S. HRG. 114–25 

LEGISLATIVE HEARING ON THE FRANK R. 

LAUTENBERG CHEMICAL SAFETY FOR 

THE 21ST CENTURY ACT (S. 697) 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 18, 2015 

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

( 

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

CHEMICAL SAFETY FOR THE 21ST CENTURY ACT (S. 697) 

LEGISLATIVE HEARING ON THE FRANK R. LAUTENBERG 

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WASHINGTON : 

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94–985 PDF 2015

S. HRG. 114–25 

LEGISLATIVE HEARING ON THE FRANK R. 

LAUTENBERG CHEMICAL SAFETY FOR 

THE 21ST CENTURY ACT (S. 697) 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 18, 2015 

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

( 

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

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

MARCH 18, 2015 

OPENING STATEMENTS 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 8 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 9 

Markey, Hon. Edward J., U.S. Senator from the State of Massachusetts .......... 11 

Udall, Hon. Tom, U.S. Senator from the State of New Mexico ............................ 18 

WITNESSES 

Lautenberg, Bonnie ................................................................................................. 13 

Jones, Hon. Jim, Assistant Adminisrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency .......................................... 19 

Prepared statement .......................................................................................... 21 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 30 

Senator Vitter ............................................................................................ 32 

Senator Markey ......................................................................................... 34 

Senator Boxer ............................................................................................ 38 

Cook, Ken, President and Co-Founder, Environmental Working Group ............ 86 

Prepared statement .......................................................................................... 89 

Responses to additional questions from: 

Senator Vitter ............................................................................................ 98 

Senator Boxer ............................................................................................ 104 

Frosh, Hon. Brian E., Attorney General, State of Maryland ............................... 105 

Prepared statement .......................................................................................... 107 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 112 

Senator Vitter ............................................................................................ 128 

Goldman, Lynn R., M.D., Michael and Lori Milken Dean of Public Health, 

Milken Institute School of Public Health, The George Washington University ......................................................................................................................... 129 

Prepared statement .......................................................................................... 131 

Responses to additional questions from Senator Boxer ................................ 141 

McCabe, Edward, M.D., Senior Vice President and Chief Medical Office, 

March of Dimes Foundation ................................................................................ 147 

Prepared statement .......................................................................................... 149 

Responses to additional questions from Senator Boxer ................................ 156 

Denison, Richard A., Ph.D., Lead Senior Scientist, Environmental Defense 

Fund ...................................................................................................................... 158 

Prepared statement .......................................................................................... 160 

Response to an additional question from Senator Boxer .............................. 164 

ADDITIONAL MATERIAL 

Letters: 

American Chemistry Council ........................................................................... 231 

American Chemical Society ............................................................................. 235 

The Adhesive and Sealant Council ................................................................. 236 

Bipartisan Policy Center .................................................................................. 237 

National Association of Chemical Distributors .............................................. 238 

International Frangrance Association North America .................................. 239 

Page

IV 

—Continued 

Society of Toxicology ......................................................................................... 240 

E. Donald Elliot, Assistant Administrator and Genaral Counsel, Environmental Protection Agency, 1989-1991and former Justice Department 

officials ........................................................................................................... 245 

Twenty five law professors, legal scholars, and public interest lawyers ..... 251 

State of West Virginia, Office of Attorney General ....................................... 256 

Environmental Working Group (EWG) .......................................................... 258 

State of New York, Office of Attorney General .............................................. 263 

State of Vermont, Office of the Attorney General ......................................... 269 

American Association for Justice .................................................................... 276 

Statement, Asbestos Disease Awareness Organization (ADAO) ......................... 278 

Articles: 

Environmental Working Group (EWG) .......................................................... 279 

EarthJustice: Stop a Dangerous Chemical ..................................................... 280 

Safer Chemicals, Safer Families Vitter Udall Chemical bill draws broad 

opposition ....................................................................................................... 281 

Healthy Child, Healthy World: Chemical Industry Bill Protects, Polluters, 

Profits Not Kids’ Health ............................................................................... 282 

Breast Cancer Fund:Urge Your Senators to Oppose a TSCA Reform Bill 

that Would Endanger Public Health ........................................................... 283 

Letters: 

Organizations dedicated to protecting and improving the reproductive 

health and wellness of women and their families ...................................... 284 

Safer States ....................................................................................................... 286 

Asbestos Disease Awareness Organization (ADAO) ...................................... 289 

Environmental Health Strategy Center ......................................................... 292 

Article, Weak Tea in a Chipped Cup ..................................................................... 295 

Letter, State of California, Office of the Attorney General .................................. 301 

(1) 

LEGISLATIVE HEARING ON THE FRANK R. 

LAUTENBERG CHEMICAL SAFETY FOR THE 

21ST CENTURY ACT (S. 697) 

WEDNESDAY, MARCH 18, 2015 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 9:30 a.m. in room 406, 

Dirksen Senate Building, Hon. James Inhofe (chairman of the committee) presiding. 

Present: Senators Inhofe, Boxer, Vitter, Barrasso, Carper, Udall, 

Whitehouse, Cardin, Sanders, Markey, Boozman, Merkley, Fischer, 

Capito and Rounds. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. We will call this hearing to order. 

Senator Boxer and I will each have a 5-minute opening statement. Then we will proceed. 

I want to use half of my 5-minute statement so I can give the 

other half to Senator Vitter, who is the co-author of the bill. 

I am very pleased today that we will be discussing the Frank R. 

Lautenberg Chemical Safety for the 21st Century Act. It might be 

the longest title I can ever remember, but it is worth it. It has 

strong bipartisan support of nine Democrats and nine Republicans. 

I am proud to co-sponsor this bill and hope to move it through the 

committee by way of constructive and orderly process. 

For years, Senator Lautenberg worked to update the 1976 law, 

releasing bill after bill, every Congress. In 2012 he came to me 

with a clear message. That message was that this law will not be 

updated without bipartisan support and input from all stakeholders. So Frank and I held a series of stakeholder meetings and 

through that process, we got a lot of good information on all sides 

of the issue. 

Just about 2 years ago, Senator Lautenberg teamed up with Senator Vitter to introduce a bipartisan bill that created not only the 

first real momentum for meaningful reform, but a foundation for 

the legislation we have before the committee today. 

It is important to note that today we have a number of witnesses 

focused on public health and the environment and none from industry. This is certainly not because no one from industry supports 

the bill. So I, without objection, will place supporting statements 

2 

into the record from a number of groups, including the American 

Alliance for Innovation. 

[The referenced information follows:] 

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94985.118
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94985.119
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94985.120
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94985.121
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94985.122
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Senator INHOFE. The reason the majority has chosen these witnesses is to focus on the health and environmental provisions of 

the bill, and greater regulatory certainty for the regulated community as well as better ensuring protections for all Americans, not 

just those in a few States with a patchwork of programs. Major environmental laws do not get passed without bipartisan support, 

and Frank recognized that. The simple fact is that any partisan, 

partisan, reform effort will fail. 

Senator Vitter, you can have the remainder of my time. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

TSCA (Toxic Substances Control Act) is a law that everyone agrees is outdated 

and in serious need of modernization. I am very pleased that today we have before 

us a bill with the strong bipartisan support of 9 Democrats and 9 Republicans. I 

am proud cosponsor of this bill and hope to move it through Committee by way of 

constructive and orderly process. 

For years Senator Lautenberg worked to update the 1976 law, releasing bill after 

bill every Congress, and in 2012, he came to me with a clear message: this law will 

not be updated without bipartisan support and input from all stakeholders. Frank 

and I held a series of stakeholder meetings, and though that process we got a lot 

of good information on all sides of the issue and I would in particular welcome Ms. 

Bonnie Lautenberg to the committee this morning. 

Just about two years ago, Senator Lautenberg teamed up with Senator Vitter to 

introduce a bipartisan bill that created not only the first real momentum for meaningful reform, but a foundation for the legislation we have before the Committee 

today. 

We all know that Senator Vitter and myself and our Republican colleagues are 

not ones to typically offer up bills granting EPA more authority. But in this case 

I believe it is not only the right thing to do, but the conservative thing to do. 

TSCA is not a traditional environmental law that regulates pollutants like the 

Clean Air or Clean Water Acts instead it regulates products manufactured for commerce. Under the U.S. Constitution, the job of regulating interstate commerce falls 

to Congress, not the states. We support this legislation not only because it better 

protects our families and communities, but because it ensures American industry 

and innovation can continue to thrive and lead without the impediment of 50 different rulebooks. 

It is important to note that today that we have a number of witnesses focused 

on public health and the environment and none from industry. This is certainly not 

because no one in industry supports this bill I would like unanimous consent to 

place supportive statements in the record from a number of groups including the 

American Alliance for Innovation which has sent us a letter signed by XX trade associations. The reason the majority has chosen these witnesses is to focus on the 

health and environmental provisions of the bill, which have been significantly 

strengthened as the necessary tradeoff for greater regulatory certainty for the regulated as well as better ensuring protections for all Americans, not just those in the 

few states with a patchwork of programs.Major environmental laws do not get 

passed without bipartisan support Frank recognized that and the simple fact is that 

any partisan TSCA reform effort will ensure that nothing gets done and Americans 

are stuck with a broken federal system to all our detriment. I hope we get this done 

to honor Senator Lautenberg’s legacy. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you so much, Mr. Chairman. Thanks for 

convening today’s important hearing. I too want to thank all of our 

witnesses, starting with Mrs. Bonnie Lautenberg, for being here 

today, to discuss this important bipartisan effort to reform an outdated law that affects all of our daily lives and our national economy. 

9 

As you suggested, more than 2 years ago, I sat down with Frank 

Lautenberg in an attempt to find compromise, work together on updating the drastically outdated Toxic Substances Control Act. Updating this law was a long-time goal, it was a passion of Frank’s. 

I am saddened he is not with us today to see and to hear this 

progress. 

But after Frank’s unfortunate passing, Senator Tom Udall 

stepped in to help preserve Frank’s legacy and continue working 

with me to move bipartisan TSCA reform forward. In the long 

months since, Senator Udall and I have worked tirelessly to ensure 

the bill substantively addresses the concerns that we heard from 

fellow Republicans and Democrats, as well as from the environmental and public health communities. 

Today, we are here to talk about that work, that successful work, 

and to answer one key question: are we here to accomplish something that protects the public health and the environment, 

while ensuring American industry has the ability to continue to 

lead and innovate? Or are we willing to just let the status quo remain, the failed status quo, push failed partisan ideas that will not 

go anywhere? 

As members of this committee, I think we have a responsibility 

to ensure that our constituents are properly served, that we move 

the ball forward in an important substantive way, and that will 

only be done clearly with a strong bipartisan approach. And the 

Udall-Vitter bill we will be discussing today, among other things, 

is the only bipartisan bill on radar, on the playing field. Our cosponsors, Republican and Democrat, continue to grow. 

It is evident that the Frank R. Lautenberg Chemical Safety for 

the 21st Century Act is the only realistic shot we have at reforming 

a very broken and dysfunctional system. So I look forward to all 

of our witnesses’ testimony and the discussion. 

Again, Mr. Chairman, thank you very much for this hearing. 

Senator INHOFE. Thank you, Senator Vitter. 

Senator Boxer. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thanks so much, Mr. Chairman, and thanks to 

all of our witnesses who are here. 

I am going to ask unanimous consent to place my full statement 

into the record at this time, and lay out several reasons why I oppose the Udall-Vitter bill. 

Senator INHOFE. Without objection. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Thank you all for being here today.μ I ask unanimous consent to place into the 

record my statement, which lays out several reasons I oppose the Udall-Vitter bill.μ 

The bill I introduced with Senator Markey, the Alan Reinstein and Trevor Schaefer 

Toxic Chemical Protection Act, addresses fundamental flaws in the Udall-Vitter 

bill.μ Unfortunately, the Republican majority would not permit it to be considered 

today. 

I want to note the presence of Linda Reinstein, Alan’s wife, and Trevor Shaefer 

who are here today, as well as consumer advocate Erin Brockovich, who endorses 

the Boxer-Markey bill and opposes the Udall-Vitter bill.It is clear that in its present 

10 

form, the Udall-Vitter bill fails to provide the public health protections needed and 

is worse than current law. This bill still does not have the tools necessary to put 

safeguards in place—even for the most dangerous toxic substances like asbestos. 

I would like to enter into the record an analysis by one of the leading legal scholars on environmental law who said: ′′[T]he Vitter-Udall-Inhofe bill will not make it 

easier for EPA to regulate harmful toxic substances . . . When considered in light 

of its aggressive preemption of state law that would actually remove existing protections in many states, the bill is actually worse than the existing statute from a consumer protection perspective.μ And the changes to the regulatory standard and the 

failure to change the standard for judicial review will provide job security for chemical industry lawyers for years to come. [Tom McGarity, University of Texas Law 

Professor, March 17, 2015] 

I have never seen such an unprecedented level of opposition to any bill.μ I want 

you to see what that opposition looks like, and I ask my staff to stand up now and 

show you the names of more than 450 organizations that oppose the Udall-Vitter 

bill.μ Some of the groups listed include: 

• 8 State Attorneys General (California, Massachusetts, New York, Iowa, Maine, 

Maryland, Oregon, Washington) • Breast Cancer Fund 

• Asbestos Disease Awareness Organization 

• Trevor’s Trek Foundation 

• Environmental Working Group 

• EarthJustice 

• Safer Chemicals, Health Families 

• Association of Women’s Health, Obstetric and Neonatal Nurses 

• American Nurses Association 

• Physicians for Social Responsibility 

• United Steelworkers 

Let me quote from some of the letters we have received in opposition to the bill. 

The Breast Cancer Fund said this: ‘‘The Frank R. Lautenberg Chemical Safety for 

the 21st Century Act . . . undermines what few health protections from toxic chemicals now exist . . . 

It advances the interests of the chemical industry and disregards years of work 

by health care professionals, scientists, public health advocates and state legislators 

to enact meaningful reform and to prevent diseases linked to chemical exposure.’’ 

According to the Asbestos Disease Awareness Organization, ‘‘The fact that the 

Vitter-Udall bill will not even restrict, much less ban, the deadly substance that 

claims 30 lives a day is nothing short of a national travesty. Any Senator who supports this industry proposal is in essence supporting the continuation of the toll asbestos has already had on millions of American families.’’ 

EarthJustice had this to say about the Udall-Vitter bill: ‘‘[T]he chemical industry 

got exactly what it wanted—again.’’ 

The Director of Safer Chemicals, Healthy Families, Andy Igrejas, said: ‘‘Firefighters, nurses, parents of kids with learning disabilities and cancer survivors all 

still oppose this legislation. 

The Attorneys General from New York, Iowa, Maine, Maryland, Oregon and 

Washington had this to say: ‘‘[W]e believe that, rather than bringing TSCA closer 

to attaining its goal, the draft legislation’s greatly expanded limitations on state action would move that goal further out of reach.’’ 

Massachusetts’ Attorney General says: ‘‘On the crucial issue of preserving our 

state’s abilities to protect the health and safety of the citizens within our borders 

the bill strays far from a bill that can adequately protect our citizens from the potential risks that may be posed by certain toxic chemicals in commerce.’’ 

According to California’s Attorney General: ‘‘In California’s view, this constitutes 

poor public policy that undermines the fundamental health and environmental protection purposes of TSCA reform.’’ 

And California EPA says, ‘‘Unfortunately, rather than reforming TSCA to ensure 

that state and federal agencies can efficiently and effectively work together to protect the public, this legislation takes a step backward from what should be the common goal of achieving strong public health and safety protections under a reformed 

version of TSCA.’’ 

Senator BOXER. I would like to note the presence of two people 

in the audience today. Erin Brockovich, if she would stand up, 

please. And Linda Breinstein, and actually Trevor Shaffer. Three 

people. Senator Markey and I introduced our bill and we named it 

after Trevor and Linda’s husband, who died of asbestos, and Trevor 

11 

is a survivor of environmental brain cancer and Erin Brockovich, 

well, she is a legend, and I am so proud that they are here to oppose this bill and to support the Boxer-Markey bill. 

I have never seen, in all the years I have been here, such opposition to legislation. I have asked my staff to now stand, showing you 

the organizations that have come out against this bill. I know you 

can’t read them from where you are, but they will be available to 

you. There are 450 organizations. 

And the reason really is summed up by many of them. I will read 

you a statement by Mr. Tom McGarrity of the University of Texas, 

a leading legal scholar on environmental law who said that the 

Vitter-Udall-Inhofe bill will not make it easier for EPA to regulate 

toxic substances when considered in light of its aggressive preemption of State law that would actually remove existing protections 

in many States. The bill is actually worse than the existing statute. 

I thank my staff, very, very much, for that. 

I want to State, some of these that are on this list, eight attorneys general, the Breast Cancer Fund, the Asbestos Disease 

Awareness Organization, Trevor’s Trek Foundation, Environmental 

Working Group, Earth Justice, Safer Chemicals Healthy Families, 

Association of Women’s Health, Obstetric and Neonatal Nurses. 

The American Nurses Association has taken a stand against this 

bill. Physicians for Social Responsibility, even the United Steelworkers. 

I am going to quote from a couple of these letters, then I am 

going to yield the remainder of my time to Senator Markey. The 

Breast Cancer Fund says, ‘‘The Frank Lautenberg Chemical Safety 

for the 21st Century Act undermines what few health protections 

from toxic chemicals now exist. It advances the interests of the 

chemical industry and disregards years of work by health care professionals, public health advocates and State legislators.’’ 

I just want to say, I think if the average was asked, who do you 

believe more, politicians or the Breast Cancer Fund, I think you 

know the answer. 

According to the Asbestos Disease Awareness Organization, ‘‘The 

fact that the Vitter-Udall bill will not even restrict, much less ban 

on the deadly substance claiming 30 lives a day is a national travesty.’’ 

I yield the remainder of my time to Senator Markey. 

OPENING STATEMENT OF HON. EDWARD MARKEY, 

U.S. SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator MARKEY. I thank the Ranking Member. 

For decades, in Woburn, Massachusetts, chemical companies and 

other industries used nearby land as their personal dumping 

grounds for thousands of tons of toxic materials. Those chemicals 

leeched into the groundwater and contaminated the water supply 

with deadly chemicals, like TCE. 

It was in Woburn that I met a young boy named Jimmy Anderson. He was a regular kid except for the fact that he and other 

Woburn kids were diagnosed with a rare form of leukemia. Jimmy’s 

mother, Ann Anderson, began a movement where she tied this rare 

disease cluster to contaminated drinking water. 

12 

I held a hearing in Woburn to highlight the harm. Ann’s battle 

began the subject of a book and movie, a civil action. And our fight 

eventually helped spur the creation of this Country’s Superfund 

laws. 

Jimmy died in 1981. Incredibly, it took EPA until 2014 to finish 

studying the risk of TCE. Jimmy would have been in his mid–40’s. 

And EPA still has not taken any action under TSCA to ban TCE. 

There is no question in my mind that there will be more Jimmy 

Andersons unless EPA is given clear authority, resources and deadlines to take action on chemicals that have already been proven to 

kill. Unfortunately, the bill we are discussing today does not meet 

that test. It handcuffs States attorneys general, who are our chemical cops on the beat. It gives known dangers a pass, and it fails 

in any way to create a strong Federal chemical safety program that 

will protect public health. 

That is why my State’s attorney general, Maura Healey, and attorneys general from several other States oppose this bill. Senator 

Boxer and I have introduced an alternative bill that in my opinion 

retains the States’ ability to clamp down on dangerous chemicals, 

while ensuring that known chemical threats to public health are 

acted on quickly. 

I thank Senator Boxer for her partnership on this bill, and I look 

forward to working with all of my colleagues to advance TSCA reform that protects the most vulnerable amongst us from the harm 

they are exposed to. 

I yield back the balance of my time. 

Senator INHOFE. Thank you, Senator Markey. 

We are going to be hearing, before we start with our witnesses, 

from two very significant people. One is Senator Udall, the other 

is Mrs. Lautenberg. I say to my good friend from New Jersey, since 

you occupy Frank Lautenberg’s seat, that you would like to introduce Bonnie, is that correct? 

Senator BOOKER. It is, and I really do appreciate, Mr. Chairman, 

your making allowance for this great privilege. 

Everybody in New Jersey knows Senator Frank Lautenberg as 

an incredible champion of not just issues regarding health and 

safety, but also of children, seniors and in fact, any cause that was 

just. You would often hear the leader of that effort being Senator 

Lautenberg. 

He knew the importance of chemical safety, and we know that 

he fought tirelessly for comprehensive reform. He was a giant of a 

man, and fought for cleaning up Superfund sites, brownfields and 

protecting children from unsafe chemicals and toxins. 

I know how much his effort on toxic chemicals meant to not only 

Senator Frank Lautenberg, but indeed, to his entire family. I am 

extraordinarily excited today to have Bonnie Lautenberg here. I 

would like to welcome her personally, as the Senator from New 

Jersey who is sitting in Frank Lautenberg’s seat. But more importantly, I think I can say this with confidence, that as much of a 

giant as Senator Frank Lautenberg was, Bonnie towers just as 

high. Senator Lautenberg’s motto often was, ‘‘still fighting.’’ It is 

clear that Bonnie Lautenberg has not given up the fight herself. 

She is living that legacy and is still pushing us to reach the sumVerDate Aug 31 2005 11:27 Sep 21, 2015 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94985.TXT VERN
13 

mit, that difficult summit, that Senator Lautenberg worked so hard 

to climb throughout his life. 

I do not have a significant other, but I think all of us who serve 

in the U.S. Senate know that the men and women who are spouses 

are often just as equally responsible for the success of the work we 

do. I know, Senator Udall, your wife is here. I know you and I have 

esteem for you, sir, but I can say that you married up with confidence. 

[Laughter.] 

Senator BOOKER. So I just want to let you know that one of the 

best things Frank Lautenberg did in his career was to marry 

Bonnie and have a true partner in the incredible work he did for 

the State of New Jersey, and indeed, for our Country. With that, 

I would like to welcome Bonnie Lautenberg to testify. 

Senator INHOFE. Thank you, Senator Booker. 

If it is all right, Senator Udall, we will start with Mrs. Lautenberg. You are recognized for any comments that you would like to 

make. 

STATEMENT OF BONNIE LAUTENBERG 

Mrs. LAUTENBERG. Good morning, everybody. I just would like to 

say that my granddaughter and Frank’s granddaughter, Mollie 

Birer, is here with me today. She is working on the Hill and very 

proud to be here. She is an intern. 

Senator INHOFE. Have her stand up. We want to know which one 

she is. 

[Applause.] 

Mrs. LAUTENBERG. Chairman Inhofe and Ranking Member 

Boxer, and all the members of the committee, first I want to say 

how honored I am to come before you today, not as a scientist, not 

as a policy expert, but as a mother and grandmother, to speak 

about a bill that was such a passion to my late husband, Senator 

Frank Lautenberg, a former distinguished member of this committee. We were part of the Senate family, and Frank loved every 

day he served here. Frank accomplished a lot in this body, the Domestic Violence Gun Ban, raising the drinking age, the new GI Bill 

and so many others. 

But this bill on chemical safety meant everything to him. He told 

me it was even more important than his signature accomplishment, 

banning smoking on airplanes. He wanted chemical safety to be his 

final, enduring legacy. Frank’s guiding principle in his 28 years in 

the Senate was about saving lives and making our environment 

better for everyone’s children and grandchildren. This is exactly 

what the effort to reform TSCA is about. TSCA is an outdated, ineffective law that is not protecting families from harm. Frank 

wanted to change that. 

Frank understood that getting this done required the art of compromise. For many years, he could not get Republicans or industry 

to meaningfully engage on the issue. So we pushed forward a winner take all bill that reflects his wish list on the issue, and pursued 

an aggressive publicity campaign as well. 

Eventually, the pressure worked. Senator Vitter came to the 

table. He and Frank worked out a compromise that was a major 

14 

improvement over the current law. That is what set the stage for 

the bill we have today. Thank you, Senator Vitter. 

I want to especially thank Senator Tom Udall for carrying on 

Frank’s legacy forward after he passed away. Tom is every bit the 

dedicated environmentalist that Frank was. He took up the issue 

with the same zeal as Frank. To me, it is like part of Frank is still 

here in the U.S. Senate, to make this bill a reality. Thank you. 

Despite all of this progress, there are still some who are still 

waiting for Frank’s winner take all bill to pass Congress. They are 

letting the perfect be the enemy of the good. And it is tragic, because if they get their way, then there will be no reform and we 

will have to live with this completely ineffective TSCA law for 

many more decades. 

We also can’t let the interests of a few States undermine the rest 

of the Country. Frank lamented that it was not fair that New Jersey and the vast majority of States lacked any meaningful measures on this issue but were being held hostage. He worked hard on 

this compromise to protect the few States with their own laws on 

this topic, but recognized that the new Federal law will have to become the nationwide standard. 

This cause is urgent, because we are living in a toxic world. 

Chemicals are rampant in the fabrics we and our children sleep in 

and wear, the rugs and products in our homes and in the larger 

environment we live in. How many family members and friends 

have we lost to cancer? We deserve a system that requires screening of all chemicals to see if they cause cancer or other health problems. How many more people must we lose before we realize that 

having protections in just a few States isn’t good enough? We need 

a Federal program that protects every person in this Country. 

The TSCA bill that passed in 1976 has been a shameful failure. 

It is so bad that even the chemical industry had to admit it. Far 

too many chemicals are on the market without any sort of testing. 

This situation reminds me of the days when I was a kid and we 

used to run around outside in Long Island, when the fog man came 

around in his little truck, spraying DDT all over our lawns and 

trees. Yes, DDT, and we would run through it. That is what we are 

doing now. If we continue to let the perfect be the enemy of the 

good, we will continue to run through the fog. 

Frank used to say there were 99 huge egos in this body, but he 

loved you all. Well, almost all. 

[Laughter.] 

Mrs. LAUTENBERG. You know he had a great sense of humor. But 

he found nothing funny about the dangers of our current environment and sadly, he did not live long enough to fight to get this 

done. So now, it is up to all of you to make it happen. 

This bill is not only about the legacy of Frank Lautenberg. It is 

about the legacies of each member of this committee. It is time to 

take positive action. Please, don’t let more time pass without a new 

law. The American people deserve better. 

Please, work out your differences and get it done, for your families and for every family in our Country. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Mrs. Lautenberg. That was an excellent statement and we appreciate it very much. 

15 

Senator Udall. 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Chairman Inhofe, Ranking Member Boxer, and 

thank you, Bonnie, for those very kind and nice words. 

It is nice to be back with all of you today. I was proud to serve 

for many years with you as a member of this committee. We all 

served for a long time with our former colleague, the late Senator 

Frank Lautenberg. We all remember Senator Lautenberg’s passion 

for chemical safety reform. He spoke so often about his children 

and his grandchildren and the need to do something about this broken law. 

For the longest time in his career, there was a tremendous 

standoff. Most of my Democratic colleagues recall voting in favor of 

his bill, the Safe Chemicals Act, which unfortunately failed to advance past the vote in 2011. I supported that bill enthusiastically, 

but it received no Republican support in the committee and had no 

Republican co-sponsors. There was a failure to find agreement between public health and the industry groups, and between Democrats and Republicans. 

But in his final days in the Senate, he worked very hard to find 

compromise with the opposing side. He put his idea of perfection 

aside. Because his aim was clear, he actually wanted to protect 

children, to protect the most vulnerable, and to reform a broken 

law. The original Lautenberg-Vitter bill was introduced quickly. 

Many of its provisions needed clarification and improvement. Senator Vitter and I have been working to improve this bill. And 

frankly, these changes have almost all been on the public health 

side of the equation. We have been open, we have been transparent 

and we have been inclusive. Everyone was invited to the table to 

comment on the legislation and provide feedback and suggestions. 

Senator Vitter and I are not accustomed to working together on 

environmental issues. We come to the table with different ideas 

and we came to this issue with different priorities. There were 

times when negotiations broke down. But we always came back to 

the table, because we shared a fundamental, bipartisan goal, to cut 

through the noise and finally reform this broken law. 

I think we all agree: TSCA is fatally flawed. It has failed to ban 

even asbestos. EPA has lacked the tools to protect our most vulnerable, infants, pregnant women, children and the elderly. Compromise is a great challenge and a tall order. But I am here because in my heart I believe this bill will do the job. I believe we 

have the opportunity to actually reform a law and improve lives 

and save lives. 

And that is the challenge now for this committee, to ignore the 

rhetoric and focus on the substance. Work through the legislative 

process. There are still voices out there with concern. I hear them, 

I want to engage with them constructively. 

But hear my concern as well. New Mexico and many other States 

have very little protection for our citizens. EPA estimates that the 

cost of evaluating and regulating a chemical from the start to the 

finish is at least $2.5 million. It is a figure that many States cannot afford, especially with 80,000 chemicals in commerce and hunVerDate Aug 31 2005 11:27 Sep 21, 2015 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94985.TXT VERN
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dreds of new ones every year. We cannot leave the people of my 

State and so many others unprotected. 

It has been 40 years since we first passed TSCA. There has 

never been a bipartisan effort with this much potential. 

Now today, the New York Times, and I am sure all of you have 

read the Times today, talked about the examples of how to improve 

the bill. This is in their editorial, they applauded the bipartisan, 

the editorial board applauded the bipartisan effort that has gone 

on here. And they have made several suggestions on how to improve the bill. They are good suggestions. They could help build 

more bipartisan support. So I hope that we can work on them together. 

It has been 40 years since we first passed TSCA, and this bipartisan effort can move forward. 

Before I close, I do want to address something up front and in 

the open. Criticism of the substance of this legislation is legitimate 

from both sides. It is a compromise product. But I urge, I urge everyone participating in this hearing today to reject attacks on anyone’s integrity, character and motivations. 

Unfortunately, I fielded a few of those in recent weeks. They did 

not concern me, because they are absurd and unfounded. But they 

do a serious disservice to the legislative process. 

Instead, I urge this hearing to have a great and spirited discussion on the substance, but at the end of the day, as Bonnie said, 

let’s not wait another 40 years to finally move forward. Thank you, 

and it is, as I said, wonderful to be back in front of the committee 

and to be with my colleagues. And it is great to be with Bonnie. 

Senator INHOFE. Thank you, Senator Udall. That is an excellent 

statement. We do miss you on this committee, and without objection, we will make the editorial part of the record. 

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Senator INHOFE. The two of you may be excused, or you may 

stay. Your call. 

Our first panel is going to be the Assistant Administrator of the 

Office of Chemical Safety and Pollution Prevention of the Environmental Protection Agency, Mr. Jim Jones. He has been here before. 

He is always welcome. Your professionalism is always welcome as 

a witness. 

STATEMENT OF HON. JIM JONES, ASSISTANT ADMINISTRATOR, OFFICE OF CHEMICAL SAFETY AND POLLUTION 

PREVENTION, ENVIRONMENTAL PROTECTION AGENCY 

Mr. JONES. Good morning, Chairman Inhofe, Ranking Member 

Boxer and members of the committee. I appreciate the opportunity 

to join you today to discuss much-needed reform of chemicals management in the United States, and the recently introduced bill, the 

Frank R. Lautenberg Chemical Safety for the 21st Century Act. 

There continues to be wide agreement on the importance of ensuring chemical safety and restoring the public’s confidence that 

the chemicals used in the products they and their families use are 

safe. The Administration also believes it is crucial to modernizing 

strength in the Toxic Substances Control Act to provide EPA with 

the tools necessary to achieve these goals and ensure global leadership in chemicals management. 

We continue to be encouraged by the interest in TSCA reform, 

indicated by the introduction of several bills in recent years and 

months, the hearings on TSCA-related issues that are being held, 

and the discussions that are taking place. Key stakeholder share 

common principles on how best to improve our chemicals management programs. 

We at the EPA remain committed to working with this committee and others in both the House and the Senate, members of 

the public, the environmental community, the chemical industry, 

the States and other stakeholders to improve and update TSCA. 

As you know, chemicals are found in almost everything we buy 

and use. They contribute to our health, our well-being and our 

prosperity. However, we believe it is essential that chemicals are 

safe. While we have a better understanding of the environmental 

impacts, exposure pathways and health effects that some chemicals 

can have than we did when TSCA was passed in 1976, under the 

existing law, it is challenging to act on that knowledge. 

TSCA gives EPA jurisdiction over chemicals produced, used and 

imported into the United States. However, unlike laws applicable 

to pesticides and drugs, TSCA does not have a mandatory program 

that requires the EPA to conduct a review to determine the safety 

of existing chemicals. In addition, TSCA places burdensome legal 

and procedural requirements on the EPA before the agency can request the generation and submission of health and environmental 

effects data on existing chemicals. 

While TSCA was an important step forward when it was passed 

almost 40 years ago, it has proven to be a challenging tool for providing the protection against chemical risks that the public rightfully expects. For example, as we have all heard, in 1989, after 

years of study and with strong scientific support, the agency issued 

a rule phasing out most uses of asbestos in products. Yet in 1991, 

20 

a Federal court overturned most of this action because it found 

that the rule had failed to comply with the requirements of TSCA. 

As a result, in the more than three and a half decades since the 

passage of TSCA, the EPA has only been able to require testing on 

a little more than 200 of the original 60,000 chemicals listed on the 

TSCA inventory and has regulated or banned only five of these 

chemicals under TSCA Section 6 authority, the last of which was 

in 1990. In the 25 years since, EPA has relied on voluntary action 

to collect data and address risks. 

In the absence of additional Federal action, an increasing number of States are taking action on chemicals to protect their residents. And the private sector is making their own decisions about 

chemicals to protect their interests and to respond to consumers. 

The Administration is committed to using the current statute to 

the fullest extent possible. But the nature of the statute has limited progress. In the last 6 years, the EPA has identified more than 

80 priority chemicals for assessment under TSCA. We have completed final assessments on specific uses of four of those chemicals 

with a fifth to issue soon. Of these five chemicals, two show no significant risks. The remaining three show some risks. 

To address these risks that are identified in these three assessments, EPA is considering pursuing action under Section 6 of 

TSCA. It is clear that even with the best efforts under law and resources, we need to update and strengthen TSCA and provide the 

EPA with the appropriate tools to protect the American people 

from exposure to harmful chemicals. 

The EPA believes it is critical that any update to TSCA include 

certain components. In September 2009, the Administration announced a set of six principles to update and strengthen TSCA. 

While the Administration has not yet developed a formal position 

on the new bill, we continue to feel strongly that updated legislation should provide EPA with the improved ability to make timely 

decisions if a chemical poses a risk and the ability to take action 

as appropriate to address those risks. 

We believe that it is vitally important to assuring the American 

public that the chemicals they find in the products they buy and 

use are safe. 

Mr. Chairman, thank you again for your leadership on TSCA reform. I would be happy to answer any questions you or the other 

members have. Thank you. 

[The prepared statement of Mr. Jones follows:] 

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Senator INHOFE. Thank you, Administrator Jones. That is an excellent statement. 

We are going to have a 5-minute round. I will lead off and I 

would say this. OK, they are going to be 6-minute rounds. So mine 

will be eight questions that will really require probably a one-word 

response. 

Mr. Jones, the Administration does not have a formal position on 

any TSCA legislation at this time, is that correct? 

Mr. JONES. That is correct. 

Senator INHOFE. So you will not be able to tell us if EPA believes 

this bill as a whole is better than current law or not? 

Mr. JONES. That is correct. 

Senator INHOFE. How many chemicals have been regulated under 

Section 6 of the current TSCA by the Obama administration? 

Mr. JONES. Zero. 

Senator INHOFE. And how many chemicals have been regulated 

under Section 6 of the current TSCA since 1990? 

Mr. JONES. Zero. 

Senator INHOFE. The current TSCA safety standards have been 

criticized for incorporating cost benefit analysis into safety determinations. Does the bill we are discussing today successfully remove any cost benefit analysis from safety determinations? 

Mr. JONES. Yes. 

Senator INHOFE. A lot of discussion has gone on over how many 

chemicals EPA should be required to review at any time, any particular time. If EPA had access to an unlimited amount of resources or user fees, is there a limit to EPA’s capacity to review, 

with your current staffing, to review chemicals? 

Mr. JONES. I believe there is. I am sorry, this will take more 

than one word. But from my experience, even in the pesticides program, where we have about three times as many resources under 

the Food Quality Protection Act, the most output we are able to do 

is in the range of about 40 a year. Based on that experience, I 

would expect that would probably be true in the TSCA sense as 

well. 

Senator INHOFE. Thank you, Mr. Jones. You said previously that 

EPA has identified around 1,000 chemicals with some concerns. If 

EPA were to make 20 or even 40 of those chemicals high priorities 

under the bill, doesn’t that leave the States with over 950 chemicals to regulate? 

Mr. JONES. That is my understanding of how the bill is written. 

Senator INHOFE. I know the EPA is working on Section 6 actions 

regarding the particular chemical in paint strippers. Can you 

please explain how that action would preempt States, under current TSCA, the current law, and if you took that action today 

under current law, would that preempt Proposition 65 labeling in 

California? 

Mr. JONES. Under current law, we don’t have a lot of experience 

because we don’t do many Section 6 rules. But if we were successful with a Section 6 rule in the example that you gave, Senator 

Inhofe, my understanding is that current law would preempt 

States from doing anything other than exactly what we did, or they 

could actually ban the entire chemical for all commercial uses. 

41 

Senator INHOFE. So there can be some preemption under the current law? 

Mr. JONES. There would be current preemption. 

Senator INHOFE. I thought that was the case. 

Last, as I was listening to you go through the Administration’s 

TSCA principles in your opening statement, one thing I noticed you 

didn’t mention was preemption. Does the Administration have a 

formal position on preemption? 

Mr. JONES. The Administration consciously did not include a 

principle on preemption, even though we understood how critical it 

was ultimately to a bill. We do not have a principle on preemption. 

Senator INHOFE. Thank you very much, Mr. Jones. 

I have used half of my 6 minutes. So at the proper time, we will 

give an additional 3 minutes to my friend, the author of this bill, 

Senator Vitter. 

Senator Boxer. 

Senator BOXER. Thanks so much, MR. Chairman. 

I absolutely don’t believe in allowing the perfect to be the enemy 

of the good. That is such an important point. That is why I would 

be thrilled to support a good bill. I also say you can call something 

a beautiful name. This bill has a beautiful name, named after a 

magnificent Senator. 

But when the experts look at it, they tell me unequivocally it is 

not better than current law. As a matter of fact, many say it is 

worse. Some of them are out in the audience today. They are doctors, they are nurses, they are environmentalists. 

I just want to say for the record, because Senator Udall is my 

friend, we just really disagree on this one, he said don’t make attacks personal. And he is right on that. It has nothing to do with 

personalities. It has to do with children of the United States of 

America, it has to do with the families of the United States. It has 

to do with Trevor, who is sitting out there, who, thank God, survived brain cancer that he got when he was exposed to chemicals 

in an otherwise beautiful, beautiful lake. 

So I am not going to stop saying what I think. I am going to escalate saying what I think. Because the information that I have is 

brought to me by, and these are some of the groups, the Breast 

Cancer Fund, the Lung Cancer Alliance, the Asbestos Disease 

Awareness Organization, the Consumers Union. The legacy of our 

veterans, military exposures, these all oppose this bill strongly. The 

National Hispanic Medical Association, the Medical Disease Clusters Alliance, the Oregon Public Health Association, the Birth Defects Research for Children Organization, the National Medical Association, which is African-American doctors. The Physicians for 

Social Responsibility from a number of States, the American 

Nurses Association, as I said before. The Delaware Nurses Association, the Maryland Nurses Association. Kids v. Cancer, the Autism 

Society. Clean Water Action, Earth Justice, League of Conservation 

Voters. NRDC, Sierra Club, Alaska Community Action on Toxics. 

And it goes on and on. The New Jersey Environmental Counsel 

opposes this. The New Jersey Environmental Federation. The New 

Jersey Environmental Justice Alliance. Environmental Advocates 

of New York. 

42 

So here is why they oppose the bill. It stops States from being 

able to protect their citizens from chemicals. And many attorneys 

general are stunned by its preemption. 

Now, I was pleased that Senator Udall said, let’s look at the New 

York Times. Absolutely, look at the New York Times. They criticized the preemption in this bill. Let’s fix that. Let’s fix the preemption. All of our States care about their citizens. Why should we 

have a bill that is so opposed and dramatically opposed by more 

than 450 organizations get through here, a weak bill that studies 

25 chemicals, that is all you are assured of over 7 years, and no 

action required? 

So I could go on with the list, but we are putting it in the record. 

I think it is very, very clear. Senator Udall talks about 80,000 

chemicals. He is right. Twenty-five chemicals will be studied over 

7 years. And guess what? If any one of them is studied, the States 

can do a thing anymore. They are done. And I am not going to 

allow that to happen to anybody’s people, regardless of State. 

So I want a good bill. I don’t want a perfect bill. And we don’t 

have it here. That is why Senator Markey and I worked so hard 

to get a good bill. This isn’t about partisanship, or who you can get 

on your bill. It is about who you protect. And it is shocking to me 

to see who is behind this bill. It is. It is shocking to me. 

Now, Mr. Jones, California’s attorney general recently sent a letter describing the ways State authority to set strong chemical safety standards and enforcing existing laws is preempted in the 

Vitter-Udall bill. Do you agree that all of the erosions of the State 

authority described in this letter are in fact enabled by the bill 

text? 

Mr. JONES. I think the California State attorney general accurately characterized how preemption would work under the bill, 

yes. 

Senator BOXER. Well, thank you. Because Kamala Harris, she 

protects kids. That is what she is known for. And this was unusual 

for her, to write such a letter. 

Mr. Jones, even if EPA does propose a ban or other restrictions 

on a chemical, isn’t it true there is no deadline in the Udall bill 

by which that ban restriction has to be implemented by industry, 

which could mean that while State action would be completely preempted, it could also be far longer than 7 years before any Federal 

regulation goes into place? 

Mr. JONES. There is no time deadline, that is correct. 

Senator BOXER. All right. So here we have a bill that is being 

sold as protecting everybody and there is not even a deadline to enforce one chemical. 

Assistant Administrator Jones, some State attorneys general and 

California EPA have argued that the way the Udall-Vitter preemption provisions are drafted raises a concern that a State’s Clean 

Air, Clean Water or other environmental laws could also be preempted. Do you agree with that assessment? 

Mr. JONES. There is some ambiguity in the way those provisions 

are drafted, so yes. 

Senator BOXER. So yes? 

Mr. JONES. It is possible that those kinds of statutes — 

43 

Senator BOXER. So it is possible. Let’s be clear. That in this bill 

we are not only talking about preemption of chemicals, but the 

State’s Clean Air, Clean Water or other environmental laws could 

be preempted and the answer is, oh, yes. 

Mr. JONES. As it relates to chemicals, that is correct. 

Senator BOXER. Yes. That the Clean Air, Clean Water or other 

environmental laws could be preempted. 

Let’s be clear what we are dealing with here. We are dealing 

with a bill that does harm, when they want to prevent harm. That 

is why these groups are opposing. Do you think the groups, I am 

not asking this, this is rhetorical, the groups who oppose this bill 

want to support, just like I want to support, a bill named after 

Frank Lautenberg? It would be a happy moment. But not this bill. 

This bill does not reflect the work I did with him in the past. I am 

just speaking as one colleague. 

Thank you. 

Senator INHOFE. Thank you, Senator Boxer. Senator Vitter. 

Senator VITTER. Thank you, Mr. Chairman. 

Thanks, Mr. Jones, for your testimony. You referred to the 

Obama administration’s essential principles on TSCA reform which 

were issued several years ago. Sort of your guiding principles. I 

want to go to those. 

The first is that chemicals should be reviewed against a safety 

standard that is based on sound science and reflects risk-based criteria, protective of human health and the environment. 

Is the safety standard in the Udall-Vitter bill we are discussing 

today consistent with this principle? 

Mr. JONES. Yes, I believe so. 

Senator VITTER. OK. Second principle. EPA should be given the 

tools necessary to ensure that manufacturers are providing the 

agency with the necessary information to conclude that new and 

existing chemicals are safe and do not endanger public health or 

the environment, or else action will be taken. Again, are the provisions in this Udall-Vitter bill granting EPA new authorities to collect information as well as removing barriers like EPA having to 

prove a chemical poses an unreasonable risk prior to collecting information? Are those parts of the bill consistent with this second 

principle? 

Mr. JONES. Yes. 

Senator VITTER. OK, third principle. EPA needs clear authority 

to take risk management actions when chemicals do not meet the 

safety standards, as well as the flexibility to take into account a 

range of considerations, including sensitive sub-populations, cost, 

availability of substitutes and other relevant considerations. I know 

your staff has flagged one issue in technical assistance with regard 

to some articles language in the bill, but I am confident we can 

come to a good agreement with your office and we are working on 

that. Other than that work in progress, are the changes to the safety standard and Section 6 of this Udall-Vitter bill consistent with 

this third principle? 

Mr. JONES. I appreciate your flagging the articles issue. I think 

that is a barrier to being consistent with the principles. If that 

issue were addressed, then I believe the answer would be yes. 

44 

Senator VITTER. Great. I appreciate your work on that. We will 

continue to work and resolve that. 

The fourth principle delineates that EPA should have the authority to set priorities for conducting safety reviews as well as clear 

and practicable deadlines for the completion of chemical reviews. 

Does the Udall-Vitter bill we are talking about today have clear 

and practicable deadlines and grant EPA the authority to set priorities for conducting safety reviews consistent with this principle? 

Mr. JONES. The principle also reflects a desire that there be timely decisions. I think as Senator Boxer mentioned, there are some 

questions with respect to the pace. Is the 25 chemicals in 7 years 

timely; I think there is a good argument that doesn’t meet the 

timely test. Other than not meeting that timely test, yes, I think 

it is consistent with the other elements of that principle. 

Senator VITTER. OK. And then the fifth principle states that 

TSCA reform should encourage green chemistry, assure transparency, and include stricter requirements, including substantiation for a manufacturer’s claim of confidential business information. Are the bill’s requirements on confidential information as well 

as the new green chemistry provision, consistent with this fifth 

principle? 

Mr. JONES. Yes. 

Senator VITTER. OK. Then finally, the sixth principle states that 

TSCA reform should give EPA a sustained source to defray the cost 

of funding for implementation. Is the user fee section of the bill 

consistent with this principle? 

Mr. JONES. Yes. 

Senator VITTER. Thank you very much, Mr. Jones. Your work 

and EPA’s work with us has been very constructive. I know it will 

continue to be, with the hours of consultation and work. We have 

adopted many, many elements, including language you have given 

us. So we will continue that work, particularly in the areas I just 

flagged. Let me reserve the balance of my time for wrap-up. I may 

not use it, but let me reserve that. 

Senator INHOFE. Thank you, Senator Vitter. 

I would like to place into the record a letter supporting the Lautenberg Chemical Safety Act, signed by six attorneys general, and 

a letter of support signed by a number of TSCA legal experts. 

Without objection, so ordered. 

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Senator INHOFE. I would also like to place into the record a letter 

of support signed by five former high-ranking EPA and Justice Department officials, including an assistant attorney general and 

three former EPA general counsels, that not only supports the bill 

but strongly reviews a previous letter of law professors in their 

claims. 

Without objection, so ordered. 

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Senator INHOFE. Senator Booker. 

Senator BOOKER. Thank you, Chairman Inhofe, and Ranking 

Member Boxer, for calling this very important hearing. 

I want to start, and very importantly, in complimenting Senator 

Udall and Senator Vitter for coming together across the aisle to 

work in a bipartisan fashion on this critical issue of fixing our Nation’s broken system of evaluating the impact of toxic chemicals on 

human health. Any efforts at a bipartisan compromise in the U.S. 

Senate should be hailed and praised in and of itself. 

I want to acknowledge the progress that Senators Udall and 

Vitter have made in working together in good faith on this bill. 

There has been progress. The version of the bill we are considering 

today has made improvements over the past year in critical areas, 

such as the definition of the safety standard and the explicit protections for vulnerable populations. 

But I have multiple concerns with the bill as currently drafted, 

and as yet cannot sign on. My concerns include the following. The 

timing of preemption, as Senator Udall has already entered into 

the record, in the New York Times, clearly puts front and center 

the timing of preemption for high priority chemicals, is a serious 

problem and defect in this bill. The right of States to co-enforce has 

been taken away. Why should we be afraid of States’ rights to take 

action, especially when the EPA’s budget, as we are seeing right 

now, continues to get hacked away and away? 

There is also limited judicial review for low priority determinations. And there are not sufficient provisions, and I feel very passionately about this, to limit the testing of chemicals on animals 

where scientifically reliable alternatives exist that would generate 

equivalent information. I intend to continue working with Senator 

Vitter and Senator Udall, the bill’s co-sponsors, in hopes of addressing these issues and making the bill better. 

But I have some specific questions for Hon. Jim Jones. Mr. 

Jones, I want to thank you for your testimony, for your candidness 

and for being so forthright. You testified regarding the list of six 

Administration principles for TSCA to be updated and strengthened. That is where I would like to focus. When the Administration 

is reviewing this bill in its final form to decide whether to support 

it or oppose it, will those six principles be the only consideration, 

or will the Administration look to other elements of the bill? 

Mr. JONES. The Administration will absolutely look at the bill in 

its totality. And there will be elements that are not related to the 

principles that I am confident will be brought to bear on that evaluation. 

Senator BOOKER. Right. So to be clear, holding onto those six 

principles by this committee is not enough. The Administration will 

evaluate the totality of the bill and its impacts, is that correct? 

Mr. JONES. That is correct. 

Senator BOOKER. When deciding whether to ultimately support 

or oppose the bill, will one issue the Administration considers be 

preemption and whether or not the bill strikes a right balance between the Federal Government and State government authority on 

chemical safety regulation? 

59 

Mr. JONES. I am confident that preemption will be a critical element of how the Administration ultimately looks at the totality of 

the bill and whether or not it strikes the correct balance. 

Senator BOOKER. I am assuming you are using that word critical 

very purposefully. 

Mr. JONES. I am. 

Senator BOOKER. It is a pretty significant element, which draws 

a large amount of the justifiable criticism of the bill as it stands 

right now. 

Mr. JONES. It is. 

Senator BOOKER. To have years of a gap between which States 

can act appropriately is very problematic. Would you agree? 

Mr. JONES. Senator, I don’t want to weigh in on the policy elements of exactly how it is drafted, only to say the Administration 

will be looking very hard ultimately at how preemption plays into 

the overall bill. 

Senator BOOKER. Your courage of weighing in will be noted for 

the record, sir. I appreciate that. 

[Laughter.] 

Senator BOOKER. Mr. Jones, under current TSCA States are permitted to co-enforce any restrictions EPA may ultimately put in 

place. This new bill takes away the rights of States to co-enforce. 

Is there any reason you are aware of why State co-enforcement 

would be problematic in any way, and that removing this important provision would be necessary? 

Mr. JONES. Co-enforcement exists in most if not all environmental statutes. I am not aware of scenarios whereby it creates a 

problem. It basically allows, as has been mentioned, States to enforce their own rules as long as their rule exactly the same as the 

Federal rule. So you have more cops on the beat. 

Senator BOOKER. I see my time is waning. Finally, and hopefully 

we will have another round, another issue I am concerned with is 

animal testing, unnecessary animal testing, cruel animal testing, 

inhumane animal testing. I am doing everything I can to make 

sure the bill minimizes that to the extent possible. Specifically, I 

believe there are alternative testing methods and strategies that 

exist that the EPA Administrator has determined are scientifically 

reliable and would generate equivalent information. I want to 

know, is this an issue with EPA that you are in agreement with 

me about there being alternative equally scientifically reliable ways 

to do it, ways to limit animal suffering, animal cruelty and animal 

testing? 

Mr. JONES. Senator, we are very invested, particularly our colleagues in the Office of Research and Development, in pursuing 

non-alternative animal testing. My office has been very aggressive 

in working with those colleagues to see that those tests are deployed when they are scientifically robust and ready to be deployed. 

Senator BOOKER. Thank you very much. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you very much. Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. Thank you, Mr. 

Jones for being here. 

I would like to begin by asking to submit into the record several 

statements in support of the TSCA bill. One from the attorney genVerDate Aug 31 2005 11:27 Sep 21, 2015 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94985.TXT VERN
60 

eral of West Virginia, one from the president of Building and Construction trades, one from the Smart Transportation Division, 

which is the former United Transportation Union, one from International Association of Sheet Metal, Air, Rail and Transportation 

Workers, one from International Association of Machinists and 

Aerospace, and one from Bridge Structural, Ornamental and Reinforcing Iron Workers. 

Senator INHOFE. Without objection, they will be a part of the 

record. 

[The referenced information follows:] 

61 


94985.144
62 


94985.145
63 


94985.143
64 


94985.146
65 


94985.147
66 


94985.148
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94985.141
68 


94985.142
69 

Senator CAPITO. Thank you, Mr. Chairman. 

Mr. Jones, let me begin, before I get into my questions, ask if you 

are familiar with the chemical spill that happened in the Kanawha 

Valley of West Virginia about 15 months ago? 

Mr. JONES. Yes, I am, Senator. 

Senator CAPITO. I am a supporter of this bill, I will say that from 

the outset. I do think that TSCA is not the primary law which 

would govern accidental spill into the water. But I think TSCA can 

be a useful resource in situations like the Elk River spill. I am 

pleased to be an original co-sponsor of this. 

Under TSCA, can EPA share confidential information it collects 

with States, under the present law? 

Mr. JONES. No. 

Senator CAPITO. What about local governments? 

Mr. JONES. No. 

Senator CAPITO. And then first responders and medical practitioners? 

Mr. JONES. No. 

Senator CAPITO. No. Does this, the Lautenberg bill, give EPA 

new authorities to share confidential information with States? 

Mr. JONES. Yes. 

Senator CAPITO. Local governments? Mr. Jones. Yes. 

Senator CAPITO. Medical providers? 

Mr. JONES. Yes. 

Senator CAPITO. One of the frustrating aspects of the Elk River 

spill, for those of us who live in the Kanawha Valley, which I do, 

is that we didn’t have any kind of information and actually very 

little information about MCHM, which was the non-toxic chemical 

that spilled into our water that caused us to all cease the use of 

our water for an extended period of time. 

Does this bill include new language which would require EPA to 

share information related to exposures and releases of a chemical 

substance obtained under this program with other Federal agencies 

or offices within EPA, to better coordinate and address the failures 

that we saw at the Elk River spill? 

Mr. JONES. Yes. 

Senator CAPITO. Thank you. Also on the conditions of use definition in the bill, does it allow EPA flexibility to consider accidental 

releases and spills in the prioritization of chemicals as well as the 

safety assessment and determination? 

Mr. JONES. It does. 

Senator CAPITO. It does. Well, I would tell my colleagues and 

those in the audience and those listening that this would really go, 

I think, a long way toward helping what occurred with the nontoxic spill in our community. What happened was it just sort of fell 

literally between the cracks of any kind of regulatory regime. The 

State has stepped in on tank regulations and other regulations to 

try to alleviate, to try to make the information. But the sharing of 

information I think would be great. The water company didn’t even 

know what was upriver from their water intake and what the toxicity of that was. 

With that, I yield back my time. 

Senator INHOFE. Thank you, Senator Capito. Senator Carper. 

Senator CARPER. Thanks, Mr. Chairman. 

70 

Mr. Jones, welcome. It is good to see you. Thanks for your service. 

Looking at the audience, seeing Bonnie Lautenberg back here 

and seeing Jill Udall, I am reminded of a question I often ask people who are married, particularly people who have been married a 

long time. I ask them, what is the secret? And I get a lot of answers. Some are very funny and some are actually quite poignant. 

The best answer I have ever gotten to that question is the two Cs. 

The two Cs. Communicate and compromise. That is not only the secret for a long marriage between two people, it is also the secret 

for a vibrant democracy. I would add maybe one third C to that, 

and that would be collaborate. 

What we have seen in the legislative process here is an effort for 

us to communicate better with one another, and with a lot of stakeholders and with EPA. At the same time, to see if we can’t develop 

some consensus and some compromise and collaborate. 

I think we are making progress. 

It is ironic, when the bill was first introduced by Frank and by 

Dave Vitter several years ago, it was roundly endorsed by the New 

York Times, which today finds that the much stronger version of 

that bill is not yet up to par. There is a real irony there. I hope 

that is not lost on everyone in the room. 

Let me say, about a year ago I sent a letter, with about a dozen 

of my colleagues, sent a letter to Senator Udall and Senator Vitter, 

calling for nine fundamental changes to a previous draft of the bill 

to make it more protective of public health. This new draft addresses each of them, including a risk-based standard, protection of vulnerable populations, new testing authority for EPA and an enforceable schedule for action on chemicals. 

I would just ask, Mr. Jones, I understand that in 2009, EPA laid 

out several key principles for TSCA reform. We talked a little 

about those already. Can you tell me just very briefly if those requests that I made a year ago are consistent with EPA’s TSCA reform principles? 

Mr. JONES. I was actually preparing for this hearing re-reading 

that letter. It actually in many ways reads like the Administration’s principles, so yes. I would say it does. 

Senator CARPER. Thank you. 

I believe that despite the important progress on key issues, more 

could be done to ensure that TSCA reform offers Americans confidence that EPA will be able to protect us from risky chemicals, 

something that both public health advocates and the chemical industry seek. To that end, in a more recent letter, just a week or 

so ago, to the bill’s sponsors, I have highlighted three areas where 

I would like to achieve a good deal more progress. I think at least 

one of our colleagues has already referred to one or more of these. 

But first, I think States should have an appropriate role in working with EPA to implement and oversee a new Federal TSCA program. Second, State regulations are halted, I think, too soon in the 

chemical assessment and regulation process with respect to highly 

toxic chemicals. And the third point that I would like for us to drill 

down on and maybe do a better job on is with respect to making 

sure that the public should have, that we have asked whether EPA 

has acted appropriately in making chemical prioritization decisions. 

71 

My question is, simply, would these additional changes also be 

consistent with EPA’s principles for meaningful TSCA reform? 

Mr. JONES. Thanks, Senator Carper. As I mentioned in answer 

to Senator Booker, the Administration did not take a position on 

preemption, although we will ultimately view that as an important 

element in any bill. So I can’t speak to the first two issues you 

raised. 

Interestingly, the third issue related to judicial review of low priorities, the concept of a low priority wasn’t really on the radar 

when we developed the principle. So there is nothing that speaks 

directly to it. I would just say that it is unusual for final agency 

actions not to be judicially reviewable. 

Senator CARPER. OK, thanks. And my third question, I want to 

just go down a little bit on what might be an appropriate role for 

the States. My colleagues may remember, those who were here 

when we debated Dodd-Frank, one of the sticking points was the 

regulation of nationally chartered banks. Nationally chartered 

banks did not want to be regulated by States, by State regulators, 

by State attorneys general, by the State Governors. They wanted 

to be regulated under the national charter. 

It took us a while to figure out how to thread the needle on this 

one. But in the end, part of what we said is, you know, the Consumer Finance Protection Bureau could issue regulations with respect to nationally chartered banks, the States attorneys general 

could enforce those. That was the compromise that we struck. And 

it not a perfect parallel to the issue that is before us here. But it 

is the kind of thing that we need to do again. If we could find it 

with respect to nationally chartered banks and the rights of the 

States to be involved in the regulation, I think we can probably 

find it here. 

I would just ask you, I agree that this bill would fall short of offering States a similar role from enforcing Federal rules under 

TSCA, which might limit how well TSCA safety rules are able to 

protect Americans from certain risky chemicals. 

Mr. JONES. It does limit States from having that role that is referred to as co-enforcement. 

Senator CARPER. All right. I certainly want to say, I want to stop 

for a minute, Tom Udall has left the room, but you all just tell him 

I said, bravo. It is Navy talk for good job. I know it has been hard 

for him, probably hard for you. But I am pleased that he stuck with 

it and showed the kind of leadership that he has. 

I also want to say to David Vitter, David, thank you for your patience in working with me and a lot of other folks. We are not to 

the finish line, but we are getting closer. I appreciate that. 

And to our chairman, thank you for the way you have conducted 

ourself in this role as our chairman, particularly with respect to 

this issue. I am encouraged by the words of the ranking member 

that maybe those three Cs, communicate, collaborate and compromise, maybe we are about ready to seize the day. Thanks so 

much. 

Senator INHOFE. Thank you, Senator Carper. 

Now, Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

72 

Mr. Jones, innovation is core to business, and it is key to keeping 

the United States a leader in technology. We need efficient market 

access for our innovation to keep America’s competitive edge. 

As this legislation is currently composed, is it grounded in sound 

science? Does it facilitate an efficient and transparent product review process? Will it protect confidential business information? And 

does it provide a single Federal regulatory regime? 

Mr. JONES. On the first three questions, I would say the answer 

is yes. On the single Federal regime, the bill, as does current law, 

it is not changed at all, requires the agency to ensure that there 

isn’t another Federal agency that could better manage the chemical 

before we step into the breach to regulate the chemical. But that 

is a requirement to the existing law, and it is maintained under 

TSC, under the bill in front of us. 

Senator FISCHER. OK. And key for any new regulations to work 

is confidence from the industry that any confidential business information shared with regulators will be protected. What safeguards are in place with the existing rules, and does this legislation preserve or strengthen those protections that are out there? 

Mr. JONES. The general critique that is heard around confidential business information under the current law is that it is allowed 

to be applied too broadly to things that really are not trade secrets. 

What the bill before us does is preserve the trade secret confidentiality, but makes more publicly available information that really 

isn’t about trade secrets, things along the line of health and safety 

data. But the trade secrets are still allowed to be confidentially 

protected as long as the manufacturer is able to substantiate why 

it should be. 

Senator FISCHER. And do you think safeguards are in place? 

Mr. JONES. I believe safeguards are in place, yes. 

Senator FISCHER. Thank you. Clear communication of regulatory 

requirements that may result in approval or denial of new products 

is crucial, we know, for any regulation to work. So what is the process that EPA will use to establish the new regulatory review 

timelines laid out in this legislation? Do you have the manpower 

and the bandwidth so that you can handle any new regulations 

with this new legislation? 

Mr. JONES. The bill before us would require EPA to establish all 

the kinds of procedures that you are describing, either through 

rule, or some of them through policy. Both of those would require 

there to be notice and comments. There would be public participation, how we establish the process that would ultimately govern 

implementation of the statute. 

I believe with the fee provision that is included in the bill that 

the agency would have the resources to implement the requirements. In the absence of fees, we would not. 

Senator FISCHER. But with the fees, you would be able, right 

now, you feel you would have the manpower then that you could 

implement the bill? 

Mr. JONES. With the fees that are in this bill, yes. 

Senator FISCHER. And in addition to petrochemicals, many chemical substances are also manufactured from bio-based chemicals 

and renewable feedstock like corn. So would S. 697 give EPA the 

73 

ability to designate many of those, or even batches of those chemicals, from renewable feed stock as low priority chemicals? 

Mr. JONES. It certainly would open that as an avenue. We would 

obviously have to look at everything on a case by case basis. But 

that would become a potential avenue for that class of chemistry. 

Senator FISCHER. Under current law, is EPA required to assess 

existing chemicals? 

Mr. JONES. No, we are not. 

Senator FISCHER. Does the bill that we are discussing today require you to assess those existing chemicals? 

Mr. JONES. Yes, it does. 

Senator FISCHER. Also, an important part of TSCA that Senator 

Carper alluded to in his comments, it is in this reform bill, it has 

been widely discussed, and that is protecting vulnerable populations, such as pregnant women and children. Does the vulnerable 

populations definition in this bill assure that the agency has the 

necessary tools and flexibility so that you can identify and protect 

any potentially vulnerable populations that are considered in this 

review of the safety of the chemical substance? 

Mr. JONES. I believe so, yes. 

Senator FISCHER. Thank you very much. Thank you, Mr. Chair. 

Senator INHOFE. Thank you, Senator Fischer. Senator Markey? 

Senator MARKEY. Thank you, Mr. Chairman, very much. We 

thank you, Bonnie Lautenberg, for being here and bringing Frank 

Lautenberg’s great legacy of fighting for toxic protections to us. 

The job that we have on this committee is to make sure that 

there is a bill that does give protections for the next generation, 

that we have to put in place learning the lessons of the past. 

My first question. The Massachusetts Toxic Use Reduction Act is 

a multi-faceted pollution reduction law that has been successful at 

decreasing the amount of toxic waste in Massachusetts by 50 percent and spurring innovation of safer chemical formulations to replace other, more dangerous ones. The Massachusetts Attorney 

General, Maura Healy, recently sent me a letter describing the way 

State authority to set strong chemical safety standards and enforce 

existing laws is preempted in the Udall-Vitter bill. The letter also 

highlighted the concerns that this bill could preempt actions taken 

under the Massachusetts Toxic Use Reduction Act and could further be used to interfere with State action related to water quality, 

air quality, or waste treatment or disposal. 

Do you agree that all of the erosions of State authority described 

in this letter are in fact enabled by the bill’s text? 

Mr. JONES. I think that the Massachusetts attorney general accurately characterized how preemption would work as it relates to 

State requirements. 

Senator MARKEY. So the answer is yes, it does accurately characterize the impact on State enforcement. Next question on preemption. The Udall-Vitter bill says that as soon as EPA starts to study 

a chemical it has designated as high priority, States are prohibited, 

prohibited from taking new actions to regulate that toxic chemical. 

Since the bill also allows EPA as long as 7 years to finish work on 

each chemical, do you agree that this could mean that there will 

be no protections, that chemicals on either the State or Federal 

level potentially for 7 years or longer would then be in place? 

74 

Mr. JONES. Yes. 

Senator MARKEY. Next. The Udall-Vitter bill allows, allows the 

chemical industry pay extra money, pay extra money for EPA to 

classify a chemical as high priority. Do you agree that this provision could be used by the chemical industry to stop a State from 

moving forward with plans to regulate a dangerous chemical? Because as soon as EPA starts to study a high priority chemical, that 

would be paid for by the chemical industry, that States would then 

be prohibited from regulating it? 

Mr. JONES. Yes. I would just say that the bill appears to have 

a cap on the number of times the EPA could do that. It is 15 percent of the total number of high priorities. But the answer is yes. 

Senator MARKEY. The answer is yes. So the chemical industry 

could pick those chemicals that would not be in fact subject to jurisdiction by the States. 

Next, the Udall-Vitter bill requires EPA to begin working on the 

first 25 high priority chemicals in the first 5 years after enactment. 

How long would it take under the bill for EPA to have to complete 

work on those first 25 chemicals? And just to be clear, EPA has to 

start work on 25 chemicals 5 years after enactment. Each chemical 

study can take 7 years to be finished. So the study on a chemical 

that begins in year five after enactment will then not have to be 

finished for 12 years in total. Is that correct? 

Mr. JONES. That is correct. 

Senator MARKEY. That is correct. 

Next. If it takes 12 years to finish work on the first 25 chemicals, 

do you agree that given the Udall-Vitter bill’s pace and today’s 

methods for assessing chemical risks, it will take more than 100 

years to finish studying the 1,000 chemicals that you have previously said were the most in need of assessment? 

Mr. JONES. If EPA stuck to the minimum requirement in the 

statute for that entire period of time, the answer would be yes. 

Senator MARKEY. Next. Flame retardants, a widely used in commercial products like couches, clothing and cars, EPA has expressed concern that certain flame retardants which can leach from 

consumer products are persistent biocumulative and toxic to both 

humans and the environment. Question: does the Udall-Vitter bill 

make it more difficult than existing law for EPA to regulate a 

chemical like flame retardants in a couch or chair even after EPA 

has found that the chemical is unsafe? 

Mr. JONES. This relates to the articles discussion we were having 

earlier. The draft bill creates a fair amount of analytical burden related to any time we are looking at a chemical in an article. That 

aspect would make them do it. 

Senator MARKEY. It does make them do a separate analysis for 

every type of product that contains that chemical. You are right. 

Separate analysis. 

And finally, in 1989, EPA tried to ban asbestos under its TSCA 

authority. But the industry successfully overturned the ban in 

court in part because the court found that EPA had not met the 

substantial evidence standard that TSCA required them to meet. 

The Udall-Vitter bill does not change this standard, even though 

it can be a much harder standard to meet than the one used in 

other environmental laws. 

75 

Question: do you believe that the use of this same substantial 

evidence language that has already been the subject of litigation 

would increase the likelihood that EPA would be sued using some 

of the very same arguments industry used successfully to overturn 

the asbestos ban? 

Mr. JONES. Our legal team is observing courts who are treating 

substantial evidence and arbitrary and capricious similarly. That 

being said, I would expect that a company that opposed the Section 

6 rule would try to make the substantial evidence arguments that 

were made in the asbestos case. 

Senator MARKEY. And again, asbestos front and center. We have 

to be very careful what we do here to make sure that there is true 

enforcement. I thank you very much. 

Senator INHOFE. Thank you, Senator Markey. Senator Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Mr. Jones, as a medical doctor, I have long pointed out the important role that chemicals play in our society. This law and its 

regulations touches so many aspects of our lives, as well as our 

economy. Therefore, I think it is critical to make sure the law appropriately balances the risks associated with a chemical, the monetary costs of chemical regulation, and the social and societal benefits that may come from the use of that chemical as well. 

As I understand it, one of the key flaws of the current law that 

EPA has identified is the language in the statute called ‘‘least burdensome.’’ TSCA states that EPA should apply the least burdensome means of adequately protecting against the unreasonable risk 

of a chemical. This provision has been blamed by some as the reason why the law has been so ineffective. 

Now, this bill removes that reference to least burdensome. So the 

question is, despite the removal of this language, if EPA were to 

find a chemical doesn’t meet the safety standard under the legislation, would there still be a mandate for the agency to conduct a 

cost benefit analysis in forming any rules to regulate the chemical 

substance? 

Mr. JONES. The standard is a risk-based standard under this bill. 

We are required to conduct a cost benefit analysis in choosing the 

appropriate risk management to apply. But the risk management 

that we apply needs to meet the safety standard, which is a risk 

only standard. 

Senator BARRASSO. I noticed the Administration’s TSCA principles include specific reference to the need for EPA to take into account costs in risk management decisions. Is EPA supportive of 

some level of cost benefit analysis? 

Mr. JONES. The agency and the executive branch in general 

thinks cost benefit analysis is very important for regulation, which 

is why for the last 30 years the government, the executive branch 

has required of itself to do cost benefit analysis. The difficulty that 

we have had under TSCA is that most of the benefits that we are 

worried about the health benefits, are not easily monetized. So we 

end up with a very cost-biased standard. Because it is easy to monetize the costs, but you can’t monetize the benefits, which makes 

it very difficult to show that your benefits outweigh your costs. 

Senator BARRASSO. So given that, is the particular cost benefit 

language in this bill implementable by the agency? 

76 

Mr. JONES. I believe so. 

Senator BARRASSO. Does the cost benefit language in the bill require a cost benefit analysis at the appropriate time, this is a question of time, rather than, say, during a chemical safety determination which is based solely on science, unlike the current law? 

Mr. JONES. That is how the Administration’s principles are related. The risk management has some consideration for costs, 

but the safety determination should be risk only. 

Senator BARRASSO. So under S. 697, is EPA directed to consider 

non-quantifiable costs, such as the social and societal benefits of a 

chemical in any potential regulations? 

Mr. JONES. It believe it would include that. 

Senator BARRASSO. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Barrasso. Senator 

Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Mr. Jones, there are places where the EPA’s existing regulatory 

authority preempts conflicting State regulation, is that correct? 

Mr. JONES. That is correct. 

Senator WHITEHOUSE. Is there any place in EPA’s existing regulatory authority where EPA regulations preempt State regulations 

before those regulations are promulgated? 

Mr. JONES. Not that I am aware of. 

Senator WHITEHOUSE. And you probably would be in a position 

to know? 

Mr. JONES. My knowledge is not all-encompassing of all regulations. But the ones that I have worked with — 

Senator WHITEHOUSE. Let’s stick with the chemical area, then. 

Mr. JONES. The chemical area, no. 

Senator WHITEHOUSE. This would be a novelty? 

Mr. JONES. Yes. 

Senator WHITEHOUSE. In which you create what might be called 

a death zone when a chemical is not regulated by EPA because the 

process has only begun, and yet no other government, no State government, no one else can regulate that chemical, irrespective of 

what risk it may present to the public? 

Mr. JONES. That is correct. 

Senator WHITEHOUSE. In your experience with the rulemaking 

process, do the industry participants in the administrative process 

of rulemaking to some degree control the pace of that rulemaking 

through the actions that they can take in that rulemaking process? 

Mr. JONES. In my experience, they participate more vigorously 

than most other stakeholders. And the timing in which they will 

submit information has sometimes the potential to make things 

take longer than one might otherwise expect. 

Senator WHITEHOUSE. So it is within the power of an industry 

participant in the regulatory process to slow down the regulatory 

process, just through the nature of its procedures. 

Mr. JONES. I like to think that the government does maintain 

that control. But my experience indicates that things can take 

longer because of the kinds of information that we are presented 

with and the timing with which the information is sent. 

77 

Senator WHITEHOUSE. Understood. I think you have said this before, but you expect that there could be as many as a thousand or 

more chemicals that will end up on the high risk list? 

Mr. JONES. The thousand number comes from when we developed our current work plan chemicals, we scanned the field of data 

that is out there associated with chemicals and found 1,000 chemicals for which there was some hazard data that to us meant it warranted some evaluation. There are likely to be more than that that 

ultimately do express hazard data, but it is just not known to us 

at this point. 

Senator WHITEHOUSE. As a Federal official involved in health 

and safety regulation, is it your view that our sovereign States 

under our Federal system of government also have an important 

role in health and safety regulation to protect their own citizens? 

Mr. JONES. I do. 

Senator WHITEHOUSE. And does EPA work often with State officials and State regulators to assure the health and safety of the 

American people and the population of their States? 

Mr. JONES. Yes, we do. 

Senator WHITEHOUSE. In fact, in some cases, you have delegated 

the authority to State officials to implement Federal law, have you 

not? 

Mr. JONES. That is correct. 

Senator WHITEHOUSE. So can you think of any place in EPA’s jurisdiction in which a State is forbidden to co-enforce an identical 

State law to the Federal law? 

Mr. JONES. I don’t know of an example of that. 

Senator WHITEHOUSE. If you were a Senator who was presented 

with frequent attacks on EPA’s budget, annual attacks on EPA’s 

budget, and you were concerned that 1 day those attacks might 

succeed and EPA’s enforcement capability might be drastically limited, would it not be wise to have the prospect of State enforcement 

of a similar standard just to make sure that the public health and 

safety was protected by someone? 

Mr. JONES. I think our experience with co-enforcement is that is 

important, even in the absence of declining budgets. Regulations or 

any law is only effective if there is enforcement of that law. 

Senator WHITEHOUSE. The industries’ concern is that there not 

be too many different regimes of regulation that they have to comply with, correct? 

Mr. JONES. That is what I have heard. 

Senator WHITEHOUSE. So if there is an identical regime, an industry effort to prevent that identical regime from being enforced 

isn’t an effort to deal with the legitimate problem of too much or 

conflicting regulation by definition, correct? 

Mr. JONES. That logic holds true to me. 

Senator WHITEHOUSE. It is simply an effort to make sure that 

there are enough cops on the beat to catch them if they misbehave. 

Mr. JONES. I don’t know what their motivation is, or anyone’s 

motivation on that is. 

Senator WHITEHOUSE. It is the only remaining one, it seems to 

me, if that first one disappears. 

Finally, with respect to the determination of whether a chemical 

is low priority or high priority, which is roughly, I think, low risk 

78 

or high risk, who gets to challenge or review if EPA has made a 

bad determination among these thousands of chemicals, or if new 

information comes up that suggests that something is no longer appropriately on the low risk or low priority list? 

Mr. JONES. My understanding, in the drafting, it is a little tricky 

to get one’s head around it, is that only a State, if the State originally commented on the original designation, would have the potential for challenging a low determination. That is as I understand 

it, but I could be mistaken. I am pretty confident, though, it is only 

limited to States. But I think it is a State that has participated in 

the process heretofore. 

Senator WHITEHOUSE. If new information were developed during 

the 7-years of review or at any time in the future after a low priority designation, you could end up with a situation in which nobody could challenge that error? 

Mr. JONES. That is how I understand the draft. 

Senator WHITEHOUSE. Thank you very much. 

Senator INHOFE. Thank you, Senator. Senator Boozman? 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Asbestos, not only asbestos but things in that category that we 

have had trouble dealing with in the past, it is one of the problems 

that is being the least burdensome rule. Under this legislation, we 

would get rid of the least burdensome, is that correct? 

Mr. JONES. That is correct. 

Senator BOOZMAN. OK, good. Upon enactment, would this bill 

allow the EPA to make asbestos and similar things and other concerning chemicals a high priority, and therefore the first chemicals 

through the safety assessment and determination process? 

Mr. JONES. It would allow that, yes. 

Senator BOOZMAN. So this would be a mechanism to get rid of 

the things that we have the most concern about? 

Mr. JONES. It would allow us to make it a high priority and then 

require us to do a safety determination and then act if the risk is 

unacceptable, yes. 

Senator BOOZMAN. Good, thank you. Does the bill have a deadline for EPA to promulgate a final rule to regulate a chemical if 

it is found to not meet the safety standard? 

Mr. JONES. Yes, it does. Two years after we have made a safety 

determination that the chemical does not meet the safety standard. 

Senator BOOZMAN. OK, good. Thank you for that clarification. 

Senator INHOFE. Thank you, Senator Boozman. Senator Cardin? 

Senator CARDIN. Thank you, Mr. Chairman. I thank you for holding this hearing to allow us all to reflect once again on how fortunate we were to serve in the U.S. Senate with Frank Lautenberg. 

He was an incredible force on this committee and a person who put 

the health of our children as his highest priority. Bonnie, it is wonderful to see you in our committee, and I thank you for continuing 

his work. 

I also want to thank Senator Udall and Senator Vitter for reaching across party lines to come together and try to move forward an 

issue that we all know needs to be dealt with. The current TSCA 

law does not work. We have a responsibility to enact a law that 

will work. 

79 

I want to thank Senator Boxer for her passion on this issue and 

recognizing that we can do better and continuing to raise those 

issues. I want to thank Senator Markey for his leadership on this 

issue as well. 

Senator Carper is not here, but I do really want to thank him. 

He has really been trying to get all of us together at various times 

to move this issue forward, and spends a great deal of time to get 

there. 

Mr. Chairman, I was listening to my colleagues, and they have 

raised many of the issues that I intend to raise. Just to underscore. 

But I have not heard any real response. I hope this means that we 

may be able to center in some areas that can really bring us together. Senator Booker started with that earlier in his round of 

questioning. Senator Udall mentioned the fact, let’s get together 

and let’s continue to work on this bill. He mentioned the New York 

Times editorial, and several of us have commented on some features of the New York Times. 

But in two respects dealing with preemption, it seems to me that 

there are clear improvements that we need to incorporate in this 

bill. The first is that just by making a start of a study on a high 

priority, it preempts the States from acting. And that process could 

take as long as 7 years. So we could be 7 years without any action 

on a chemical that has been determined to be a high priority, preempting the States from taking action that would seem to me, and 

would seem, I think, to most reasonable people, and Mr. Jones has 

already responded to this, it would be somewhat unprecedented to 

have that type of preemption before there is any Federal action at 

all. So I would just urge us that that seems like a pretty easy area 

to start moving on the preemption issue. 

Quite frankly, preemption has been our most visible area of difficulty. So if we can make some progress on preemption, I think we 

then start to talk with our attorneys general and figure out a way 

we can get this done. 

The second thing that Senator Whitehouse just talked about, and 

that is the co-enforcement issue, and Senator Whitehouse raised 

some good points. Mr. Jones, you responded that under any circumstances, regardless of your budget, it is better to have more 

cops on the beat as we are trying to enforce the laws. 

But let me just challenge you. I looked at the budget that is 

being recommended in the House of Representatives by the Budget 

Committee. The information presented to me shows that in 2024 

alone, if that budget were enacted, the non-discretionary spending 

would be 30 percent below the 2014 level, adjusted for inflation. 

And the House has shown some propensity to not be so generous 

to the EPA budgets. So if the EPA budget sustained that type of 

an attack, would that have an impact on your ability to be able to 

enforce these laws? 

Mr. JONES. Absolutely. 

Senator CARDIN. We are facing realities here that your budgets 

could very well be hit. So it is another reason why the co-enforcement issue, to me, should be an easy one for us. To the extent we 

can get our States helping us enforce our standards, they have to 

use our standards under the bill, I can’t understand why there 

would be any objection to allowing the States to move forward. 

80 

Brian Frosh, the Attorney General of Maryland, will be on the next 

panel. He is here. He is an independent attorney general that is 

interested in the public welfare. He is my lawyer, because I am a 

citizen of Maryland. We certainly will want him enforcing these 

standards in our State and helping EPA do that. I think you are 

shaking your head, so I just want the record to show that Mr. 

Jones is enthusiastically shaking his head, as is Brian Frosh, the 

Attorney General of Maryland. 

[Laughter.] 

Senator CARDIN. I want to get to one other issue in the time that 

remains. Maybe you can help me on this. That is, can you explain 

the difference between the safety standard of unreasonable risk to 

health and reasonable certainty of no harm? Do you have good 

legal doctrine for me to understand the difference between those 

two standards? 

Mr. JONES. Reasonable certainty of no harm is the standard we 

apply in our pesticides program, which we have through our actions interpreted it to mean that there shouldn’t be a cancer risk 

greater than one in a million, or that we have had adequate margins of exposure for thresholds. Unreasonable risk with the way in 

which it is characterized in the current bill, without cost consideration or the prohibition against cost considerations, would ultimately be defined by the way in which the agency implemented it. 

So we would obviously be only able to consider risk in that determination and we would have to make judgments about what level 

of risk defined an unreasonable risk. 

Senator CARDIN. So we don’t have a track record on that standard? 

Mr. JONES. Not with that standard in the, with the prohibition 

of giving cost any consideration which is how it is drafted right 

now. 

Senator CARDIN. So that adds some uncertainty to it? 

Mr. JONES. Yes. 

Senator CARDIN. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Cardin. Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Mr. Jones, I am brand new, but I understand that in November 

2014, you testified before the House on TSCA, and during that 

hearing you stated that there were several specific improvements 

that were need in any TSCA legislation to be meaningful for the 

agency. 

Does this particular proposal, S. 697, which would amend TSCA 

to give the EPA new authorities to obtain information at multiple 

stages in the process, how would this differ from the current process? And I believe this is an example of a bipartisan approach that 

clearly has the support of a lot of the members of the committee 

here. I think this may be very well a stepping stone in terms of 

how we do business within the committee on other issues as well. 

But I would sure like to know what your thoughts are in terms 

of how this would change the existing process. 

Mr. JONES. The biggest change is that right now, there is no duty 

upon the EPA to look at existing chemicals for safety at all. So we 

can do nothing in that respect and be in compliance. The Lautenberg bill requires us to look at existing chemicals and creates a 

81 

schedule for doing that. That is probably one of the fundamental 

changes. 

The other fundamental change is that it changes the standard 

upon which we have to evaluate a chemical. And as has been mentioned before, it eliminates one of the hurdles that we experienced, 

which is this requirement to find the least burdensome way in 

which to regulate chemicals. Then it also eliminates the cost benefit balancing that was previously required and gives us a riskbased standard that allows us to give cost considerations without 

having to say the actual benefits literally outweigh the costs. 

Senator ROUNDS. Does the definition of conditions of use, which 

is found within the bill, allow EPA to review not only the uses intended by the manufacturer but also those that go beyond the 

label, but that are reasonably foreseeable? 

Mr. JONES. Reasonably foreseeable is the language, I believe, so 

yes. There would be things that are beyond how it is labeled but 

can be foreseen to occur. 

Senator ROUNDS. How would these changes help the EPA? Would 

these give you more tools to do your job better? 

Mr. JONES. The principle, one of the tools is a legal one, in that 

the standard is one that takes away the principal barriers that we 

are experiencing today. So those are tools. 

The other is kind of loosely a tool, requiring us to do something 

that we are not otherwise required to do. It is not exactly a tool, 

but a particularly relevant piece to the bill. 

Senator ROUNDS. Thank you, Mr. Chairman. I yield back the 

time. 

Senator INHOFE. Thank you, Senator Rounds. 

Senator Sanders. 

Senator SANDERS. Thank you, Mr. Chairman. Like others, I want 

to welcome Bonnie Lautenberg here. Jane says hello and thank you 

for reminding us of all the great work that Frank has done. 

I also want to thank Senator Markey and Senator Boxer for their 

leadership on addressing this very, very important issue. Mr. 

Chairman, I got involved in this issue soon after I was elected to 

the U.S. House. I will never forget it. I got a call from a woman 

in Montpelier, Vermont. And she said something which frankly I 

initially did not believe. She said that, we installed in our home in 

Montpelier a brand new carpet. And as the carpet was unrolled, it 

off-gassed and she and her kids became pretty sick. I thought, this 

doesn’t sound right. I really did. I was disbelieving of that. 

Well, we did a little study on it, and it turns out that all over 

this Country in many States there were attorneys general working 

on the issue, and I see Mr. Jones is acknowledging it. This has 

been a problem. A lot of chemicals in new carpets off-gas. And if 

there is not proper ventilation, people can become sick. That is how 

I got involved. We have made some progress on that, by the way, 

I became involved in this. 

It seems to me that our goal is not to argue whether or not the 

current TSCA bill is adequate. I think we have all agreed that it 

is not. The real issue is, given the fact that we have tens of thousands of chemicals, of which many of them we know very little 

about, we don’t know how they interact with each other, we don’t 

82 

know how they impact vulnerable populations like kids or people 

who are ill. 

It seems to me that we have the obligation to pass legislation 

which in fact protects the people of this Country, especially our 

children. Now, my concerns about the bill that we are discussing 

today, the Vitter-Udall bill, is that it makes it extremely difficult 

for the EPA to ban or phaseout toxic chemicals even after determining that they are dangerous. That does not make a lot of sense 

to me. That the bill prohibits States from enforcing safety standards that are identical to Federal standards, even if EPA enforcement is inadequate, the bill prohibits States from taking actions on 

chemicals even after determining that a chemical is dangerous if 

the EPA really identifies a chemical as one deserving of attention, 

and the bill enables the chemical industry to preemptively place 

chemicals on the so-called high priority list, preempting States like 

Vermont from taking action for many years. 

Now, I find two aspects of this discussion somewhat interesting. 

First of all, virtually every hearing that we hold, every markup 

that we hold, we hear constant attacks against the EPA, as I think 

Senator Whitehouse and Senator Cardin have indicated. We expect 

the majority party right now to go forward with massive cuts in the 

EPA. And now we are led to believe that it should not be States 

like Vermont and Massachusetts or California who have been vigorous in dealing with this issue, they should not have the responsibility to go forward, but it should be in EPA, which the Republicans want to substantially cut. 

Frankly, I don’t think that passes the laugh test, if I may say 

so. 

A second point, on a more philosophical basis, I hear many of my 

Republican friends talking about federalism. I believe in federalism. I think that is a remarkable concept, which says, we have 

50 States out there, each doing different things. We learn from 

each other, Federal Government learns from them, the States learn 

from the Federal Government. But essentially to tie the hands of 

States, especially those States who have been most active on this 

issue, and say, we just want a Federal Government, by the way, 

we want to cut the funding for that agency which is asked to enforce this legislation, doesn’t make a whole lot of sense to me. 

So I strongly support what Senator Markey and Senator Boxer 

are trying to accomplish. 

Let me ask, Mr. Jones, a question if I can. Mr. Jones, if we 

adopted the Udall-Vitter bill as proposed, isn’t it true that this 

would weaken the ability of States like the State of Vermont to 

take action to limit toxic chemicals? 

Mr. JONES. The State of Vermont would not be able to take action on a chemical that EPA designated as a high priority. 

Senator SANDERS. Well, that is enough for me. 

Senator INHOFE. Thank you, Senator Sanders. Senator Merkley. 

Senator MERKLEY. I thank you very much, Mr. Chair. I would 

also like to welcome Bonnie. It is good to see you again. I know 

that our colleague, Senator Lautenberg, worked mightily to try to 

take on these chemicals, for the benefit of everyone’s health in this 

Nation. We are all engaged in that common enterprise. I think we 

can concur that things that are damaging toxins, cancer-causing 

83 

chemicals in everyday products, we should find other ways to make 

those products. That is what this is all about. The question is 

whether this bill at this moment gets us there. If it doesn’t, what 

further changes do we need to make. 

Under the existing TSCA law, there is State enforcement, is 

there not, Mr. Jones? 

Mr. JONES. Yes, there is. 

Senator MERKLEY. But under this law, there would not be State 

co-enforcement? 

Mr. JONES. That is correct. 

Senator MERKLEY. So in some ways, that is a step away from a 

strong enforcement regime? 

Mr. JONES. Yes. 

Senator MERKLEY. And under the existing TSCA law, preemption 

occurs only when the regulations are put into place? 

Mr. JONES. That is correct. 

Senator MERKLEY. But under this law, they are not put into 

place in that same fashion? 

Mr. JONES. When the EPA identifies a chemical as high, a State 

is preempted. 

Senator MERKLEY. So if, for example, the EPA was to identify a 

chemical as high risk and a State said, oh, it has been identified 

as high risk, we want to put a label on these products to warn people, they would be preempted from doing so under this law? 

Mr. JONES. High priorities determined by the statute, but basically what you said is correct, that once we have identified a chemical as high priority, a State would be preempted from labeling or 

any other restriction. 

Senator MERKLEY. And that preemption might exist for all the 

years that were being referred to that it might take for EPA to act 

on that particular chemical? The State would not act, the Federal 

Government would not yet have acted, and yet we know there is 

a high risk item out there? 

Mr. JONES. That is correct. 

Senator MERKLEY. One of the issues we had come up in Oregon 

was regarding flame retardants. The story on this goes back to the 

tobacco companies essentially wanted to downplay the role of cigarettes causing house fires, because they had the accelerants in the 

tobacco and they dropped into the cushions. They said, well, let’s 

focus on the problem really being the furniture, and there should 

be flame retardants in the furniture. 

So there has been a massive requirement for flame retardants 

and a lot of the foam has 3 to 6 percent by weight flame 

retardants. And yet we found out later that not only were they cancer-causing but they did nothing to prevent house fires. So here we 

are, and this is also in, for example, carpets, and my colleague referred to that. Here are babies crawling on carpets full of flame 

retardants that have toxic chemicals in them and breathing the 

dust in. That is a big problem. 

But here is the situation. There is not just one chemical. There 

is a family of chemicals. They are called congeners. But 209 chemicals in that family. So imagine essentially when Oregon wanted to 

regulate one chemical, the chemical industry came out with a different version of the flame retardant. So if there are 209 potential 

84 

versions just in this one family and you have to do basically one 

at a time, doesn’t this create an indefinite ability for the industry 

to keep putting cancer-causing chemicals into our carpets without 

the ability to kind of catch up, if you will? 

Mr. JONES. Flame retardants, for many of the reasons you described, Senator, are very challenging. Even under the existing 

statute, we are attempting to assess these compounds by doing it 

in groups as opposed to individually, so that we avoid the scenario 

you are describing, where the serial evaluation just keeps leading 

to potentially unproductive substitution. It is a very difficult challenge. 

Senator MERKLEY. Will you be saying that the EPA has the resources to evaluate 209 versions of the chemical at the same time? 

Mr. JONES. We are looking at about 20 of them right now. We 

try to pick the 20 that have potentially the greatest hazard and exposure. 

Senator MERKLEY. Another concern here is that the designation 

for low priority can be taken, in fact is taken, according to the flow 

chart under this bill, before there is a safety analysis. Doesn’t that 

seem a little bit like putting the cart in front of the horse? 

Mr. JONES. The way we have read the standard for low determination which is likely to meet the safety standard is that you 

would have to be so confident in it being low hazard and low exposure that you don’t need to do a safety determination. That is how 

we would read that provision. 

Senator MERKLEY. And up to the judgment of the EPA within the 

resources that it might particularly have under any given Administration or budget regime? 

Mr. JONES. The judgment is the key word there, because of a 

lack of judicial review of that determination. 

Senator MERKLEY. That is a significant concern, what you have 

pointed out, the lack of public being able to challenge that low priority determination, given the flexibility that can occur among different Administrations. 

Mr. JONES. I agree. It is kind of interesting when you think of, 

there is no judicial review, does it really matter what the standard 

is, because nobody can challenge you. 

Senator MERKLEY. Well, there is a section in the bill, and I will 

wrap up on this note. There is a section in the bill which has a, 

let me turn back to it here, it has a history that is called a nomenclature section. This bill has been in there since 2013. There is a 

great deal of uncertainty as to what this section is actually trying 

to accomplish. Can you fill us in on that? 

Mr. JONES. My understanding is that some of the nomenclature 

around how a chemical was originally placed on the TSCA inventory, which is important in terms of how the statute operates. If 

you are on the inventory, you can sell a chemical in commerce. But 

there is a lot of interest by particular manufacturers that that nomenclature be maintained, that we don’t start changing the way in 

which we describe what a new chemical is, for example. The desire 

is to maintain the longstanding way in which a new chemical in 

particular was placed on that inventory. 

Senator MERKLEY. So this simply is a naming provision with no 

implications for whether something makes it onto a list of high priVerDate Aug 31 2005 11:27 Sep 21, 2015 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94985.TXT VERN
85 

ority, low priority or in any other way influences the policies regarding this particular chemical? 

Mr. JONES. I would actually like to get back to you on that, Senator. I don’t think I have a good answer. 

Senator MERKLEY. I would appreciate working with you all. 

Senator INHOFE. Thank you, Senator Merkley. We want the next 

panel to be prepared to come forward, but I retained 4 minutes of 

my time, which I will allow the author to use, if he so desires. 

Senator VITTER. Thanks very much, Mr. Chairman. 

And thanks, Mr. Jones. I just have a few wrap-up questions on 

some key issues we have been discussing. Let’s start with preemption. Doesn’t the Udall-Vitter bill grandfather in permanently all 

State chemical specific regulations that were in place January 1st, 

2015? 

Mr. JONES. That is correct. 

Senator VITTER. So if a State has already acted, even if EPA 

takes on a chemical, even if EPA says, you can drink this and you 

will have a great life, that State regulation is still in effect? 

Mr. JONES. That is saved, that is correct. 

Senator VITTER. Doesn’t the Udall-Vitter bill grandfather in California’s Proposition 65? 

Mr. JONES. That is correct. 

Senator VITTER. OK. Doesn’t it keep in place any State regulation that exists prior to the EPA taking up a chemical until the 

EPA makes a conclusion in its study? 

Mr. JONES. That is correct. 

Senator VITTER. So if a State has a regulation on a chemical that 

EPA takes up, that regulation doesn’t go away unless and until 

EPA essentially blesses the chemical? 

Mr. JONES. Or regulates it, yes. 

Senator VITTER. Correct. OK. And then there was this discussion 

of industry priorities and how somehow that is some grand conspiracy to get rid of State regulations, which it isn’t. Isn’t it true 

that EPA has complete discretion over accepting or denying those 

requests, over accepting or denying that money and that request to 

take up any certain chemical? 

Mr. JONES. That is correct, and as I mentioned, we are also limited under the bill to only 15 percent of all priorities can come from 

that stream. We have complete discretion in how we determine 

what the priority is. 

Senator VITTER. And to go directly to Senator Markey’s question, 

isn’t it true that when EPA takes up a chemical through this particular route, that in fact the preemption rules are different? And 

in fact, States can act while you are studying the chemical, completely contrary to what Senator Markey said, until EPA makes a 

final decision? 

Mr. JONES. That is correct. For chemicals that come in through 

that venue, the preemption rules are different. 

Senator VITTER. So for that particular path, the rules are different and more allowing of the State regulations to continue? 

Mr. JONES. Yes. 

Senator VITTER. Let me go to this issue of the 25 chemicals over 

so many years. I want to very clear, so everyone is clear, that is 

a minimum, that is a floor, correct? 

86 

Mr. JONES. What we are statutorily required to do, yes. 

Senator VITTER. Yes. And in fact, the Udall-Vitter bill gives EPA 

more authority, correct? 

Mr. JONES. We can do more, yes, it does. 

Senator VITTER. And the Vitter-Udall bill gives EPA more resources through user fees, correct? 

Mr. JONES. Yes. 

Senator VITTER. And it gives EPA more resources through this 

route of chemical companies being able to supplement your budget, 

even though you retain all the control, is that correct? 

Mr. JONES. That is correct. 

Senator VITTER. So obviously, if you zoom past 25, if you get to 

40, if you go past 40, there is no ceiling, there is nothing in the 

law preventing you from doing that? 

Mr. JONES. No ceiling. 

Senator VITTER. And then a final comment, which is simply that, 

we are talking about this in the context of environmental regulation, we are the environmental committee. But I would suggest this 

bill is at least as similar, maybe more similar to product regulation 

when the Federal Government regulates products in commerce. Because these chemicals go into products in commerce. So I think we 

need to have the preemption discussion in that context. I think 

when we do, you see that these sorts of rules are the norm and not 

the exception. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Mr. Jones. We appreciate your very 

straightforward way of answering the questions. You are excused. 

We would ask the next panel to come forward. Because of the 

timing, we are going to ask you to try to abbreviate your statements as you see fit. And then we will change and have 5-minute 

rounds for questions instead of six. 

While they are being seated, let me tell everyone who is here. 

Ken Cook is President and Co-Founder of the Environmental Working Group. Brian Frosh is Attorney General of the State of Maryland, he has been referred to several times. Dr. Lynn Goldman is 

Dean of Public Health, Milken Institute School of Public Health, 

George Washington University. Dr. Edward McCabe is Senior Vice 

President and Chief Medical Officer of the March of Dimes Foundation. And Dr. Richard Denison is the Lead Senior Scientist of the 

Environmental Defense Fund. 

We will have 5-minute opening statements, if they can be abbreviated we would appreciate it. We will start with Mr. Cook and 

work the other way. 

STATEMENT OF KEN COOK, PRESIDENT AND CO-FOUNDER, 

ENVIRONMENTAL WORKING GROUP 

Mr. COOK. Mr. Chairman, Ranking Member Boxer, thank you 

very much. I want to thank everyone on the committee for holding 

this critically important hearing. 

Congress has not sent a major Federal environmental protection 

law to the President’s desk for signature in 19 years. It will be 19 

years this summer, to be exact, when we saw President Clinton, in 

the space of a couple of months, sign landmark amendments to the 

87 

Safe Drinking Water Act and put into law a new reform system for 

pesticide policy. Nineteen years ago, and that was it. 

We have decades of passing major Federal environmental regulation and law that preceded that. But I think we all know that if 

it came down to it, not a single one of those landmark laws would 

pass this Congress today. Not a one. We celebrated 50 years of the 

Wilderness Act last fall. Now, probably most people in this room 

have been in a wilderness that was protected under that law. Does 

anyone remotely believe that we could pass the Wilderness Act 

today? No. 

And the reason is that in the past, we have seen environmental 

law and regulation come about because of advances in science, public support, engagement of both parties, and both parties acting 

through bipartisanship in the service of environmental protection 

and public health, and not the other way around. 

Today, much as we salute the advances that have been made and 

the engagement that has happened, we still look at an end product, 

the bill before us today, that is severely flawed. I would ask that 

my testimony in its entirety that goes into detail including on matters such as preemption be entered into the record. 

But I want to focus on two particular issues. 

Senator INHOFE. Let me interrupt you and say all testimony, 

written testimony, will be a part of the record. Go ahead. 

Mr. COOK. Thank you, Mr. Chairman. 

Let me talk about a couple of broad issues in the context of constituents you might encounter as you meet with them in a town 

hall meeting talking about this bill. Let’s talk first about perhaps 

a cancer survivor, maybe parents like Trevor Shaffer’s parents, 

who are asking you a very simple question: under the proposal, 

under this safety standard in this proposal, how will you treat 

known human carcinogens? Known human carcinogens that every 

agency in the world knows causes cancer? 

And the safety standard answer will be as we just heard from 

Mr. Jones, well, we are going to try something new. We are going 

to try something that has never been tested. We are going to try 

unreasonable risk as the standard against which we will determine 

whether or not carcinogens will be regulated. 

Now, we heard Mr. Jones say that it will be up to the agency to 

determine that. And we read in the New York Times this morning 

that the tougher, preferable standard, superior standard, would be 

reasonable certainty of no harm, for which we do have regulatory 

history. It has regulated thousands and thousands of pesticides 

that are on the market today. They weren’t all banned by that 

standard. It is just not a standard that the chemical industry 

wants. Because when it really works is when you have a dangerous 

chemical, a known human carcinogen. When you have an agent 

that causes birth defects, when you have an agent that causes serious neural developmental harm, that is when that standard comes 

in and is most important to have. 

The next person in line talking to you about this is perhaps 

someone who is pregnant, starting a family. I have a 7-year old. 

I have had people in that line come up to me. And what they are 

going to ask you is, this little baby is going to be coming into the 

world here in just a few months. And I am worried about all these 

88 

chemicals that studies have shown, including Environmental Working Group studies, have shown. That baby has already been exposed to hundreds and hundreds of toxic chemicals in the womb. 

Tell me, what is the pace we can expect of dealing with these 

toxic chemicals under this particular legislative proposal? 

The answer will be, well, we think we will get to it in 100 years 

or so, get through this first list of 1,000 or maybe more, maybe 100 

years. Now, constituents may not be surprised that it will take 

Washington 100 years to do anything. But when someone who is 

pregnant is asking you that question, what you are essentially telling them is, when you add up all these issues, you add up the 

money issues, the notion that there are people in Congress who 

want to put their ‘‘boot on the neck’’ of the Environmental Protection Agency. There are concerns about goals and deadlines, we 

have heard them very well expressed here by many of the questions today. 

Senator INHOFE. Mr. Cook, you are over your time. Will you conclude, please? 

Mr. COOK. I am sorry. I apologize, Mr. Chairman. I will stop 

right there. 

[The prepared statement of Mr. Cook follows:] 

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Senator INHOFE. You will have ample opportunity in response to 

questions. 

Mr. COOK. Thank you, Mr. Chairman. 

Senator INHOFE. General Frosh 

STATEMENT OF HON. BRIAN E. FROSH, ATTORNEY 

GENERAL, STATE OF MARYLAND 

Mr. FROSH. Thank you very much, Chairman Inhofe and Ranking Member Boxer, members of the committee. It is an honor for 

me to be here with you. It is a special honor to be here with my 

Senator, Senator Ben Cardin. It is always a pleasure to work with 

you. 

I want to thank all the members of the committee for your commitment to updating the Toxic Substances Control Act. There is 

widespread agreement that this Act needs an overhaul. It is not 

protecting our constituents, it is not protecting them from exposure 

to toxic chemicals as it should. Reform is needed. But that reform 

must be built on a platform of meaningful protections for the public. And I am here today to ask you not to interfere with States’ 

rights, the rights of States specifically to protect their citizens from 

toxic substances, from poison. 

As a State attorney general, and Senator Markey referred to me 

and my colleagues as the cops on the beat, I am deeply concerned 

that S. 697 would abandon the model of cooperative federalism that 

characterizes other Federal environmental laws and has characterized the relationship between States and the Federal Government 

for four decades under TSCA. It essentially puts the States out of 

business of protecting their people from poison. 

The preemption provisions that are built into this legislation tie 

the hands of States at nearly every turn. Among these, there is a 

prohibition on new State chemical restrictions from the moment 

EPA begins the process of considering regulation of high priority 

chemicals. It is a plain fact that the bill itself allows this EPA review period to last as long as 7 years. That doesn’t account for procrastination, sloth or litigation. 

Let’s say it is only 7 years. Let’s say we are talking about a toxic 

chemical that is 7 years with no Federal regulation, 7 years during 

which no State can take action regardless of how dangerous, how 

toxic, how poisonous a chemical is, regardless of its impact on men, 

women or children. 

Seems to me the legislation has got the priorities upside down. 

If a chemical is dangerous, we should be acting as quickly as we 

can to protect our people. If the Federal Government cannot act 

swiftly and it may have come to your attention that it usually does 

not, States ought to be able to fill the void. States have done a good 

job of identifying threats to their citizens, and some, including 

Maryland, have passed laws that shield their people from toxic 

chemicals. 

The laboratories of democracy, as Justice Brandeis called the 

States, have been out in front of Congress, out front of the EPA 

and I think to the great benefit of our entire Nation. In Maryland, 

we passed laws to protect infants and children from ingesting 

bisphenol A, BPA. So have many other States. If you looked at 

EPA’s website this morning, you will see the EPA acknowledges 

106 

that it is a reproductive, developmental and systemic toxic in animal studies. EPA is studying it. 

Washington and Oregon restrict flame retardants like DECA 

BDE. Iowa restricts packaging containing lead, cadmium, mercury, 

hexavalent chromium. You don’t want your kids chewing on this 

stuff. Maine, New York, California, many other States have enacted laws that protect their citizens from toxics. We are talking 

about chemicals that cause chronic diseases, respiratory ailments, 

cancer, birth defects and death. 

Usually, when the Federal Government preempts the States, it 

is because you say to us, we got this. We are regulating this. You 

don’t need to worry about it. This legislation preempts the States 

before the Federal Government takes action. It is not, we got your 

back, it is, we are going to think about it. You sit back. 

I think we share the same objective. No one wants people to get 

poisoned. We all want an economy that is robust and healthy as 

well. State governments do a pretty good job. I ask that you respect 

their judgment. Respect the rights of States to protect their citizens. Let us continue to work cooperatively to prevent harm to people we serve. Fix TSCA. But do no harm. Don’t preempt the States. 

Allow us to continue to guard the health and safety of our citizens 

and protect them from toxic chemicals. 

Thank you very much. 

[The prepared statement of Mr. Frosh follows:] 

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Senator INHOFE. Thank you, General Frosh. Dr. Goldman. 

STATEMENT OF LYNN R. GOLDMAN, M.D., MICHAEL AND LORI 

MILKEN DEAN OF PUBLIC HEALTH, MILKEN INSTITUTE 

SCHOOL OF PUBLIC HEALTH, THE GEORGE WASHINGTON 

UNIVERSITY 

Dr. GOLDMAN. Mr. Chairman, and members of the committee, it 

my honor to testify today about the Frank R. Lautenberg Chemical 

Safety for the 21st Century Act, a bill to reform the Toxic Substances Control Act. And I do dedicate my testimony to the memory 

of Frank Lautenberg and his commitment to making chemicals 

safer. 

I am a pediatrician, and as you know, between 1993 through 

1998, I served as Assistant Administrator for the USEPA office 

that is now called the Office of Chemical Safety and Pollution Prevention. I first testified before this committee about the need for 

TSCA overhaul 21 years ago, in May 1994. Since that time, Congress did overhaul the pesticide law under the Food Quality Protection act in 1996. But TSCA unfortunately is frozen in time. 

The most important amendment in the Lautenberg Act is to replace the risk benefit balancing requirement in the current version 

of TSCA with a firm public health standard requiring that EPA 

make decisions solely on the basis of risk to human health and the 

environment. The provision requiring protection of infants, children, the elderly, pregnant women and other populations also is an 

immense improvement over current law. 

The Lautenberg Act also provides EPA with the strong authority 

it needs to order chemical testing, much as it currently has for pesticides. 

The 1989 Asbestos Ban and Phase-Out Rule, as you know, was 

overturned by the Fifth Circuit Court, which interpreted the least 

burdensome clause of Section 6 to imply a preference for end of the 

pipe solutions over more effective solutions, like replacing asbestos. 

The Lautenberg Act deletes that clause. Importantly, the Act will 

require that EPA actually affirm the safety of new chemicals and 

manage them to meet the new public health standard, something 

people haven’t been talking about today. 

Provisions in the Lautenberg Act would open up vast quantities 

of chemical information, much of which never should have been declared confidential in the first place, or information for which that 

claim is now outdated. As a former California State regulator, I 

strongly support the provision allowing EPA to share this data 

with States, something we were not allowed to do when I was at 

the EPA. 

In 1994, I called for a clear agenda and deadlines for the EPA 

and TSCA. The proposed legislation includes deadlines for 

prioritization, safety assessment and regulation, as well as a reasonable transition plan. I thank you for having undertaken the 

hard work of negotiating a provision enabling EPA to not only collect fees but also to actually use eh fees they collect. Bravo for that. 

I appreciate your hands-ff approach to how EPA uses regulatory 

science in the context of the program and ask that you do not 

freeze the science by injecting 2015 standards into a law that needs 

to work for us for a number of years. 

130 

I appreciate that the actions States have taken to date and actions taken under Proposition 65 now and in the future would not 

be preempted by the Act. Also, the Act does not preempt State 

right to know efforts, something we haven’t talked about, but a 

very important component of State activities. 

But we do have to recognize the chemical industry as a multinational enterprise and the need to take actions to protect people 

in all of our States, not just State by State, as well as the need 

to have actions that recognize what the downsides of those actions 

might be, such as replacement of bisphenol A with bisphenol S, a 

chemical about which we know very little but probably has similar 

toxicity. 

Listening to the discussion here today, there is probably more 

work that is needed to do to strike the right balance in terms of 

preemption. I certainly am sympathetic to arguments that States 

can be strong co-enforcers with the EPA. I think that is an issue 

that will need further discussion. 

Other areas that I would note is that I think Congress could set 

more aggressive but realistic expectations for EPA’s productivity, 

as well as taking advantage of this reauthorization to participate 

in the global Stockholm and Rotterdam Chemical Conventions. 

Twenty-one years ago, there were TSCA hearings. Everyone declared it was too complicated and everyone walked away for nearly 

a generation. You have heard many statistics describing this pace 

of chemical regulation under TSCA. But there is a human cost to 

inaction. Since 1976, 149 million babies were born in this Country. 

Three percent of them had birth defects and more than 10 percent 

were born pre-term. Eighty-six million people have died in the U.S. 

since that time, more than 25 percent from cancer. 

Each of us has our own ideas about what a perfect TSCA would 

look like. But I don’t want to be facing another Senate committee 

20 years from now giving the same testimony about this 60-year 

old law. Nor do I want to have to tell my daughter that she and 

her future children would not have a greater level of protection because we failed to pass a good, even if not a perfect, law. 

I thank you all for our willingness to work together and I wish 

you the best in finding a path forward. 

[The prepared statement of Dr. Goldman follows:] 

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Senator INHOFE. Thank you, Dr. Goldman. Dr. McCabe. 

STATEMENT OF EDWARD McCABE, M.D., SENIOR VICE PRESIDENT AND CHIEF MEDICAL OFFICER, MARCH OF DIMES 

FOUNDATION 

Dr. MCCABE. Chairman Inhofe, Ranking Member Boxer and 

members of the committee, thank you for the invitation to testify 

at this critical hearing. My name is Ed McCabe, and I am a pediatrician and geneticist serving as Senior Vice President and Chief 

Medical Officer of the March of Dimes Foundation. We appreciate 

this opportunity to testify today on the critical issue of protecting 

Americans and specifically vulnerable populations like pregnant 

women, children and infants from toxic chemicals. 

Unfortunately, the current Federal framework for the regulation 

of toxic substances is badly antiquated. As others have said, TSCA 

represents the last meaningful and comprehensive action taken in 

the field. The now outdated rules constructed in 1976 still govern 

the introduction and use of chemicals today, even though science 

has advanced in ways almost unimaginable at its passage. 

The safe management of toxic substances is especially important 

to pregnant women and children because they are more vulnerable 

to the potential dangers. Ample reason exists for concern that the 

developing fetus, newborn and young child are at increased risk of 

health consequences from chemical exposure. Given their increased 

vulnerabilities, pregnant women and children must be given an additional margin of protection beyond other populations. 

The legislation before the committee today, developed by Senators Tom Udall and David Vitter, and co-sponsored by numerous 

other Senators, including the Chairman, represents a critical step 

forward toward establishing a system of chemical regulation that 

will be protective of maternal and child health. This bipartisan effort is commendable, and the March of Dimes would like to extend 

our appreciation to each of you for your roles in this work. 

As this committee considers chemical reform legislation, the 

March of Dimes would like to share with you four principles that 

we believe are essential to the successful reform of America’s system of regulating toxic chemicals. Legislation that meets these 

principles would represent a vast improvement in chemical safety 

for children and families everywhere. 

Legislation should specifically protect the health of pregnant 

women, infants and children. As I noted, these populations are especially vulnerable to toxic substances, and a meaningful chemicals 

reform legislation must recognize the elevated risks posed by some 

chemicals for maternal and child health and incorporate special 

protection for these groups. 

No. 2, legislation should establish an efficient and effective system and timetable for prioritizing and assessing chemicals. Given 

that over 80,000 chemicals are currently in commerce across our 

Nation, reform legislation must establish a sensible, practical 

framework for the appropriate prioritization and assessment of 

chemicals in a timely fashion. A system that allows for indefinite 

timeframes and evaluation of only small numbers of chemicals will 

fail to protect the health of pregnant women and children. 

148 

No. 3, legislation should include a mechanism for requiring the 

generation of scientific data if existing data are insufficient to determine the safety of a substance. Under the current failed system, 

chemical manufacturers have a disincentive to study the impact of 

their products, which is antithetical both to transparency and to 

the public’s health. In order to conduct appropriate safety assessments, the government must have the ability to require studies be 

conduct to produce data on safety especially related to maternal 

and child health. 

And finally, No. 4, legislation should provide timely access to 

chemical information for health care providers and first responders 

in critical circumstances. Health care providers and first responders must have immediate access to vital chemical information when 

they respond to known or suspected exposures, both to treat their 

patients and to protect themselves. Reform legislation must ensure 

that those who may be risking their own health to assist others 

must have the information necessary to make informed decisions. 

In conclusion, reforming the framework under which the U.S. 

regulates chemicals and potentially toxic substances is critical and 

long overdue. Today, a real solution appears to be within reach. On 

behalf of the March of Dimes, I thank you, Mr. Chairman, as well 

as Senators Udall and Vitter, for our hard work, reaching across 

the aisle and working to address the needs and concerns of many 

stakeholders. The March of Dimes stands ready to be a partner and 

resource as Congress works to produce a successful reform bill that 

protects the health of all Americans, including our vulnerable 

women, infants and children. 

Thank you for the opportunity to testify. 

[The prepared statement of Dr. McCabe follows:] 

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Senator INHOFE. Thank you, Dr. McCabe. Dr. Dennison. 

STATEMENT OF RICHARD A DENISON, PH.D., LEAD SENIOR 

SCIENTIST, ENVIRONMENTAL DEFENSE FUND 

Mr. DENISON. Thank you, Chairman Inhofe, Ranking Member 

Boxer and other members of the committee. 

The Environmental Defense Fund has been working to reform 

this badly broken and outdated law for 20 years, and I have personally for the past 15 years. That is why EDF supports the Lautenberg Act as a solid compromise that fixes the biggest problems 

in the current law, is health protective and has the strong bipartisan support necessary to become law. 

This legislation did not arise suddenly in this Congress. It is actually the culmination of a decade of hard work by the late Senator 

Frank Lautenberg, who had the courage to recognize that we would 

not get reform without opening up a bipartisan path. Since he and 

Senator Vitter introduced their bill, the first bipartisan TSCA reform bill, in 2013, Senator Udall has led negotiations with Senator 

Vitter and has steadily and significantly strengthened the bill’s 

health protections. They have worked tirelessly to listen to and incorporate input from other members and from hundreds of stakeholders. 

The need for reforming this law is urgent. It has been pointed 

out that it has been almost 40 years since the core provisions have 

been touched. Americans have been exposed, meanwhile, to hundreds and thousands of chemicals every day and only a small fraction have ever been adequately reviewed. EPA cannot, under the 

law, regulate even known dangers like lead, formaldehyde and asbestos. 

The law has not kept up with science. It is increasingly linking 

common chemicals to cancer, infertility, diabetes, Parkinson’s and 

other illnesses. Pregnant women, infants and children are especially vulnerable, as Drs. McCabe and Goldman have pointed out. 

I have spent much of my professional career pressing EPA to act 

under this flawed law. I have been on the opposite side of the table 

from the chemical industry on nearly every issue. But rare political 

circumstances have opened a narrow window to pass meaningful 

reform. That is because the industry has finally realized that they 

need a stronger Federal system in order to restore Americans’ confidence in the safety of chemicals. 

We believe that Congress now has the best chance in a generation to bring this law into the 21st century. And let me just mention a couple of the things that it does. 

It mandates safety reviews for all of those chemicals that TSCA 

grandfathered in 40 years ago and for new chemicals before they 

can enter the market. It explicitly requires that when EPA judges 

the safety of a chemical and regulates it, it ensures the protection 

of vulnerable populations. It makes far more information available 

about chemicals by limiting the ability of companies to declare that 

information confidential. 

None of the provisions in the bill are perfect, from our perspective. Indeed, most of them clearly represent compromises. But 

taken individually and collectively, they are much more protective 

than the current law. 

159 

Let me briefly turn to the most contentious issue in this debate: 

preemption. Striking the right balance has proven to be both exceedingly difficult and critical to garnering bipartisan support 

needed to actually pass a law. The bill is more preemptive than 

current law. But it is much less preemptive than the original bill. 

All State actions before 2015 would be grandfathered in, regardless of what EPA does later. State actions taken after 2015 remain 

in effect until and unless EPA identifies a chemical and starts an 

assessment and completes that assessment. Those actions stay on 

the books. That assessment has to address the same uses and the 

same environmental concerns in order for it to preempt State action. 

Low priority designations are no longer preemptive. Once EPA 

initiates and sets the scope of an assessment, it is true that new 

actions by States could not be taken. However, those existing actions would remain in effect until the end of that process. 

Finally, even after EPA takes final action on a chemical, 

Federal preemption is limited in certain very important ways. 

Only restrictions by States are preempted. Other types of requirements, for reporting, assessment, monitoring and the like, are 

never preempted. And only State restrictions on uses and concerns 

that are within the scope of EPA’s review and determination are 

preempted. States can still regulate a chemical for other uses and 

to address other concerns. 

Now, it needs to be noted that the current patchwork of State 

regulations and laws, which we have strongly supported, cover only 

a small number of chemicals and reach only a fraction of the American public. While nearly 200 actions have been taken by States to 

restrict chemicals, those actions have only restricted about a dozen 

chemicals or chemical categories. There is a huge problem we have 

that demands a Federal solution. 

Let me conclude with this. The failures of TSCA are a serious 

and growing calamity, and Congress needs to act now. We simply 

can’t afford to have the best opportunity to reform this law squandered. Thank you. 

[The prepared statement of Mr. Denison follows:] 

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Senator INHOFE. Thank you, all of you, for your excellent and 

thoughtful and timely statements. 

I am going to ask some basic questions to each one of you, even 

though your testimony probably would have already told us what 

your answer is going to be. I just want to make sure it is out there, 

so that we can get these principal positions on record. 

Dr. Denison, you have 15 years invested in this thing right now. 

You as an individual and then I will as if EDF has the same position, do you have an official position supporting or opposing this 

bill? 

Mr. DENISON. Senator, I personally and EDF supports this legislation as a solid compromise. 

Senator INHOFE. Thank you. Dr. McCabe, what about the March 

of Dimes? 

Dr. MCCABE. The March of Dimes has not endorsed this legislation, but we support the beginning of a dialog. We think it is time, 

it is 40 years. I was a resident 40 years ago, and those in the room 

can see that was a long time ago. Our vulnerable women, children 

and infants deserve this. So we support the law, we think it is an 

important place to start, but there is a long way to go. 

Senator INHOFE. That is very good, thank you. Dr. Goldman. 

Dr. GOLDMAN. Yes, I think as you heard from my testimony, I 

do support this legislation, at the same time recognizing that there 

are avenues that could be taken to make it stronger. 

Senator INHOFE. I see. And General Frosh, does the State of 

Maryland have a position on this bill? 

Mr. FROSH. Mr. Chairman, I am speaking for myself as attorney 

general. 

Senator INHOFE. So that answer is no? 

Mr. FROSH. I do not support it with the preemption provisions. 

Senator INHOFE. I see. Mr. Cook, I think we know what your answer is. 

Mr. COOK. Yes, Mr. Chairman, I come from the environmental 

wing of the environmental movement. 

[Laughter.] 

Mr. COOK. I do not support this legislation personally. EWG does 

not, and I can’t name any other major national environmental 

group that does. 

Senator INHOFE. Thank you, Mr. Cook. Dr. Denison, do you believe this bill represents a significant improvement over current 

law? 

Mr. DENISON. Yes, Senator, I do. 

Senator INHOFE. How about you, Dr. McCabe? 

Dr. MCCABE. Yes. That is the substance of my testimony. 

Senator INHOFE. Dr. Goldman. 

Dr. GOLDMAN. I do think it does. 

Senator INHOFE. And Dr. Denison, do you believe this bill significantly increases protections to public health, including for the most 

vulnerable, like children and pregnant women? 

Mr. DENISON. I do, Mr. Chairman. 

Senator INHOFE. Dr. McCabe. 

Dr. MCCABE. Yes, Mr. Chairman. 

Senator INHOFE. Dr. Goldman. 

Dr. GOLDMAN. Yes. 

166 

Senator INHOFE. This question would be for Dr. Denison and Dr. 

Goldman. If Congress fails to pass a bipartisan TSCA reform bill, 

what are the chances of all Americans being protected from chemicals like asbestos? 

Mr. DENISON. Mr. Chairman, I believe those prospects are very 

low. 

Dr. GOLDMAN. Thank you. I believe we would continue to see the 

same pace of progress that we have seen since 1976. 

Senator INHOFE. Thank you. Senator Boxer. 

Senator BOXER. Thanks, Mr. Chairman, very much. 

Dr. Goldman, am I correct in assuming you would not support 

a bill that you believe was worse than current law? 

Dr. GOLDMAN. You are absolutely correct. 

Senator BOXER. OK. So I hope you will read the letters I will put 

in the record of the leading health experts, not chemical companies 

or anyone affiliated with them, who say this is worse than current 

law. I am not asking you about it, I am just going to ask if you 

will read those letters and be back to me with your reasons for opposing them. 

Dr. GOLDMAN. I will read those. 

Senator BOXER. Thank you very much. And please let me know, 

because I don’t understand why you are doing this, given the tremendous opposition of the whole environmental community, the 

health community, the breast cancer folks, the autism folks. It just 

doesn’t add up. But I want you to read it and let me know. 

Dr. Goldman, Attorney General Frosh said in his statement that 

this bill, S. 697, imposes a tangled web of preemption that ties 

States’ hands at every turn. He is sitting next to you, he is doing 

his job, this is his view. Nine attorneys general who represent more 

than a majority of the Country agree with him in that. 

Since you are a physician and not an attorney and you know this 

bill is going to be negotiated, do you think going forward that the 

concerns of the attorneys general should be considered as we move 

forward? 

Dr. GOLDMAN. I think I said in my oral testimony that I think 

the right balance needs to be struck. 

Senator BOXER. If you could just say, I am asking yes or no. Do 

you think these nine attorneys generals views should be considered 

as we move forward? 

Dr. GOLDMAN. Congress should consider their views. 

Senator BOXER. Thank you very much. 

Mr. Cook, recent reports indicated that floor boards that were 

imported from China contained high levels of formaldehyde, a 

known carcinogen. I don’t think there is an argument about that. 

Do you agree that the Vitter-Udall bill would make it harder for 

EPA to intercept imported products containing dangerous chemicals like this? I am talking about, I think it is Section 14, is that 

right? 

Mr. COOK. I agree that that is the case. 

Senator BOXER. Because it really undermines the authority of 

EPA to intercept imported products that contain unsafe chemicals, 

is that correct? 

Mr. COOK. That is correct. 

167 

Senator BOXER. So anyone who sits here and says this is better 

than current law, I urge you, Dr. Denison and Dr. McCabe and Dr. 

Goldman, to look at this. Because right off the bat, these products 

are going to get into the Country. 

On preemption, Mr. Denison, you authored a paper, and I am 

quoting from it: ‘‘Federal policy reform should establish floors, not 

ceilings, for State government action and should only preclude 

State actions that are less protective of health.’’ Do you still stand 

by your statement? 

Mr. DENISON. Senator Boxer, that was a statement I made in 

2009. 

Senator BOXER. Yes, and I am going to put it into the record, 

without objection. 

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Mr. DENISON. Yes. You were chair of this committee at that time. 

Senator BOXER. I just want to know if you stand by it. I don’t 

have a lot of time to talk about it. 

Mr. DENISON. I supported those statements then and I still support them. But the protections they provide would only be realized 

if we actually get a law put in place. 

Senator BOXER. Very important. Because here is the deal. The 

people who are experts in the law that are advising all of the public health groups and people that don’t have a financial interest in 

this say that this bill is worse than current law and on top of it, 

it preempts. And this preemption, you have heard the word a lot 

of times, this preemption is a fatal flaw of this bill if you care about 

people. And these attorneys general have come in, and by the way, 

they didn’t even get to see the draft document of the bill until 

maybe a week ago. And we are continuing to get documents in 

here. 

We just heard from the business community, Sustainable Business Council. I ask unanimous consent to place that into the 

record. And of course I don’t have it in my hand. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

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Senator BOXER. Thank you. But this is over 100 businesses who 

are lamenting this bill, lamenting this bill, because they are trying 

to get people away from dangerous chemicals. 

Mr. Frosh, some attorneys general have argued the Udall-Vitter 

bill preemption provisions could apply to much more than State 

toxics laws, and could also preempt States’ clean air, clean water 

or other environmental laws. Would preemption of State air and 

water laws have a serious impact on a State’s ability to protect 

their citizens from all types of pollution? 

Mr. FROSH. Absolutely it would. 

Senator BOXER. OK. Well, this is an area we need to look at. 

Mr. Cook, I want to ask you something, it is very important. Because Senator Vitter talked about deadlines. I am sorry, it was another Senator, I can’t remember which one. Yes, there are deadlines for studying about 25 chemicals over a 7-year period, and at 

that time they have to make a decision. But as far as I can tell 

from the experts looking at this, there is no deadline for actual implementation or action on any chemical. Do you agree with that? 

Mr. COOK. That is our interpretation as well, Senator. 

Senator BOXER. OK. Let it be clear. There is not one deadline in 

this bill that requires any action. There is no mention of asbestos. 

The same core test is put forward in this bill that resulted in asbestos being left as an orphan child. It is a sad situation for us, 

and I pray, honestly I pray and hope we can fix this bill. We can 

do it, the New York Times laid out some great ways to start. Let’s 

get with it, because we have tried for a very long time and haven’t 

succeeded. 

Senator INHOFE. Thank you, Senator Boxer. Senator Vitter. 

Senator VITTER. Thank you, Mr. Chair. 

When TSCA was first passed, it was actually done through the 

Commerce Committee, primarily because unlike other environmental laws that regulate pollutants, TSCA actually regulates 

products all over the Country and the world, an authority that is 

granted to the Federal Government by the InterState Commerce 

Clause. In fact, most products, including pharmaceuticals, medical 

devices, food, consumer products, are regulated by the Federal Government under statutes with strong preemption language. 

Therefore, there is little to no State activity in those areas, yet 

I don’t believe anyone is complaining that we are trampling on 

States’ rights or that is a horrible situation. 

Now, I have here what we are going to show you, a couple of 

maps, actually put out last week by one of our witnesses, the Environmental Working Group. They put out these two maps, among a 

few others, I think there were six total, meant to illustrate that 

States are leading when it comes to chemical regulation. 

Before anyone asks, no, we have not doctored or changed these 

maps at all. That is what the Environmental Working Group put 

out. Two of the examples they used to show that States are somehow leading the way. 

Now, in my opinion, when you look at maps like this, it absolutely shows us why we have to fix TSCA through a strong bipartisan compromise like Udall-Vitter. These maps show that only one 

State has regulated these two different chemicals in question, only 

a few others are even considering legislation or regulation. AmeriVerDate Aug 31 2005 11:27 Sep 21, 2015 Jkt 000000 PO 00000 Frm 00185 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94985.TXT VERN
180 

cans in 49 of the 50 States have no protections at the State or Federal level. 

So based on these maps, I want to ask Dr. Denison and Dr. Goldman, would you say that they help exemplify why we need a 

strong, meaningful Federal system? Mr. Denison? 

Mr. DENISON. Senator, I think they are illustrative of the fact 

that States have been trying to fill a Federal void for a long time, 

but there are limits to what States can do. We need a strong Federal system that fills in that map. 

Senator VITTER. Dr. Goldman. 

Dr. GOLDMAN. EPA has been trying to regulate formaldehyde at 

least since 1981, to my knowledge. So that is, how many years that 

there has been the opportunity for State by State regulation to 

occur? And it just hasn’t been done effectively, because it takes a 

lot of resources to do it. Very few States have the budget to be able 

to do this kind of work, having done it. 

Senator VITTER. Right. And let me ask you both, with the new 

fee structure and the new authority and enhanced powers given 

the EPA under Udall-Vitter, don’t we have a much better chance 

of achieving broader protection of public health than we have now? 

Mr. DENISON. I believe we do, Senator. I do want to emphasize 

that this is a huge problem. TSCA dug a very deep hole and we 

have thousands and thousands of chemicals to work our way 

through. But we have to get started and we have to empower EPA 

and give it the resources to do this job. 

Senator VITTER. Dr. Goldman. 

Dr. GOLDMAN. Yes. I would say yes to your question. 

Senator VITTER. OK. Also talking about preemption, Mr. Frosh, 

every State, State of Maryland included, is regularly preempted 

from laws, Federal laws governing products in commerce. Should 

Maryland be able to regulate drugs, for instance, prescription 

drugs, where they are regularly preempted by the FDA’s authority? 

Mr. FROSH. What I would say, Senator, is that when you are 

talking about poison, and that is what we are talking about here, 

States ought to have the right to regulate, especially where you see 

the kind of good luck that those charts that you just held up demonstrate. 

Senator VITTER. Mr. Frosh, aren’t some drugs, improperly used, 

poison? 

Mr. FROSH. Certainly they are. 

Senator VITTER. DO you oppose the current system whereby 

drugs are regulated through complete preemption by the FDA? 

Mr. FROSH. I think FDA has done a pretty good job in acting in 

a timely fashion on approval of drugs. 

Senator VITTER. You don’t oppose that system, which is built on 

strong Federal preemption? 

Mr. FROSH. I think EPA doesn’t share that record of action. 

When you are talking about poisons, the States ought to have the 

ability to protect their citizens. 

Senator VITTER. OK. Mr. Denison, there has been this attempt 

over and over to somehow characterize this as a pure industry bill 

with somehow no support among groups that care about public 

health and safety, environmental protection, et cetera. Do you 

agree with that characterization? 

181 

Mr. DENISON. I do not, Senator. I would not try to characterize 

the positions of my colleagues in the environmental community, except to say that I know there is a range of views and a very significant spectrum between myself and Mr. Cook. I will say that many 

groups support many of the provisions and especially the improvements that you and Senator Udall have made. But they are withholding support to try to get additional improvements. I understand that. 

Senator VITTER. OK. Dr. McCabe, sort of along the same lines, 

do you believe that somehow you and March of Dimes are alone in 

the public health community interested in moving forward with a 

meaningful bipartisan bill like Udall-Vitter? 

Dr. MCCABE. No, we are not alone. We signed a letter of support 

with our colleagues, the American Society for Reproductive Medicine, the American Congress of OB-GYN, and the Society for Maternal-Fetal Medicine. So we know that we are not alone. We know 

that many groups feel that we need to move forward. We are at the 

beginning of this, but we need to move it forward. 

Senator VITTER. Great, thank you. 

I would just say in closing, Mr. Chairman, that that illustrates, 

I think, a robust, healthy debate, which is great. But it does not 

illustrate, in fact it disproves that somehow this notion that this 

is an industry bill and the whole public health community, the 

whole environmental community is opposed to it. That is just flatout, factually wrong. I think a lot of people properly support the 

bill and a lot of people properly recognize that the alternative to 

this bill or something like this bill is the status quo. That is the 

only meaningful alternative in sight any time soon. We clearly 

need to do better. Udall-Vitter does much, much, much better. 

Thank you. 

Senator INHOFE. Thank you, Senator Vitter. Senator Carper. 

Senator CARPER. Thanks, Mr. Chairman. To our witnesses, it is 

good to see all of you. Thank you so much for joining us. To my 

neighbor from Maryland, welcome, it is good to have you here 

today. 

Dr. Denison, are you familiar with a letter, I mentioned one letter I sent about 13 months ago to a number of my colleagues, about 

10 of them, to Senator Vitter, outlining nine changes we would like 

to see made in the bill? And all those have actually been made. But 

are you familiar with the letter I sent, I think last week, in which 

I mentioned three ideas, three issues that needed to be addressed? 

Mr. DENISON. Yes, Senator, I am. 

Senator CARPER. And your thoughts on those, please? 

Mr. DENISON. Yes. I believe you mentioned the issue of co-enforcement that has been raised. I believe that is a legitimate concern and I think there is middle ground to be found. I believe a 

couple of your suggestions were good ones. The concern on the industry side is that a State might do something inconsistent with 

the Federal requirement. EPA could issue guidance to clarify how 

that requirement is to be imposed by a State. There could be an 

appeals process. 

So I am troubled by that provision. It is one of the provisions I 

don’t like in an overall package I do support. I think some additional work on that would be appropriate. 

182 

Senator CARPER. All right, thank you. I don’t know if you have 

had a chance to look at the letter that a number of us sent a year 

ago, where we outlined nine things where we would like to have 

changes made. Those have essentially been addressed, at least in 

our view. But in your opinion, does this legislation address that request of a year ago in a way that actually gives EPA new tools that 

it does not have under existing law in order to improve the protection of public health? 

Mr. DENISON. Yes, Senator. That letter was very helpful in 

sharpening the negotiations, I believe. I think there was effort, and 

successful effort, to address each of those points. 

Senator CARPER. All right, thank you. One of the points that I 

made in the letter that I sent last week deals with the State preemption issue. I highlighted that as an example of what we did in 

Dodd-Frank with respect to nationally chartered banks, and how 

nationally chartered banks didn’t want States to pass laws, they 

didn’t want State legislators and Governors and attorneys general 

telling them what to do. 

We were able to find some consensus in the way that I laid out, 

where the Consumer Protection Bureau that we have in Federal 

law was able to play a role, provide regulations that were endorsed 

by the, rather, implemented and overseen by the attorneys general. 

Do you think if we could do that in Dodd-Frank that maybe there 

is a way to thread the needle here as well? 

Mr. DENISON. I do, Senator. That is a useful, although I am not 

that familiar with that particular case. But I think looking at models in other statutes, the pesticide law, for example, has another 

model for, seminal for the States in enforcement. 

Senator CARPER. Attorney General Frosh, we are going to be 

looking to you, you don’t have to respond now, but we certainly 

want to have a good conversation with you and our own attorney 

general and others as well. 

Dr. Goldman, you wrote eloquently in your testimony about the 

cost of inaction as a consequence of a failure to have a functional 

Federal toxics law. It is a testament to the idea of States as laboratories of democracy that several States have forged ahead with 

toxics laws in absence of a Federal system. Other States like my 

own State, Delaware, we don’t have the capacity or the resources 

to run a robust State toxics program and we depend on EPA. 

How will having a Federal program help to reduce the impact of 

toxic exposure for people like those who live in my State and some 

other States? What would be the cost of inaction? 

Dr. GOLDMAN. I think that how people in your State would be 

benefited is by raising the floor, having a stronger safety standard 

that would have to apply everywhere in the Country. And also that 

when new chemicals come on the market that EPA would have to 

actually affirm that those new chemicals meet that standard. Right 

now, if EPA doesn’t act in 90 days, automatically the chemical enters the market. This bill would tell the EPA, no, you must affirm 

that it needs the new standard and that it is a health-based standard. It is not a standard for cost-benefit balancing as it is today. 

Senator CARPER. All right, thank you. 

Colleagues, I would just say, two floors down is the committee 

room in which the Finance Committee meets. I serve on the FiVerDate Aug 31 2005 11:27 Sep 21, 2015 Jkt 000000 PO 00000 Frm 00188 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94985.TXT VERN
183 

nance Committee. About 3 years ago we were having a hearing on 

deficit reduction, and we had some really smart people, brilliant 

people like we have here today, whose job was to come and tell us 

what they thought we should do further on deficit reduction. 

One of the witnesses was a fellow, Alan Blinder, who used to be 

vice chairman of the Federal Reserve, he is now a professor of economics at Princeton. He said in his testimony, he said the key to 

deficit reduction is health care, getting health care costs reined in. 

He said if we don’t do something about that, we are doomed. When 

it came time to ask questions, I asked him this question. I said, Dr. 

Blinder, you say the key to deficit reduction is health care costs, 

and if we don’t do something about it, we are doomed. What would 

you suggest we do? That is what I asked him, what do you suggest 

we do. He thought for a minute and he said, you know, I am not 

an expert on this, I am not an economist. But if I were in your 

shoes, here is what I would do: find out what works; do more of 

that. That is all he said. 

We know what doesn’t work. And it is this law we have had for 

40 years. We have a lot of good ideas here, we talked about them 

today, that would actually make it work a whole lot better. We 

need to pursue those. As we say in Delaware, the only two words 

in Latin I know are carpe diem, or Carper diem, seize the day. 

That day has come. 

Senator INHOFE. Thank you, Senator Carper. 

Before everyone leaves here, we are going to leave the record 

open for questions for the record for 2 weeks, without objection. 

Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

This is another chart that was in that same study. So while only 

a few States may have acted on formaldehyde or triclosan, there 

are 169 laws adopted in 35 States that worked to limit, label and 

manage dangerous chemicals. This is from that same data base. 

For mercury alone, half the States have acted to protect against 

that exposure. Why is State action important? Well, when a State 

bans the use of a chemical like BPA in baby toys, companies work 

to reformulate the product, to comply and sell these products. Because then nationwide, all children benefit when one State acts. So 

we should not in any way downplay the role the States play here. 

Once States act on any of these things, the whole industry has to 

rethink if the rest of the Nation, at a State level, is going to move. 

Dr. Denison, in 2013, you testified on an earlier version of this 

bill in the House. During that hearing you said that any trigger for 

State preemption on a chemical ‘‘should occur at the final action of 

the agency, which could mean either that EPA finds the chemical 

to be safe or that EPA promulgates a rule that restricts the use of 

that chemical.’’ Do you still stand by that statement? 

Mr. DENISON. I did say that, Senator, and I do believe that that 

would be the preferable approach. 

Senator MARKEY. OK, thank you. Now, Mr. Frosh’s testimony 

states the Udall-Vitter bill ‘‘includes the near evisceration of State 

authority to regulate toxic chemicals. For example, the bill prohibits States from taking action on any chemical that EPA has 

started to study, even though that could create a regulatory black 

184 

hole if EPA never takes any action on that chemical. The States 

would not be regulating, the EPA would not be regulating.’’ 

Do any of you disagree that the protections against toxic chemicals that the bill is intended to create would be made stronger if 

the State preemption provisions were removed? 

Mr. DENISON. Senator, I believe that the only way we get the 

protections that this bill offers is if it gets enacted into law. That 

means, in my view that — 

Senator MARKEY. I didn’t say that. Would the bill be stronger if 

these preemption standards were taken out? Would the bill be 

stronger? That is all I want to know. 

Mr. DENISON. The law would not be stronger — 

Senator MARKEY. I don’t need your political judgment. I am not 

looking for your political judgment. I need your technical judgment. 

Would the bill be stronger? 

Mr. DENISON. If it could pass into law, yes. 

Senator MARKEY. OK, thank you. Yes. Doctor? Yes or no? 

Dr. MCCABE. This is not my area of expertise. It is not in pediatrics or genetics. 

Senator MARKEY. We will come back the other way. Mr. Cook. 

Mr. COOK. Yes, it unquestionably would be stronger. 

Senator MARKEY. Attorney General. 

Mr. FROSH. Absolutely, Senator. 

Dr. GOLDMAN. I would agree with the other statements. 

Senator MARKEY. Mr. Cook, the Udall-Vitter bill says that EPA 

can have a total of 12 years to complete work on the first 25 high 

priority chemicals. That means it will take over 100 years to complete work on the 1,000 chemicals EPA has said were in most need 

of assessment. Do you think that a strong Federal program should 

include a requirement that the resources to study the safety of 

more chemicals, more quickly, is included simultaneously? 

Mr. COOK. Yes. I think it is vital that we have a faster pace and 

get more done. 

Senator MARKEY. Do any of the rest of you disagree that the 

more quickly EPA can act to assess chemical risks and acquire 

needed regulations, the faster the public will be protected from exposures to chemicals that turn out to be unsafe? 

Dr. GOLDMAN. I stated in my testimony that Congress could have 

a higher level of expectation on the pace of effort by EPA. 

Senator MARKEY. Do any of you disagree with that comment? 

Mr. COOK. No, sir. 

Senator MARKEY. OK, thank you. 

Mr. DENISON. Senator, I don’t disagree, but I would say that 

there is a balance that needs to be struck. Because we otherwise 

could have poor assessments done or have EPA finding chemicals 

they can do quickly rather than those that need the most attention. 

Senator MARKEY. No one disagrees. No one disagrees. The UdallVitter bill makes it more difficult for EPA to regulate a chemical 

in a product like furniture or clothing, even after EPA has found 

that the chemical is unsafe. For example, flame retardant chemicals are found in everything from carpets to couches to clothing. If 

EPA finds that flame retardants are dangerous under the bill, EPA 

would have to assess every product that contains them separately. 

It is not even clear that EPA could assess the use of flame 

185 

retardants in all clothing or in all furniture. It might have to assess each type of clothing and each type of furniture separately. 

Mr. Cook, do you agree that this will lead to delays in EPA’s 

ability to remove or restrict known dangers from products that children use, wear or are otherwise exposed to, and that this language 

should be removed? 

Mr. COOK. Senator, I am from California. Those are the La Brea 

tar pits of slowdown in process that you have just mentioned. Yes, 

it will be very bad. 

Senator MARKEY. Thank you, Mr. Chairman. 

Senator INHOFE. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Let me start with my, I guess he is not my colleague, because 

I am not attorney general any longer, but I am always pleased to 

see attorneys general here. 

Attorney General Frosh, you are obviously familiar with the administrative rulemaking process, which has commonalities at the 

State and Federal level. Are there ways in which a participant, 

particularly a large industry participant in an administrative rulemaking process, can drag it out, make it take longer? 

Mr. FROSH. Senator, as one of your alumni once said, I am just 

a country lawyer, but I can tie you up in knots in the administrative process for years. Yes. 

Senator WHITEHOUSE. So it is within the control of the chemical 

industry to a significant degree how long, what I call this death 

zone, is, in which no one is allowed to regulate a chemical that is 

in the high risk category? 

Mr. FROSH. That is absolutely right. 

Senator WHITEHOUSE. I think that is something that we need to 

deal with. Dr. Denison, you have said that EPA needs the resources to do this job. I sit on the Environmental and Public Works 

Committee, I also sit on the Budget Committee where the other 

side of the aisle is constantly and relentlessly attacking the EPW 

budget, EPA budget, and I think would dearly love to see the, at 

least certain folks would dearly love to see the agency largely disabled from enforcement. Why does it make sense to prevent State 

attorneys general and States from adopting identical legislation 

and a least having cops on the beat for a rule that we would then 

all agree is both common and necessary? 

Mr. DENISON. Senator, I have indicated already that that is an 

area of concern that I would to see more addressed as this bill 

moves forward. 

Senator WHITEHOUSE. Let me ask everybody a pretty simple 

question. From the perspective of public health and safety, does 

every witness on this panel agree that this would be a better bill 

if there were co-enforcement by States so that enforcement is not 

at the mercy of EPA budgets that our colleague are relentlessly attacking, and no what I call death zone, in which there is no one 

who can put in a regulation of a chemical that is by definition in 

the high risk category for as long as 7 years and frankly sometimes 

perhaps longer, because sometimes things die at OMB well beyond 

what the rules allow? 

Dr. GOLDMAN. I could say I think co-enforcement would be an 

improvement. I also think preemption being triggered by a final 

186 

agency action, which is what I think you are asking about with the 

second question, is also a good idea. 

Senator WHITEHOUSE. Does everybody agree? 

Mr. FROSH. I certainly agree. 

Mr. COOK. I agree. 

Senator WHITEHOUSE. Dr. McCabe. 

Dr. MCCABE. Yes. And it is important that we are having this 

bipartisan discussion. 

Senator WHITEHOUSE. Dr. Denison. 

Mr. DENISON. Yes, Senator. 

Senator WHITEHOUSE. OK. So I think we can all agree that those 

things, we could probably go on with others, but I just focused on 

those two, since time is short in these hearings. But it also strikes 

me that in these two areas, it would be very hard to articulate a 

legitimate industry objection. So I would like to offer anybody a 

chance to try to do that. Why should there be either no enforcement of a standard that the chemical industry has agreed to live 

by but just doesn’t want to see enforced? That doesn’t seem to be 

a legitimate industry interest. Nor does it seem a legitimate industry interest that there should be a period that they could manipulate lasting 7 years or longer in which a predetermined high-risk, 

high-priority chemical can’t be regulated by anyone? 

Dr. Denison, what is the legitimate industry case for either of 

those, as opposed to just a spirit of compromise? 

Mr. DENISON. Senator, you need to ask the industry that question. I would say on enforcement, I think I have been clear. On the 

second one, that dead zone, as you describe it, could work in either 

direction. Because those decisions at the end of the process can be 

challenged by anyone. 

So a challenge of a safe finding would also stretch out that period. 

Senator WHITEHOUSE. But if you are a chemical company and 

you have a chemical that you see, uh-oh, there are some problems 

coming out here, we are starting to see some evidence that it is carcinogenic or poisonous in some way, if you can get it onto the priority list and if you can get it onto the list of 25 and start, get the 

assessment process started at EPA, which you can control by paying EPA to do that, you can then buy a potentially 7-year period 

whose length you can manipulate in which not only EPA but nobody else can regulate your chemical no matter how dangerous it 

is. Is that not a correct statement? 

Mr. DENISON. Senator, there is one inaccuracy there, which is, a 

company that requests EPA to prioritize their chemical that EPA 

has not itself prioritized, that decision to prioritize that chemical 

does not have a preemptive effect. That is a deliberate part of the 

law to prevent exactly what you are talking about. 

Senator WHITEHOUSE. So it is only where the industry has forced 

the choice. But if EPA has been convinced to do it through other 

reasons, then everything else that I said is accurate? 

Mr. DENISON. Senator, that is why there are statutorily enforceable deadlines for each and every step of that process along the 

way. 

Senator WHITEHOUSE. You ever see a recommendation stuck at 

OMB pass those deadlines? 

187 

Mr. DENISON. I don’t disagree that is a, there is delay that could 

happen, regardless of those deadlines. 

Senator WHITEHOUSE. My time is long exceeded. I appreciate the 

Chairman’s courtesy. 

Senator INHOFE. Senator Merkley. 

Senator MERKLEY. I thank you all for your testimony. I think the 

gist of the conversation is that several different ways have been 

identified, that there seems to be considerable, unanimous support, 

as far as I could tell, in regard to the questions Senator 

Whitehouse was raising as to whether co-enforcement would make 

the bill better and whether stronger rules enabling States to act 

when the Fed has not yet put rules into place, there was change 

in the preemption provisions. I think I heard everyone respond yes. 

I just want to confirm that. Did I misunderstand? Everyone yes? 

[Witnesses respond in the affirmative.] 

Senator MERKLEY. Mr. Denison, yes. 

Mr. DENISON. Yes. 

Senator MERKLEY. So another area where this bill changes is 

that under current rules, or under the current law, EPA has 

stronger ability to restrict the importation of articles that have 

egregious chemicals in them. And under this new version, it would 

be relying in good faith reliance on the MSDS, that is the Material 

Safety Data Sheet. Now, the MSDS are often absolutely incorrect 

in describing the chemicals that are in a product. By one study 

they are wrong somewhere between 30 to 100 percent of the time. 

And of the chemicals they do label, they often label far smaller 

quantities than the actual quantities provided. 

Would you all agree that it would be better to have provisions 

that give EPA a strong ability to regulate imports, rather than a 

good faith reliance on MSDSs which have been just time and time 

again shown to be wildly inaccurate? 

Yes, Dr. Goldman. 

Dr. GOLDMAN. If I may say, I do think that is an area in the 

draft that needs to be examined. But I also should say that the 

only imports today that are restricted are the few chemicals that 

EPA has ever regulated. And not to overestimate the impacts of 

that provision in current law, which have had very little impact because of the fact that things like formaldehyde, which are imports, 

are not regulated by EPA. But I do think that that is something 

that is worth an evaluation to make sure it provides not only EPA 

but also Customs enforcement with reasonable authority. 

Senator MERKLEY. Would anyone else like to comment on that, 

whether that would make it stronger? 

Mr. COOK. I would agree that it needs to be much stronger. 

Dr. MCCABE. I would agree as well, Senator. 

Senator MERKLEY. OK. Thank you. I was reflecting on some of 

the debates we have had in Oregon over the inclusion of BPA in 

plastics, baby pacifiers and the nipples on baby bottles and so 

forth. We have also had a significant debate in Oregon over the use 

of BPA in the linings of cans for products. I was just reading an 

article as Senator Whitehouse was testifying how a company in Oregon has this year been able to eliminate BPA from the cans. It 

is doing it voluntarily. I don’t believe the law was passed in Oregon. I would have to double check that. 

188 

But the debate occurred because there was a State-focused discussion on this risk and this concern. And so we see this whether 

the State conversation is helping to drive a national conversation. 

I have a concern that if we have a law that basically says, States 

can’t act, and by the way, a very, very slow Federal process, and 

by the way, when you finish that Federal process you can slightly 

change the chemical formulation and now you have to start the 

process all over again, that essentially you have a dysfunctional 

system only it is worse than the dysfunctional system we have 

right now. Because right now we have a dysfunctional Federal system with a possibility of State action. But under this law as framed 

at this moment, we have the possibility of a dysfunctional Federal 

system with no real opportunity for States to act. 

So Mr. Cook, should I not have these concerns? 

Mr. COOK. You should absolutely have these concerns. I mean, 

we have a contradiction here, right? On the one hand, people are 

testifying that despite all these State actions it really doesn’t add 

up to much, not very many chemicals, doesn’t mean anything. And 

on the other hand, the chemical industry is running here, asking 

for the first time ever for relief from all these State actions that 

are causing such chaos. 

So you are point on, sir. The issue is, the chemical industry has 

completely lost the faith of consumers. Completely. And justifiably, 

because they have been misled and worse, time and again. That 

has led consumers, constituents, to go to State legislators and ask 

for fixes. I am so grateful for the charts that Senator Vitter put up. 

I had a nice shot of them. We have so many other charts I would 

like to offer to staff. If you ever need charts from the Environmental Working Group, we are here at your disposal. 

But the fact is, when those laws pass in the States, they send 

shock waves through the economy, shock waves through the chemical industry and they begin to respond. That is why they are here 

today. 

Senator MERKLEY. Attorney General Frosh, I got a letter from 

my AG strongly, strongly concerned about the preemption of State 

activity. You are here to testify the same. Is this a widely shared 

feeling among attorneys general across the Country? I realize it 

has been a very short time to respond. 

Mr. FROSH. I believe it is, Senator. General Rosenblum is a leader. There are a number of other attorneys general who have submitted letters to this committee and share my strongly held view 

that States should be allowed to protect their citizens. 

Senator MERKLEY. Thank you very much. Thank you, Mr. Chair. 

Senator INHOFE. Thanks to all of you for appearing before the 

committee and your very thoughtful responses and your perseverance. Thank you for the time that you spent here. It has been very 

helpful. 

We are going to leave the record open for 2 weeks. I would hope 

the staff would take note of that for questions to be sent in for the 

record. 

Senator BOXER. Mr. Chairman, before we close down, as I had 

asked you, I have a number of letters to put into the record in opposition to the bill we have just discussed. One from the Catholic 

Health Association, EWG, one letter signed by the Advocates for 

189 

Youth, the National Latina Institute for Reproductive Health, the 

National Infertility Association, the Union of Concerned Scientists. 

A whole host of professors from all over the Country, from north, 

south, east, west, who oppose this bill. The American Sustainable 

Business Council Action Fund, the Breast Cancer Fund, the Safer 

Chemicals Healthy Families Environmental Health Strategy Center, the Commonwealth of Massachusetts Office of Attorney General, letter signed by the New York, Iowa, Maine, Maryland, Oregon and Washington attorneys general. State of Washington Department of Ecology. A letter that I think is very instructive, 

signed by Safer States. Earth Justice. Seventh Generation. Center 

for Environmental Health. 

CalEPA, the Office of the Attorney General, my attorney general, 

Kamala Harris. We have separate letters from them. 

And I just want to say to you, thank you very much for this hearing. I think we have seen some consensus on this panel of how we 

can fix this flawed bill that the chemical companies love and hurts 

the people. 

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Senator INHOFE. We are adjourned. 

[Whereupon, at 12:35 p.m., the committee was adjourned.] 

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