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ASSESSING STATE AND LOCAL REGULATIONS TO

REDUCE DENTAL MERCURY EMISSIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON DOMESTIC POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

JULY 8, 2008

Serial No. 110–167

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

——— ———

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

SUBCOMMITTEE ON DOMESTIC POLICY

DENNIS J. KUCINICH, Ohio, Chairman

TOM LANTOS, California

ELIJAH E. CUMMINGS, Maryland

DIANE E. WATSON, California

CHRISTOPHER S. MURPHY, Connecticut

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

BRIAN HIGGINS, New York

BRUCE L. BRALEY, Iowa

DARRELL E. ISSA, California

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

CHRIS CANNON, Utah

BRIAN P. BILBRAY, California

JARON R. BOURKE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 8, 2008 ................................................................................. 1

Statement of:

Bender, Michael, director, Mercury Policy Project; Richard D. Fischer,

former president, International Academy of Oral Medicine and Toxicology; Curt McCormick, former Administrator, Environmental Protection Agency Region 8; and William Walsh, counsel, American Dental

Association ..................................................................................................... 12

Bender, Michael ......................................................................................... 12

Fischer, Richard D. ................................................................................... 41

McCormick, Curt ....................................................................................... 49

Walsh, William .......................................................................................... 58

Magnuson, Patricia, industrial waste investigator, King County, Seattle,

WA; Ann Farrell, director, Engineering Department, Central Contra

Costa County Sanitary District; Dr. C. Mark Smith, deputy director

and co-chair, Massachusetts Department of EPA, New England Governors and Eastern Canadian Premiers Task Force; and Owen Boyd,

CEO, Solmetex .............................................................................................. 97

Boyd, Owen ................................................................................................ 152

Farrell, Ann ............................................................................................... 115

Magnuson, Patricia ................................................................................... 97

Smith, Dr. C. Mark ................................................................................... 133

Letters, statements, etc., submitted for the record by:

Bender, Michael, director, Mercury Policy Project, prepared statement

of ..................................................................................................................... 18

Boyd, Owen, CEO, Solmetex, prepared statement of .................................... 155

Farrell, Ann, director, Engineering Department, Central Contra Costa

County Sanitary District, prepared statement of ....................................... 118

Fischer, Richard D., former president, International Academy of Oral

Medicine and Toxicology, prepared statement of ....................................... 43

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 4

Magnuson, Patricia, industrial waste investigator, King County, Seattle,

WA, prepared statement of .......................................................................... 100

McCormick, Curt, former Administrator, Environmental Protection Agency Region 8, prepared statement of ............................................................. 52

Smith, Dr. C. Mark, deputy director and co-chair, Massachusetts Department of EPA, New England Governors and Eastern Canadian Premiers

Task Force ..................................................................................................... 136

Walsh, William, counsel, American Dental Association, prepared statement of ........................................................................................................... 60

Watson, Hon. Diane E., a Representative in Congress from the State

of California, letter dated December 17, 2004 ............................................ 77

(1)

ASSESSING STATE AND LOCAL REGULATIONS

TO REDUCE DENTAL MERCURY EMISSIONS

TUESDAY, JULY 8, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON DOMESTIC POLICY,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:35 p.m., in room

2154, Rayburn House Office Building, Hon. Dennis J. Kucinich

(chairman of the subcommittee) presiding.

Present: Representatives Kucinich, Watson, and Burton.

Staff present: Jaron R. Bourke, staff director; Noura Erakat,

counsel; Jean Gosa, clerk; Leneal Scott, information systems manager; and Jill Schmalz, minority professional staff member.

Mr. KUCINICH. Good afternoon to our witnesses and to all those

in attendance. I am Congressman Dennis Kucinich, chairman of

the Domestic Policy Subcommittee of the Oversight and Government Reform Committee.

Our hearing today is going to be on assessing State and local regulations to reduce dental mercury emissions.

I am pleased to be joined today by the distinguished Congressman from the State of Indiana, Representative Dan Burton, who I

had the privilege of serving with in many different capacities over

the last 12 years.

Congressman Burton, thank you for joining us, sitting in as the

ranking member today for Congressman Issa.

This hearing today continues an examination that this subcommittee began last November into the detrimental impact of

mercury on the environment. In particular, we are taking a closer

look at mercury released from the dental industry and how State

and local governments have worked to reduce those emissions.

Elemental mercury and most of its compounds are extremely

toxic substances that can cause chronic and acute poisoning in

human beings who come into contact with them. Young children

and unborn fetuses are particularly susceptible to mercury poisoning. Today, improper disposal of mercury into wastewater by industries and persons who use it has caused dangerously high contamination levels in many of the country’s water bodies.

The dental industry contributes substantially to the amount of

mercury that ends up in wastewater and eventually in fresh water.

In places where the disposal of dental amalgam is not subject to

regulation, amalgam is frequently discarded by simply washing it

down the drain.

2

Last November, the subcommittee held its first hearing on this

matter, where it heard testimony from the EPA, as well as the

Food and Drug Administration. In the aftermath of the hearing,

the FDA set a deadline to issue a final regulation on the reclassification of dental amalgam and its components, which would increase FDA oversight of dental amalgam. We are pleased with the

FDA’s decision to issue this proposed rulemaking.

During our first hearing, we learned that dental offices constitute

the largest source of mercury in wastewater influent. Once in the

wastewater, mercury contaminates the environment in several

ways. Most of the mercury entering the wastewater stream concentrates in the sewage sludge, 60 percent of which is spread over

land as fertilizer; 20 percent is incinerated, resulting in the atmospheric release of mercury; and 15 percent is land-filled.

The mercury that does not concentrate in sludge is discharged to

downstream surface waters along with the treated effluent, namely

into lakes, oceans, streams and land. We have also learned that a

number of States and municipalities have made attempts at preventing the release of dental mercury from dental offices.

Subsequently, the subcommittee took a closer look at State and

local efforts aimed at reducing dental mercury emissions. The subcommittee surveyed nine States and eight local governments that

have attempted to do so and found that when States evaluated the

cost and benefits of choosing how to prevent environmental emissions of mercury, they all found that the most economical means

for doing so was to prevent the dental mercury from entering their

wastewater, as opposed to removing mercury from the wastewater.

The technology used to capture mercury in the dentists’ offices

before it enters the wastewater stream is the mercury amalgam

separator. Our survey revealed that to prevent dental mercury

from entering municipal wastewaters, State and local governments

have either encouraged voluntary use or mandated the use of separators.

Our findings indicate that successful voluntary programs were

incentivized programs that offered less cumbersome compliance requirements and were underpinned with the threat of a mandatory

program. Moreover, most of the State and local governments that

we surveyed initiated a voluntary program before enacting provisions in the form of a regulation, ordinance or statue mandating

the installation of separators and a recycling program. Only after

the failure of their voluntary programs to achieve their desired

compliance goals did these governments switch to a mandatory program.

Today we are going to hear from several of those States and local

government representatives about how they grappled with these

challenges, what were their lessons learned and how their regulatory experience can help States and local governments seeking to

reduce dental mercury discharges to their wastewater.

We will also hear from the American Dental Association. The

ADA constitutes one of the most significant stakeholders in the effort to reduce dental mercury emissions. As we will hear today,

among the most valuable lessons learned in the effort to achieve

compliance is the importance of the cooperation and leadership of

local and State dental societies.

3

The ADA has already made significant strides in leading the effort to reduce dental mercury emissions. Most recently, it amended

its best management practices to reflect its endorsement of amalgam separators as an effective tool to reducing mercury contamination from the dental industry. The ADA writes that ‘‘the use of separators will allow greater recycling and reduce the amount of amalgam which contains mercury entering wastewater treatment

plants.’’

Some of the questions we hope to address in today’s hearings are:

First, what is the impact of dental mercury on the environment?

Second, what is the efficacy of amalgam separator units? Third,

what is the cost-benefit analysis of amalgam separators made by

State and local governments? And, fourth, what are the considerations to make when deciding between a voluntary and a mandatory dental mercury reduction program?

The subcommittee looks forward to hearing the testimony of witnesses today, and we will continue our investigation of how State

and local governments can effectively reduce dental mercury emissions.

At this time I would like to introduce the gentleman from Indiana, Congressman Burton, for his opening statement thank, Mr.

Burton.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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8

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Mr. BURTON. Thank you, Mr. Kucinich.

Dr. Fischer, it’s good seeing you again. Haven’t seen you for a

while.

I will tell you a little story. This weekend I had a cap come off

of one of my teeth, and I had to call my dentist for an emergency

so he could put that cap back on. But when I got there, I asked

him, I said, ‘‘What kind of a filling do I have in that tooth that was

under that cap?’’ He says, ‘‘Well, it’s an amalgam.’’ I said, ‘‘Well,

that’s partially mercury, isn’t it?’’ He says, ‘‘Yeah, but it’s inert,

and it can’t cause you any problem.’’

I just want you to know that it split, and a lot of that came into

little bitty chunks and it got in my mouth, and I had to rinse it

out. I was thinking, as I was rinsing it out, I wonder how much

of this I am going to swallow and what kind of an impact it might

have on me later in life.

And I had to have him go ahead and put the cap on it, so it is

still there. So, Dr. Fischer, I may be coming to you to have to get

that out of there, because I had to have my tooth fixed over the

weekend.

But that’s an example of—and he is a very good dentist; don’t

misunderstand. He is trying to do what he thinks is right, and he

gets his direction from the ADA, who doesn’t like me very much.

You guys worked hard to beat me in the primary. I just want you

to know you didn’t win.

But, anyhow, the thing about mercury is it is toxic, and it

shouldn’t be in our drinking water, it shouldn’t be in our teeth, it

shouldn’t be in our vaccines, it shouldn’t be in anything that goes

into the human body. There’s just no question, it shouldn’t be in

anything that goes into the human body.

And even the FDA—I guess it was the FDA—the U.S. Food and

Drug Administration just recently said they no longer ignored the

science after dodging its duty to classify mercury fillings for decades. The U.S. Food and Drug Administration recently settled a

lawsuit with several consumer groups promising to complete its

end of the settlement within a year. As part of the settlement, the

FDA has even publicly withdrawn its claims that amalgam is safe

for all. And now it warns, ‘‘Dental amalgams contain mercury,

which may have neurotoxic effects on the nervous systems of developing children and fetuses.’’ Well, what about the person who has

it in their mouth?

You know, we had hearings on this for 2 years, Mr. Chairman.

When I was chairman of the Government Reform Committee, my

grandson became autistic. And I started looking into the mercury

that was going into the human body, and I found that the vaccinations that children were getting contained 50 percent ethyl mercury

and what was called the thimerosal preservative.

And it used to be kids would get, you know, two or three vaccinations and then go to school. When I was a kid, if you had measles,

it was a quarantine, or chicken pox or anything. Today, they give

you vaccinations for all of that. And, as a result, children get as

many as 28 to 30 vaccinations before they start to school.

And, as a result, we have gone from one in 10,000 children that

are autistic to one in 150. It is an absolute epidemic in America.

And those kids are going to grow up, and they are going to get

10

older, live to maybe 70 or 75, and be a burden not only to their

families but on society and the taxpayers, because they are going

to need help.

And we still have mercury in adult vaccinations, and we have

been able to get it out of almost all of the children’s vaccinations

except three or four. But a lot more needs to be done, and that’s

why I congratulate you on having this hearing.

Representative Watson, your colleague on the Democrat side,

who unfortunately couldn’t be here today, she worked on this very

hard in California. And she was able to get legislation passed out

there that dealt with the mercury in dentistry, so that California

is way ahead of the Federal Government and the ADA on this

issue.

I understand that other substances that they have put into our

teeth may have some side effects. I have heard the ADA before,

when we have had these hearings before, and there are some

things that people should be concerned about. But mercury is the

most toxic substance aside from radioactive material in the world.

If you spill it on this floor, they are going to evacuate the building.

They did that in high school in a science class here in Washington,

DC. They spilled some on floor, they cleared the room, they evacuated the school, and they took the kids who had the mercury

spilled on the floor near them and burned their clothes and had

them watched by doctors for a long period of time.

I am anxious to hear from our witnesses today. I have heard

most of you before, and I am sure I am going to hear pretty much

the same kind of testimony I have heard before.

But I really do appreciate Dennis Kucinich, the chairman of this

committee, who ran unsuccessfully for President but nevertheless

he has a national following now. And even though Dennis is in the

other party, him holding a hearing on this, I think, will bring far

more attention on the subject. And I really appreciate him holding

the hearing.

Mercury should not be ingested in the human body in any way.

One more thing, in Newport News, Virginia, when we were holding these hearings, the dentist down there, when they did the dental work on the naval personnel, they evidently were letting a lot

of the mercury get into the wastewater system. And so the wastewater treatment system down there, the people that were head of

the Newport News, Virginia, went to the naval leaders at Newport

News and said, those all have to be put in containers, they can’t

allow any of the amalgams to leach into the water system because

it was getting into the recycling system and it was getting into the

water and causing problems. And so they started making sure it

was put into lead-covered containers so it couldn’t get into the system down there.

That tells you pretty clearly that the residual impact of mercury

fillings, even if you could keep them inert and wouldn’t hurt you

in your mouth, certainly hurt when they get into the ecological system, the water systems. And if you burn them in an incinerator,

they get into the air. And so mercury should be not allowed to be

put into amalgams or into the human body in any way.

I am sorry if I droned on a little bit too long, Mr. Chairman, but

when you have a grandson——

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Mr. KUCINICH. The gentleman is entitled to take whatever time

he thinks is necessary.

Mr. BURTON. Well, thank you.

But when you have a child who is a normal child, and he is your

grandson, and he gets nine shots in 1 day, seven of which have

mercury in it, and he becomes autistic within just a short period

of time, and you have hearings on it for 2 or 3 years, and you find

out from leading scientists and doctors from all over the world that

the mercury in the vaccinations was a contributing cause, they believe—and there have been studies that show it does—that it’s a

contributing factor to autism, mercury in the amalgams.

We had scientists from all over the country and the world come

in and talk about the leaching effect of the vapors from hot and

cold water getting into the mouth that could cause neurological

problems from the mercury amalgams that are in people’s teeth.

And so this is a very big issue. It’s one that is not focused on

very often. And I really appreciate, Mr. Chairman, you taking the

lead on this today. And I want you to know that, as long as you

do this and as long as I am in Congress, I will do everything I can

to get mercury out of everything that goes into the human body.

Thank you, Mr. Chairman.

Mr. KUCINICH. I want to thank the gentleman for his passionate

opening statement and also to indicate to you that this subcommittee is going to have an ongoing interest in this.

The gentleman from Indiana and I have had other conversations

about exploring the research and the causative effects of autism.

I want to thank you very much, Mr. Burton, for the heart that

you put into this. Thank you.

Mr. BURTON. Thank you, Mr. Chairman.

Mr. KUCINICH. Without objection, Members and witnesses may

have 5 legislative days to submit a written statement or extraneous

materials for the record.

Since there is no other Member seeking recognition, we are going

to go to the witnesses’ testimony. I want to begin by introducing

our first panel.

Mr. Michael Bender is the director and cofounder of the Mercury

Policy Project. Over the past 12 years, Mr. Bender has worked extensively on reducing mercury uses, reduce trade and exposure at

the State, national and international levels. He serves as cochair

of the State of Vermont Advisory Committee on Mercury Pollution,

where he has represented the Abenaki, a local indigenous tribe,

since 1998.

Dr. Rich Fischer is the former president of the International

Academy of Oral Medicine and Toxicology. He has published scientific papers internationally, and in 1998 he authored a chapter

in the British dental textbook entitled, ‘‘Complementary Therapies

in Dental Practice.’’ Dr. Fischer is also a member of several professional organizations, including the Academy of General Dentistry,

the American Academy of Biological Dentistry, and the National

Academy of Research Biochemists.

Mr. Curt McCormick is the former administrator of the Environmental Protection Agency’s Clean Water Act Industrial

Pretreatment Program in Region 8. He worked for the EPA as an

environmental scientist from 1987 to 2007, during which time he

12

conducted hundreds of inspections of local government

pretreatment programs and industrial facilities. Mr. McCormick is

currently the owner of CWA Consulting Services and a board member for the Consortium for Research and Education on Emerging

Contaminates.

Mr. William Walsh—welcome—is legal counsel for the American

Dental Association. He is of counsel in the Washington office of

Pepper Hamilton LLP, where he heads the office’s environmental

practice group. He is also a member of the firm’s sustainability and

climate change team. His experience encompasses all major Federal environmental statutes and many State and local environmental laws, as well.

I want to welcome all of our witnesses and thank you for appearing before the subcommittee today.

It’s the policy of the Committee on Oversight and Government

Reform to swear in all the witnesses before they testify. I would

ask that all the witnesses please rise and raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Let the record reflect that the witnesses answered

in the affirmative.

I will ask that each of the witnesses now give a brief summary

of the testimony. Please keep this summary under 5 minutes in duration. And I want you to keep in mind that your presentation is

very important. We want to be able to have it on the record, and

we will, because your written statement is going to be included in

the hearing record. So if you can present for 5 minutes, everything

else in the record.

Let’s start with Mr. Bender. You are our first witness. Please

proceed.

STATEMENTS OF MICHAEL BENDER, DIRECTOR, MERCURY

POLICY PROJECT; RICHARD D. FISCHER, FORMER PRESIDENT, INTERNATIONAL ACADEMY OF ORAL MEDICINE AND

TOXICOLOGY; CURT MCCORMICK, FORMER ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY REGION 8;

AND WILLIAM WALSH, COUNSEL, AMERICAN DENTAL ASSOCIATION

STATEMENT OF MICHAEL BENDER

Mr. BENDER. Thank you, Mr. Chairman, members of the committee. My name is Michael Bender.

Mr. KUCINICH. You know what? I am sorry. Before we begin, I

want to ask if—Congresswoman Watson just entered the room, and

she has done so much on this.

Did you want an opening statement, Congresswoman?

Ms. WATSON. Yes.

Mr. KUCINICH. OK. The Chair is going to use his prerogative to

go to Congresswoman Watson, who has done a lot of work on this

issue in the State of California, as Mr. Burton noted.

And so, Ms. Watson, when you are ready, you may proceed. Just

take your time. Thank you.

And then we will return to you, Mr. Bender.

Ms. WATSON. Mr. Chairman, thank you so much for your leadership and your hard work on this issue and for holding this hearing.

13

And I want to thank all of the witnesses for being here today.

Mercury is a toxin. And we all are concerned about the welfare

of the patients, but I am also worried about the long-term effects

of exposure to mercury to dentists and to the staff. For many years,

there has been a research study on this very topic, and it was discovered that all dentists and staff who either replace or remove

mercury fillings have extremely high levels of mercury in their systems.

Some of the dental offices do not insert mercury fillings; they

only remove them. Therefore, they are breathing in the mercury

vapors and dust, and a regular mask does not help. One needs to

wear a respirator. And this toxic material enters their systems via

the respiratory tract. Absorption through the skin is another mode

of transport.

Dentists and staff, when compared to the general population,

have a large mercury content difference. And it is not because they

eat a lot of fish. Forget about the aesthetic component; the need of

the dentists and staff, the health aspect, should be also a major

concern.

It’s amazing to me that the EPA has not gotten involved with

this. The long-term danger of mercury inhalation is as detrimental

as dental mercury fillings in one’s mouth. It makes you think we

might be hiding something, doesn’t it?

And allow me to ask this question: Why is it that dentists have

the highest suicide rate among any other health professional?

Did you know that one of the side effects of mercury toxicity is

depression and suicidal tendencies, known years ago as the Mad

Hatter’s Disease?

I, myself, Mr. Chairman—and I am so pleased to see Congressman Burton here. We have been on this issue for years together,

and I appreciate your interest and your focus and your being here.

Look at the vacant seats.

I, myself, did not know I was being poisoned for decades. I got

my mercury fillings when I was 9 years old. And I noticed that I

had these allergies to everything, that I was getting headaches, I

was getting splotches in my skin. My skin was much, much darker.

And so a group of researchers came into my office. They had been

doing research in Europe. And they said, you know, have you ever

been tested for mercury poison or vapors? They brought in the tester. It’s a metal tube that goes down. And mine hit almost off the

charts.

I had to go to Mexico. I asked my own dentist about it, and he

stuck something in my mouth and wouldn’t even discuss it. And I

have been going to him for 30 years.

I went down to Mexico, and the dentist down there said he had

to go to Mexico because he was to do 40 mercury fillings, amalgam

fillings, he refused, and he couldn’t pass his boards. So he went to

the University of Mexico, passed his boards, lives in California but

goes down to work there. So he explained to me. It took 6 weeks.

I went from Washington, down to Mexico, to LA. That was my

route, until the work was done.

I looked like a different person. I went to the dermatologist. He

said, I am going to pull out the poison through your skin. So, along

with getting the mercury fillings out, they were going, the fumes

14

were going up through my T-zone. I was having trouble remembering names. I said, what’s wrong with me? I was being poisoned.

I called in the National Dental Association, and they told me

that black people didn’t like to go the dentist, and so certainly they

are going to continue to use amalgam fillings because they were

cheaper. And I tried to explain to them what I knew scientifically;

did no good. They were looking at cost. And I was just amazed. I

said, you are going to put young people under risk? And they didn’t

seem to care.

So I said, you take my bill. You take it home with you, look at

it, and then you tell me how I can amend that bill to suit your

needs. I got the same letter back from them that they sent in the

beginning.

So I see that profit for dentists—you know, don’t make a wave.

People won’t know. We are dulling down our children’s brains. And

I think pregnant women, you know, whatever goes in here seeps

through the placenta and has an effect on that fetus.

And I think it’s high time that any professional start looking at

this. And I am surprised. The Environmental Protection Agency

wouldn’t really want to look at it seriously without our prompting?

Senator—Congressman Burton—I just promoted you to Senator.

And we were told in southern California, do not eat the tuna

along the coast; it’s infested with mercury. Do not eat it. Why? Because, as you know, the waste from dental offices go into the sewage plant and then out into the ocean.

And so I am really, really concerned. We need to wake up to this

new threat.

And, again, Mr. Chairman, I wish to thank you for your leadership, your hard work. Mercury is an environmental disaster. It’s

the number-one toxic substance in terms of the WHO. And dentists

have alternatives. They might be a little more expensive, but why

would you want to take the risk and put a toxic substance in, particularly, a young person’s mouth? Because you say it’s well-sealed.

Well, I haven’t seen a child who hasn’t fallen, cracked a tooth, or

tooth is pulled, or whatever. And that mercury goes right up into

your T-zone.

So, Mr. Chairman, I know that we are going to be enlightened

today, and I want to thank you. And I want to thank my partner

over there, Representative Burton, for his interest, his focus, in setting this as a priority.

Thank you very much. I look forward to hearing from the witnesses.

Mr. KUCINICH. I thank the gentlelady for her comments.

Let’s proceed with Mr. Bender. Thank you.

Mr. BENDER. Thank you, Mr. Chairman, members of the committee. My name is Michael Bender. I am the director of the Mercury

Policy Project. We work locally, nationally and globally to eliminate

mercury releases and the use of mercury and exposures to mercury.

Next slide, please.

In my brief presentation today, I am just going to recap some of

the information that we have heard from the last hearing.

First of all, that there’s over 1,000 tons of mercury tooth fillings

in Americans today that, when released, will pollute our environment. And mercury use is continuing.

15

Second, nine States require dentists to have amalgam separators

to reduce mercury into wastewater. That’s one good step forward,

and we will talk about others.

Third, that the voluntary efforts are not effective at convincing

dentists to install separators. They need some kind of an incentive.

Fourthly, that the ADA and the State associations are reportedly

blocking State and local amalgam separator initiatives, even

though they voluntarily say they promote them.

And then finally, we will summarize the discussion that the

amalgam separators is the most cost-effective at controlling dental

mercury pollution.

We will also want to draw the committee’s attention to a report

we provided to the committee where we do a cost analysis. Representative Watson mentioned the higher cost of the amalgam separator. When you factor in the externalities, the cost of keeping

mercury out of wastewater and keeping mercury out of the airstream from cremations and the costs of the amalgams aren’t

cheaper. In fact, they are comparable, or the composites are actually more cost-effective.

So, next slide, please.

This is a pie chart from the U.S. EPA where they have alerted

us that there’s over 1,000 tons of mercury walking around in Americans’ mouths. It’s the largest single current use of mercury in the

United States today.

Next slide, please.

That dental mercury, on average, accounts for over 50 percent of

the load of mercury into wastewater. And we see some examples

there. And, again, this was background.

I would like to move to the next slide, which is some new information that we just got from the Northeast Waste Management Officials’ Association, the interstate mercury education and reduction

clearinghouse. They just released the 2004 data on mercury uses

from the amalgam manufacturers.

Unfortunately, we are saddened to hear that the U.S. dentists

are still using 30 tons of mercury annually in 2004, just as they

were in 2001. This is significant because, contrary to what we have

heard from the dental sector, their mercury pollution will continue

unabated without controls.

Next slide, please.

Although you can’t see this on this screen very well, you can see

the actual numbers and that the dental mercury use is about 25

percent of all the use in the United States today. And it indicates

the numbers from 2001 to 2004.

Mr. Chair, these are actual numbers that were reported by State

law from the amalgam manufacturers to the NEWMOA group. And

so, unfortunately, we keep hearing from the dentists that they are

reducing the use of mercury; we are not seeing it in the hard numbers. We have heard it anecdotally, and unfortunately we are not

seeing it.

Next slide, please.

As I indicated earlier, there are State mandates for amalgam

separators. Nine States require mandatory separator installation.

Why? Because the voluntary programs aren’t effective at convincVerDate 11-MAY-2000 12:18 Jun 24, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 U:\DOCS\49972.TXT KATIE PsN: KATIE
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ing dentists to install separators. And there are numerous examples of this, and we will hear more of those today.

Data from the Boston area showed a 48 percent reduction in

mercury concentration and sludge as amalgam separator use increased from less than 20 percent to over 80 percent due to mandates.

Next slide, please.

The ADA unfortunately and apparently is continuing—even

though they are now supporting these amalgam separator initiatives as a voluntary BMP, what we are hearing from their own

news reports is that they are reportedly training their trainers to

support these BMPs, best management practices, and, along the

way, use this argument as a way to oppose the amalgam separator

initiatives.

The ADA and the State dental associations appear to have

blocked amalgam separator initiatives in California, Wyoming,

Michigan, Ohio, Montana and likely elsewhere, and they have

slowed the requirements for installation in Oregon. They are also

blocking local separator initiatives as well, as we know from their

recent work in the city of Philadelphia.

Next slide, please.

In summary—I am sorry, I am jumping ahead of myself. I just

wanted to emphasize Chairman Kucinich’s statement about amalgam separators being very cost-effective. We had consultants do an

analysis over a certain period of time, using 2005 numbers. The

cost per filling for amalgam separators is an add-on cost of about

$2 a filling. As I indicated earlier, we also did an economic analysis

of the cost of putting the controls on the cremation. That will be

$18 more a filling. So that’s where the numbers add up, that, in

fact, the amalgam is not cheaper.

Then, finally, I would like to conclude with some information

that’s in our longer-term and our larger report that’s available for

the record, and it sort of reiterates a little bit of what Representative Watson was saying.

In summary, the encapsulated dental amalgam is shipped from

manufacturers to a dentist’s office with a skull and crossbones affixed next to the word, ‘‘Poison, Contains Metallic Mercury,’’ MSDS

2007, from Dentsply. Amalgam manufacturers—Kerr, Vivadent and

Dentsply, among others—advise dentists against placing amalgam

in the teeth of pregnant women, nursing mothers, children under

6, and anyone with kidney disease.

Dentsply, for example, warns, ‘‘Contraindication (‘contraindication’ is a directive to forbid, not just a ‘warning’): in children 6 and

under and in expectant mothers.’’ Dentsply also supplies a warning

on their MSDS to dentists that amalgam is dangerous for the environment. And you can see a copy of their MSDS on a report that’s

on the table.

But then that information apparently gets stuck at the dentist’s

office. We did a national poll. We hired Zogby International, and

what we found is that most Americans, 76 percent, don’t know

mercury is a primary component of amalgam fillings; that 92 percent of Americans overwhelmingly want to be informed of their options with respect to mercury and nonmercury dental filling materials prior to treatment; and, finally, once they are aware that

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there is mercury in the amalgam, 77 percent of those surveyed

would choose higher-cost fillings that did not contain mercury if

given the choice.

Mr. Chairman, I would like to join others and express my appreciation to you for holding this hearing. It’s a very important topic

area. I was joking that this dental sector seems to be one of the

last sacred cows in the continued use of their justification for mercury.

We know, from a ruling in Norway and Sweden just having

banned amalgam in January 2008, that there is no reason to continue using amalgam. Those societies are just doing fine. They

aren’t having any kind of a health epidemic over there. They are

doing very well. And they worked cooperatively with their dental

association over a number of years to put controls on in their facilities and also to recognize that dental mercury is not appropriate

in the human mouth.

So what concerns me about the 30 tons of mercury that is still

being used, which is 60 million mercury dental placements a year,

is that I think that this dental sector is stuck in complacency, and

it needs some kind of a regulatory incentive to move forward.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Bender follows:]

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Mr. KUCINICH. Dr. Fischer.

STATEMENT OF RICHARD FISCHER

Mr. FISCHER. Thank you, Mr. Chairman, Ms. Watson and Mr.

Burton.

Current estimates indicate that the dental profession uses about

40 tons of mercury per year in the fabrication of amalgam fillings.

These mixtures emit mercury vapor continuously for decades and

are the major contributor of mercury to human body burden. EPA

requires that the excess unused newly mixed amalgam be handled

as a toxic waste disposal hazard, just as it does the amalgam particles from removing old mercury fillings.

There are four major routes by which dental mercury may come

into contact with the environment.

The first is dental clinic wastewater. The process of either placing or removing mercury fillings generates a slurry of mercury-rich

amalgam waste, which is vacuumed into the chair-side suction

unit. According to a recent study commissioned by the ADA, 61⁄2

tons of mercury are released to wastewater treatment plants annually by dentists in the United States. This represents more than 50

percent of the total mercury entering wastewater treatment facilities.

The IAOMT, recognizing that the dental profession has the opportunity and the obligation to eliminate or reduce this environmental hazard, urges all general dentists to install effective mercury separator equipment. We support efforts to make this a regulatory requirement, since efforts toward voluntary compliance by

dental associations have failed.

No. 2, air discharge. Mercury vapor has also been measured in

air vented from the central vacuum systems to the outside of the

dental office. An estimated one ton of mercury vapor per year finds

its way into the atmosphere through this route in the United

States. There is currently no known technology to prevent this

form of pollution.

No. 3, amalgam in human cadavers. The EPA estimated that in

2005 over 3 tons of mercury were released to the environment in

the United States from crematoria.

Four, human waste. Published studies have concluded that each

and every amalgam bearer excretes an average of 100 micrograms

of mercury per day in his or her urine and feces. Assuming twothirds of this mercury is derived from dental fillings, then 5.7 tons

of dental mercury annually are flushed directly into our wastewater. Again, there is no known technology to prevent this form of

pollution, nor are there any regulations over this form of domestic

waste.

The above four routes of mercury entering the environment combined for at least 16 tons of mercury annually from dental fillings.

Less than half of that total, the 61⁄2 tons from dental wastewater,

can be captured by best management practices and amalgam separators in dental offices, but then only if mandatory.

Over 1,000 tons of mercury are implanted in the teeth of Americans nationwide. Assuming a 10- to 15-year average durability of

these mercury fillings in patients’ mouths, this enormous reservoir

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of mercury will be continuously flushed into the environment for

decades to come.

Organized dentistry has established best management practices

for managing hazardous waste. These practices have had disappointing participation by dentists when purely voluntary.

For example, in the Seattle/King County area of Washington

State, after 5 years of promises from local dental societies, 2.5 percent of offices had complied. Currently, 11 States in various municipalities have replaced their voluntary programs with mandatory regulations, resulting in nearly 100 percent compliance.

In those States and municipalities where amalgam separators

are required, there has been a 50 percent reduction in the amount

of total mercury from all sources entering wastewater treatment

plants.

When considering whether or not an amalgam separator installation should be voluntary or mandatory, we should consider information published in the fall edition of the ADA Professional Product Review. There it was reported that, ‘‘A survey of members

showed that relatively few panel members own an amalgam separator or plan to purchase one.’’

I have been practicing dentistry for 35 years, the last 26 without

using mercury fillings. I stopped using them when I discovered that

the mercury was not locked in the fillings, as I had been told in

dental school. I purchased an amalgam separator approximately 15

years ago when I discovered that this technology was commercially

available.

As a health professional, I am ethically bound to err on the side

of caution for my patients, my staff, my colleagues and my environment. To place a mixture containing 50 percent mercury, the most

neurotoxic element known on Earth, within inches of a child’s

brain stem and assume it’s harmless is, at best, counterintuitive.

To release the same pollutant into the wastewater is irresponsible when simple and available technology exists to reduce that release by over 95 percent. But that still leaves more than half of the

dental-derived mercury that is dumped into the environment that

remains beyond our ability to capture.

We all remember the character The Mad Hatter from ‘‘Alice in

Wonderland.’’ The character was based on the historical observation of workers who made felt hats in Connecticut in the 1800’s.

The workers, or hatters, used mercury nitrate to shape the hats.

The hatters frequently suffered from shakes, hallucination and dementia or madness due to that mercury exposure.

The hatmakers stopped using mercury in 1943. It’s now 2008. It’s

time for dentistry to stop the madness. Until dentistry joins the

rest of the 21st-century health-care profession and abandons its use

of mercury, there can be no effective environmental solution to the

dental mercury crisis.

Thank you.

[The prepared statement of Dr. Fischer follows:]

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Mr. KUCINICH. Thank you.

Mr. McCormick, you may proceed.

STATEMENT OF CURT MCCORMICK

Mr. MCCORMICK. Good afternoon, Mr. Chairman, Mr. Burton,

Ms. Watson and members of the subcommittee.

I am Curt McCormick. I currently own a small business. But I

think I was asked to show up today because I just recently retired

or left the Environmental Protection Agency, the Denver office of

the EPA.

For 17 years, I was regional pretreatment coordinator there,

which is a program which regulates local governments and requires

that discharges to their sewer systems are controlled for pollutants.

I also worked on a mercury-control strategy for the region. EPA

in Colorado, Wyoming and Montana was the primary pollution control authority on municipalities, as the States do not have authority or do not authorize that program.

I want to preface my comments today that, while I probably will

be mentioning the ADA in some parts of this, I don’t believe the

ADA did anything inappropriate in their lobbying of Region 8 or

EPA headquarters. I think most of my comments are directed toward the internal EPA process of developing guidance and providing technical assistance.

I have to admit that the ADA was fairly tenacious in its efforts.

And the outcome of their lobbying was fairly surprising in some

areas, which I will go into.

Your subcommittee has heard the testimony of EPA and others

in the past about the importance of reducing mercury in the environment and contribution of dental waste amalgam. One EPA senior manager referred to the Clean Water Act pretreatment program, and that is the program I oversaw for much of my career.

This federally mandated program makes controlling the discharge

of mercury and other pollutants into a sanitary sewer system a regulated and local responsibility.

While EPA Region 5, which was the Chicago office, the Great

Lakes initiative, had acquiesced to the ADA’s position that treatment not be a requirement for controlling dental discharges, EPA

Region 8, which is the Denver office, we did not opt to adopt that

voluntary approach to controlling mercury. We had a more mandatory requirement in the guidance that we developed. Our premise

was that where a problem exists with a specific pollutant, local

government pretreatment programs were required to control discharges of this pollutant into the sewer system. This approach is

clearly reflected in the regulatory objectives of the pretreatment

program that implement the Clean Water Act.

As mentioned earlier, the ADA focused its efforts on all levels of

government. And Jerry Bowman, assistant general counsel for the

ADA, attended and spoke at a public hearing at a city council

meeting in Laramie, Wyoming. The city intended to adopt mercury

controls to address problems at their wastewater plant. Presentations by myself and the city pretreatment staff, in addition to

local support by other locally regulated industries, was enough to

assure that Laramie City Council that the Region 8 approach was

consistent with their local regulations and a fair approach that inVerDate 11-MAY-2000 12:18 Jun 24, 2009 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 U:\DOCS\49972.TXT KATIE PsN: KATIE
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cluded dental offices as part of a solution to an identified mercury

problem.

This outcome intensified the ADA efforts to work through the

EPA Office of Water. In a letter to Ben Grumbles dated February

16, 2005, the ADA made it clear that they were very unhappy with

the lack of progress that EPA headquarters had made in stopping

my program’s efforts.

The ADA opens the letter stating, ‘‘We appreciate the opportunities you have afforded us in the past. On December 15, 2004, representatives of the American Dental Association were able to spend

approximately an hour with you discussing, among other things,

the association’s deep concern with the contemplated approach of

EPA Region 8 to dental wastewater. As we discussed, the region’s

draft guidance, on which the ADA submitted extensive comments,

prohibits the very type of voluntary partnership which the administration otherwise supports. Moreover, the draft guidance requires

amalgam separators whenever a POTW has a need to address mercury. At the end of our meeting, you indicated that you would

speak to the Region 8 administrator on these topics. We have not

heard back from you.’’

The letter continues with references to Region 8, its proposed

mercury control efforts, and a concern that Region 8’s approach will

influence the rest of the country. EPA Region 8 senior management

responded directly and independently to the ADA in an April 22,

2005, letter stating that the Region 8 supported the approach by

my program and that the final document would continue to be consistent with the Clean Water Act and its implementing regulations.

I have not seen copies of any responses by the Office of Water

on the February 16, 2005, ADA letter. However, after the Region

8 letter of April 22nd, I was informed by my Region 8 senior management team that my program strategy document would not be

issued final. The message was that the Office of Water did not

want it published final. Region 8 senior management told me that

the draft version of the document would be made available to anybody requesting a copy and would be posted for download on the

Internet. And it currently is still available, the draft, for download

on the Internet.

Regardless of the status of that document, my program, I continued to approve local programs, mercury-control regulations so that

they would fully implement amalgam separator requirements

where necessary. But the stoppage of this document put a dampening effect on some of the POTWs or on some of the cities adopting

it.

I will wrap up here quickly.

I left the EPA in October 2007. I have written newsletters on interest groups and the regulation of mercury. A current one discusses a State of Michigan bill that allows for self-regulation of

dental dischargers. This bill specifically prohibits the State-mandated pretreatment programs from requiring any more stringent

than what the State dental association deems necessary. EPA has

been notified of this legislation and has taken no identified action

to ensure that this bill will be consistent with the Clean Water Act.

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making levels within EPA. As with other EPA staff, I took seriously the oath to uphold the law and believe in the mission of the

EPA, even now having left the agency. However, I believe that

there’s a reinterpretation of that mission which has and will continue to result in the eroding of credibility and the loss of experts

from the agency.

Mr. Chairman, this concludes my statement, and I will be happy

to answer any questions you or your colleagues have.

[The prepared statement of Mr. McCormick follows:]

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Mr. KUCINICH. I thank the gentleman.

Mr. Walsh, you may proceed.

STATEMENT OF WILLIAM WALSH

Mr. WALSH. Thank you, Mr. Chairman, Mr. Burton and Ms. Watson. Thank you for the opportunity to speak today.

I am William Walsh from Pepper Hamilton LLP, outside counsel

for the American Dental Association on amalgam wastewater

issues. I have represented the ADA on these issues since 2001.

The ADA is the world’s largest and oldest dental association, representing more than 155,000 dentists nationwide. The ADA has

issued and continually updates, as appropriate, its best management practices for handling waste amalgam. These BMP call for

the use of standard control methods, recycling of collected amalgam

and, since last fall, the use of amalgam separators.

Even without separators, dentists capture in their office approximately 80 percent of the waste amalgam, with almost all of the remaining 20 percent being captured by wastewater treatment plants

before the wastewater is discharged to surface water. In other

words, 99 percent of the amalgam is already captured prior to discharge from the POTW. Adding a separator allows the capture of

that additional waste in the dental office instead of at the wastewater treatment plant.

The ADA has devoted substantial time and resources to promoting its best management practices. For example, in 2001, the ADA

commissioned an independent study to determine how much mercury might be entering the surface waters from amalgam wastewater discharges. The ADA evaluated the effectiveness and the cost

of amalgam separators, including contributing to the development

of standards for testing separators that were being developed by

the International Standards Organization.

In 2003, ADA proposed to the Office of Water to initiate a voluntary amalgam wastewater reduction program in partnership

with EPA, and has continued those discussions. The ADA proposed

to EPA and participated in developing a standard for recycling

amalgam waste that is collected in the offices.

The ADA has conducted a comprehensive outreach and education

program for dentists and dental societies, including numerous seminars for dentist and dental societies, articles in the ADA News, the

peer-reviewed journal of the American Dental Association, and the

ADA Professional Product Review, partnering with EPA to produce

and distribute BMP brochures and videos to 43,000 dentists in the

Great Lakes region in 2005.

Several factors favor ongoing efforts.

First, the dentist industry’s goals as of last fall comport exactly

with those of the government to minimize dentistry’s discharge of

amalgam waste.

Second, dentists, as health professionals, would respond to scientific evidence and cooperative approaches. Some of the early efforts were not successful because of the lack of understanding on

both sides. But the ADA and dentistry have learned from this past

experience, they have calibrated their approach, and voluntary and

cooperative partnerships have succeeded in some of the subsequent

efforts.

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Third, according to the 1997 report to Congress by EPA, dentistry contributes to less than 1 percent of the total mercury found

in our lakes and streams—0.4 percent mercury in surface waters.

Fourth, mandating separators would require a costly inspection

and enforcement apparatus, given that there are some 100,000 dental offices that would need to be regulated.

Fifth, nothing precludes in the proposals that the ADA has made

the State or local agencies for enacting mandatory programs,

should voluntary efforts fail. As the testimony submitted by some

of the other witnesses indicate, many of them encourage cooperative efforts between the regulators and the local dental associations

to determine whether mandating separators in a dental office is appropriate. And we think that decision is best left to the local authorities.

Dentists drink and fish and swim in the same waters as everyone else in their communities, and they believe that ongoing efforts

to encourage the use of BMPs, which includes separators, are succeeding and will continue to increasingly succeed.

In closing, dentists have steadily reduced their already-minimal

contribution to metal mercury discharges to surface waters over

the past decade. They bring to these efforts the same commitment

they bring to providing the best possible oral health care to the

American people.

I will be pleased to answer any questions you might have.

[The prepared statement of Mr. Walsh follows:]

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Mr. KUCINICH. I thank the gentleman.

I just want to remind all the witnesses that this Chair takes it

very seriously when witnesses rise and take an oath to tell the

truth. I just want you to understand that.

I also want to ask the members of the committee, without objection, if each of us may proceed for a period of 10 minutes for the

questioning of the witnesses.

Without objection, so ordered.

I am going to begin here and ask some questions of Mr. Walsh.

I want to say that the subcommittee appreciates your participation on behalf of the ADA, because we are dealing with a matter

that cannot be addressed without the participation and cooperation

of the dental community.

After listening to your testimony, I am somewhat confounded by

the substance of it, because it seems that the ADA is at odds not

only with the witnesses on this panel and the next panel but also

with its best management practices, which recommend the use of

amalgam separators. And this committee is going to ask you to

help us understand.

I want to begin with the impact of dental mercury emissions on

the environment. Now, in your testimony—and you said it twice in

the last minute—you said that dentistry plays a very small role in

the overall issue of mercury in surface waters. Today, we have been

discussing the impact of dental mercury emissions into the environment from wastewater, not surface water.

Testimony for today’s hearing indicates that dental mercury

emissions constitute about 40 to 50 percent of the mercury found

in wastewater, far exceeding the level of mercury discharge from

all other commercial and residential sources.

Mr. Walsh, do you agree with this finding, that dentistry is the

largest contributor of mercury to municipal wastewater?

Mr. WALSH. Yes, we do. The study we commissioned that I mentioned in my testimony determined that between 40 and 50 percent

of the mercury from amalgam discharged into wastewater treatment plants——

Mr. KUCINICH. OK, I am glad that you agree, because I have

here a statement that agrees with your position. The World Health

Organization that says that one-third of the mercury in the sewage

system comes from dental amalgam flushed down the drain. And,

more discretely, the Association of Metropolitan Sewage Agencies

found that dentistry contributed 40 percent of mercury into wastewater, over three times the next greatest contributor.

And so, in your opinion, Mr. Walsh, does dentistry play a significant role in mercury contamination into the environment? Yes or

no?

Mr. WALSH. No, because the wastewater treatment plant removes 95 percent of that mercury that goes into the wastewater

treatment plant. You are looking at influent numbers, also the

amount that may be collected in the sludge. The reason it is being

collected in the sludge is it is not being discharged through.

The study I mentioned looked at both the effect of incineration

of the sludge for the 20 percent of the sludge that is incinerated,

as well as the direct discharges.

Mr. KUCINICH. Thank you.

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To the other panelists, I would like you to respond to that, starting with Mr. Bender. Keep it brief, please.

Mr. BENDER. Wastewater treatment plants aren’t set up to treat

hazardous waste. It’s very clear that most of the mercury ends up

in the sludge, and the sludge gets incinerated or it gets land-applied or it gets used as a soil amendment.

And there are a number of studies out there, which are in my

previous testimony, I can provide to the committee, which indicate

that mercury gets released into the environment; it does not get

captured.

Mr. KUCINICH. Dr. Fischer.

Pull that mic closer, please.

Dr. FISCHER. I would agree that 95 percent of the mercury in the

wastewater from the amalgam does settle, but then it just goes

from one pocket to another. I mean, I mean it’s not reclaimed, recycled or captured in any way that’s effective. It’s been just put back

into the environment in some other manner. The wastewater treatment plants aren’t alchemists. I mean, mercury comes in;

mercury’s got to go out somewhere.

Mr. KUCINICH. Mr. McCormick.

Mr. MCCORMICK. Now, from a regulatory standpoint, all you’re

doing is disposing it from one media to the next. You’re not actually reducing discharges to the environment. You are just sending

them out either through the solids, through land application, incineration, generally through biosolids, so——

Mr. KUCINICH. Mr. Walsh, I want to ask you again, considering

that dentistry is the largest contributor to mercury in wastewater

and in light of the fact that once in wastewater mercury becomes

part the sludge that is incinerated, landfilled or sprayed over the

land, volatilized in some way, would you agree that dentistry does

in fact play a significant role in mercury contamination into the environment?

Mr. WALSH. No, because when we looked at various studies that

had been done——

Mr. KUCINICH. OK. I’m going to go on. I’m going to go on with

my questioning.

In your testimony, you also say that, ‘‘even if a dentist installed

a separator, it would have little effect on the environment because

amalgam is ultimately captured at the treatment plant.’’

I want to ask you a few questions about this. Are you suggesting

that mercury discharged into wastewater is not an issue because

it can be treated before the water is released into the effluent?

Mr. WALSH. I’m suggesting that if the impact is surface water,

which is what the impact——

Mr. KUCINICH. The question is——

Mr. WALSH. If you prevent that——

Mr. KUCINICH. You keep on drawing a distinction between wastewater and surface water, but you’re talking about surface water.

This hearing is about the effect on wastewater. This is the point

that I’m asking you; I’m asking you again, are you suggesting that

mercury discharged in the wastewater is not an issue? Wastewater,

you know the difference. Can you answer the question, yes or no?

Mr. WALSH. I know the difference between wastewater and the

surface water.

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Mr. KUCINICH. Can you answer the question, yes or no, sir?

Mr. WALSH. The wastewater is what is going into the POTW. It

is captured. It is not discharged. The limits and the regulatory requirements are based on protecting the surface water and protecting the fish that are in the surface water. So it’s relevant that the

wastewater is in fact captured, whether it was originally designed,

POTWs do in fact, and there is data that NACWA has done, many

studies looking at many different treatment plants——

Mr. KUCINICH. This is one chairman who isn’t going to let you

run out the clock.

Mr. McCormick, what about the wastewater and mercury capture at the publicly owned treatment works?

Mr. MCCORMICK. Well, as I indicated before, it is partitioned primarily—or it settles—it absorbs primarily to the sludge. I would

have to take a little bit of an issue in that water quality, surface

water quality, is one criteria that drives limits. However, I think

what isn’t being talked about is there are also standards for biosolids for mercury. There is—there are various standards that have

to be met. And while surface water quality is one standard that

has to be considered, I think biosolids or sewage——

Mr. KUCINICH. I want to go back to Mr. Walsh.

Mr. Walsh, is it true or not that the International Academy of

Oral Medicine and Toxicology has said that wastewater treatment

facilities are not designed to process or handle heavy metals?

Mr. WALSH. I don’t know that particular reference, but I think

the statement is correct that they were originally designed in the

turn of the century to treat wastewater. The physics of the amalgam particles and the data that has been looked at across the

board by the National Association of Clean Water Agencies show

that in fact because of that physics 95 percent plus of the amalgam

particles are captured in the sludge, as was indicated. And in fact

NACWA has said, looking at the mercury levels in biosolids across

the country, that there are today, as a result of a number of mercury reduction programs, the levels are well below EPA’s standards

for biosolids.

Mr. KUCINICH. Well, we’ve received—as members of this committee, we’ve received testimony from several representatives of municipal wastewater plants. And in that testimony, we are told that

precisely because wastewater plants cannot adequately remove

mercury, the respective sewage district adopted a prevention policy

and began with its dental community, who constitute the largest

contributors of mercury to wastewater.

Does everyone have this wrong, Mr. Walsh, or are we not understanding something about your presentation here? Could you help

us a little bit?

Mr. WALSH. The, particularly in the Great Lakes, which

have——

Mr. KUCINICH. Can you be close to the mic?

Mr. WALSH. Yes. Particularly in the Great Lakes, there is a very

low water quality standard; I believe it is 1.3 parts per trillion. The

level of mercury in rain, mainly from combustion sources, some of

them outside the United States and some in, exceed that level. So

the municipalities were faced with a tough problem; the level cannot be reached no matter what the discharge is. And in those

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areas, many of the municipalities are using a variety of techniques

to try to get their sources to reduce the levels. And so—but there

are other areas where there are aren’t such low water quality

standards, and there are no biosolids limits being exceeded, and

there are no discharge surface water quality levels being exceeded.

And in fact, the fish are not being—containing levels that are

above the level.

But remember, the ADA has taken the position that we should—

every dentist in the country should in fact install a separator; that,

as has been said, it is better to recycle this material; and that the

preferable way is using the good offices and resources of the ADA

to help communicate these requirements to the thousands of health

and dental professionals to work cooperatively with government for

the mutual goal.

The goal here now is the same now. Admittedly when we started

our discussions and were educating ourselves as to what was happening, the goal wasn’t the same. But the goal is now the same:

Gather as much of this as possible in the dental offices, get it recycled. There is a difference as to whether a voluntary program initially, as is always true in a voluntary program, the potential of it

becoming mandatory is the preferable way. And we have to think

for a number of reasons that it is preferable, but I think there is

more agreement now than there has been historically on what to

do.

Mr. KUCINICH. I thank the gentleman.

I just want to conclude this round of questioning for myself by

making this observation, and that is that you’ve said that the ADA

supports the use of separators because they prevent, and this is a

quote, a significant amount of waste amalgam from being deposited

in wastewater treatment biosolids. And if the plants will treat the

water in any case, then, you know, it is obvious, why would the

ADA support the use of separators?

What’s happening here is that, while your best management

practices say that, you focus on the word ‘‘voluntary.’’ That’s where

you’re holding on to that for dear life, voluntary as opposed to mandatory. But we’re talking about a neurotoxin here.

Now I can understand and I’ve had debates with my Republican

colleagues on the whole issue of regulation. And you know, there

are some honest debates about it. How far do you go with regulation? But this is a particular area that has to do with a substance

that has been found to not just be a neurotoxin, but that particular

neurotoxin is associated with a whole other range of serious health

implications.

And so the questions of this subcommittee are going to challenge

your position on the—I’m assuming will challenge your position on

the difference between voluntary participation and mandatory. And

it becomes particularly important since the ADA itself has taken

a position that you support the use of separators.

So the Chair recognizes Mr. Burton. I took 13 minutes. You can

have the like amount.

Mr. BURTON. Thank you very much.

The Association of Metropolitan Sewage Agencies estimates it

costs as much as $21 million per pound to safely remove mercury

once it becomes part of the wastewater stream.

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The Environmental Protection Agency estimates that sewage

sludge nationally contains about 15 tons of mercury per year from

all sources, not just dental amalgam. However, the Association of

Metropolitan Sewage Agencies estimates that 35 to 40 percent of

the mercury load comes from dentists. That’s roughly 6 tons of

mercury. At 2,000 pounds per ton, that means it costs taxpayers

roughly $252 billion per year to remove dental mercury from sewage sludge.

In contrast, the company Solmetex sells amalgam separators priced from a low of $715 to $2,490. If every one of the 155,000

members of the American Dental Association purchased an amalgam separator, it would cost anywhere from a low of $110.835 million to a high of $38—385.95 million one time only. Wouldn’t you

agree the most cost effective solution is to simply stop mercury contamination at its source within a dentist’s office?

Mr. WALSH. We looked at the cost effectiveness, but I believe the

numbers you are quoting is if a POTW had to do additional reduction to meet numbers like the Great Lakes water quality standard

of 1.3. The existing cost to POTWs, since their sludge levels are not

exceeding the regulatory levels that were based on risk, as I understand it, is nothing. The plants, as designed, although that wasn’t

the purpose of the design, in fact collect the numbers we are talking about. Separators collect slightly more; it is an additional

amount of collection.

When you look at using the same kind of methodology that EPA

uses, and you have to include the cost of recycling all of the amalgam that’s collected because that’s part of the cost, it is actually

higher than it would cost to reduce mercury emissions from coalfired plants. Despite that, the ADA has taken the position——

Mr. BURTON. Do you have any amalgams in your mouth? .

Mr. WALSH. Yes, I do.

Mr. BURTON. Do you? Do you remember when they put those

amalgams in your mouth?

Mr. WALSH. I remember generally. It started when I was a child,

and I have quite a few.

Mr. BURTON. Do you remember when they mixed it up, they put

the mercury in and they mixed it up with this little machine; do

you remember that?

Mr. WALSH. I actually don’t remember that. I know that was the

practice until recently.

Mr. BURTON. I remember how they did it. They mix it up, and

the dental assistant mixes it, and they put it in this thing, and

then they put it into a device that inserts it into your cavity. And

when put that into your cavity, they say, well, it is going to be

inert; it is not going to cause any problems. But every time I every

had an amalgam put my mouth, there was a lot of it that squished

out and went into my mouth. And then I would rinse it out after

they—while they were doing it, and we would spit it into the water

container. And you know where that mercury goes then, don’t you?

Mr. WALSH. Yes, it goes down into the sewer system.

Mr. KUCINICH. It goes down the sewer system.

Mr. BURTON. The sewer system. What about the mercury that

doesn’t go down the sewer system that you swallow, because you

can’t get it all out? Does that have any impact on a human being?

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Mr. WALSH. Well, my testimony is focused on the environmental.

I am an attorney. I think it would be beyond my capacity to testify

on——

Mr. BURTON. Well, let me just tell you, it is my belief that if you

consume mercury in any form or have it injected into your body,

it is a contaminant that can cause neurological problems. And

that’s why I believe that they shouldn’t be putting amalgams in a

person’s mouth in the first place. Separators are a plus. They are

going in the right direction. But why in the world even put amalgams into a person’s mouth? It doesn’t make any sense to me.

I know that, I’ve talked to some dentists who say, well, it costs

more to put another kind of filling into a person’s mouth and it

may not be as durable as the amalgam, but nevertheless, you can

do it. And for the additional cost, I think most people, if they are

made aware that the amalgam is about half mercury, that they

would opt not to have the mercury put into their bodies in the first

place. And I just think there is an educational process that should

take place in the dentist’s office saying, the side effects of having

mercury ingested into the human being either in the form of a vaccination or in the form of an amalgam.

We were talking about the sludge that goes into the wastewater

treatment system. Where does that sludge go when it leaves the

treatment center?

Mr. WALSH. About 20 percent of it nationwide is incinerated.

Mr. BURTON. Wait, let’s stop right there. It is incinerated.

Mr. WALSH. Correct.

Mr. BURTON. When it is incinerated, where do the particles go?

Mr. WALSH. You mean the mercury?

Mr. BURTON. Well, anything that’s incinerated, doesn’t it go up

in the air?

Mr. WALSH. Some of it becomes ash. Some of the mercury is

emitted. About 95 percent, 96 percent, I forget the exact figure, is

captured in the pollution control device of the incinerator.

Mr. BURTON. OK, where does it go then?

Mr. WALSH. I don’t remember off the top of my head where it

goes then.

Mr. BURTON. Well, it doesn’t just disappear.

Mr. WALSH. No, I assume it is disposed of.

Mr. BURTON. Is it recycled in some form into another mercury

product?

Mr. WALSH. I’m afraid I don’t know what the——

Mr. BURTON. But you know it does exist; it is there.

Mr. WALSH. Oh, no question, it’s an element.

Mr. BURTON. So the mercury is in the environment after it comes

out of an amalgam and goes through the system, right?

Mr. WALSH. Could you repeat the question?

Mr. BURTON. The mercury that’s in the amalgam, when goes

through the system, the sludge or whatever it is, it is back in the

environment some place.

Mr. WALSH. It is in the sludge, which is either landfilled, and

we’ve looked at the studies that have been done historically on the

emissions from landfills and looked at the percentage of mercury

that would be from sludge; it is a very small amount, but——

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Mr. BURTON. Wait a minute. It says that 30 tons of mercury is

going into the amalgams a year. That’s the estimate.

Mr. WALSH. Yes.

Mr. BURTON. Excuse me, 6 tons of mercury, excuse me, 6 tons

of mercury is going into the amalgams per year. That 6 tons is

going to go some place. It is either going to stay in a person’s

mouth or into the wastewater treatment system, and it is either

going to be incinerated, in the sludge, or it is going to be sent

someplace else, or it is going to be put into a landfill. If it is put

into a landfill, it’s going to leach down into the ground and into the

groundwater.

We’ve had tests of water in Indiana that’s found mercury in the

groundwater.

Now, why in the world—I’m not talking about the separators

now—why in the world wouldn’t dentists or anybody that deals

with mercury say, hey, it is a toxic substance, we ought to get it

out of the environment in any way possible? And a dentist, knowing that they are working with it on a daily basis, why wouldn’t

they want to get it out of system?

Mr. WALSH. Well, we looked at EPA’s regulation, and these are

long standing regulations from the 90’s. They looked at all of those

issues when they issued the regs. The National Academy of Science

reviewed the biosolids limits, and the, I believe NACWA has said

that all the evidence suggests that those metals, mercury included,

are not causing health hazards when they are disposed of in compliance with those regs.

Mr. BURTON. Recently, the U.S. Food and Drug Administration

settled a lawsuit with several consumer groups promising to classify dental amalgam and list the possible hazards involved with

mercury-based fillings within a year. As part of the settlement, the

FDA has even publicly withdrawn its claims that amalgam is safe

for all and now warns—this is the FDA now—dental amalgams

contain mercury which may have neurotoxic effects on the nervous

systems of developing children and fetuses.

Why—does the American Dental Association agree with that

warning?

Mr. WALSH. Again, the purpose of my testimony and the focus is

on the environmental impacts, and I am an attorney. I’m sure if

you want to submit a question to the American Dental Association,

they will provide an answer. But you’re asking the wrong—you’re

just asking the wrong person.

Mr. BURTON. You don’t have the answer to that.

But the FDA has publicly withdrawn its claims that amalgam is

safe for all and now dental warns dental amalgams contain mercury which may have neurotoxic effects on the nervous systems of

developing children and fetuses. And that being the case, why

would they put them in an adult’s mouth in the first place, because

obviously it could have an adverse impact on the adult as well? I

just don’t understand the ADA. I just do not understand it.

When I had the amalgams put in any mouth, I can remember

vividly, because I had some pretty bad teeth at one time, and I remember vividly them mixing it up and squirting it into my mouth.

And I can remember, remember them sucking it out with a vacuum

cleaner and it going down into the water system, going through the

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system. And when I’d spit it out, it was going into the water and

down into the sewage system. And when I—and the part that went

flushed out or vacuumed out went into my body. And I just can’t

understand why people don’t realize that mercury is toxic, and it

shouldn’t be inserted into a human being in any form. And no matter how much you say—and I won’t take any more time, Mr. Chairman—but no matter how much you say all the science and

research——

Mr. KUCINICH. The gentleman has another 21⁄2 minutes actually.

Mr. BURTON. Thank you.

No matter what is said by scientific research or anything else,

common sense would dictate to me and to any human being that’s

made aware of the dangers of mercury that it shouldn’t be in your

mouth. They took it out of thermometers. They took it out of Merthiolate, Mercurochrome. They took it out of ophthalmologic liquids. They take it out most of the children’s vaccinations. It is still

in—it is in almost all of the adult vaccinations. And I just cannot

understand, it just alludes me why a substance that is as toxic to

the neuro—neuro system would be put into the human body. I just

can’t understand it.

With that, Mr. Chairman, I don’t—I have a sense of frustration

that goes on every time we have one of these hearings.

I will just yield back the balance of my time.

Mr. KUCINICH. I thank the gentleman.

Congresswoman Watson you may proceed for 13 minutes.

Ms. WATSON. I just want to let Representative Burton know I am

sitting here so frustrated.

And I really want to know, Mr. Chairman, why the American

Dental Association would send their attorney and not a health professional for this hearing. Since the counsel for the ADA is here,

we ought to have someone from the opposing side, some attorney

come, because I’ve been listening to the responses. And these are

truly the responses from a defense attorney and not the responses

from a health professional who is interested in the health of every

single human being here in the United States.

So I’m going to address my questions to you, Mr. Walsh. Does

the ADA support local and State government efforts to reduce mercury? And how does it encourage its members to cooperate in these

programs?

I want to go further to say, you said many minutes ago that it

should be a local and State, but Mr. Burton is from a different

state; I’m from a different state, and Mr. Kucinich is from a different state. We ought to have some kind of Federal regulation because the risk is the same regardless. I’m from California, and the

risk is high, and you keep talking about the surface water. I want

to tell you about the water that is waste that apparently is not

being processed, because I have evidence.

And I’m sure, Mr. McCormick, when I direct some questions,

knows that there is evidence showing that the mercury comes from

the waste that comes from dental offices mainly.

And I also understand that Mr. McCormick’s report in some way

has been curtailed when it was completed, but I will address this

to him.

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So will you please deal with what the ADA is thinking in terms

of local and government efforts to reduce mercury? And then if it

encourages its members to cooperate in these programs? Would you

please respond?

Mr. WALSH. Well, the ADA has been supporting, since at least

2002, efforts to reduce the discharge of amalgam into wastewater

treatment plants, initially through what was then the use of best

management practices that were limited to chair-side traps.

Ms. WATSON. Period, period. These were voluntary efforts, yes,

no?

Mr. WALSH. The ADA best management practices are voluntary

recommendations of the ADA. We have no——

Ms. WATSON. OK, they are voluntary?

Mr. WALSH. Yes.

Ms. WATSON. Thank you very much.

Mr. WALSH. We also have worked cooperatively with regulatory

agencies and various State agencies—State associations.

Ms. WATSON. OK, put a period there, because I’m going to use

my time——

Mr. WALSH. Yes.

Ms. WATSON [continuing]. Very thoroughly and wisely.

How does the ADA encourage its members to cooperate with

these programs? And what is the percentage of cooperation, voluntary cooperation?

Mr. WALSH. The answer to that, you need to understand——

Ms. WATSON. Wait a minute. How does it encourage its members? Can you get right on point?

Mr. WALSH. Well, they have developed their understanding. Dentists were not familiar with the regulatory system. They were being

faced——

Ms. WATSON. So you’re talking about enlightenment——

Mr. WALSH. Well, first you have to educate anyone——

Ms. WATSON. I am an educator so I like that response.

Mr. WALSH. Whatever it is, whether it is an enforcement action

or a voluntary program, first, you’ve got to inform the regulated

community——

Ms. WATSON. Good. Period on that, period, period, on that.

Should we educate the patients as well when they walk through

that door? Should we educate them about what the amalgam contains?

Mr. WALSH. Again, that is not the subject of my testimony.

Ms. WATSON. Yes or no?

Mr. WALSH. It’s just not within my area of expertise.

Ms. WATSON. So you don’t know. You don’t know. You don’t know

if we should educate the patient?

Mr. WALSH. I am——

Ms. WATSON. You know, that’s why I want a health professional

here, not you the counsel, because you represent just one side of

this. And you’re going to give me the legal jargon, and that’s not

getting to the problem.

I’m going to have my staff give you the bills that I have introduced, 7 years. And we’re trying to get them moving because my

interest, my interest personally is protecting the health of the public. That’s my interest. My interest is letting them know the risk

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they undertake when they have—I’m passionate about this because

it happened to me. And they would send you the counsel and not

the health professional.

OK, you didn’t tell me what percentage of the dentists are cooperating. Do you know that? Do you know that?

Mr. WALSH. There are no hard figures. EPA——

Ms. WATSON. OK, you don’t know it.

Mr. WALSH [continuing]. Estimated——

Ms. WATSON. Don’t give me the jargon, please. My time is limited. You don’t know it. You don’t have those figures; yes, no?

Mr. WALSH. There——

Ms. WATSON. You don’t have those figures——

Mr. WALSH. We do not have any figures, correct.

Ms. WATSON. Yes, no?

Mr. WALSH. We do not have any figures,

Ms. WATSON. OK, thank you.

What was the difference about the experience in EPA Region 8?

And according to Mr. McCormick, you were strongly opposed to the

EPA’s guidance on setting and meeting local limits for toxic metal

discharge.

Mr. WALSH. We started voluntarily coming to EPA, over a year

and a half before Mr. McCormick ever issued his guidance, seeking

to put a voluntary program together to reduce the amount of amalgam. In the midst of that, we found out that the city of Laramie

was being told that they would be enforced against if they didn’t

meet a number in a draft guidance.

We asked to see the draft, so we could comment on it. Mr.

McCormick mentioned a Region 5 draft. We had commented earlier

in the year on a Region 5 draft, which in fact does not say ‘‘use

only voluntary.’’ It says, ‘‘you may use a voluntary; you may use

a mandatory.’’ And it says you can use what was then just chairside traps and vacuum filters or you could require separators——

Ms. WATSON. Period, period. Did you try to influence the outcome

of the EPA policy in Region 8?

Mr. WALSH. We filed public comments with Region 5, with Region 8, with EPA headquarters. We continue to fill comments in

regulatory proceedings. Those comments are public record. Those

comments have been given and are on the Internet. In fact, we file

and attach all those comments.

Ms. WATSON. Let me read this. subcommittee staff spoke to the

ADA and asked your representatives about the case. Jerry Bowman, the ADA’s general counsel told my staffer or this staff of the

committee that the ADA has no control over an EPA representative. However a letter written by Mr. Bowman to Benjamin Grumbles, the assistant administrator in February 2005, reveals that the

ADA tried to interfere with Mr. McCormick’s initiative. Now I’m

going to give you a relevant quote from that letter: Region 8 has

clearly not shifted its position one inch since our meeting with you.

As we stated then, this is a very damaging position. Through its

proposed guidance, Region 8 will wipe away EPA’s effort to reach

consensus to work with small businesses and to encourage voluntary efforts and replace those goals with a command and control

strategy.

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Mr. Walsh, please help me understand this, the ADA supports

the use of amalgam separators, and you conceded the environmental impact of dental mercury on the environment was great. So

why was the ADA so strongly opposed to EPA’s efforts in Region

8? Do other State or local governments who try to initiate similar

policies have the same to look forward to from the ADA? Do you

have any idea? You’re representing them. You’re the counsel.

Mr. WALSH. These decisions are made on a case-by-case basis.

The Michigan Dental Association is supporting, contrary to what

was said earlier, a statute that would require amalgam separators

in Michigan. What we were doing then, this was before the recent

amendment to the BMPs that required amalgam separators, is

we’re taking the position that the local governments, the State and

local entities should be free to choose a voluntary program or a

mandatory program.

What Mr. McCormick, and he is trying to fulfill his duties, he

precluded any voluntary program. We believe, given the number of

sources, given the nature of the sources, professional people who

were not familiar with the environment, that the preferable way

and the more effective way to use the limited resources that the

agency has on enforcement is to use a voluntary program always

backed up, and we would be remiss if we didn’t tell our members

that this they don’t fulfilling voluntary program, if it is not effective, a mandatory program would follow. But this has been

done——

Ms. WATSON. OK, period, period, period, please.

Mr. WALSH. Done by a number of——

Ms. WATSON. Period, period, when I say that, please cease, because I’m on time. They are keeping time on me.

Mr. KUCINICH. The gentle lady has another minute.

Mr. WALSH. I apologize.

Ms. WATSON. The ADA supported a lawsuit filed by Laramie

dentists opposing the Region 8 guidance; is that correct?

Mr. WALSH. No, that’s not correct. We filed comments publicly

and appeared at the council meeting, and we explained the reasons

we thought a more cooperative voluntary approach was

appropriate——

Ms. WATSON. I got it, I got it.

Mr. WALSH [continuing]. As was pointed out.

Ms. WATSON. Mr. McCormick, can you tell me about the—give

me a summary of what your report showed for Region 8.

Mr. MCCORMICK. The strategy?

Ms. WATSON. Yes, and what your recommendations would be.

Mr. MCCORMICK. The chairman asked a really good question earlier. It was rhetorical, unfortunately, and deals with what exactly

you’re asking, is how far do you go with regulation? I kind of want

to make it clear because everything seems to get spun here, and

that’s a frustration, when I was a regulator, that I always had. The

law already exists, the Clean Water Act exists, and the regulation

exists, and they clearly say, although the ADA probably wouldn’t

accept this, that we have a problem with the pollutant; it’s mandatory to implement controls. It is not a voluntary reaction to a pollutant problem.

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The regulations already exist. They are black and white. There

isn’t a gray area there. And that’s where—that’s sadly where the

influence is kind of coming in twisted. There is no leadership to

make sure that these regulations are implemented and enforced.

The regulations are there: If mercury is causing a problem, you

must control it being discharged into a sanitary sewer system.

There is no gray area in the regulations. That’s what my strategy

said. It said, like we do with every other pollutant that’s causing

a problem with an environmental criteria standard, you shall control discharges from nondomestic sources, which include

dentists——

Ms. WATSON. A question to the Chair, ‘‘shall’’ and ‘‘may’’ are two

different legal terms.

Mr. MCCORMICK. Absolutely.

Ms. WATSON. ‘‘Shall’’ was used, making it mandatory, correct?

Mr. MCCORMICK. In the regulations, it’s ‘‘shall.’’

Ms. WATSON. The attorney is moving his head, because these are

legal terms, ‘‘shall’’ and ‘‘may.’’ ‘‘May’’ is permissive; you do it if you

want. ‘‘Shall’’ is mandatory.

Mr. MCCORMICK. I would just direct the ADA to the objective——

Ms. WATSON. OK. I just asked my staff to get me the language.

Mr. WALSH. You should also look at the Court of Appeals

opinion——

Ms. WATSON. Mr. Walsh, I was addressing——

Mr. WALSH. Oh, I’m sorry.

Ms. WATSON [continuing]. Mr. McCormick. Thank you.

Mr. Walsh, are you a member of Pepper Hamilton, L.L.P.

Mr. WALSH. Yes, I am.

Ms. WATSON. Is that your firm? OK, the lawsuit I believe was

filed—I’m not sure of this date—December 17, 2004.

Mr. WALSH. That’s the date——

Ms. WATSON. Somewhere in there.

Mr. WALSH. That’s the date we filed comments with the city.

Ms. WATSON. And you have—you wrote this letter, if I’m correct.

This is the city of Laramie Public Works, you wrote it to the mayor

and the city council member.

Mr. WALSH. Correct.

Ms. WATSON. If there is anything I say, then you can intervene,

and say, it is not correct or just not a factoid.

Mr. WALSH. OK.

Ms. WATSON. And remember, you’re sworn in, so that is why I

say that disclaimer.

You say: I have been retained by the Laramie Dental Association, which represents all 12 dentists in Laramie, WY, and the Wyoming Dental Association, and the American Dental Association to

provide their comments on the city of Laramie’s proposed local

limit of two-millionths of an ounce of mercury per liter, that’s 2

parts per billion, for wastewater discharged into the city of

Laramie’s sewage treatment plant. The ADA has also submitted

comments on the EPA Region 8 draft guidance. That is the motivating force behind the enactment of this poorly—poorly—thought

out ordinance and has met with the EPA assistant administration—administrator of water and his staff to address this draft document and as a part of its ongoing effort to develop a national

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guidance for reducing mercury releases from dental offices. And the

Laramie dental community strongly opposes this specific ordinance.

And then you go on to state the reasons. Is this letter authentic?

Mr. WALSH. Yes.

Ms. WATSON. And you still believe those reasons that you state

in your letter of December 17, 2004, are relevant to today?

Mr. WALSH. Yes.

Ms. WATSON. OK. And you say there is no need to rush to judgment; the EPA guidance is still draft and is inconsistent with national policy.

The intent and my intent is to change national policy.

So I’m going to have your letter a matter of record, Mr. Chairman.

Mr. KUCINICH. Without objection the letter will be included in

the record hearing.

[The information referred to follows:]

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Ms. WATSON. And I want you to look at my proposed legislation,

and I want to you respond to me and to the other members of this

subcommittee as to how my proposed legislation would be opposed

by the ADA and why.

Do I have your commitment to do that, to look at my legislation

and tell me if it’s inconsistent with this letter that you wrote opposing the draft coming from Region 8?

Mr. WALSH. We will look at it and respond.

Ms. WATSON. And get back to me.

Mr. WALSH. As positively as possible.

Ms. WATSON. If you would respond, which I would appreciate it,

I’m going to look at your letter, and I will read your response. And

I will share it with the subcommittee and the Chair.

Mr. KUCINICH. I thank the gentle lady.

Without objection, the Chair is going to continue with one more

5-minute round of each of the witnesses or of this next—of this

panel.

I would like to begin with a question for Mr. Walsh.

I want to ask you a question about what you term as your voluntary success stories in the ADA’s comments to the EPA concerning its dental office scoping study. You reference five examples of

voluntary success stories in Massachusetts, Duluth, Washington,

Madison—and Madison, WI, and the Minnesota Metropolitan

Council for Environmental Services. We have looked at these carefully, and this is what we found: With the exception of the Minnesota case studies, all were a combination—a combination—of voluntary and mandatory provisions. Even the exception proves the

rule. In Duluth, MN, there are only 55 dental offices, and the lead

chemists in the Western Lake Superior Sanitary District obtained

a grant for all the separators acquired.

Moreover, the sanitary district had a very hands-on approach

and worked with every office to install the separators. Even the

sanitary district told us that this model could not be replicated in

a larger city.

Duluth, MN, has submitted testimony to be entered into our

hearing record.

If we have a slide ready, can staff put up slide 3? Do you have

that available? OK, between—is that the right chart? We’re looking

at the slide that has to do with the Massachusetts Dental Society.

I’m just going to—do you have it? OK. Yeah, that looks like the

right one.

Is that OK?

Between 2001 and 2004, a memorandum of understanding between the Massachusetts Dental Society and the State, and by

2003, there was only a modest increase in the installation separators. In 2004, the Massachusetts Department of Environmental

Protection initiated a followup program to speed up the process. It

did two things. One, it offered incentives for voluntary compliance;

and two, announced that mandatory regulations would be adopted

in 2006. So that, by 2006, the compliance rate in Massachusetts

was about 75 percent, and after the implementation of the mandatory program, compliance had jumped to 95 percent.

Mr. Walsh, despite your testimony that deems Massachusetts a

model for voluntary compliance, it should be noted that when it

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was strictly voluntary, between 2001 and 2004, it wasn’t very successful at all.

We also have testimony from Washington State; Madison, Wisconsin; and they tell a different story than the one that you’ve told.

Like Massachusetts, their purely voluntary approach had no impact until there were incentives to install the separators and the

government announced a looming mandatory program.

In view of a full reading of the history of these case studies,

wouldn’t it be more accurate to describe these cases as models of

government-dental collaboration as opposed to voluntary success

stories?

Mr. WALSH. I think my testimony, my opening statement, indicated that we had learned a lot in the dental community. We were

talking about a problem that really wasn’t on the horizon, certainly

regulatorily, before 2001. And the dental community is 155,000 different people. They had to be educated as to the law. They had to

be assured that, in fact, the separators—and they went out and did

it themselves—could be tested, were effective, that we did surveys

of the costs.

I’ve mentioned a number of times the amendment of the best

management practices last year to include separators; that—dentistry makes many of the big decisions by vote of the House of Delegates. These are people elected by dentists geographically, and

they vote. It was an overwhelming vote. There is no question that

understanding and cooperation was not there initially, has grown

over time. We believe that dentistry and the fact that we have a

common goal now of 100 percent of all dentists should follow the

best management practices, that this is still more like other examples. In 1999, EPA went to the laundries and said, there are so

many little laundries, we want a voluntary program. It has been

done with a number of different industries, including mercury in

laundries; a lot of laundry detergents have mercury. The kind

of——

Mr. KUCINICH. But we are not drinking the dirty water out of the

laundry.

I just want to point something out to you, and that is that, you

know, you’re suggesting that dentists now install separators because they are better educated, which is, you know, good, obviously. I mean, you’re also suggesting, we’ve learned; we’re trying

to move in the right direction; and here is what we’re doing; and

this is the progress that we’re having voluntarily. But in your testimony, you write that voluntary programs are just as effective as

a mandatory approach. But according to the subcommittee’s national survey, that doesn’t seem to be the case.

Can we put that next slide up there?

Now, if you look at these figures and understand them, it shows

that voluntary programs don’t exact the same results as mandatory

ones. That’s what the record suggests.

Would you like to respond to that, Mr. Walsh?

I mean, what are your thoughts about this? Your whole presence

here is trying to defend voluntary as opposed to mandatory, but

here we’ve got some actual survey data that seems to contradict.

We’re informed that we have an up-to-date slide. Do you want to

get it up there? Have you got it now?

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I’ll give Mr. Walsh a moment to take a look at it.

Mr. Walsh, do you have—does the committee staff have a copy

of this?

Can you see that, Mr. Walsh?

Mr. WALSH. The slide that’s up on the screen? I can see it.

Mr. KUCINICH. The name of the State, county municipality offices

with separators installed; voluntary separators installed; mandatory.

Mr. WALSH. And the question is?

Mr. KUCINICH. Well, the question is, voluntary or mandatory? I

mean, you’re defending a voluntary approach, and it seems that the

compliance level just isn’t there. And if you are recommending

these amalgam separators on a voluntary basis, but it doesn’t appear to work, why wouldn’t the ADA change its position and tell

people they have to have them in there? Why wouldn’t you do that?

Mr. WALSH. Well, what I think we would be doing, and this,

again, the BMPs, we added the separators last October. The separator pieces are being put into the education requirements. What

we have now is the leadership overwhelming voting for separators.

That didn’t exist, and there is no question, when this first came up,

they first asked how can we be regulated; we’re dentists? There is

an education process, information process. Dentists like science. We

went out and did the science. Many of these things the ADA has

done on, you know, its own expense to help set the pieces that

would allow for putting in separators, and we are willing to do

other things to keep track of the information rather than a lot of

paperwork going around, keeping track of actually how much dentists send amalgam to either recyclers or the amalgam separator

manufacturers so we have hard figures, rather than pieces of paper

that say this is what is being done.

Mr. KUCINICH. I just have to say that anyone who is watching

this, just I would assume, as the unbiased observers that are out

there, it seems that the ADA has a resistance to mandatory regulations with respect to dental mercury. It seems that your resistance

to it is almost theological. Faced with a tremendous amount of evidence, you just don’t want to get off that position of saying it is voluntary instead of mandatory.

I’m wondering—it seems to me, and I don’t know how my colleagues feel about this, but in listening to Mr. Walsh, he’s very well

spoken and obviously a very effective witness from the ADA’s

standpoint, albeit that there are some concerns that there are questions you couldn’t answer, and we are going to submit followup

questions to the ADA to give them a chance to go on record. But

are there product liability concerns here? Is there something deeper

here that you’re—that a class action could be in the offing if all of

a sudden, you take this, you feel that it would be fortifying a position and would undermine your position? Did you ever have any

discussions about that?

Mr. WALSH. Well, that would be attorney-client if I had discussions.

But frankly, our concern is, it has to do with the nature of, I

think, dentistry and what we think is the more effective way;

100,000 different dental offices is larger than most point-source dischargers in the country.

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Mr. KUCINICH. Indeed, I mean that’s why this has some consequences.

Mr. WALSH. It also makes it difficult to enforce. We think that

whatever the final decisions of either Congress or the agency, there

should be cooperation between the government and dentistry.

I understand that one can say it should have been done quicker,

but there is a process that the American Dental Association goes

through in terms of getting the science behind things, getting educated. And because they elect their leadership and some of these

discussions are made by the House of Delegates, it is done with deliberate process, and we are now at a stage that’s different from

when we were in these other things.

I mentioned a few minutes ago, the Michigan Dental Association

is supporting now a statute making separators mandatory. Each

State differs. There are different circumstances, and we think——

Mr. KUCINICH. I just want to say, this is very interesting, this

assertion, because here we are, mandatory or voluntary, case-bycase basis, as if the science should be applied on a case-by-case

basis. We either have scientific facts here that underlie the concerns that bring this subcommittee to this moment and health concerns, or it is just a case-by-case basis.

You’re an attorney. Surely, as an attorney, you are—bodies of

law, it’s understood, are—you know, the basis of them are not voluntary; they are mandatory. And when we’re talking about regulation, the entire structure of regulation in this country is based on

certain things you can’t do.

When Moses came down from the Mount, he didn’t say, these are

10 voluntary ideas here, commandments; thou shalt not, thou shalt

not pollute, perhaps. Or maybe, whether you like it or not, if you

like to you could pollute, if you don’t—this is where this whole

meeting turns today. I would suggest to you respectfully as someone who has a great deal of admiration for the kind of effort that

goes into a dental practice, into the life of a dentist, who understands the commitment that dentists have to their patients, the

ADA, it seems to me, for whatever reason, whether it is product liability, class-action exposure, or what, the ADA is really behind the

curve on this, and I don’t understand why that is——

Ms. WATSON. Mr. Chairman, would you yield for a question?

Isn’t the Hippocratic Oath that you do no harm?

Mr. KUCINICH. I’m not a doctor, but I know that to be so.

Ms. WATSON. Well, next time we hold a hearing like this, would

you bring me someone from the association who is involved with

taking that oath rather than an attorney who doesn’t take that

oath?

Mr. KUCINICH. Well, we asked—in fairness to Mr. Walsh, I mean,

we asked the ADA. First, we invited the president. The president

wasn’t available. We agreed that Mr. Walsh would be an effective

witness on the question of regulation. Now, I will give you that

much.

Ms. WATSON. He is.

Mr. WALSH. Thank you.

Ms. WATSON. But not being a health professional who——

Mr. KUCINICH. But we have to set the ADA on record——

Ms. WATSON. Thank you so much.

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Mr. KUCINICH. To say that mercury contamination to wastewater

is environmentally hazardous. We still don’t have that out of you

Mr. Walsh, but I think that—I think we’ll somehow be able to establish that with or without you.

Mr. Burton, your time.

Mr. BURTON. I won’t take much time——

Mr. KUCINICH. I just want to say, why else would they support

separators if they don’t believe that mercury contamination to

wastewater is environmentally hazardous?

Mr. BURTON. I think, Mr. Chairman, a high school student studying science would know that mercury is not the sort of thing you

would stick into a human being in any form. I mean, I don’t think

this is rocket science. I think anybody with any common sense

knows that.

And no matter how much you talk about it, mercury is a toxic

substance, it shouldn’t be injected into the human body in any

form, period. It’s just crazy.

Now, I’m a conservative, and I don’t believe in government regulation unless it is absolutely necessary. But when an organization

doesn’t voluntarily comply with something that’s a public health

hazard, dealing with public health hazards, then the government

has no alternative than to do something about it.

You know, in your testimony, you highlighted two programs to

encourage dentists to voluntarily install separators as examples of

why voluntary problems are better than mandates. The first program you talked about was by your ADA counterpart in 2003, involved dentists in Duluth, MN, where a voluntary program

achieved a 100 percent remarkable compliance rate. Are you familiar with that?

Mr. WALSH. I am, yes.

Mr. BURTON. Do you know that was paid for by the government,

all those separators?

Mr. WALSH. I know the dentists and the local POTW applied for

a grant.

Mr. BURTON. But you didn’t say that in your testimony. I mean,

this was a voluntary program? I mean, the dentists didn’t pay for

any of it. It was paid for by the sewage treatment organization

there.

Mr. WALSH. The biggest cost of amalgam separators is not the

purchase of the separator, but it is the recycling of all the amalgam. That cost is borne by——

Mr. BURTON. In any event, when you say it was a voluntary program, it was not a voluntary program. They voluntarily let them

put them in their offices, but they didn’t pay for them. And so I

think there is a little bit of misleading of the committee there.

Let me just say that I don’t understand why we don’t have somebody from the ADA here who is on the Board of Governors, whatever it is. You are a competent attorney, obviously, but a lot of

these questions we have had and a lot of these statements that we

have had that we wanted to make today was to the ADA itself. I

think it is unfortunate that we don’t have somebody from the ADA

here to testify.

Do we have anybody? Hold up your hand if you are a member

of the ADA here. I would just like to know. You are a member of

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the ADA. Anybody else? But you are on the other side. I mean, is

there anybody here with the ADA—no, nobody except you.

Do you practice dentistry?

Mr. WALSH. No.

Mr. BURTON. I just wanted to check.

Mr. WALSH. I was a research physicist. If that helps.

Mr. BURTON. You were a research physicist.

Mr. WALSH. Before I became a lawyer.

Mr. BURTON. Really.

Mr. WALSH. Went to work for EPA.

Mr. BURTON. Did you ever put an amalgam in somebody’s

mouth?

Mr. WALSH. No.

Mr. BURTON. I didn’t think so. I tell you what. We have three

other witnesses here who might have some things they might like

to say on my time. So if any of you have anything you would like

to comment on—you have heard all this testimony and the questioning.

Mr. Walsh has been pretty kind to sit there and take all the punishment we have been giving him today, so I admire you for that.

But I would like to hear from the three of you.

Dr. Fischer, go ahead.

Dr. FISCHER. I am a member of the ADA, and have been for

many years. I think one of my big disappointments professionally

over the years has been the lack of leadership from the ADA on

this issue.

It is been a quarter of a century or longer now since I have

stopped using amalgam, not because of anything I learned at an

ADA meeting, but the ADA has sort of gotten in the way of a lot

of informed consent legislation, as Congresswoman Watson knows,

in California. They are not really trying to be responsible stewards.

If they are putting 40 tons or 30 tons, whatever figure you want

to use, into people’s mouths every year, and there is 1,000 tons out

there in people’s mouths, you know, the only way to fix this is to

put an amalgam separator on everybody’s bathroom toilet or else

stop putting it in.

Mr. BURTON. Mr. Bender.

Mr. BENDER. Thank you. First, thanks for the opportunity. I

would like to correct for the record a statement Mr. Walsh made.

I don’t believe that sewage sludge incinerators have any kind of

pollution control equipment, so they certainly aren’t capturing 95

percent of the mercury without any kind of capture.

Mr. BURTON. While you are talking about that, you might elaborate and tell us where all that mercury goes and how it is distributed in the environment.

Mr. BENDER. Sure, thank you. Once the mercury gets volatilized

it goes into the atmosphere and some of it, a certain percentage of

it, rains down or dried up in a position locally, some of it regionally, and some of it goes into this global pool.

Part of the concern about any dental mercury that goes into the

air is that it will methylate, and when it methylates, it will get into

the fish, and we know that is a problem.

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So, you know, a big area that hasn’t been discussed today, which

is in my written report, has to do with the cremation and the other

air sources.

During my last testimony in the fall, I presented information

that there was between 7 and 9 tons of mercury air emissions from

dental mercury releases each year. And I believe that Chairman

Kucinich wrote a letter to the EPA asking questions about that

number compared to the EPA’s number of something like 1.5 tons,

and I don’t know whether or not the EPA has ever responded.

But, you know, again, in Washington there seems to be a great

concern over air releases, and we have had this—rightly so—a

major focus on coal-fired plants which are estimated to emit 48

tons a year. Well, here you have another sector out there that is

maybe emitting 10 tons per year.

So, again, the concern there has to do with the methylization of

the mercury and it gets in the fish, and we all know about the tuna

and all the rest.

But there are many different places, and Dr. Fischer did a great

job in his testimony of laying out all the different places, where

mercury gets released into the environment, and if there is the—

the U.S. dental sector is still using 30 tons per year, 60 million

mercury filling placements each year in 10 years or however many

years the life of those fillings, that mercury is going to get released

into the environment, and it is a perpetual cycle. As much as you

use the mercury, it is going to get released into the environment.

One area that we focused on with State legislation is the manufacturers, and I have actually been thinking, in putting this report

together the last few days, that maybe it is time to hear from the

amalgam manufacturers, because there is about five or six of them

in the United States, and I think most of them made both the mercury free so-called composites and the mercury fillings.

So maybe we are—some of the focus we haven’t had today is on

all of these individuals dentists who are really trying to do the best

job with misguided information, unfortunately, from the ADA, that

we need to hear from these five amalgam manufacturers. Because

their numbers don’t—you know, they have to report by State law.

We lost the Federal arm to be able to track this mercury-use category with the U.S. Bureau of Mines stopping this tracking mechanism in 1999.

Mr. BURTON. I just want to make sure I get a chance to hear

from Mr. McCormick, too. Go ahead.

Mr. BENDER. Sure. But the other thing I wanted to mention is

there is a sort of a difference between sort of a laissez faire like

voluntary installation of amalgam separators and the facts on the

record. And the facts are on the record, and I have it in my written

testimony, in California in 2005 the CDA single-handedly—sole opponent of assembly bill 996—defeated the legislation. In Michigan,

ADA lawyers, helping with the separator issue, told a colleague

that they would not have to deal with the issue in 2011.

In Montana, in the ADA’s own newsletter they talk about their

one-two knockout punch. So, essentially at this point—and it goes

on and on, Oregon, Philadelphia, where have you, that we can’t

move this issue any more on the State and local level because they

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made it their business to stop us. So at this point we are coming

to you because this State strategy is not working for us any more.

Mr. BURTON. So the point you are making very vividly is that

they have a concerted effort to block anything but a voluntary program and the voluntary program simply is not working?

Mr. BENDER. Absolutely. Thank you.

Mr. BURTON. Let me followup with just one thing that you said

and then I will just yield the rest of my time to Mr. McCormick,

and that is that I, like you, believe that most of the dentists, probably 99 percent of them, are very honorable people trying to do a

job, just like the doctors. But they are getting their information

from the ADA just like the doctors are getting theirs from the

AMA. I have talked to doctors and dentists, and unless it is coming

from the gospel, which is the ADA, they don’t believe it.

Mr. BENDER. Right.

Mr. BURTON. When you talk to them, and I have talked to a

number of them about mercury, they say, hey, that is scientific research and the ADA says that, and that is gospel. So until the ADA

changes and starts giving them facts as we see them, I don’t think

they are ever going to accept that. It is not because they are not

good people, it is just that is what they are getting.

Mr. BENDER. Well, the only other pressure point we had, Representative Burton, I was a party in the lawsuit against the FDA

to classify mercury as a medical device, and that is where we are

starting to see a chink in the armor where the FDA, as you quoted,

from their new information on their Web site, is now saying, admitting it is a neurotoxin. So I think we can also push on the FDA.

Thank you.

Mr. BURTON. Mr. McCormick.

Mr. MCCORMICK. Yes, I was 17 years—among my other job duties—I was a credentialed enforcement officer with the Agency. I

worked a lot of criminal cases as well as civil cases, and I have

been cross-examined by some of the best environmental attorneys

out there.

I am an expert on the pretreatment regulations that cities have

to comply with and that part of the Clean Water Act. If you want

to keep it out of the sewer, the regulations are in place.

The ADA can disagree, but 40 C.F.R. 403.2 says here are the objectives of the pollution pretreatment program, and it very clearly

establishes that you can’t cause problems with surface waters or

any other environmental criteria.

You know, again, my frustration is all we have to do is say let’s

enforce the regulations. That is what Region 8 strategy said, said

where there is a problem you have to control it, and this is what

it says in the pretreatment regulations implementing the Clean

Water Act.

It is not a gray area. OK, I have been on the stand. I have been

grilled on pretreatment regulations. I am very well aware of the

preambles to them, so I guess that is all I have to say. The tools

are there.

Mr. BURTON. In 40 C.F.R. What?

Mr. MCCORMICK. 403.2—it is the objectives of the general

pretreatment regulations. The tools are there. The regulations are

there. What I was trying to do was take a document and provide

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technical guidance to State and local governments that said, and

it is guidance, OK, it is not even rules. It said, here is a good way

of doing it. OK. Here is a way to approach reducing mercury discharges to a sanitary sewer system when you have a problem with

mercury.

Very simple. I mean, it was very clear, and the ADA doesn’t disagree with that, that is exactly what they admit it says.

Mr. BURTON. OK.

Mr. MCCORMICK. But it is mandatory at that point.

Mr. BURTON. Thank you, Mr. McCormick. Thank you all. Mr.

Chairman, I yield back to you.

Mr. KUCINICH. Will the gentlelady yield?

Ms. WATSON. Certainly, and would you also ask the question of

Mr. McCormick why did WHO ban mercury in thermometers.

I will yield.

Mr. KUCINICH. I am still wondering, Mr. Walsh, before we wrap

up work on this panel, the ADA supports separation, right, of the

amalgams?

Mr. WALSH. Correct.

Mr. KUCINICH. Why?

Mr. WALSH. We believe that the best environmental result is to

recycle the amalgam——

Mr. KUCINICH. You don’t do it because it is about recycling, it is

not about contamination to wastewater being environmentally hazardous?

Mr. WALSH. Every study that has been done by NACWA, by EPA

and our own studies show there is a contribution, but it is a very

small, less than 1 percent contribution. We are willing to do our

fair share.

Mr. KUCINICH. You then would agree that mercury contamination to wastewater is environmentally hazardous? You are just saying it is a question of the degree; is that right?

Mr. WALSH. We have never attacked the water quality standard,

which is a fish tissue number or the biosolids numbers. There are

a number of plants across the country where the biosolids numbers

are, in fact, on average, about 3, the limit is 57. And, in many

places, the water quality standard is 50 parts per trillion and the

level, for example in Laramie, is 8. And the fish levels are not exceeding 0.3. Even there we think the mercury ought to be recycled,

because that is the best beneficial use.

Mr. KUCINICH. Is it environmentally hazardous? That is the bottom line. You basically say yes, but you are saying the degree to

which the effluent exists from dental offices isn’t significant, is that

your testimony?

Mr. WALSH. Yes.

Mr. KUCINICH. Why do you support recycling? Is it just because

you are for recycling everything or because you think that mercury

ought to be recycled?

Mr. WALSH. We think mercury—well.

Mr. KUCINICH. Why?

Mr. WALSH. The ADA hasn’t taken a position on recycling in general. I personally think many more things ought to be recycled. But

the mercury ought to be recycled because it is the way you can ensure that the mercury is reused. You don’t have new mercury being

96

created, and it doesn’t—even the small amount of mercury that is

incinerated or otherwise gets into the environment would be lessened.

Mr. KUCINICH. You know, I was struck by your candid admission

that you are not a dentist, but you are a physicist. That is very interesting.

When a piece of mercury metal is heated in air, it comes together

with oxygen in the air, and then if it is weighed it is found to have

a greater mass that the original piece of metal had. If, however, the

mass of the oxygen of the air that combines with the metal is taken

into consideration, it would be shown that the mass of the product

is within the limits of accuracy of any one instrument equal to the

sum of the masses of mercury and oxygen that combine.

Are you familiar with that principle?

Mr. WALSH. I am afraid, just the way——

Mr. KUCINICH. As a physicist?

Mr. WALSH. You just read something that is very complex.

Mr. KUCINICH. Are you familiar with the law of conservation

matter?

Mr. WALSH. Yes, I am.

Mr. KUCINICH. As a physicist.

Mr. WALSH. Yes, I am.

Mr. KUCINICH. As a physicist, do you see any relationship between mercury deposits in land and air as a function of the law of

conservation and matter, of matter?

Mr. WALSH. All the studies I have seen show that the levels in

the environment are related primarily to air emission levels. The

Everglades study, the Metallica study, various other studies. It is

emissions in an oxidized form that ends up creating the methylated

mercury that is accumulating in fish.

Mr. KUCINICH. Does the law of conservation matter, or does it

not say that during an ordinary chemical change there is no detectable increase or decrease in the quantity of matter?

Mr. WALSH. Mercury is an element. It is the same amount no

matter what happens——

Mr. KUCINICH. So what happens to the mercury when it goes

down the drain?

Thank you. You are a physicist, and I am glad you showed up.

This panel is appreciated, and dismissed.

Mr. KUCINICH. I will ask the individuals who are here from the

second panel to come forward. Are there any physicists on this

panel? Anybody? Do we have a physicist? Is there a physicist in the

house? Let’s get started.

Well, since you are all standing.

[Witnesses sworn.]

Mr. KUCINICH. Thank you. The witnesses have been sworn. Let

the record reflect that the witnesses have answered in the affirmative.

I am going to introduce them now, and we will proceed with our

second panel.

Ms. Pat Magnuson is an industrial waste compliance investigator

for King County in the State of Washington, and which, of course,

includes Seattle.

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She was responsible for coordinating the implementation of the

county’s plan to control dental office wastewater discharges. She

also issues permits for and conducts inspections of a wide range of

industrial dischargers to the county’s sewage treatment plants.

Ms. Ann Farrell is a Director of the Central Contra Costa County

Sanitary District Engineering Department. Recently she has been

heading up pollution prevention activities aimed at reducing the

amount of mercury entering the wastewater treatment facility and

eliminating the need for costly mercury removal projects.

This source control program recently completed the implementation of a very successful mandatory amalgam separator program

for the dental community.

Dr. Mark Smith, Deputy Director of the Massachusetts Department of Environmental Protections, Office of Research and Standards. Dr. Smith is the cochair of the New England Governors and

Eastern Canadian Premiers Task Force. Dr. Smith has been published numerous times in the areas of environmental policy, molecular epidemiology, genetic markers of susceptibility and risk assessment. He has been involved in mercury as well as environmental research for over 15 years.

Mr. Owen Boyd is the CEO and principal founder of Solmetex.

Under his direction Solmetex became the first water treatment

company to migrate biopharmaceutical separation science to wastewater applications, and is also the first company to launch

nanotechnology into water treatment fields. Mr. Boyd also coauthored a 2003 paper entitled Environmental Concerns of Dental

Mercury. He has received numerous awards for his work, including

the EPA’s Environmental Technology Innovator Award.

The witnesses have been sworn. We will go to Ms. Magnuson for

an opening statement.

As I indicated to the last panel, please keep your statements

under 5 minutes in length. Your entire written testimony will be

included in the record of the hearing, and you may proceed. Thank

you.

STATEMENTS OF PATRICIA MAGNUSON, INDUSTRIAL WASTE

INVESTIGATOR, KING COUNTY, SEATTLE, WA; ANN FARRELL,

DIRECTOR, ENGINEERING DEPARTMENT, CENTRAL CONTRA

COSTA COUNTY SANITARY DISTRICT; DR. C. MARK SMITH,

DEPUTY DIRECTOR AND CO-CHAIR, MASSACHUSETTS DEPARTMENT OF EPA, NEW ENGLAND GOVERNORS AND EASTERN CANADIAN PREMIERS TASK FORCE; AND OWEN BOYD,

CEO, SOLMETEX

STATEMENT OF PATRICIA MAGNUSON

Ms. MAGNUSON. Mr. Chairman and members of the subcommittee, thanks for this opportunity to tell our story.

King County operates the major wastewater treatment system

for the metropolitan Seattle area, including two large treatment

plants with average flows of over 200 million gallons per day. We

discharge treated effluent in the Puget Sound, a sensitive marine

waterway. One hundred percent of the residual solids from our

treatment plants, known as biosolids, are reused beneficially in

wheat and hop fields in Washington, on forest lands in the Cascade

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Mountains, and in a composted product available for landscaping.

We control the source of contaminants into our system by means

of our industrial waste pretreatment program and extensive work

with small businesses and households.

Most mercury that enters our system ends up in the biosolids,

even though our marketability. Even though our biosolids currently

meet all Federal and State regulations for mercury, our concerns

for future marketability of these solids drives our efforts to continuously make them cleaner. And, also, the potential for stringent

mercury limits in the future is also a concern.

Under an agreement with the Seattle-King County Dental Society we conducted an extensive collaborative program from 1995

through 2000 to promote voluntary compliance. We encouraged

purchase and installation of amalgam separator units, which

showed they could meet our limit for mercury. And the results,

after 6 years, were that 24 dental offices out of approximately 900

had installed the amalgam separators.

In 2001, in consultation with the local dental society, we decided

that the voluntary program had failed and notified the local dentists that they would be required to meet our local discharge limits

of 0.2 milligrams per liter total mercury. Using our existing authority we gave them the choice of installing separators or applying for

a permit and proving they meet our limits without a separator, and

we gave them 2 years to meet compliance.

During that time, we provided extensive outreach to the dental

offices, including technical assistance site visits by staff from the

Public Health Seattle-King County to every office in the county.

Local dentists did not fight this requirement but rather sought

practical information about purchasing the separators and got on

with the task.

After the compliance date, approximately 750 additional dental

offices had installed the amalgam separator units with the remaining offices quickly following suit by the end of 2003.

Since 2003, we continued to perform outreach to the dental community through letters and the dental office Web pages. Compliance rates are determined through ongoing compliance inspections

and by monitoring the amount of mercury in the biosolids.

In conclusion, the voluntary program did not result in a significant change in King County. When separators were mandated,

compliance happened quickly, dramatically and with little resistance.

Partially as a result of this initiative, mercury levels in King

County biosolids have dropped by about 50 percent, and this represents about 75 pounds of mercury that are kept out of our biosolids each year.

Then I am going to go to the attached slides, and the first one

graphically demonstrates the number of amalgam separator units

sold in our county during the voluntary phase from 1995 through

2000 and the 2-year transition period from 2001 to 2003, during

which they were required to be in compliance.

Slide 2, and this provides an interesting look at two different

areas within King County that received technical assistance visits

from the public health inspectors, and the chart on the left is the

number of amalgam separator units installed within our source

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service area, which is only a portion of King County. And this is

where our pretreatment regulations apply and compliance was

mandatory.

The chart on the right includes all other dentists in King County,

and there are areas served by other sewer districts or on septic systems, and our regulations did not apply to those dentists.

All dentists received the same visits and information packets by

public health inspectors, but the dentists outside our service area

didn’t receive our mailing and were told it is not mandatory.

Slide 3, that just presents the annual median concentration of

mercury in our biosolids from 2000, the last year before we introduced our mandatory program, till now. And that shows about the

50 percent decline, and that remained there.

Finally, I would like to close by saying that we were able to work

with the local dental community and citizens of our county using

existing regulations, and to develop a relatively low-cost method of

achieving measurable reductions of mercury in our biosolids. Other

communities have found different approaches that better met their

particular needs, and local communities need to have the flexibility

to address this issue in the manner that will work with them.

[The prepared statement of Ms. Magnuson follows:]

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Mr. KUCINICH. Thank you very much.

Ms. Farrell.

STATEMENT OF ANN FARRELL

Ms. FARRELL. Good afternoon, Mr. Chairman, Ms. Watson and

Mr. Burton. I am Ann Farrell, Director of Engineering for Contra

Costa Sanitary District, a special discharge district in Martinez,

California. We are responsible for the collection and treatment of

wastewater for approximately 450,000 residents and more than

10,000 businesses in central Contra Costa County, which is directly

east of Oakland and San Francisco.

I appreciate this opportunity to discuss our successful program to

require dentists in our service area to install amalgam separators

and reduce the mercury entering the San Francisco Bay.

The San Francisco Bay is impaired for mercury. As the development of the total maximum daily load of allowable mercury for the

San Francisco Bay was occurring, it became clear to us in late 2003

that significant reductions in our mercury load to the bay would be

required.

We knew from previous studies that 50 percent of our influent

mercury was coming to us from dental offices. We had tried in the

past to implement mandatory programs, but the dental community

had approached our elected board, and we did not obtain board

support.

This time we wanted to try a different approach and enlist the

support and cooperation of the dental community so that we could

be successful in implementing an amalgam separator program. We

developed outreach materials, and we were basically trying to acquire informed consent, which was mentioned earlier. We wanted

to document the changes in the regulatory climate and our potential regulatory risk, as well as our legal authority, to regulate the

dental community. And we began meeting with the local and State

dental societies.

Once we began educating the societies themselves we received a

great deal of cooperation from the Contra Costa Dental Society and

the California Dental Association and particularly from Patricia

Conley, Roseanne Harding and Theresa Pichay, who worked with

us hand-in-hand throughout this process.

In 2004, we began with a survey of the dental practices in our

service area to obtain accurate inventory of the best management

practices they were utilizing. The best management practices were

voluntary, but the survey was required so that we could get accurate information.

After analyzing the information we obtained, we observed that

while many BMPs were being used, which accounted for basically

general and good housekeeping, very few of the dentists had installed amalgam separators, less than 15 percent. During that

time, as we monitored our influent mercury, we found that the

mercury had stayed about the same.

We continued our outreach efforts to the dental community and

shared the results of our inventory.

At each of our meetings, the majority of the dentists were very

supportive. They acknowledged that it was relatively inexpensive

for them to install the amalgam separator equipment, and they unVerDate 11-MAY-2000 12:18 Jun 24, 2009 Jkt 000000 PO 00000 Frm 00119 Fmt 6633 Sfmt 6633 U:\DOCS\49972.TXT KATIE PsN: KATIE
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derstood that it would significantly reduce their mercury discharge

to the environment, but they further suggested that it could be a

competitive disadvantage and that they—it was not likely they

would make the investment unless a program that was mandatory

was implemented.

During this same time period we continued with the carrot, not

the stick approach. We took the opportunity to recognize any dental practice that voluntarily installed an amalgam separator

through our annual pollution prevention awards program. However, during this time, this recognition was only conferred upon 13

dentists of the approximately 300 to 400 dentists in our service

area.

Based on the continued series of meetings and discussions with

the local and State associations, we determined that it was necessary to go back to our board and recommend a formal and mandatory dental amalgam program.

At that time, because we had the endorsement of the local and

State dental societies, our elected board adopted an enforcement

program in April 2006. We then began the implementation of the

program and the actual permitting of materials, and we continued

to partner with the local and State dental societies. We allowed

them to review the draft copies of our permits and provide input.

The permit requires self-certification. In other words, the dentist

certifies that he has installed an amalgam permit—an amalgam

separator.

We mailed the permits in three batches, and the compliance

dates were staggered because we had learned from other municipalities and States that the dentists had been charged outrageous

sums to comply with the deadlines by some of the plumbers. And

so we wanted to give them plenty of time and stagger deadlines so

that they could negotiate with their plumbers, with their amalgam

separator suppliers and have reasonable costs.

The mandatory permit and certification process was completed in

about 10 months. After the final deadline of December 31, 2007,

had passed, only a few dentists had not submitted the required

forms. Today a total of 318 dental practices have been issued a

BMP permit and 314 of them have submitted the required self-certification form, for a 98 percent compliance rate.

But we also need to look at the effectiveness of the program with

respect to the mercury and our influent, and I believe there is a

slide that shows our influent, which you can’t read, so I will explain it. And, actually, I wanted to point out an error in the slide.

Where it says parts per million, it should actually be parts per billion.

But what we found is that our influent mercury concentration

was reduced by over 70 percent, from 0.27 parts per billion in 2002

to 0.08 parts per billion in 2008. That is an annual average. Then

our effluent, which is the mercury going into the San Francisco

Bay, was reduced by 50 percent from 0.029 parts per billion in

2002 to 0.0149 parts per billion for 2008.

I also wanted to point out, if you have the written testimony,

there were some discussions earlier about the removal through a

treatment plant. Our treatment plant is somewhat unique in that

we have incineration, and we have wet scrubbers. So the mercury

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is removed from the air and goes into the wet—basically the treatment plant influent.

Because it is in the scrubber water it is dissolved. So it is more

difficult to remove it because it is not a solid that settles out. So

if you study the chart, you will see that we only actually got about

27 percent removal of mercury in 2002, and with our reduced numbers we have about 29 percent removal of mercury.

So the claim that you can get 90 percent removal of mercury

through a wastewater plant is completely dependent on how much

mercury is in the solids, because the solids are what is removed.

If you have a lot of dissolved mercury, which may occur if you have

an incineration process, then the mercury removal through the

treatment plant is much less, and therefore the value to the environment of the mandatory amalgam separator program is that

much greater because we are removing the mercury upstream before it can come in, be volatilized, be captured in the scrubber

water and go out into the bay.

So, in summary, the staff and our board are very pleased with

the cooperation we received from the dental community, and we

feel it is a very successful program, and we are going to continue

to monitor it each year, to meet them, make sure the maintenance

is occurring.

And I welcome any questions when we get to the question period.

[The prepared statement of Ms. Farrell follows:]

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Mr. KUCINICH. Thank you very much, Ms. Farrell.

Dr. Smith.

STATEMENT OF DR. C. MARK SMITH

Mr. SMITH. Thank you, Chairman Kucinich, Mr. Burton, and Ms.

Watson, for inviting me today to testify about our efforts in Massachusetts and in the New England region to reduce mercury from

the dental sector. I would also like to thank you all for summarizing, excellently, most of what I am about to say, and bearing with

me to say it again.

As a scientist, a fisherman and a father of children who love to

fish and occasionally eat fish, I have been very concerned about the

effects of mercury on our environment and on our children’s health.

To address the problem, I have been working in the mercury field

in policy and research for the past 15 years.

As we have heard today, many reports have concluded, I think

appropriately so, that the dental sector is a significant contributor

of mercury releases to wastewater, accounting for 50 percent or

more of the mercury found there.

Mercury wastewater can be released to the environment through

sludge incineration, through sludge reuse and from wastewater. I

would also like to note that sewage sludge incinerators typically do

not contain or have mercury specific control technologies, and a

substantial fraction of the mercury will be remitted to the atmosphere. What is captured is typically captured by scrubbers, as Ms.

Farrell mentioned, and then can be recirculated back to wastewater treatment plants, contributing to wastewater discharge releases as well.

Mercury can also be released from sludge reuse. And in New

England we estimate that about 12 percent of our air emissions are

attributable to sewage and sludge incineration, which is a significant amount.

Eleven States now, as well as numerous municipalities, have

adopted mandatory programs requiring the use of amalgam separators. This is based on recent results from a survey of the States

conducted by the Quicksilver Caucus.

In New England, mercury from the dental sector is being addressed through the New England Governors and Eastern Canadian Premiers Mercury Action Plan, which was adopted in 1998

and set a long-term goal of virtually eliminating anthropogenic

sources of mercury in our region. We also adopted long-term goals

of 50 percent reduction by 2003 and 75 percent by 2010.

We have met and exceeded the plan’s first goal, and we are well

on the way to the 2010 target. We have done that by adopting

State regulations that exceed EPA requirements in essentially all

areas, focused on trash incinerators, coal-fired power plants, mercury products and also the dental sector.

I would also like to note that we recently completed a regional

total maximum daily load assessment for mercury, indicating that

mercury inputs to our water bodies will need to be reduced by 98

percent to restore those water bodies to a fishable condition where

the fish will be safe to eat. Yes, 98 percent is pretty high. In order

to get there, you have to address all the sources, even ones that

you might traditionally think are not significant.

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As I mentioned before, just looking at sewage sludge incineration

emissions and the dental contribution to that, that is a source that

we really do need to address in order to get our fish back to a situation where they will be edible.

In 2005, we specifically adopted goals for amalgam separator use

under our regional action plan. These goals were that 75 percent

of dentists in our entire New England region would have amalgam

separators installed by 2007 and 95 percent by 2010. In order to

get there, all New England States have now adopted requirements

for amalgam separators, and we currently estimate that over 91

percent of dentists who generate amalgam wastewater in New England are now using these pollution controls, reducing mercury entering the region’s sewage by many hundreds of pounds each year

and, of course, reducing emission from incinerators and the reuse

of the sludge where the mercury concentrates.

In Massachusetts, State regulatory agencies and the dental society of—Massachusetts Dental Society, signed a memorandum of

understanding in 2001 to increase the voluntary use of amalgam

separators in best management practices. Under this agreement,

we did substantial outreach to dentists to educate them and had

discount pricing on select amalgam separators.

Although the MOU certainly helped to raise awareness, by 2003

we only saw a modest increase in the sales of separators in our

State. In 2004, Mass DEP, my agency, implemented a followup program to speed up the process. At the start of this initiative we announced that we would be adopting regulations in 2006 which

would require the installation of amalgam separators to achieve

faster reductions, because it typically takes us about that 2-year

period to develop and implement new regulations.

We instituted an incentive-based voluntary early compliance program. Dentists participating in this program were required to certify that they used an approved amalgam separator, followed best

management practices and recycled all of their waste mercury. As

an incentive, the participants in the first year were exempted from

permit fees, saving them a few hundred dollars, and the installed

units were grandfathered into 2010.

Our local Massachusetts dental society was very helpful in getting the word out about this program, and 75 percent of our dentists participated in that early compliance program with the backdrop of the mandatory regulations coming down the road. Regulations requiring separators were adopted in 2006 pretty much on

schedule.

To date, over 98 percent of facilities that were randomly expected

have been found to have appropriate amalgam separators installed.

Despite some compliance issues that we found in our audits relating to record keeping and recycling, our initiative has been very

successful, and over the 2-year period of 2004 to 2006, when amalgam separator use increased to 75 percent in our State, mercury

levels in sludge from the greater Boston area decreased by close to

50 percent.

In conclusion, without appropriate pollution controls, the dental

sector can be a significant source of mercury pollution to the environment. Amalgam separators can substantially reduce these releases. The successful experiences in Massachusetts and other

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States in reducing pollution from the dental sector will only support further national action in this area.

Programs that include outreach through collaboration with State

dental societies and that also include quantifiable goals and mandatory deadlines for the use of amalgam separators and other best

management practices are both effective and achievable.

Again, I would like to thank you all for the opportunity to testify

today, and I am willing to answer any questions that you may

have.

Thank you.

[The prepared statement of Mr. Smith follows:]

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Mr. KUCINICH. Thank you, Dr. Smith.

Mr. Boyd.

STATEMENT OF OWEN BOYD

Mr. BOYD. Good afternoon, Mr. Chairman, Ms. Watson, Mr. Burton. I am Owen Boyd, founder of Solmetex. We founded Solmetex

on the principle that we wanted to increase efficiencies in water

technologies that were being deployed within the United States. So

we took efficiencies that were being used in biopharmaceutical separations; namely, called advanced affinity chromatography, and we

were able to migrate it into, at first, a resin that would remove

mercury from water.

We put systems into hospitals, we treat incinerator wet scrubber

waste to remove mercury down to below a part per billion in water

discharges. We do commercial installations to keep mercury out of

wastewater. And we were asked to approach the dental industry to

see if we could take mercury out of dental waste.

After examining the profile of dental waste, we developed an

amalgam separator. We call them amalgam separators because, in

any other industry, they would have been called simply a filtration

device. Most amalgam separators use, you know, one of four principles of filtration, which is centrifugal, mechanical, chemical or

sedimentation. All of them have been used for well over a century.

There is nothing novel about an amalgam separator. It shouldn’t

be viewed as a new technology. It is a simple filtration device held

at point of source generation.

We developed the device to make sure that we could not only

take the mercury out but recycle the mercury so it didn’t end up

back in a landfill and just be a transfer waste.

I am going to cover three areas. One is do amalgam separators

work, do they have an impact on a sewage treatment plant, the

cost and use of amalgam separators and a little bit of our sales history to show the impact of a regulation versus a voluntary approach.

As I said, amalgam separators are filtration devices that have

been used in a lot of dental clinics. In the European Union they

have been used for well over a decade. The Paris Commission,

PARCOM, in their Recommendation 93/2, they cited information

received from Belgium, Finland, France, Germany, Iceland, Netherlands, Norway, Spain, Sweden, Switzerland and the U.K. That now

will have mandatory regulations that the discharge of dental amalgam in the municipal systems has been significantly reduced by

the use of separation equipment in recent years, in most cases by

at least 95 percent.

In Toronto, Ontario, the fifth largest city in North America, a 58

percent reduction of mercury in biosolids was recognized when an

estimated 73 percent of dental clinics had complied with separator

regulations. Their biosolid mercury concentrations were reduced

from 17 kilograms a month, or 37 pounds, to 7 kilograms a month.

Additionally, a 13 percent reduction of mercury in their final

wastewater was measured.

Minnesota, two particular POTWs; that is, a publicly owned

treatment work or sewage treatment plant, Hastings and Cottage

Grove, their mercury in biosolids were reduced 24 and 49 percent.

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U.S. Navy had 53 notices of violations from regulatory folks.

That is now down to 3, 52 percent decrease in POTW biosolids.

Duluth, MN, has had the same type of experience. Seattle-King

County, they have reduced their amount from 74 pounds per year

in 2000 to 38 pounds in 2004.

The Strategic Envirotech Partnership from the Executive Office

of Environmental Affairs in Boston, MA, tested amalgam separators in dental settings, and they measured 99.85 percent, 98.94

percent and 99.74 percent reduction in the three amalgam separator sites that they tested.

The cost of an amalgam separator. There is a lot of different,

varying costs, I can tell you. With about 120,000 clinics that deal

with amalgam, our cost of $750 per system, that would run about

$90 million to install at all of those clinics, and it would cost an

additional $34 to $34.5 million a year to maintain those systems

so they continue to be operational. That would be the cost of the

removal at all dental clinics across the United States.

If you can bring up slide 1 for me, these are actual numbers, and

what that shows you is our units sold in what we refer to as States

with regulations, States with partial regulations, and States with

no regulations whatsoever.

Partial regulations, these are States, you know, like California,

where you have individuals POTWs or cities that take action, but

not the whole State is regulated, and there were a number of

States that do that, and it is in my written testimony.

But you can see that, you know, what this chart shows you is

that the States with the legislation, our sales are sky high. Those

without, which are the yellow bars, are essentially unaffected.

Those with partial regulations, we had very good results.

As a matter of fact, if you looked at the results in total, that

would show you that within the United States we have 93 percent

of our sales are in regulated or nonregulated or partially regulated

States. If you took all of our sales internationally and domestic, 99

percent of our sales are in regulated areas or partially regulated

areas.

If you look at the next slide, this will give you an impact, because

we track our sales month-by-month in every area that is regulated.

And what you can see is that the left side of that scale, that is a

percent of sales, you can see that as a regulation comes into effect,

the first 24 months we see very little activity. As the deadline approaches, you can see, literally, between 8 to 2 months before the

deadline, the majority of our sales occur. You can also see—if you

notice on the blue line, that is where you can give a lot of credit

to the Massachusetts Dental Society for putting extraordinary effort into a voluntary approach. And we tracked that 24 months as

a period of voluntary approach with a threat of regulated approach,

but they got an awful lot accomplished in a short period of time.

But what all that data shows you, in summary, first off amalgam

separators do, in fact, work, if maintained properly. You can see

the impact on regulations. If there were no regulations in the

United States, we wouldn’t be marketing here, we would be marketing elsewhere. And the cost for Solmetex systems is about $120

million to acquire the equipment and another $34.5 million to

maintain that equipment.

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That number is not an estimate, it is reality, because we keep

track of how many replacement cylinders are sent to each dentist

every year, and the average is they change a little less than one

replacement filter per year.

I am going to go back to that graph just for 1 second. There is

an interesting little note on followup. The yellow line you will see

after the regulation, the deadline date, you will see another bump

in sales. That bump in sales actually correlates to a letter that the

Connecticut DEP wrote to dentists after regulations had passed.

They had an indication that a lot of dentists had not complied. So

they asked for a serial number, manufacturer number, installation

date and the installer. And we saw another bump in sales as the

enforcement arm of the regulation took place.

Thank you.

[The prepared statement of Mr. Boyd follows:]

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Mr. KUCINICH. I thank all the witnesses. I would like to begin

with a 5-minute round of questioning, begin with Ms. Magnuson.

As an alternative to installing separators, King County could

have chosen to treat its wastewater mercury. Why did you decide

against that option instead of treating it and installing the separators?

Ms. MAGNUSON. Instead of treating it at the treatment plant?

Mr. KUCINICH. Yes, yes.

Ms. MAGNUSON. I don’t think—it is costly to treat it at the treatment plant. Is that the question?

Mr. KUCINICH. Yes, you had a choice. Why did you do the one

instead of the other?

Ms. MAGNUSON. We had the choice? No, actually, King County—

our treatment plant effluent limits and even the biosolids mercury

levels were within our limits for our MPDS permit.

Mr. KUCINICH. What about the cost of treating it at the treatment plant? Is there a cost involved there? Is it a high cost?

Ms. MAGNUSON. If the technology, yes, is there, it is a high cost.

I don’t have the costs for treating it at the treatment plant right

now. NACWA did some studies, so I don’t——

Mr. KUCINICH. Do you have any information about the cost as far

as the breakdown?

Ms. MAGNUSON. For the treatment plant, to treat it at the treatment plant?

Mr. KUCINICH. Yes. You said it would be prohibitive?

Ms. MAGNUSON. It is prohibitive, and it runs in the millions of

dollars, like tens of millions of dollars, if it exists, you know, if the

technology would be viable.

Mr. KUCINICH. So you are saying then that the separators are

preferred to trying to——

Ms. MAGNUSON. Treating it at the source. Any of the

pretreatment for metals, it is always preferable to treat it at the

source.

Mr. KUCINICH. Ms. Farrell, I understand the first time you considered installing separators in dental offices you experienced

strong resistance. What was different about your second attempt

and what can you recommend to other counties considering policies

to reduce dental mercury emissions?

Ms. FARRELL. Well, the first time we just kind of rolled out the

program, and we didn’t go work—do the prework with the dental

societies. And so they immediately came to our board meeting and

complained to our board, who is an elected board, and that was

kind of the end of that.

So the second time we got a little bit smarter, and we approached them. I think, also, times had changed where they were

beginning to understand that this was coming down the road.

We had a real regulatory requirement that we were going to

have to meet that was going to cost us in the tens of millions of

dollars, so we basically need to educate them that this was the

least expensive way to meet our requirements for the community

at large.

Mr. KUCINICH. Thank you. During your outreach meetings to

dentists, you have said that dentists actually requested that the

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central Contra Costa County make separators a mandatory policy.

Why was that?

Ms. FARRELL. I am not sure I said they requested. I think they

acknowledged that it was unlikely we would get a high rate of participation without a mandatory program.

Mr. KUCINICH. Thank you.

Dr. Smith, do you think it is accurate to describe the Massachusetts program as a voluntary one? Why or why not?

Mr. SMITH. I would say that the overall program was not strictly

a voluntary program.

Mr. KUCINICH. Meaning what?

Mr. SMITH. Meaning the voluntary component was really applicable only to the incentivized early compliance part of our program,

which was backstopped with a mandatory regulation.

Mr. KUCINICH. Did you offer incentives? What incentives did you

offer to dentists who voluntarily installed separators before the program became mandatory?

Mr. SMITH. The two incentives that we offered, one was that we

waived the permit fee so they did not have to pay permit fees if

they came in early in the process. And the second incentive was

that the units they installed were grandfathered.

And in the voluntary compliance program, that early compliance

component, we only required separators to achieve a 95 percent removal efficiency. The regulation specifies 98 percent, so it is modeled on regulatory certainty.

Mr. KUCINICH. So based on your experience, have you or would

you recommend other States offer similar incentives?

Mr. SMITH. Yes, I think the incentives worked extremely well

and were highly supported by the Massachusetts Dental Society. I

think it really galvanized attention to dentists who really wanted

to do the right thing, who realize that they needed or should be

putting on the amalgam separators. And here is the shot in the

arm to actually get them to take the step to do it.

Mr. KUCINICH. So you have established that a beneficial effect

can be made on the environment if every dentist installed a mercury separator; do you believe that?

Mr. SMITH. Yes, absolutely.

Mr. KUCINICH. What have been the costs in terms of time and

money associated with maintaining the dental mercury program?

Mr. SMITH. For the State?

Mr. KUCINICH. Yes.

Mr. SMITH. We haven’t broken it down that way, but in order to

minimize the expense in terms of staff resources to the Agency, and

also to make it easy for the dentists to basically submit, we have

been using a self-certification process. And we developed an electronic e-form that the dentist can basically fill out and submit to

the Agency, which makes it very easy once the form was developed.

Getting the form developed was difficult. So the cost to the Agency

has been relatively modest.

Mr. KUCINICH. I would just like to say that the staff will submit

some questions so that we can better quantify this as we prepare

our report on this committee.

Mr. SMITH. If I could just add one more thing because it was

brought up earlier.

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Mr. KUCINICH. Sure.

Mr. SMITH. On the compliance and enforcement end, you don’t

have to go visit every single dentist to verify compliance and enforcement. We are using statistically based sampling to do that,

which really minimizes the expense and gives you good data.

Mr. KUCINICH. That is noteworthy. I appreciate that. Thank you.

Mr. Burton.

Mr. BURTON. Thank you, Mr. Chairman. Dr. Smith, you said that

the amount of mercury in the fish up there really hasn’t improved

all that much.

Mr. SMITH. We actually have been seeing some improvements

over the past—well, since 2000 to 2007, mercury levels in fish in

Massachusetts have decreased by approximately 20 percent, depending on where you look.

Mr. BURTON. Are you eating fish up there that comes out of that

area?

Mr. SMITH. Some of the fish are edible, are safe to eat. Many of

them are still not safe to eat. I think we have a long way to go before they are.

Mr. BURTON. How do you decide when you go to the supermarket

which fish to buy?

Mr. SMITH. Well, the smaller fish. Stay away from the tuna, the

swordfish. Stick to the cod, the flounder and fish like that. Farmraised salmon tend to have lower levels.

Mr. BURTON. Isn’t that a heck of a thing you have to go through?

Mr. SMITH. It is.

Mr. BURTON. I don’t eat much meat. I eat fish and chicken. It

just bugs me to death to think that there is a lot of mercury in

there.

Mr. SMITH. Yes.

Mr. BURTON. Ms. Farrell, without the separators the percent of

mercury remains fairly consistent; is that correct?

Ms. FARRELL. That is correct. We saw very little reduction until

we had the mandatory program.

Mr. BURTON. And, Mr. Boyd, you said that in Europe the compliance was almost 100 percent because it was mandatory; is that

right?

Mr. BOYD. That is correct.

Mr. BURTON. So I deduce from all of your testimony what the

lawyer for the ADA was saying wasn’t quite correct in that he

thought that the voluntary program was going to be effective. I

mean, all of you can answer once, if you want to. You don’t think

the voluntary programs work that well?

Mr. SMITH. I would say there is no good evidence that would support that.

Mr. BURTON. Well, there you go. As Ronald Reagan would say,

there you go.

I just wish they were still here so they could hear your testimony. I am sorry, but I think they already know it. It is just a matter of making sure that the message gets through to them. I know

you don’t have anything to do with this, but I just wish you guys

didn’t have to worry about this. I wish we weren’t putting amalgams in people’s mouths in the first place. But anyhow I really appreciate your testimony.

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Mr. Chairman, again, I want to thank you for having this hearing. I yield back.

Mr. KUCINICH. I thank the gentleman. The Chair recognizes Ms.

Watson from California.

Ms. WATSON. I want to thank all of our witnesses for providing

us with the empirical evidence, and I will join with my colleague

and say I wish the attorney were still here. You know, we sit

through a lot of these hearings, and these attorneys come in and

they tend to get you all tied up in legalese so that we miss the

point. Thank you for coming and giving us the specific evidence

from what you are doing in your respective locations.

I want to thank Dr. Smith in particular. I found your information

to be very helpful. And Mr. Boyd, you have had some experience

from the commercial, retail end. So I would like to have you tell

about one experience where you provided free separators to dental

offices, dental offices in Highland Ranch, Colorado, to encourage

them to install separators in their clinics, and what was the outcome from this pilot project. Do you remember that one?

Mr. BOYD. Yes, that pilot project was actually an opportunity for

us to put in a very scientific setting the impact of an amalgam separator. It is unusual to have an opportunity to treat just the mercury influent with no other mercury initiative going on and measure quantitatively the reduction of mercury and solids and the production of mercury in their liquid wastes as well.

So we, in a voluntary effort with the local sewer district out

there, have provided free separators and we are doing free

analyticals as well, which are being backed up by the local agency.

The results aren’t all in yet. It is probably going to be about another 6 months before we have definitive results.

We had a similar opportunity in the city of Toronto, where there

were no initiatives, but I can’t say the science that was behind it

was rock solid that showed that the impact of amalgam separators

up there was incredibly dramatic. And, rather than argue the

point, you know, we sort of go about it in a very scientific fashion

saying we will provide the data.

Ms. WATSON. Thank you.

In light of the information reflected in your second graph regarding the deadline dates, what kind of deadline would you recommend to State and local governments considering mandating the

use of separators in their State, city or counties?

Mr. BOYD. The experience that we’ve had is that a, you know, a

mandated regulation, again, you will have some plumbers that if

you give them a 3- or 4-month mandate, you know, plumbers will

wreak havoc on the dental community. However, even with a 2-

year, we have found most of the dentists buy in 4 months before

the deadline anyway and set their own trap. So, you know, somewhere in between is probably the proper timeframe.

Ms. WATSON. Very good. Thank you.

And can you tell us about your previous experience, specifically

in Maine, and what was significant about your participation, and

what was the result of the Maine hearings that you had?

Mr. BOYD. Well, in Maine, I probably found myself in a very unusual situation in that I was testifying for folks that wanted amalgam separators and for the Maine Dental Association simultaVerDate 11-MAY-2000 12:18 Jun 24, 2009 Jkt 000000 PO 00000 Frm 00168 Fmt 6633 Sfmt 6633 U:\DOCS\49972.TXT KATIE PsN: KATIE
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neously. And what we were trying to do was to provide reality, because a lot of the regulation was being passed with what is called

an ISO standard of performance, which is a static test run by an

international—under an international standards organization protocol that determines the efficiency of a unit in that static test.

And the efficiency of that unit, if you looked at the volume of

mercury that you have to remove, whether something is 95 percent

or 99 percent efficient, those efficiency numbers are almost invalid

in terms of making much of a difference. The standard says you

have to meet a 95 percent criteria, and my argument to the folks

that wanted amalgam separators was, stay at 95 percent; if you go

to 99, you’ll limit the market choices the dental community will

have, and then people like me could take advantage.

So I argued against my own company’s separators on that particular regard and argued for the Maine Dental Association that

the 95 percent number would get the folks that wanted mercury reduction, it would get them the same equivalent reduction because

the static test was not that representative of what actually occurred in a dental setting. So whether it was 95 or 99 percent statically, you know, when those systems are put into actual use, they

still run about 98, 98 to 99 percent efficient.

Ms. WATSON. And I will just close with this.

Mr. Chairman, you have been very kind to give us this time.

As we try to look nationally and make policy, I would like you

to take a look from the retail commercial end at my proposed measure, and we’ll get you a copy, and suggest what policymakers

should really do.

I’d like Dr. Smith to do the same thing, and maybe all four of

you, you know, what we should set as a national policy. You heard

the attorney before, and rather than go down the wrong path because we’re not considering both ends of this, I would like to get

some feedback from you who have put what we’re trying to do in

practicality as pilot projects how we as a Federal Government can

design the policy so it will be effective.

Mr. BOYD. It would be my pleasure.

Ms. WATSON. Thank you very much.

And, thank you, Mr. Chairman.

And thank you, Mr. Burton.

Mr. KUCINICH. I thank the gentle lady from California.

This has been a hearing of the Domestic Policy Subcommittee of

the Oversight and Government Reform Committee. The title of today’s hearing has been, ‘‘Assessing State and Local Regulations to

Reduce Dental Mercury Emissions.’’ We have had a distinguished

group of people here to testify. Panelists have included Michael

Bender, the director of the Mercury Policy Project; Dr. Richard

Fischer, the former president of the International Academy of Oral

Medicine and Toxicology, Dr. Fischer is a dentist; Mr. Curt McCormick, former administrator, EPA Region 8; Mr. William Walsh of

counsel to the American Dental Association.

Our second panel, we’ve had Ms. Patricia Magnuson, the Industrial Waste investigator, King County, Seattle, WA; and Ms. Ann

Farrell, the director of the engineering department Central Contra

Costa County Sanitary District; Dr. C. Mark Smith, the deputy director and cochair of the Massachusetts Department of EPA and

166

New England Governors and Eastern Canadian Premiers Task

Force; and Mr. Owen Boyd, CEO of Solmetex.

I want to thank these witnesses.

I want to thank my colleagues, Representative Burton and Representative Watson, for their participation in this hearing which

has taken over 3 hours, and members of our staff, who have well

prepared us for this hearing.

This subcommittee will continue its look at the implications of

mercury as an environmental contaminant, the health effects of it,

whatever the point source happens to be of that.

I want to, again, thank everyone for their attendance, and this

committee stands adjourned. Thank you.

[Whereupon, at 5:44 p.m., the subcommittee was adjourned.]

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