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February 4, 2010

Senate Subcommittee Holds Hearing Regarding Current Science on Public Exposure to Toxic Chemicals

Bergeson & Campbell, P.C.

Today the Senate Committee on Environment and Public Works Subcommittee on Superfund, Toxics and Environmental Health held a hearing entitled “Current Science on Public Exposures to Toxic Chemicals.” Senator Frank R. Lautenberg (D-NJ), Chair of the Subcommittee, criticized the Toxic Substances Control Act (TSCA) for failing to provide the U.S. Environmental Protection Agency (EPA) the necessary authority to protect the public from unsafe chemicals. Lautenberg stated that he intends to introduce legislation that would compel chemical manufacturers to demonstrate the safety of their chemicals before they are placed on the market.

Witnesses included:

  • Steve Owens, Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances, EPA;
  • Henry Falk, M.D., M.P.H., Acting Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry, Centers for Disease Control and Prevention;
  • John Stephenson, Director, Natural Resources and Environment, U.S. Government Accountability Office (GAO);
  • Linda Birnbaum, Ph.D., D.A.B.T., A.T.S., Director, National Institutes of Environmental Health Sciences;
  • Molly Jones Gray, Participant in a Biomonitoring Study;
  • Ken Cook, President, Environmental Working Group;
  • Charles McKay, M.D., FACMT, FACEP, ABIM, Division of Toxicology, Department of Emergency Medicine, Hartford Hospital; and
  • Tracey J. Woodruff, Ph.D., M.P.H., Associate Professor and Director, Program on Reproductive Health and the Environment, Department of Obstetrics, Gynecology, and Reproductive Sciences, University of California, San Francisco.

The witness statements are available online.

Owens summarized the Obama Administration’s principles for TSCA reform:

  1. Chemicals should be reviewed against safety standards that are based on sound science and reflect risk-based criteria protective of human health and the environment;
  2. The responsibility for providing adequate health and safety information should rest on industry. EPA should have the necessary tools to require testing quickly and efficiently, or obtain other information from manufacturers that are relevant to determining the safety of chemicals, without the delays and obstacles currently in place, or excessive claims of confidential business information (CBI);
  3. EPA should have clear authority to take risk management actions when chemicals do not meet the safety standard, with flexibility to take into account a range of considerations, including children’s health, economic costs, social benefits, and equity concerns;
  4. EPA should have clear authority to set priorities for conducting safety reviews. EPA and chemical producers must act on priority chemicals in a timely manner, with firm deadlines to maintain accountability;
  5. EPA must encourage innovation in green chemistry, and support research, education, recognition, and other strategies; and
  6. Implementation of the law should be adequately and consistently funded. To that end, manufacturers of chemicals should support the costs of EPA implementation.

Owens reiterated that, while the Obama Administration believes that TSCA reform is necessary to provide EPA the tools to protect human health and the environment, EPA has already taken several steps to “move forward aggressively under the existing law.” For example, on December 30, 2009, EPA announced action plans addressing phthalates, long-chain perfluorinated chemicals, polybrominated diphenyl ethers, and short-chain chlorinated paraffins. Owens testified that EPA is developing action plans for benzadine dyes and bisphenol A, “although those plans are not yet ready for public release.” More information on EPA’s action plans is available online. On January 21, 2010, EPA announced a new practice concerning CBI claims for substantial risk information submitted under TSCA Section 8(e). More information regarding EPA’s revised CBI policy is available online.

Stephenson’s testimony is included in a GAO report entitled Biomonitoring: EPA Could Make Better Use of Biomonitoring Data, which reviews the extent to which EPA incorporates information from biomonitoring studies into its assessments of chemicals; steps that EPA has taken to improve the usefulness of biomonitoring data; and the extent to which EPA has the authority under TSCA to require chemical companies to develop and submit biomonitoring data to EPA. According to GAO, “EPA has not determined the extent of its authority to obtain biomonitoring data under TSCA, and this authority is untested and may be limited.” The GAO report is available online.


Today’s hearing occurs without a specific legislative proposal before the Committee to discuss. This continues a vacuum for discussing TSCA “reforms” which results in continued rhetorical summaries dominating the debate, generally with Republicans stressing sound science and the possible impacts on American chemical businesses and the ability to innovate new products, versus the Democrats stressing TSCA’s abject failure in evaluating currently produced chemicals and thereby also failing to reassure the public about possible chemical risks. This failure of the current system is illustrated by citing the many chemicals identified in blood monitoring surveys for which there is little definitive data about whether the levels detected in the monitoring studies are “safe.”

This has now been a repeated pattern over the number of hearings held since the beginning of 2009. What was expressed today, however, may be an indication perhaps of further polarization between Republican and Democratic Senators, with much less mention or acknowledgement that there was broad interest among the chemical industry and environmental groups for fundamental changes to TSCA. This “consensus” was mentioned early in today’s hearing, but the ensuing testimony and especially the questions were much more pointed and polarized. If being for or against “TSCA reform” becomes a fundamentally partisan issue, the prospects for significant legislation becoming law in 2010 is greatly diminished.