 

So with that, I will turn to Senator Vitter for his questions. 

Senator VITTER. Thank you, Madam Chair. 

Ms. Gorsen, thank you again for your testimony. Remind us 

again how long were you involved in California environmental regulations in this particular area? 

Ms. GORSEN. For 3 years as director of the Department of Toxic 

Substance Control and 2 years as General Counsel of Cal/EPA. 

Senator VITTER. Right. So let me ask you some bottom line questions. Do you think California’s environmental health and safety 

protections would be made stronger or weaker by the LautenbergVitter bill? 

Ms. GORSEN. Overall, I think they would be made stronger, because the Feds will be able to start looking at chemicals they have 

never been able to look at, get testing, safety information, and that 

will feed into California’s efforts. Because even California, with the 

staff they have, don’t have enough resources to tackle 10,000 

chemicals. 

Senator VITTER. OK. Specifically, do you think Lautenberg-Vitter 

preempts California’s Green Chemistry regulations that you were 

involved in, or State laws to collect information or implement reporting or protect the State’s water and air? 

Ms. GORSEN. There are explicit exemptions for air and water 

quality, waste, disposal, there are explicit exemptions for reporting 

and information gathering. With respect to the Safer Consumer 

Product regulations, the implementation that Cal/EPA has planned 

would not be preempted until such time as EPA makes a safety determination. And when they make that safety determination it will 

depend on the scope of that determination as to what aspects of the 

Safer Consumer Product law in California is preempted. 
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Senator VITTER. So following up on that specifically with regard 

to that California Safer Consumer Products law, do you think Lautenberg-Vitter would ‘‘cripple’‘ it, which is the charge a lot of folks 

are bringing, in light of what you outlined? 

Ms. GORSEN. No, I don’t think it will cripple it at all. Because 

States do have special prioritization under the law to help EPA 

prioritize. And all the existing laws will be in effect until such time 

as EPA makes a decision. 

Senator VITTER. OK. Let me also ask you, following up on Ms. 

Miller’s testimony, I think she said the following, which I don’t understand, that to take that Maryland lead bib example, that somehow under Lautenberg-Vitter we wouldn’t have been protected 

from that. Now, as I understand Lautenberg-Vitter, obviously having helped draft it in part, no action by Maryland would be preempted until and unless the EPA actually took action with regard 

to that chemical for that product. And I think it is a very safe presumption in that case that they wouldn’t examine that issue, and 

fail to take action with a clear and legitimate health and safety 

concern. Am I missing something, or how would you analyze that 

situation under Lautenberg-Vitter? 

Ms. GORSEN. That is correct. All existing State laws would continue to be in full force and effect, and no entire State law would 

be preempted by this bill. If after EPA prioritizes lead and makes 

a safety determination and they have a warning requirement as 

part of that safety determination, they can decide in the scope of 

that determination to preempt a Prop 65 warning. But it wouldn’t 

be preempted until such time as they made a decision, and that 

would be very similar to, say, the FDA warnings on tobacco and 

nicotine products that supersede what the State warning requirement is. 

But it has to be an explicit decision by EPA to do that. 

Senator VITTER. Fine. OK, Dr. Borak, can you comment on a particular statement in the Society of Toxicology letter? The statement 

reads, ‘‘In improving the Toxic Substances Control Act, it is also 

critical that the law further enhances protection of public health by 

advancing the use of the best available toxicological knowledge and 

practice for delineating the context of toxicity dose response data 

relative to actual environmental exposures.’‘ Can you translate that 

for us into everyday language and relate it to Lautenberg-Vitter? 

Dr. BORAK. I think I can try. I have read it once or twice. I don’t 

have it in front of me. But I think that the gist of it is that the 

Society of Toxicology, which is a society of both academic and applied and practicing toxicologists, is urging the use of best science 

for the purpose of characterizing the context and level of exposure 

along with the activity and potency of compounds for the purposes 

of trying to best characterize the risk associated with a particular 

agent. 

Senator VITTER. Great. OK, I think I am out of time. Thank you, 

Madam Chair. 

Senator BOXER. Thanks. So my plan is to do one more round. 

And then we will be done, or do you want more than one more? 

OK. 

Ms. Gorsen, what is Citizens for Fire Safety? Who are they and 

who backs them? 
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Ms. GORSEN. I believe they are an advocacy group. 

Senator BOXER. Who funds them? 

Ms. GORSEN. I don’t know. 

Senator BOXER. Are you familiar with a story in the Chicago 

Tribune that said it is a front group for industry? Are you familiar 

with that? 

Ms. GORSEN. No. I am not familiar with that story. 

Senator BOXER. OK, well, I will send it to you. Didn’t you testify, 

or your company testify in behalf of that front group that, quoting 

this Chicago paper, ‘‘against the law to reduce toxic flame 

retardants in children’s products in California’’? 

Ms. GORSEN. Four years ago I was asked to testify as an expert 

witness on the purposes of the California Safer Consumer Products 

Act. And I did testify on what the role of that act was, vis-a-vis 

other legislative actions. 

Senator BOXER. So your firm, and it is in the record, we will put 

it in the record, in behalf of this group, which no one knew back 

then, and it came out in a big major story in the Chicago Tribune, 

it was an industry group. The point is, and I know Senator Vitter 

doesn’t think it has much relevance, and to him it doesn’t, and I 

respect where he is coming from. 

But to me, it matters. When people testify at a safety hearing, 

safety for kids, it seems to me, if it is an industry-backed group, 

you ought to say so. And I think that is very important to me. And 

all of you here have been totally honest, Ms. Gorsen you yourself 

said, when you opened, I now work for industry. How much I appreciate that. 

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Senator BOXER. Now, Ms. Miller, you talked about the importance of the Maryland law, and going after the bibs. Is that correct? Was it Maryland or Prop 65? 

Ms. MILLER. Prop 65. 

Senator BOXER. Prop 65. I want you to know that many attorneys general agree with your point. So maybe Ms. Gorsen sort of 

hedged, she didn’t exactly give the answer I think Senator Vitter 

was looking for, but she said pretty much, it doesn’t hurt anybody’s 

laws. That was kind of the way I took her answer. It wasn’t that 

definitive, but pretty much the laws stand. 

But I would rather trust, in this particular case, attorneys general from across the Country, including States, as my own, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Oregon, 

Vermont, Washington, we have separate letters from New Mexico 

and from New York. And your testimony here, because you showed 

us the results of working under the law as it exists. 

So let me just say to all of you, and Sister, again, I so appreciate 

what you said, because you said it in the calmest tone I have ever 

heard, but what advocacy you have brought to bear, and how much 

it means to me, and to all of us, that you are here. 

Ms. Buermeyer, I have a question. You represent the Breast 

Cancer Fund. Does the Breast Cancer Fund think S. 1009 is better 

than current law or not? 

Ms. BUERMEYER. Thank you, Chairwoman. We think all told that 

this bill actually takes us a step back from where we are in current 

law. 

Senator BOXER. That is important. I am sitting here as the 

Chairman of the Environment and Public Works Committee. And 

the Breast Cancer Association that represents the victims here 

tells us that S. 1009 is a step backward. I can’t ignore that. I want 

a bill, and Senator Vitter, I hope we will get there. We have had 

tough issue before, would we ever get a WRDA bill, would we ever 

get a formaldehyde bill. We did. We got a highway bill. These 

things are not easy. 

But I just want to say in closing my remarks to this panel, do 

you all stand ready to work with us? Because the next step that 

I hope to take, if Senator Vitter is willing, is to start meeting directly with Senator Vitter, Senator Udall, with my team and his 

team, and mark up the bill. That is what I really want to do. So 

we will see what principles, I am hopeful today we have all agreed 

we want certainty, we want to protect the most vulnerable, we 

want to make sure that children, I want to make sure children are 

specifically mentioned. We want to base this on science, on deadlines, on protecting the States that want to protect their citizens 

more, on protecting victims. These are the principles that I have, 

and they are very similar to the principles Ms. Miller laid out when 

she said these are the four or five things. 

I believe, if we can agree on those principles, then the devil is 

in the details for us to sit down in good faith. Will you all stand 

ready to help both of us if we ask for your help? Can I see the nodding of the heads? 

[Witnesses respond in the affirmative.] 

Senator BOXER. Absolutely. OK. Well, it means a lot. I think, 

Senator Vitter, we have just a terrific array of experts on all sides 
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of this issue moving forward. And I would turn to you for your closing questions and comments. 

Senator VITTER. I will just make some brief closing comments. I 

found this hearing very, very useful, and it continues a lot of conversations with all interested stakeholders that have been welcome 

that we have been having for weeks. And to answer your question, 

Madam Chairman, I not only stand ready to do what you are describing, I have been doing it for well over a month with many 

other members, with many other interested stakeholders. And everybody, including yourself, has been invited to that table. 

So we are not only ready to start, we started over a month ago 

and are eager to continue. I think this hearing and this discussion 

is a very productive step forward in that, and will continue and resolve all the issues and clarifications that we can possibly resolve. 

I think doing that, using Lautenberg-Vitter as a base, resolving 

those issues, clarifying everything we can, it won’t get rid of all of 

our differences. I think it will, if it is done in good faith, as we have 

been doing, resolve 80 plus percent of them, and we will have a 

solid bipartisan bill that cannot only be talked about at a hearing, 

but that can actually be passed into law in a divided Congress. 

So I would just close with that thought. Again, my prediction is, 

we will work through this in good faith as we have been, we will 

clarify 80 percent of what we are talking about. We probably will 

have legitimate, good faith differences about some things. And at 

that point, I hope we don’t, none of us, cling to a bill that may be 

perfect in any of our individual minds that will not pass. I hope we 

coalesce around a strong, bipartisan, good faith product that will 

pass into law. 

That is my game plan and my goal. I appreciate this hearing as 

a part of that process and step forward. 

Senator BOXER. With that very positive close, I share it, I have 

been working on this since 2005 with Senator Lautenberg. So it 

does take a lot of work. We couldn’t get it done because there were 

irreconcilable differences. And I think we can definitely write a bill 

where there are some differences, but you cannot get a bill if the 

basic principles are at odds. I am very hopeful from what I have 

heard today from you, Senator, that the basic principles will not be 

at odds, if we can come together on protecting kids, on protecting 

States’ rights, on protecting victims’ rights, on making sure we 

base everything on science, we give certainty to the industry. 

If we agree on those principles, I am absolutely certain we will 

have a great bill. And to all of you who came and stayed since early 

this morning, you are doing a duty for your Country and we do appreciate it. 

We stand adjourned. Thank you very much. 

[Whereupon, at 3:05 p.m., the Committee was adjourned.] 

[An additional statement submitted for the record follows:] 

STATEMENT OF HON. JEFF SESSIONS, 

U.S. SENATOR FROM THE STATE OF ALABAMA

Thank you, Chairman Boxer, for holding today’s hearing about efforts to modernize our nation’s chemical safety laws. The Toxic Substances Control Act (‘‘TSCA’’) 

was signed into law by President Ford in 1976. Today, there is general agreement 

on several key principles for reform: 
521 

1. Chemicals regulation is changing globally and TSCA needs to be updated and 

modernized; 

2. The United States of America should be a global leader in chemicals research, 

production, and safe use; 

3. States have an important role to play in protecting the health and well-being 

of their citizens, but a patchwork of State regulations governing chemicals manufacturing and use can adversely impact the interstate and international market for 

chemicals; 

4. The U.S. needs a regulatory program that is manageable, protects public 

health, and ensures that the U.S. has a globally competitive chemical industry that 

creates jobs for Americans and helps make technological advancements that can improve the quality of life for all people; 

5. More chemical safety data should be made publicly available to enhance public 

confidence in the safe use of chemicals; and 

6. Policymakers should legislate carefully in this arena as chemical manufacturing 

plays an essential role in the nation’s economy. In Alabama, chemical manufacturing contributes more than $1.82 billion to the state’s GDP (2009 figures) and 

chemicals are the state’s second largest export (2009). Currently, Alabama has over 

20 chemical companies with 100 or more employees. 

Notwithstanding a general recognition of the need to modernize TSCA in line with 

these principles, bipartisan reform legislation has remained elusive for many years. 

We all know how passionately our revered colleague, Senator Lautenberg, worked 

on this issue, and how difficult it was to reach agreement on a bill that could actually become law. 

In fact, when Senators Lautenberg and Vitter introduced the Chemical Safety Improvement Act in May of this year, I was as surprised as anyone. Many of us wondered: would it be a bill that could garner substantial, bipartisan support, protect 

public health, and actually help make the U.S. chemical manufacturing sector safer 

and more competitive? 

Today, the Lautenberg-Vitter bill has more than 25 co-sponsors in the Senate (including 12 Democrats). The bill has the strong endorsement of the New York Times 

and the Washington Post, the Environmental Defense Fund, as well as conservative 

and liberal members of the Senate. The bill also has the strong support of the U.S. 

chemical sector including the American Chemistry Council, companies with a strong 

Alabama presence including BASF and MeadWestvaco, and a long list of more than 

90 other associations or business groups. With prospects for this bill looking favorable, the bill has even been heralded by some as the most significant piece of environmental reform legislation since the 1990 Clean Air Act Amendments. 

We have studied the Lautenberg-Vitter bill closely, and I believe their bill has 

many good components: • Provides a reasonable framework for assessing chemicals using the best available science. 

• Provides a reasonable and protective safety standard for chemicals. 

• Provides a reasonable screening process to prioritize chemicals as ‘‘high priority’’ or ‘‘low priority.’’ 

• Allows States to seek expedited review for chemicals of concern. 

• Provides a systematic and transparent approach for evaluating major toxic effects of chemicals. 

• Improves the process for seeking approval for new chemicals or significant new 

uses of chemicals. 

• Requires greater transparency while also seeking to protect legitimate confidential business information. 

I look forward to learning more about this legislation today and hearing from our 

witnesses. 

As we consider these issues, I would like to highlight a few potential issues that 

should be considered. 

First, I believe we need to be careful to ensure that any effort to improve the 

chemical safety process—including both Federal and State involvement—does not 

get bogged down in litigation, as so often happens in the realm of Federal environmental law. 

Second, I am concerned about provisions in the current TSCA that impose strict 

liability and criminalize non-criminal behavior. There is a pervasive problem in Federal law today involving the over-criminalization of non-criminal actions. Ours is a 

constitutionally limited government that should respect the rule of law, individual 

freedom, and common law principles of justice and equity, and for that reason, we 

need to be careful to ensure that Federal laws like TSCA do not impose an unwarranted degree of criminal or civil liability for behavior that may not warrant penalization of that magnitude. 
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Third, while I greatly respect the role of the states in protecting public health— 

particularly as a former Attorney General of my state, I believe that Congress needs 

to be careful to ensure that any process for giving states waivers from preemption 

in this subject matter is narrow and clearly defined. The waiver process needs to 

ensure that it does not undercut the national regulatory certainty that is needed 

to protect the chemical sector from a patchwork of state laws that could render the 

chemical sector non-competitive. 

Finally, I believe we need to make sure that final legislation on this topic protects 

human health while also promoting the global competitiveness of the U.S. chemical 

manufacturing sector. For example, Section 23 of TSCA (40 U.S.C. 2629), which currently requires EPA to prepare an annual report on its TSCA activities, could be 

amended to require EPA to survey industry and other stakeholders and evaluate, 

on an annual basis, ways to enhance U.S. global economic competitiveness through 

changes to U.S. chemical safety laws or regulations. This is not yet included in the 

current bills before us, but I think it is worth considering. 

Madam Chairman, thank you for holding today’s hearing. 

I especially want to thank our Ranking Member, Senator Vitter, for his tremendous work on this issue. 

I look forward to hearing from the witnesses today. 

[Additional material submitted for the record follows:] 
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