[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
POPS, PIC, AND LRTAP: THE ROLE OF THE U.S. AND DRAFT LEGISLATION TO
IMPLEMENT THESE INTERNATIONAL CONVENTIONS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JULY 13, 2004
__________
Serial No. 108-112
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
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COMMITTEE ON ENERGY AND COMMERCE
JOE BARTON, Texas, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
RALPH M. HALL, Texas Ranking Member
MICHAEL BILIRAKIS, Florida HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio EDOLPHUS TOWNS, New York
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
CHRISTOPHER COX, California SHERROD BROWN, Ohio
NATHAN DEAL, Georgia BART GORDON, Tennessee
RICHARD BURR, North Carolina PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming BART STUPAK, Michigan
JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona GENE GREEN, Texas
CHARLES W. ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi, Vice Chairman TED STRICKLAND, Ohio
VITO FOSSELLA, New York DIANA DeGETTE, Colorado
STEVE BUYER, Indiana LOIS CAPPS, California
GEORGE RADANOVICH, California MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire CHRISTOPHER JOHN, Louisiana
JOSEPH R. PITTS, Pennsylvania TOM ALLEN, Maine
MARY BONO, California JIM DAVIS, Florida
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
LEE TERRY, Nebraska HILDA L. SOLIS, California
MIKE FERGUSON, New Jersey CHARLES A. GONZALEZ, Texas
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho
JOHN SULLIVAN, Oklahoma
Bud Albright, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Environment and Hazardous Materials
PAUL E. GILLMOR, Ohio, Chairman
RALPH M. HALL, Texas HILDA L. SOLIS, California
JAMES C. GREENWOOD, Pennsylvania Ranking Member
HEATHER WILSON, New Mexico FRANK PALLONE, Jr., New Jersey
VITO FOSSELLA, New York ALBERT R. WYNN, Maryland
(Vice Chairman) LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California TOM ALLEN, Maine
CHARLES F. BASS, New Hampshire JANICE D. SCHAKOWSKY, Illinois
JOSEPH R. PITTS, Pennsylvania CHARLES A. GONZALEZ, Texas
MARY BONO, California PETER DEUTSCH, Florida
LEE TERRY, Nebraska BOBBY L. RUSH, Illinois
MIKE ROGERS, Michigan BART STUPAK, Michigan
DARRELL E. ISSA, California GENE GREEN, Texas
C.L. ``BUTCH'' OTTER, Idaho JOHN D. DINGELL, Michigan,
JOHN SULLIVAN, Oklahoma (Ex Officio)
JOE BARTON, Texas,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Goldberg, Steven, Croplife America........................... 38
Goldman, Lynn, Professor of the Environmental Health
Sciences, Bloomberg School of Public Health, Johns Hopkins
University................................................. 42
Hazen, Susan B., Principal Deputy Assistant Administrator,
Office of Prevention Pesticides and Toxic Substances, U.S.
Environmental Protection Agency............................ 17
Heinzerling, Lisa, Professor of Law, Georgetown University
Law Center................................................. 61
McMurray, Claudia, Deputy Assistant Secretary for
Environment, Bureau of Oceans and International
Environmental and Scientific Affairs, U.S. Department of
State...................................................... 12
Roewer, James R., Executive Director, Utility Solid Waste
Activities Group........................................... 86
Slesinger, Scott, Vice President, Governmental Affairs,
Environmental Technology Council........................... 81
Walls, Michael P., Senior Counsel, The American Chemistry
Council.................................................... 33
Wiser, Glenn M., Senior Attorney and Intern Coordinator,
Center of International and Environmental Law.............. 73
Yeager, Brooks P., Vice President of Global Threats, World
Wildlife Fund.............................................. 52
Material submitted for the record by:
Goldberg, Steven, Croplife America, response for the record.. 125
Goldman, Lynn, Professor of the Environmental Health
Sciences, Bloomberg School of Public Health, Johns Hopkins
University, response for the record........................ 118
Hazen, Susan B., Principal Deputy Assistant Administrator,
Office of Prevention Pesticides and Toxic Substances, U.S.
Environmental Protection Agency, response for the record... 110
Heinzerling, Lisa, Professor of Law, Georgetown University
Law Center, response for the record........................ 122
Roewer, James R., Executive Director, Utility Solid Waste
Activities Group, response for the record.................. 123
U.S. Environmental Protection Agency and U.S. Department of
State, response for the record............................. 126
Walls, Michael P., Senior Counsel, The American Chemistry
Council, letter dated September 10, 2004, enclosing
response for the record.................................... 106
Wiser, Glenn M., Senior Attorney and Intern Coordinator,
Center of International and Environmental Law, response for
the record................................................. 113
Yeager, Brooks P., Vice President of Global Threats, World
Wildlife Fund, response for the record..................... 105
(iii)
POPS, PIC, AND LRTAP: THE ROLE OF THE U.S. AND DRAFT LEGISLATION TO
IMPLEMENT THESE INTERNATIONAL CONVENTIONS
----------
TUESDAY, JULY 13, 2004
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Environment,
and Hazardous Materials,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:08 p.m., in
room 2123, Rayburn House Office Building, Hon. Paul E. Gillmor
(chairman) presiding.
Members present: Representatives Gillmor, Pitts, Terry,
Rogers, Issa, Otter, Barton (ex officio), Solis, Capps, Allen,
Gonzalez, Rush, Stupak, Green, and Dingell (ex officio).
Staff present: Mark Menezes, majority counsel; Jerry Couri,
majority policy coordinator; Nandan Kenkeremath, majority
counsel; Tom Hassenboehler, majority counsel; Michael Abraham,
legislative clerk; Michael Goo, minority counsel; and Richard
Frandsen, minority counsel.
Mr. Gillmor. The subcommittee will now come to order. And
before the recognizes himself for the purpose an opening
statement, I would like to thank the members and our panelists
for their attendance, and their participation.
And I would also like to advise everyone that some of our
witnesses do have official obligations that will require them
to travel later today. And in order for the members to have
ample opportunity to ask questions, I would appreciate the
indulgence of the members in being mindful of those
obligations.
And now I recognize myself for the purpose of an opening
statement.
In April 2001, the Bush Administration pledged the
commitment of the United States to join the Stockholm
Convention on Persistent Organic Pollutants. This pledge
punctuated a 10 year period of bipartisan cooperation and
leadership concerning global protection of the environment and
public health. These efforts included the RS Protocol on long
range transbounding air population of POPs and the Rotterdam
Convention on prior informed consent, and also persistent
organic pollutants.
Today our subcommittee is meeting to review a discussion
draft that I released 3 weeks ago. This draft, in my opinion,
reasonably implements the POP and the PIC Conventions, and the
LRTAP Protocol. And I am interested in constructive suggestions
from this hearing.
To date I have received a number of useful comments on this
draft, and we have identified a few places where improvements
can be made. I look forward to our testimony today, and any new
constructive suggestions that may come forth.
The most important thing is that our committee will be in a
position to move this legislation and U.S. leadership forward.
And while I realize that the other body has yet to provide
advise and consent on POPs and PIC, I have not heard any reason
why they would not do this. And, in fact, may be waiting for us
before doing so. Therefore, if moving a legislative product is
what is necessary to convince the other body that they must act
now, then our committee should show that leadership.
If the United States is to remain a leader in the global
environmental debate, it must have legislation that fully
implements these treaties. The meetings are where important
decisions will be made regarding future activity under these
agreements, and those meetings are about to occur. We as a
country cannot make a meaningful difference if we do not have a
legitimate role in that debate.
The discussion draft will allow us to implement these
treaties and become a full partner in them. It was assembled in
a few categories and based upon a few important principles.
The first category includes provisions, those that fulfill
the regulatory prohibitions and restrictions necessary to
address chemicals that are already listed in the treaties. And
while I believe that there may be technical drafting issues, I
am not sure that there are many fundamental policy decisions on
the objectives of those provisions.
The second set of issues concerns a process by which the
United States participates in decisions involving the potential
addition of new chemicals to the lists and the treaties. I do
not believe that the United States should simply defer to the
decisions of an international body with respect to the U.S.
position on such additions. This seems to be the clear intent
of the opt-in provisions negotiated heavily by officials in the
Clinton Administration. And I also do not believe U.S. courts
should determine what actions the United States should take
regarding future amendments to the treaties.
The discussion draft allows the public to be fully informed
and to provide comment to the executive branch about potential
actions under the agreements.
A third set of issues concerning possible additional
tailored EPA rulemaking authority for new chemicals that might
be added to the treaty lists. Currently the U.S. has addressed
a regulation of chemicals under these treaties through a range
of regulatory authorities. It's hard to predict the future
decisions of the international body. It may very well be that
the same authorities will be both sufficient and appropriate to
address amendments to the treaties. However, let me be clear: I
am proposing additional authority only for chemical substances
or mixtures added to these treaties and not as a means of
generally expanding EPA regulatory authority over manufacturing
use or distribution in commerce of chemicals.
The potential to regulate manufacturing, use and
distribution in commerce is a sweeping power and should not be
delegated from Congress to a bureaucracy lightly.
I am satisfied, however, that the provisions I have
proposed provide sound principles to both protecting human
health in the environment and to consider the costs and
benefits of alternative means of protecting human health in the
environment.
I look forward to the testimony of our witnesses on these
agreements, and on the draft legislative language. Together we
can and we should make a positive difference for a global
environment, economy and health.
And the Chair is now pleased to recognize the--ah, the
distinguished ranking member has come in, and I would be
pleased to first recognize the gentleman from Michigan, Mr.
Dingell.
Mr. Dingell. Mr. Chairman, I thank you for the recognition.
I thank my dear friend and colleague Ms. Solis.
Over 3 years ago the President announced that the United
States would sign the Stockholm Convention on Persistent
Organic Pollutants called POPs. Since then 151 nations have
signed the POPs treaty. Over 70 countries have ratified it, and
the treaty went into effect on May 17, 2004. Today this
subcommittee is holding its first hearing on this matter.
Mr. Chairman, I want to make it clear out of respect for
you and affection for you, it is our intention to try and be as
helpful as we can, and that this statement is intended to be a
friendly one. But I think you will observe that there is some
dissatisfaction on this side of the aisle on the way this
matter has been handled.
All the 12 POPs' chemicals listed in the treaty, known as
``the dirty dozen'' are already banned or tightly controlled in
the United States. These are some of the most dangerous
chemicals known to man and include such infamous substances as
DDT, PCBs, and dioxins. The POPs Convention created a science-
based procedure that will govern the inclusion of additional
chemicals to the convention, and defines the criteria that must
be met. These criteria focus on substances that are toxic, that
bioaccumulate and that are resistent to natural breakdown, and
that can be transported long distances.
The task now before the Congress is to provide the
Environmental Protection Agency, EPA, with rulemaking authority
and a regulatory standard that allows the agency to promptly
implement the control measures recommended by the Conference of
the Parties for a new chemical, the 13th POP if you wish. The
implementing legislation must allow the agency to proceed in an
efficient and expeditious manner using the results of the
science-based international process. And I want to stress that
this is a science-based process.
We have had little time to review the majority discussion
draft, which I understand comes on the heels of numerous
meetings with the administration to which I would note, with
more than a little distress, Democratic members and our staff
were not invited. If this legislation is to be considered in a
bipartisan fashion, then I would assume that consultation with
the minority was very much in order, and would be consistent
with the attitudes of my friend the chairman.
Also, the administration has yet to submit a legislative
proposal for implementing the treaty. And I will observe then
that I have significant concerns about the process so far. I am
willing to work with the Chair both on substance and to come up
with a more acceptable process.
I also have serious concerns that the rulemaking standard
and the criteria contained in the discussion draft do not allow
the EPA to act in an efficient manner on realistic and
expeditious timeframe. Moreover, that standard appears nowhere
in the treaty or in existing United States law. This I find to
be difficult to accept, and it poses an opportunity for
litigation and years of delay. It may not properly account for
public health benefits or recognize the work of science-based
international processes.
Our ability to regulate additional extremely dangerous
substances is not clear. We must be mindful of a recent
example: EPA's experience with asbestos, a known carcinogen.
The Nation saw the EPA spend 10 years from 1979 to 1989 doing
analyses and assessments to support regulation that bans
certain uses of asbestos. I should note that the final rule was
struck down by the courts. If we cannot regulate a substance as
dangerous as asbestos, our ability to regulate a 13th POP also
appears to be inadequate and should be the matter of both
consideration in the legislation, but also in discussions with
the minority.
It has been suggested that there is insufficient control by
the United States over this listing process. I do not believe
that is the case, although I am willing to listen to statements
which would so indicate. The United States will participate
fully in any amendment process. In addition, I understand the
President intends to require an affirmative opt-in by the U.S.
Government for each new chemical listed, on top of the United
States rulemaking process.
Administration officials have also indicated that they
would not oppose separate advice and consent by the U.S. Senate
for each new chemical added by the Convention. Passage of solid
implementing legislation for the POPs treaty appears to be
highly desirable, and also readily doable. But I would remind
the Chair that this will only be in the context of a full, fair
and bipartisan process. This committee has always addressed
problems related to the environment in a bipartisan fashion,
and the result of that has been not only better legislation,
but an easier process which was happier as it went forward, and
I think happier in its conclusion. This hearing is a somewhat
belated first step.
And I look forward to the testimony of our witnesses and I
thank you for your courtesy to me.
Mr. Gillmor. The Chair recognizes the gentlewoman from
California, who is the ranking member of the subcommittee, Ms.
Solis.
Ms. Solis. Thank you very much, Mr. Chairman, for holding
this hearing this afternoon. It is a very important topic that
brings us all here today, and I am very pleased to see a good
number of our colleagues here with us at this subcommittee
hearing.
I want to thank all the witnesses for being here today, as
well. Today we are taking the first step as a committee to
better understand the Stockholm Convention on POPs and the PIC
and the LRTAP POPs. These are complex treaties that deserve our
time to fully understand. Not only do these treaties have an
impact on laws of the U.S. and other countries, but they also
have the potential of having a profound effect on our public
health.
Persistent organic pollutants are highly toxic chemicals
that have adverse effects on public health and the environment.
These pollutants impact public health in the United States and
around the world. It is my understanding that the United States
played a large role in negotiating of this treaty initially,
and that there is general agreement between the government,
industry, Republicans and Democrats alike about the need to
regulate the dirty dozen pollutants.
I believe that the United States should continue to be a
world leader. We were a leader not only on the negotiation and
regulation of the first 12 pollutants already identified, but
we should also remain No. 1 when addressing the 13th, 14th and
15th POP.
I have been extremely disturbed and dismayed at the Bush
Administration's desire to act unilaterally on so many issues,
and hope that the United States can use this as an opportunity
to work together with our allies to protect our public health.
But the process by which we have come together today as a
committee may make achieving ratification difficult.
Three weeks ago on June 22 staff was notified of the
chairman's bill and of the process that the majority had gone
through to develop this legislation. A week later, with less
than 30 legislative days left in session, we heard personally
for the first time in 3 years that ratification of the treaty
was an administration priority.
So we come to this discussion today having been left out of
what, in my opinion, needs to be a bipartisan effort. The
United States and the world would have benefited had we been
included from the get-go. But that is not the route the
majority chose. The majority chose to go it alone and here we
are today trying to understand these issues.
I have questions and concerns about the majority's draft,
and about its impact on public health, and the ability of the
United States to be a world leader. Specifically I am concerned
about the standard established by the EPA to regulate the next
internationally agreed upon pollutant. I am concerned about the
authority the EPA had been given to act to protect public
health. And I am concerned about what impact these new
regulations that we adopt will have on our ability to consider
future U.S. regulations for pollutants as necessary.
The language that we choose to define how the United States
abides by the treaty must preserve the intent of the treaty or
the United States will not be viewed as a world leader, but
instead as undermining the treaty. The legislation we are
discussing today is key because it will determine how we deal
with the next POP, the next pollutant that is found to
adversely effect our public health. The road that we choose for
domestic regulation will show whether the U.S. is really a
world leader or if it is just all talk.
We should not sacrifice the intent of the treaty for an
ideology that does not protect our public health globally.
Mr. Chairman, I hope we can air these questions today.
While we may not resolve them, at least let us have a
discussion.
Yield back.
Mr. Gillmor. I thank the gentlelady. And let me make one
comment regarding part of the gentlelady's opening statement,
also that of the ranking member that somehow the minority was
excluded.
I have been here in the majority, I have been here in the
minority. And when the current minority was in the majority, I
mean you are coming up with a new rule now. Nobody in that
majority ever thought they had to go to the minority to draft a
discussion draft. So we are using basically the same procedure
you did.
Second, 3 weeks notice of a discussion draft strikes me as
being more than ample time.
The gentleman from Chicago, Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman. And I thank you for
holding this hearing.
Given the complexity of this issue, I hope that this only
the first in a series of comprehensive, deliberative and
bipartisan hearings.
On that note, Mr. Chairman, I want to join my colleagues in
the minority to stress that this should be a deliberative and
bipartisan approach. While I comment your efforts on the
discussion draft that is before us today, I am also disturbed
by the fact that no Democratic members were involved in this
drafting. Given the international dimension and given that that
the purported urgency of passing and implementing legislation,
I do not see why the majority would not sit down with us and
craft a bipartisan, noncontroversial bill that could easily
pass the House and be reconciled with the Senate.
At the very least, I hope that this discussion draft is
just that; a draft for discussion and that the Chairman will
encourage and welcome constructive input from Democratic
members of this subcommittee.
Having said that, I will briefly say that after an initial
review of the discussion draft I find it cumbersome and loaded
with needless regulatory hurdles. The discussion draft looks
less like implementing legislation and more like a deliberate
attempt to thwart domestic regulations stemming from
international agreements, international agreements that are
supposed to be painstakingly brokered by the executive branch.
POPs are some of the most deadliest chemicals on the plant,
and we should not take them lightly. In order for the U.S. to
add new POPs to the existing list of banned POPs, the
administration must opt-in and affirmatively agree to banning
or regulating a new chemical.
In addition, under the terms of the treaty, this opt-in
process only takes place after exhaustive scientific studies
most likely led by our country. Given that this process will
take 5 years by itself, it is curious why the discussion draft
would want to bog the process down further with so called
implementing legislation by creating additional regulatory
hurdles.
To use section 6 of the Toxic Substance Control Law makes
little sense if the Chairman and if other members of the
majority is interested in simply implementing the terms of the
international agreement. As everyone knows, section 6 has been
a complete failure and hasn't resulted in the regulation of one
toxic substance. Simply put, if the EPA can't even use its
authority to regulate asbestos, I do not see how it will be
able to regulate additional POPs as mandated by an
international treaty.
So I look forward to the discussion today. And I welcome
the guests. And I hope they will shed some light on a very,
very complicated issues.
And I thank you, Mr. Chairman.
I yield back the balance of my time.
Mr. Gillmor. The gentleman yields back.
The gentleman from Maine.
Mr. Allen. Thank you, Mr. Chairman.
We do legislation to enable the United States to become a
party to three international agreements that ban the use of the
world's most dangerous and persistent pollutants, including the
persistent organic pollutants or POPs treaty. These chemicals
should be banned abroad as they are banned in this country.
The Clinton Administration negotiated these agreements and
the Bush Administration embraced them. But, unfortunately, the
legislation we have before us reflects a profound hostility to
using international organizations to deal with global problems.
The debate is about a simple difference in approach: Will the
United States work within international bodies or act
unilaterally. Over the last 4 years this Nation has gone from a
world leader to a world piraya in the eyes of many around the
world.
The U.S. helped draft the POPs treaty establishing an
international science-based process to access future persistent
organic pollutants. The U.S. should work within that process to
determine if chemicals should be regulated as POPs in the
future. But the majority's working draft implementing
legislation rejects the international standard and process for
declaring POPs, apparently because it grants decisionmaking
authority to an international institution. Under this
legislation EPA would ignore the years of international
analysis that led the community of nations to act. Instead, EPA
would have to come to its own conclusions using an entirely
separate set of criteria on the necessity of regulation. This
threatens to undermine the treaty established to regulate
promptly the most dangerous chemicals we can identify.
Moreover, this legislation is impractical as drafted. It
proposed to use cost benefit analysis as the standard for
determining whether a POP should be regulated. There are
fundamental challenges to assessing the benefits of banning
international pollutants with long term impacts that economists
do not know how to qualify. What is the dollar value of a 2. IQ
reduction in future generations of children? Can we value the
loss of our bald eagle populations once decimated by DDT?
Natural resource and human health damage assessment has
come away, but resource economists are at least a generation
away from this kind of valuation.
But even more concerning is the international nature of the
impacts. Benefits analysis of environmental regulation in the
United States rests heavily on what is known as the value of
statistical life, a relative simple quantification of
Americans' willingness to pay to avoid deadly risk. EPA basis
its $6.4 million value on studies of Americans because people
in developing countries do not have the equal means to value
risk avoidance. The six major evaluation studies performed in
the developing world reveal the value of statistical life less
than $1 million. So what do we? Do we take the U.S. value and
discount it? Do we find Americans to be more valuable than
people in other countries? We cannot afford to use such an
imperfect standard on chemicals as dangerous as DDT and PCBs.
The established health base standard established by the POPs
treaty itself is sound policy. We ought for once to work with
international organizations to cope with the global problem.
This should be an opportunity for us to recover some respect
around the world.
I thank you.
Mr. Gillmor. The gentlelady from California?
Ms. Capps. Thank you, Mr. Chairman. And I am pleased with
the subcommittee's interest in the Persistent Organic
Pollutants Treaty. In signing this treaty our country went on
record that identified toxic substances pose a worldwide threat
to human health and the environment. The U.S. Government,
industry, public health and the environmental community all
played a large role in drafting this treaty which has wide
spread support. However, 3 years after signing we have yet to
act or consider implementing legislation on this historic
treaty. In the meantime, creation of manufacturing of toxic
substances goes on unabated.
The treaty eliminates, or significantly reduces the global
production and use and release of the 12 worst polluting
substances, already tightly controlled in our country. It also
establishes a science-based process for adding other persistent
organic pollutants to the list in the future. These identified
toxic substances persist for years in the environment, travel
great distances on wind and in water currents and accumulate in
food chains. Everyday Americans are exposed to POPs through
fish and dairy products. And because they collect in body fat,
women can transfer these toxic substances to their offspring
and to infants during breast feeding.
Even at extremely low levels these substances can cause
irreversible damage. Scientific evidence has definitely linked
persistent organic pollutants to decreased birth weights,
cancers and learning and reproductive disorders.
As a Public Health nurse I value the giant step forward the
treaty takes in reducing human exposures to these toxic
substances. But, unfortunately, this draft of implementing
legislation takes a giant step backward.
First, it would severely slow down any future attempt to
eliminate toxic chemicals and pesticides. It would require EPA
to undergo unnecessary analysis in the event it chooses to
regulate a new polluting substance. As a party to the treaty we
will already be participating in a thorough scientific
investigation of additional substances before they are added to
the treaty. And with all due respect, this draft would ignore
these results. Instead, it could force EPA to start additional
time consuming and costly studies. Even worse, this draft
contains no requirement that EPA even do anything after an
international decision to add a new persistent organic
pollutant.
There is no time line for EPA to act, no obligation for
them to say why not and no citizens petition process to
challenge EPA.
I am concerned also with the draft's proposed regulatory
standard for considering additional POPs. If EPA decided to
regulate it could only do so if it finds a reasonable balance
between human health and the economic costs in regulation.
I am running out of time, so I am just going to defer to
what my colleague so eloquently stated when he talked about the
cost analyses. It is such a disservice to what the value of
human life to try to equate the value of life, whether plant or
animal or human to economic standards. We have to find a
different way of adding value.
So, I support the treaty, but not this draft legislation.
And I yield back.
Mr. Gillmor. The gentleman from Michigan. Needs some oil on
his microphone.
Mr. Stupak. Yes, I think so.
Thank you, Mr. Chairman.
I look forward to hearing from our panels today as we
discuss the U.S. role in implementing these important
international conventions and the draft proposal Mr. Gillmor
has prepared.
The Stockholm Convention which bans or severely restricts
12 of the most dangerous chemicals called persistent organic
pollutants, POP, has wide support including that of industry,
labor and environment and health groups.
The United States was heavily involved in the negotiations
leading to the convention and insisted the treaty contain a
science-based process under which governments may nominate
suspected POPs in the future. Because of the 12 current POPs
are already banned or severely regulated in the United States,
the primary issue which discussing implementing legislation is
the regulation of future hazardous chemicals that may be added
to the treaty's list.
The proposed draft before us to implement these
international conventions creates a separate standard for the
United States when adding additional POPs. The U.S. already
negotiated for an international standard that every country
including the U.S. must follow under this treaty. But now this
proposal, which is filled with a new cost benefit standard,
sets a different standard for the U.S.
Over the past 3 years we have continued to alienate the
world by having our own ``play by our rules'' type of attitude.
Another issue that concerns me is the sudden sense of
urgency with this legislation when the administration has not
set implementing legislation in this Congress to our committee.
It has been over 3 years now since the administration signed
the POPs Treaty. It took the President an entire year after
signing the POPs Convention to send it to the Senate for advice
and consent. The treaty has now been in force for 2 months.
This is a complicated issue that deals with implementing 3
treaties that are designed to protect public health and our
environment. With the public interest and health at stake, this
is not time to shut out a bipartisan process and ram flawed
legislation through the waning days of this Congress. We should
be enacting bipartisan legislation that we can be sure to pass
through this committee or any other committee. With minimal
legislative days left in this session we should not try to
stampede legislation through this committee.
Let us begin with priorities. I am still extremely
disappointed that this committee and the administration
continues to ignore what should be a priority of implementing
the U.S./Canadian agreement concerning the transboundary
movement of hazardous waste to protect the citizens of Michigan
from unwanted trash imports. A year ago at a hearing held by
this subcommittee, the administration said we could expect
legislation to be sent up shortly to allow this important
agreement to be enforced. Nothing has been submitted to
Congress yet. Nothing.
On top of that, the administration refuses to take a
position on H.R. 411 or H.R. 1730 bipartisan bills which I and
many members of this committee have cosponsored that would
provide the necessary authority. The citizens of Michigan and
the Great Lake States deserve better.
Mr. Chairman, this committee should act on interstate waste
legislation as a matter of priority before we recess for the
summer.
I look forward to the testimony of our witnesses.
Mr. Gillmor. The gentleman from Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman, for holding the hearing
on these international agreements. And I am going to
specifically talk about the POPs Convention, which is the most
potential impact on the economy.
The POPs Convention dealing with DDT and PCBs and dioxin
and other controlled chemicals is uncontroversial. It is
important to the American chemical industry that this
convention goes into force and that America is a party to this
convention. To do so we must have implementing legislation in
time for the U.S. to be part of it in February 2005. I think
it's a reality in this closely divided Congress that we have a
consensus and bipartisan implementing legislation. Most
importantly, I believe we must protect the opt-in nature of the
convention. Our government and our industries should not be
forced to regulate additional POPs solely based on
international decisions.
Opt-in is needed to ensure that the POPs Convention does
not become a tool for other country's industries to seek
competitive advantage against ours under the guise of
environmental regulations. It is my understanding that all
sides, both industry and environmental organizations, agree to
the opt-in approach, but for the POPs Convention to work as
industry and environmental groups intended, the Convention must
be implemented soon.
Giving the few legislative days remaining between now and
the deadline, I would like to see consensus and bipartisan
implementing of this legislation. And I am not going to go into
details but understand, Mr. Chairman, your draft of the
legislation, our panelists will talk about that very well. But
I am concerned if this turns into a partisan philosophical and
ideological battle; nobody is going to get what they want
except perhaps the Europeans who will be making the decisions
in the Convention instead of us.
It is my understanding that the Gillmor legislation was not
developed in a consensus bipartisan matter, but I would hope
from this day forward we will be able to put that together.
Mr. Chairman, again, bipartisan practical compromised
legislation done on POPs and all sides can postpone our
ideological debates or battles until we have some other issue.
But I think this is important because otherwise will hinder
another industry in our country to be competitive or be at the
table at the international conference.
I yield back my time.
Mr. Gillmor. The gentleman yields back.
The other gentleman from Texas, Mr. Gonzalez.
Mr. Gonzalez. Yes, Mr. Chairman. I will submit my statement
in writing. Thank you.
[Additional statements submitted for the record follows:]
Prepared Statement of Hon. Charles A. Gonzalez, a Representative in
Congress from the State of Texas
Thank you Mr. Chairman.
Welcome to all nine witnesses. You share a breadth of expertise
that will provide us and our staffs with valuable perspectives about
the complex treaties, collectively known as the ``POPs Treaties'' that
internationally regulate the most toxic chemicals known to man.
I have been very pleased to learn that the three international
agreements we are examining today--the 2001 Stockholm Convention on
Persistent Organic Pollutants (POPs); the 1998 Aarhus Protocol to the
Convention on Long-Range Transboundary Air Pollution (LRTAP); and the
1998 Rotterdam Convention on the Prior Informed Consent (PIC) Procedure
for Certain Hazardous Chemicals and Pesticides--were all negotiated in
an inclusive manner. Representatives from the chemical and pesticide
industries, scientists, environmentalists and government experts were
all heavily involved. The net result was that the Stockholm Convention
was embraced by all sides. I don't doubt that each side started with
their own idea of how the convention should have taken shape, and so I
think that all the parties involved deserve credit for reaching the
agreement they struck.
In that same spirit, the Senate acted on a bipartisan basis last
year when the Environment and Public Works Committee reported a bill
that would implement those provisions of the POPs Treaties related to
the Toxic Substances Control Act.
Mr. Chairman, as this subcommittee does its part to craft
legislation to implement the international agreements on persistent
organic pollutants, I would hope that we also work in a cooperative
bipartisan manner. After all, at the end of the day, this issue will be
back in the Senate's hands, which must ratify these agreements by a
two-thirds vote. By working in a bipartisan manner in this
subcommittee, we ensure that implementing legislation can easily reach
and pass a ratification vote in the other body. I look forward to
working with you, Ranking Member Hilda Solis and all the members of the
subcommittee to reach a bipartisan agreement on moving forward with
implementing the POPs Treaties.
______
Prepared Statement of Hon. Joe Barton, Chairman, Committee on Energy
and Commerce
Thank you, Mr. Chairman, for holding this hearing to discuss
implementing legislation for three international agreements that the
United States has negotiated and signed over the past decade. The
Stockholm Convention on Persistent Organic Pollutants (POPs), the
Aarhus Protocol on Long Range Transboundary Air Pollution (LRTAP), and
the Rotterdam Convention on Prior Informed Consent (PIC), all center
around the banning or severe restriction of chemicals known as
persistent organic pollutants. These chemicals, which are exceedingly
toxic and take years to break down in the environment, have been
brought to the attention of the global community because of their
lasting effects on human health and the environment and their ability
for long-range transport, respecting no national boundaries.
These treaties have their genesis in the first Bush administration,
were negotiated under the Clinton administration, and finalized and
signed onto by the current Bush administration. While the Senate plays
an important role in the ratification procedures, the House must also
pass implementing legislation to amend current law to be in compliance
with these agreements. I thank Chairman Gillmor and the Subcommittee
for their leadership in authoring this discussion draft and making
efforts to move this process forward.
The draft seeks to address three important issues surrounding full
implementation and ratification of these agreements. First, it fulfills
the regulatory prohibitions and restrictions necessary to address
chemicals that are already listed in the treaties. Second, it addresses
the process by which the United States participates in decisions
involving the potential addition of new chemicals to the lists in the
treaties. Finally, it gives EPA tailored rulemaking authority for
chemical substances or mixtures added to the treaties, only to the
extent necessary to meet the obligations of the United States under the
treaties.
We cannot move forward if the Administration will not forcefully
and effectively communicate the need for this bill and our
participation. With these assurances, it is my sincere hope that the
efforts of the Subcommittee will allow this process to go forth. Once
again, I thank all the witnesses for their participation, and I look
forward to hearing the testimony.
Mr. Gillmor. Thank you very much.
We will now proceed to our first panel, which consists of
Claudia McMurray, who is the Deputy Assistant Secretary for
Environment, the Bureau of Oceans and International
Environmental and Scientific Affairs with the U.S. Department
of State. And Ms. Susan Hazen, who is the principal Deputy
Assistant Administrator, the Office of Prevention Pesticides
and Toxic Substances of the U.S. EPA.
And Ms. McMurray, if you would like to proceed. Is that
order satisfactory with the two of you, or it does not matter?
Okay.
STATEMENTS OF CLAUDIA McMURRAY, DEPUTY ASSISTANT SECRETARY FOR
ENVIRONMENT, BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL
AND SCIENTIFIC AFFAIRS, U.S. DEPARTMENT OF STATE; AND SUSAN B.
HAZEN, PRINCIPAL DEPUTY ASSISTANT ADMINISTRATOR, THE OFFICE OF
PREVENTION PESTICIDES AND TOXIC SUBSTANCES, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Ms. McMurray. Mr. Chairman, I would like to thank you and
the members of this subcommittee for holding this hearing on
legislation that would allow the United States to join three
international agreements to control dangerous toxic chemicals
and pesticides. The three treaties that have already been
mentioned here are the Stockholm Convention on Persistent
Organic Pollutants, the Protocol On Persistent Organic
Pollutants of the Convention on Long Range Transboundary Air
Pollution or LRTAP, and the Rotterdam Convention on the Prior
Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade.
Mr. Chairman, I have a long statement that I would like to
submit for the record with your permission.
Mr. Gillmor. Without objection, so ordered.
Ms. McMurray. Thank you.
Mr. Chairman, swift approval of implementing legislation
would demonstrate bipartisan support for these agreements and
the benefits to public health and the environment that they
provide. There is a widespread consensus that the accords
represent a significant step in the effort to protect the
global environment.
President Bush expressed his strong support for the
Stockholm Convention in a Rose Garden ceremony in 2001. On that
occasion, Secretary Powell and former EPA Administrator Whitman
also highlighted the benefits of the Stockholm Convention and
the need for continued U.S. leadership in the field of
persistent organic pollutants.
It is particularly crucial that the U.S. join these
agreements now. All three have entered into force and the
parties will begin making crucial decisions as soon as 6 weeks
from now.
The Stockholm Convention, which was concluded in 2001 aims
to protect human health and the environment from 12 chemicals
that are of particular concern. These chemicals all have four
intrinsic characteristics. They are toxic, they have the
potential to accumulate in unhealthy quantities in humans and
animals, they are stable and thus resistent to natural
breakdown, and obviously most important in the international
context, they can be transported over long distances through
the atmosphere and oceans.
The Stockholm Convention deals with intentionally produced
chemicals such as DDT or PCBs, unintentionally produced
substances such as dioxins and furans and wastes from those
substances. The Convention creates a science-based procedure to
govern the addition of chemicals to the Convention beyond the
current list of 12 substances.
The Convention's Conference of Parties will make decisions
about whether to add chemicals to the Convention's coverage. If
a chemical is added through an amendment, the United States can
decide whether we want to become party to that amendment. At
the time of ratification we intend to declare, consistent with
our ability to do so under the treaty, that any amendment shall
enter into force for the United States only upon our deposit of
an instrument of ratification indicating acceptance or approval
of that amendment.
Utilization of this so-called opt-in procedure for becoming
party to the amendments will ensure that decisions made by the
Conference of the Parties do not prejudge our domestic
decisionmaking process.
The Stockholm Convention will hold its first Conference of
Parties next spring. At that meeting, important decisions will
be made such as the composition of the technical review
committee that will consider new chemicals that are proposed
for addition. Also rules of procedure will be considered.
Unless legislation is enacted during the current session of
Congress and as soon as possible, the United States will be
sitting on the sidelines of this meeting.
Two additional international agreements dealing with toxic
chemicals and pesticides are covered in the Chairman's draft
implementing legislation.
The first agreement closely related to the Stockholm
Convention, is the POPs Protocol to the Long Range
Transboundary Air Pollution Convention. The obligations in
LRTAP are somewhat similar in nature and scope to those in the
Stockholm Convention. The LRTAP Executive Body will hold its
next meeting 5 months from now. It will also make decisions
such as establishing procedures for the conduct of technical
reviews of substances proposed for addition to the protocol at
that time.
The other agreement covered in the implementing legislation
is the Rotterdam Convention on Prior Informed Consent. This
agreement is designed to promote fully informed decisionmaking
by both exporting and importing countries in order to promote
decisions that appropriately protect human health and the
environment. The Rotterdam Convention's, First Conference of
Parties will be held 2 months from now. Among the key decisions
at this meeting will be the membership of the new review
committee that will consider possible new chemicals for
addition to the Convention.
In summary, Mr. Chairman, together these three treaties
address a number of critical chemical management problems faced
by the international community. These treaties enjoy broad
support from the public, from environmental groups and industry
groups as well, and as we have heard today, from many Members
of Congress. As the country with the world's most comprehensive
risk management scheme for toxic chemicals, the United States
should continue its leadership role as an active and
influential participant with a seat not just at the table in
this multilateral forum, but at the head of the table. In
short, these issues are too important for the United States to
sit on the sidelines as an observer.
I look forward to working with both sides of the aisle to
expedite U.S. ratification of these important treaties.
Thank you, Mr. Chairman. I would be happy to answer any
questions that you or other members of the subcommittee may
have.
[The prepared statement of Claudia McMurray follows:]
Prepared Statement of Claudia McMurray, Deputy Assistant Secretary of
State for Oceans and International Environmental and Scientific
Affairs, United States Department of State
Mr. Chairman, I would like to thank you and the members of the
Subcommittee for holding this hearing on your draft implementing
legislation that would allow the United States to join three
international agreements to control dangerous toxic chemicals and
pesticides. The three treaties are the Stockholm Convention on
Persistent Organic Pollutants (the ``Stockholm Convention''), the
Protocol on Persistent Organic Pollutants of the Convention on Long-
Range Transboundary Air Pollution (``LRTAP''), and the Rotterdam
Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade (the
``Rotterdam Convention''). The Administration strongly supports
ratification of these agreements and therefore urges the Committee to
approve implementing legislation as soon as possible.
Mr. Chairman and members of the Subcommittee, I would respectfully
suggest to you that your swift approval of implementing legislation
would demonstrate bipartisan support for these agreements and the
benefits to public health and the environment that they provide. There
is a widespread consensus that the accords represent a significant step
in the effort to protect the global environment. President Bush
expressed his strong support for the Stockholm Convention in a Rose
Garden ceremony in 2001. On that occasion, Secretary Powell and former
EPA Administrator Whitman also highlighted the important foreign
policy, environmental and health benefits of this agreement and the
need for continued U.S. leadership in this field.
For over three decades the United States has been a leader in
developing sound and effective risk management regimes in the fields of
toxic chemicals and pesticides. In fact, the United States was the
first country to begin addressing the human health and environmental
threats posed by pesticides and other toxic substances. Our expertise
in this field is continually sought out by other countries seeking to
establish their own domestic programs. Clearly we can make a unique
contribution to the success of these three international agreements.
It is particularly critical that the United States join these
agreements now because all three have already entered into force. Over
the course of the next months, the governing bodies of each of these
agreements will meet for the first time and will begin making decisions
on the future of their respective accords. As the recognized leader in
the field of toxic chemicals management, it is important the United
States be present to help shape the development of each treaty.
The Stockholm Convention, which was completed in 2001, aims to
protect human health and the environment from twelve chemicals that are
of particular concern. These chemicals are unique because they have
four intrinsic characteristics: they are toxic; they have the potential
to accumulate in unhealthy quantities in humans and animals; they are
stable and thus resistant to natural breakdown; and they can be
transported over long distances through the atmosphere and oceans. The
twelve persistent organic pollutants (``POPs'') are: aldrin,
hexachlorobenzene, chlordane, mirex, DDT, toxaphene, dieldrin,
polychlorinated biphenyls (PCBs), endrin, heptachlor, dioxins and
furans.
POPs are capable of affecting human health and the environment far
away from the regions where they are used and released. The twelve
chemicals covered by the Stockholm Convention have been banned,
severely restricted, or controlled in the United States, but they are
still in widespread use abroad, particularly in developing countries.
As a result, they can have a negative impact on the health of U.S.
citizens. These chemicals, which have been found in disturbingly high
concentrations in Alaska and the Great Lakes region, have been linked
to cancer, damage to the nervous system, reproductive disorders, and
disruption of the immune system. The risks are especially high for
indigenous populations, who rely heavily on certain fish, marine
mammal, and wildlife species. Some of the POPs, such as DDT, are known
to have negative impacts on wildlife. Because POPs are capable of long-
range transport, no one country acting alone can address their human
health and environmental effects. A global agreement is needed to
control the use of these substances.
The Stockholm Convention deals with intentionally produced POPs,
such as DDT or PCBs; unintentionally produced POPs, such as dioxins and
furans; and POPs wastes. For intentionally produced POPs, the
Convention prohibits their production and use, subject to certain
exemptions such as the continued use of DDT for malaria and other
disease vector control. The Convention also prohibits or restricts
trade in such substances. For unintentionally produced POPs, the
Convention requires countries to develop national action plans to
address releases and to apply ``Best Available Techniques'' on
specified key source sectors to control them. Parties must also take
appropriate measures to ensure that POPs wastes are managed in an
environmentally-sound manner.
Recognizing the needs of developing countries in managing POPs, the
Convention includes a flexible system of financial and technical
assistance through which developed countries will help these countries
meet their obligations. In fact, the United States has already spent
over $20 million assisting several developing countries in building
capacity in this area. The Global Environment Facility will serve as
the interim funding mechanism for the Convention and has already set up
a program to support treaty-related projects. Because the majority of
POPs releases occur in developing countries, funding to expedite the
phase out of these substances is particularly important.
Finally, the POPs Convention creates a science-based procedure to
govern the addition of chemicals to the Convention beyond the current
twelve substances. This process will, among other things, allow
scientific experts to review and recommend to the Parties to the
Convention whether chemicals proposed for addition to the agreement
meet such criteria as toxicity, bioaccumulation, persistence, and long-
range transport. In the language of the Convention, this science-based
procedure involves an evaluation of ``whether the chemical is likely,
as a result of its long-range environmental transport, to lead to
significant adverse human health or environmental effects, such that
global action is warranted.''
If a determination is made that a chemical is likely to lead to
significant adverse effects, the review procedure then will consider
information on socio-economic considerations. This includes the
technical and economic feasibility of control measures to meet risk
reduction goals, availability of alternatives, and other socio-economic
factors. Based on the risk profile and risk management information
gathered through the steps described above, a recommendation can be
made on whether a chemical should be considered for addition to the
Convention.
The Convention's Conference of Parties will make final decisions
about whether to add chemicals. Once they are added through an
amendment, countries can decide the conditions under which they will
consent to an amendment. At the time of ratification, we intend to
declare that any amendment shall enter into force for the United States
only upon our deposit of the U.S. instrument of ratification,
acceptance or approval. Utilization of this so-called ``opt-in'' option
for adopting amendments will ensure that decisions made by the
Convention Parties do not prejudge our domestic decision making
process.
The Stockholm Convention, which has now been ratified by 70
countries, entered into force on May 17, 2004 and will hold its first
Conference of Parties (COP) next spring. At that meeting, important
decisions will be made on the future course of the Convention. One of
the key issues before the COP will be the membership and composition of
the technical review committee that will consider new chemicals that
are proposed for addition to the Convention's control regime. The COP
will also agree upon rules of procedure, including voting rules,
financial rules, and the location of the Convention Secretariat. These
are all important issues for the United States, but we will not be able
to participate as a Party in these deliberations unless legislation is
enacted during the current session of Congress, and as soon as
possible, since the United States will not become Party to the
agreement until 90 days after depositing its instrument of
ratification.
The implementing legislation drafted by this Committee would also
permit the United States to implement and become a Party to two
additional international agreements dealing with toxic chemicals and
pesticides. The first agreement--closely related to the Stockholm
Convention--is the POPs Protocol to the Long-Range Transboundary Air
Pollution Convention. LRTAP is a regional agreement negotiated under
the auspices of the United Nations Economic Commission for Europe,
which includes the United States, Canada, Europe, and the former Soviet
Republics. The obligations in LRTAP are generally similar in nature and
scope to those in the Stockholm Convention. One of the key differences
is that LRTAP includes four substances (lindane, chlordecone,
hexabromobiphenyl, and polycyclic aromated hydrocarbons) not contained
in the global accord reached in Stockholm.
LRTAP entered into force on October 23, 2003. The LRTAP Executive
Body (EB), which serves as the governing body for all LRTAP Protocols,
will hold its next meeting from November 29-December 3, 2004--only five
months from now. The EB will make decisions on the specific procedures
under which the LRTAP POPs Task Force, which was set up last year, and
will conduct technical reviews of substances proposed for addition to
the Protocol. It will also adopt guidance for an overall review by the
Task Force of the Protocol's sufficiency and effectiveness.
The other agreement covered in the implementing legislation is the
Rotterdam Convention on Prior Informed Consent, which is designed to
promote shared responsibility between exporting and importing countries
in protecting human health and the environment. The Rotterdam
Convention stipulates that export of certain especially hazardous
chemicals, in particular those whose use has already been banned or
severely restricted in a number of countries, can only take place with
the prior informed consent of the importing country. The Convention
also contains safeguards to ensure that an importing country cannot
apply the agreement's provisions in a discriminatory manner, thus
ensuring a level playing field. The Rotterdam Convention significantly
enhances the safe management of chemicals by enabling countries,
especially developing countries, to identify their risks and make
informed decisions about their importation and use.
The Rotterdam Convention, which has to date been ratified by 73
countries, entered into force on February 24, 2004. The Convention's
first Conference of Parties (COP) will be held in September 2004, less
than two months from now. Among the key decisions for deliberation at
the COP meeting will be the membership of the new review committee that
will consider possible new chemicals for addition to Convention. The
COP will also decide whether to formally add about 14 substances, which
have been reviewed by the Convention's interim body over the past two
years, to the list of chemicals covered by the Convention. In addition,
the COP will also finalize its rules of procedure and financial rules
and decide on the location of the Convention Secretariat.
In summary, Mr. Chairman, together these three treaties address a
number of critical chemical management problems faced by the
international community. These treaties enjoy broad support from the
public, from environmental and industry organizations, and from many
members of Congress. All of these agreements will provide considerable
health and environmental benefits to our citizens and those around the
world.
As I have already noted, the requisite number of countries have
already ratified these agreements and all three are now in force. Their
respective governing bodies will be meeting for the first time in the
upcoming months and critical decisions will be made on the future
course of each accord. As the country with the world's most
comprehensive risk management scheme for toxic chemicals, the United
States should continue its leadership role as an active and influential
participant with a seat not just at the table, but at the head of the
table. In short, this issue is too important for the United States to
sit on the sidelines as an observer.
Mr. Chairman and members of the Subcommittee, it is therefore
urgent that, in the less than 30 days of the legislative session
remaining, the Congress pass implementing legislation that will allow
us to ratify these agreements and participate as Parties in these
upcoming meetings. I look forward to working with both sides of the
aisle to expedite U.S. ratification of these important treaties.
Thank you, Mr. Chairman. I would be happy to answer any questions
that the Subcommittee members may have.
Mr. Gillmor. Thank you, Ms. McMurray.
Ms. Hazen?
STATEMENT OF SUSAN B. HAZEN
Ms. Hazen. Thank you, Mr. Chairman, Congresswoman Solis and
members of the committee.
As was said earlier, my name is Susan Hazen. I am currently
serving as the Principal Deputy Assistant Administrator for the
Office of Prevention, Pesticides and Toxic Substances at EPA.
I have a longer prepared testimony, which I would like to
be entered into the record.
The U.S. has been a very active player in each of these
treaties. We have been part of their inspiration, their
direction, and a major part of their negotiation. And the
administration now seeks implementing legislation that would
allow the United States to take that final step and join these
three important environment agreements this year.
I would like to thank you, Mr. Chairman, for the
opportunity to testify and for your commitment to developing
implementing legislation. We have welcomed the opportunity to
provide technical assistance to your staff as this proposal has
been developed.
As we have provided technical assistance, we have attempted
to remain focused on one fundamental issue: Would the draft
legislation provide the legal authority necessary for the
United States to fully implement all of the Toxic Substance
Control Act-related obligations of the three agreements,
thereby helping to ensure that the United States remains in the
forefront of worldwide efforts to reduce or eliminate
production, use, or release of persistent organic pollutants,
or POPs. We believe this proposal would accomplish this
objective.
We look forward to working with you as the process
continues.
I am also pleased to have the opportunity to address our
domestic and international activities to effectively manage the
currently listed pesticides and chemicals. We think it is
vitally important from the outset that we continue to share our
expertise with the rest of the world as each of these treaties
contributes in its own way, not only to a healthier global
environment, but to a healthier America.
In the United States, these agreements are of special
importance for selected populations and environments which can
be particularly impacted by POPs transported by air and water
from outside sources. By joining with the rest of the world to
phaseout or reduce these toxic pollutants, we protect the
health and the environment not only of our fellow Americans,
but of all those who share our plant.
EPA continues to take measures that promote the objectives
of all three of these treaties, including providing technical
assistance and financial assistance to developing countries and
countries with economies in transition. For example, we are
currently working with Russia and China to identify and develop
strategies that would eliminate stockpiles of POPs pesticides
and PCBs. We are supporting an international effort to destroy
stockpiles of POPs pesticides in Africa in an environmentally
sound manner. And we have also provided technical assistance to
develop tools and guidance to help other countries meet their
obligations under the Stockholm Convention.
The United States already has the authority to meet most of
the Toxic Substance Control Act-related obligations of these
treaties. We believe that the bill drafted by this committee,
if enacted, would enable the U.S. to comply with and to
effectively implement the obligations of the treaties.
The administration is fully committed to participate in the
procedures set up for the listing of additional chemicals to
the POPs agreements and to assure that the robust scientific
process to do so works as intended during the negotiations.
Chairman Gillmore's discussion draft would enable the United
States to join future convention amendments that are consistent
with U.S. law and policy, and this is a very important element
of the legislation for the administration. We appreciate
efforts that went into its development.
In addition, the information collection provisions in this
legislation provide the opportunity to help ensure that the
United States is appropriately informed as to the risks,
benefits, production, uses and other pertinent factors
concerning candidate chemicals when it is participating in
negotiations determining the possible addition of chemicals.
Early last year the administration identified six guiding
principles for taking domestic action on the listing of new
chemicals, which we will take into consideration as your
legislative process moves forward. Very briefly, these
principles are:
First, that the United States should have the ability, when
appropriate, to take domestic regulatory action on the addition
of future chemicals to the Convention; Second, that the goal of
taking regulatory action is to achieve a high degree of public
health and environmental protection; Third, that the United
States should make an explicit domestic determination as to
whether the best available scientific information supports the
listing, and whether the specific regulatory measures included
in the international listing are necessary and adequate;
Fourth, during its domestic process, the U.S. should consider
the information taken into account at the international level,
with emphasis on information that is reviewed, valid and
replicable; and Fifth, the United States should compare the
international decisions to measures that are more or less
stringent, thereby facilitating the identification of control
options that reflect the most reasonable balance of benefits,
risks and cost. And finally, in finding that balance the United
States should consider domestic production, export, and use of
the chemical, and any national and international consequences
that are likely to arise as a result of domestic regulatory
action.
The administration is seeking swift enactment of
implementing legislation for these agreements. All three of
these treaties have entered into force over the course of the
last 9 months. And, as noted earlier, it is imperative that the
U.S. be a party to these agreements at the outset or as early
as possible.
The administration is proud of the leadership role of the
United States on these very important environmental treaties,
all of which illustrate how effectively global action can be
accomplished when nations are driven by common environmental
objectives.
After ratification, we hope to continue to work with
Congress along with industry, environmental organizations and
others, as we implement these agreements.
Thank you for the opportunity to discuss these important
international environmental agreements today. Enacting
legislation this year is an important priority. As we continue
to review this draft, and as the committee continues its
deliberations, we will appreciate the opportunity to work with
the committee and its members on legislative refinements that
would be consistent with the President's agenda and budget.
Again, thank you for the support and leadership, and we
want to assure you that this administration is looking forward
to working with the committee to advance these important
agreements by finalizing the necessary implementation
legislation.
Thank you. And I, too, would be pleased to answer any
questions.
[The prepared statement of Susan B. Hazen follows:]
Prepared Statement of Susan B. Hazen, Principal Deputy Assistant
Administrator, Office of Prevention, Pesticides, and Toxic Substances,
U.S. Environmental Protection Agency
i. introduction
Mr. Chairman and Members of the Committee, thank you for the
invitation to appear before you today to discuss the legislation
necessary to implement three very important international environmental
agreements: the Stockholm Convention on Persistent Organic Pollutants
(POPs), the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (PIC), and the Protocol on Persistent Organic
Pollutants, negotiated under the United Nations Economic Commission for
Europe's Convention on Long Range Transboundary Air Pollution (LRTAP
POPs Protocol).
The United States has been an active player in each of these three
treaties. We have been part of their inspiration, direction, and
negotiation. The Administration now seeks implementing legislation that
would allow the United States to take the final step and join these
three important environmental agreements this year. Towards that end, I
would like to thank Chairman Gillmor and his staff for developing a
draft bill that would allow the United States to join these
international agreements which seek to promote the global reduction, if
not virtual elimination, of some of the world's most persistent and
toxic substances. Recently, at your request, my staff has been
providing technical assistance during the development of this proposal.
I want to thank you for that courtesy and commend your staff for their
professionalism in this process. While the current legislative draft
reflects the elements that this Administration believes are needed to
move forward domestically, and to reaffirm our commitment
internationally to promote environmental health and safety, we look
forward to further refining this draft as it is considered by the
Committee.
The Administration is committed to working closely with all the
members of this Committee to facilitate swift enactment of implementing
legislation that provides appropriate legal authority to implement the
obligations in the three treaties. As President Bush has stated, the
risks from these pollutants are great, and the need for swift action is
clear. Becoming Party to these treaties will help ensure that the
United States retains its current position as an international leader
in the industrial chemical and pesticide arena. Our leadership in these
treaties is essential.
I appreciate this opportunity to discuss this important effort. The
Administration supports a targeted approach to the legislation and
believes that it is imperative that this legislative process moves
forward as quickly as possible. As we have provided technical
assistance to your staff, we have attempted to remain focused on the
fundamental issue: would the draft legislation provide the legal
authority necessary for the United States to implement fully all of the
Toxic Substances Control Act related obligations of the three
agreements, thereby helping to ensure that the United States remains in
the forefront of worldwide efforts to reduce or eliminate production
and use of persistent organic pollutants? We believe that this proposal
would accomplish this objective, and look forward to working with
members of this subcommittee as the process continues.
ii. background
I would like to take a minute to identify what the Administration
sees as the value of these three treaties, and thus the importance of
acting to pass implementing legislation. Each of these treaties
contributes, in its own way, to a healthier global environment and to a
healthier America. The Stockholm Convention, called the POPs
Convention, prohibits or restricts the production, use, or release of
twelve chemicals that are toxic, persist in the environment for long
periods of time, and bioaccumulate as they move up through the food
chain. These substances are also capable of traveling thousands of
miles by wind and water, far from the sources where they are released,
and can cause an array of adverse effects in humans and on the
ecosystem. The reduction or elimination of these POPs sources will have
significant benefit to the United States by reducing exposures that
affect human health and the environment.
The POPs Protocol to the Long Range Transboundary Air Pollution
Convention (the LRTAP POPs Protocol) is similar to the POPs treaty,
except that it covers four additional substances and is regional in
nature. The agreement covers the 55 Member States of the United Nations
Economic Commission for Europe, which includes, among others, the
United States, Canada, Russia, parts of the former Soviet Union, and
Eastern Europe. The Rotterdam PIC Convention was developed to promote
information exchange and informed riskbased decisionmaking in the
global movement of hazardous chemicals and pesticides. The Convention
requires the exchange of certain health and safety information related
to the covered chemicals and pesticides, which empowers governments and
citizens to make their own domestic science and riskbased decisions in
an informed manner. The Convention also ensures that the parties
monitor not only which substances come into their borders, but also
provides a notification mechanism to monitor what goes out of their
borders. This notification mechanism facilitates informed trade in the
PIC listed substances as well as provides an additional opportunity for
the exporting party to comply with the importing decisions of another
party, which is particularly helpful and important to developing
countries that may lack the capacity to enforce their own regulatory
decisions.
iii. the u.s. role as an international leader
I am pleased to have the opportunity to address our domestic and
international activities to effectively manage the currently listed
pesticides and chemicals and to explain the kinds of legislative
provisions that will be necessary to effectively implement these
agreements.
Here in the United States, we have already taken extensive steps to
address risks posed by the substances covered by the global POPs
Convention and the LRTAP POPs Protocol. We take the threats posed by
these pesticides and chemicals to our environment and public health
very seriously. The United States was the first country to begin a
thorough scientific reassessment program for pesticides and, I believe,
is still the only nation that is looking at the cumulative risks posed
by similar groups of pesticides. We started cancelling pesticide
registrations or prohibiting production and use of some of these
substances in the 1960's. Because of these types of actions, the levels
of most of these substances in the United States have stabilized or
declined. Other countries look to the United States to provide strong
leadership to address hazardous substances, including those that are
persistent and may bioaccumulate. EPA is internationally recognized for
its sciencebased risk assessments and regulatory decisionmaking. Our
actions are respected and frequently adopted in other countries across
the globe.
But standalone action by any one country is not enough. We think it
is vitally important, from the outset, that we continue to share our
expertise with the rest of the world and continue our role as a world
leader in decisionmaking related to controlling the production, use,
and release of these types of chemicals. These chemicals continue to
pose real health risks to U.S. citizens and to people around the world
due to the inherent nature of the substances themselves: their
persistence, their toxicity, their bioaccumulation, and their potential
for long range environmental transport. In the United States, these
agreements are of special importance for selected populations and
environments which are particularly impacted by POPs transported by air
and water from outside sources. This is particularly true for those
populations whose diets traditionally rely heavily on fish and
wildlife, such as in Alaska and around the Great Lakes. By joining with
the rest of the world to phase out or reduce these toxic pollutants, we
protect the health and the environment, not only of our fellow
Americans, but of all those who share our planet.
EPA continues to take measures that promote the objectives of all
three of these treaties, including providing technical and financial
assistance to developing countries and countries with economies in
transition to help them comply with their international obligations.
The United States is committed to working globally to provide such
assistance, and has already taken some steps to do so. For example, we
are helping Russia and China identify and develop strategies to
eliminate stockpiles of POPs pesticides and PCBs. We are supporting an
international effort to destroy stockpiles of POPs pesticides in Africa
in an environmentally sound manner. The United States has also provided
its technical expertise to develop tools and guidance to help countries
meet their obligations under the Stockholm Convention.
iv. legislative changes necessary to implement pops, pic, and lrtap
While the United States already has authority to meet most of the
Toxic Substances Control Act (or TSCA)related obligations of the three
treaties, the proposed legislation would allow us to meet all the TSCA
related obligations of the treaties. For the POPs and LRTAP substances,
implementing legislation needs to contain language to prohibit any
manufacturing, use, processing, distribution in commerce for export,
and disposal consistent with the obligations of the treaties. We
believe that this draft bill would enable the United States to comply
with the obligations in the POPs treaties to prohibit or restrict the
production, use, import, export, or release of the substances covered
by TSCA.
To effectively implement the PIC Convention, the Administration
agreed that any legislative language should also track obligations in
the Convention relating to notice of control action, export
notification, export controls and labeling. Again, we believe that this
draft legislation does that by, for example, providing EPA with the
authority to issue notices that would communicate to our own domestic
producers and exporters the importing decisions of other countries with
respect to the PIClisted chemicals and pesticides.
The Administration is fully committed to participate in the
procedures set up for the listing of additional chemicals to the POPs
agreements and to ensure that the robust scientific process to do so
works as intended during the negotiations. The information collection
provisions in this legislation provide the opportunity to help ensure
that the United States is appropriately informed as to the risks,
benefits, production, uses, and other pertinent factors concerning
candidate chemicals when it is participating in negotiations concerning
the possible addition of chemicals. The proposed draft legislation
would enable the United States to join future convention amendments
that are consistent with U.S. law and policy. This is a very important
element of the legislation for the Administration, and we appreciate
the effort that went into its development. Early last year, the
Administration identified six ``guiding principles'' for taking
domestic action on the listing of new chemicals, which we will continue
to take into consideration as your legislative process moves forward.
These principles are:
1) The United States should be able to take domestic regulatory action
on additional chemicals when the U.S. Government is in
agreement with an international decision to list the chemical
under the POPs Treaty;
2) The goal of taking regulatory action is to achieve a high degree of
public health and environmental protection;
3) In determining whether domestic action with respect to a chemical
that has been listed in the Convention is appropriate, the
United States should make an explicit determination as to: (a)
whether the best available scientific information (e.g., data
on persistence, bioaccumulation, toxicity, long range
environmental transport, and the risk profile) supports the
listing, and (b) whether the specific domestic regulatory
measures (prohibitions or restrictions) included in the
international listing are necessary and adequate for the
chemical in its various uses;
4) In determining whether the best available scientific information
supports the international listing, the United States should
consider the information considered in the international
listing process, with emphasis on information that is
peerreviewed, valid in its research design and methods, and
replicable by qualified scientists;
5) In determining whether the domestic regulatory measures are
necessary and adequate, the United States should compare the
international decision to measures that are more and less
stringent, thereby facilitating a riskmanagement decision as to
which measure(s) provide(s) the most reasonable balance of
benefits, risks and costs for specific uses; and
6) In weighing benefits, risks and costs, the United States should
consider domestic production, export and use of the chemical,
and any national and international consequences that are likely
to arise as a result of domestic regulatory action, including
consequences that cannot be quantified and including
consideration of the possible consequences of using likely
substitute chemicals.
The processes set forth in Article 8 of the POPs Convention and the
LRTAP Executive Body Decision 1998/2 for listing future chemicals are
rigorous and sciencebased, and we fully support those processes. We are
confident that they can identify strongest candidates for listing based
on a scientific risk assessment and can efficiently eliminate those
that fail to meet the POPs criteria or for which global action is not
warranted. The Administration is firmly committed to maintaining the
high degree of analytical and scientific rigor in the POPs process that
has led to international recognition of the United States for its
strong scientific risk assessments and regulatory decisionmaking.
v. a call for swift ratification
The Administration is seeking swift enactment of implementing
legislation for these Agreements. All three of these treaties entered
into force over the course of the last nine months. As noted earlier,
it is important that the United States be a party to these Agreements
at the outset or as early as possible to enable the U.S. to play a
strong role from the start in the implementation of these three
treaties. Furthermore, the United States would like to demonstrate its
ongoing commitment to the goals of these important treaties, and, by
our example, encourage other countries to ratify these Conventions.
vi. ratification is in the u.s. interest
The Administration is very proud of the leadership role of the
United States on these very important environmental treaties, which
provide excellent examples of how industry and environmental interests
can work together to address serious environmental issues. These three
agreements illustrate how effectively global action can be accomplished
when nations are driven by common environmental goals. After
ratification, EPA will continue to work with Congress, along with the
industry, environmental organizations, and others as we implement these
agreements. We are committed to work together with our domestic
stakeholders and the international community to address these chemicals
globally. In order to do so, it is necessary for the United States to
be a party. Important decisions will be made early in the process, and
the United States should be there to help shape those decisions, based
on both domestic and international priorities.
vii. conclusion
Thank you for the opportunity to discuss these important
international environmental agreements today. Enacting legislation this
year is an important priority for the Administration, as it is firmly
committed to becoming a party to the global POPs Convention, the PIC
Convention, and the regional LRTAP POPs Protocol. As we continue to
review this draft, and the committee continues its deliberations, we
appreciate the opportunity to continue to work with Chairman Gillmor
and other members on legislative refinements that would be consistent
with the President's agenda and budget. Again, I want to thank you for
your support and leadership and assure you that this Administration is
looking forward to working with the Committee to advance these
important agreements by finalizing the implementing legislation
necessary for the United States to meet our obligations under the
agreements.
I will be pleased to answer any questions.
Mr. Gillmor. Thank you very much.
And we will proceed to our first round of questions.
And if I might direct my questions actually to both of you.
Do you believe that the discussion draft provides the United
States with the authority to implement the convention?
Ms. McMurray. Mr. Chairman, yes we do. I can answer for
both of us, I think.
Mr. Gillmor. Okay. Like my wife, she answers for me all the
time, and better.
Do you believe this discussion draft provides the United
States the authority to take regulatory action when the U.S.
Government is in agreement with an international decision to
list a chemical under the POPs treaty?
Ms. Hazen. Yes, Mr. Chairman, we do.
Mr. Gillmor. And does the discussion draft allow the best
available scientific information to be used in supporting the
listing and to justify the regulation of new chemicals?
Ms. Hazen. Mr. Chairman, the discussion draft requires that
the Administrator use sound and objective scientific practices
and to determine the weight of scientific evidence concerning
such risks or effects based on the best scientific information,
including peer reviewed studies in the rulemaking record.
Mr. Gillmor. Thank you.
Does the discussion draft allow the U.S. to consider the
information that is gathered and evaluated as a part of the
international listing process?
Ms. McMurray. Yes, Mr. Chairman, it does.
Mr. Gillmor. And does the discussion draft allow the United
States to make risk management decisions that provide a
reasonable balance of benefits, risk and cost for the
evaluation of new chemicals?
Ms. Hazen. Mr. Chairman, the draft includes as part of its
rulemaking authority that the Administrator, when issuing
rules, would in fact look to achieve a reasonable balance of
social, environmental and economic costs and benefits. It is
specifically in the language.
Mr. Gillmor. Thank you.
And does the discussion draft allow the United States in
weighing benefits, risks and costs to consider domestic
production, export, and use of the chemical as well as national
and international consequences that will arise as a result of
the regulatory action?
Ms. Hazen. Yes, Mr. Chairman, it does.
Mr. Gillmor. And in light of these answers and also in
light of the testimony which states that the current
legislative draft reflects the element that this administration
believes are needed to move forward domestically, thus allowing
the United States to become a full party to the agreements the
discussion draft contemplates, would you support this draft as
a way of moving the process forward through the House?
Ms. McMurray. Mr. Chairman, while I am unable to express
the administration's support for this legislation or, indeed,
any legislation that has come before either body to this point,
I can say as you heard in my testimony that we are quite
anxious to move this process forward and become party to all
three of these agreements. So if indeed you were to schedule
action on this bill, we would be supportive of that as a way to
move the process forward.
Mr. Gillmor. Thank you.
And let me also ask you whether at this point, and I
presume this will be done at the first round of meetings, but I
just want to clarify this, whether the decision has been made
as to what countries would be on the review panels or how those
countries would be selected? IS that process not yet developed
and is likely to be developed at these meetings?
Ms. McMurray. That is a process that will be engaged in at
the first conference of the parties. And it is our hope that
the United States would have the opportunity to be on that
committee.
Mr. Gillmor. Okay. Thank you.
Gentlelady from California, Ms. Solis for opening
questions.
Ms. Solis. Thank you, Mr. Chairman.
First of all, I would like to ask both of you has the
administration taken a position on endorsing this draft
legislation that has been introduced by Mr. Gillmor or the
Senate legislation, Senate Bill 1486?
Ms. McMurray. Congresswoman Solis, I indicated in my prior
answer that we have, as an administration, not taken a position
on either the Chairman's draft proposal or the bill that was
considered by the Senate Environment and Public Works
Committee.
Ms. Solis. Would the Senate proposed legislation in your
opinion also be ready to be actually implemented? Would it meet
the standards?
Ms. McMurray. We actually gave the Senate committee that
response when they asked. Yes, it enables us to fulfill our
obligations under the treaty.
Ms. Solis. So you have two bills right now that you are
telling me that could possibly move forward, and the
administration has not taken a position on either?
Ms. McMurray. Not on the particular substance of either
bill. But we want to provide enough guidance so that you will
have confidence that we will be able to implement these
treaties. And we believe that both of these bills do that.
Ms. Solis. What is the urgency for having this treaty
implemented in such a shortened period of time when we have had
3 years now that it was officially agreed upon by the
administration; why now?
Ms. McMurray. Well, while this committee has just begun its
activity, there have been a number of other fora where we have
been working with other parts of the Congress to try and get
implementing legislation moving forward.
As you know, there are two other committees in addition to
the Senate Environment Committee and this committee who have
jurisdiction over portions of the subject matter here. The
House Agriculture Committee and the Senate Agriculture
Committee as well.
Ms. Solis. When did you start working with them?
Ms. McMurray. It has been at least a year, I would say.
Ms. Solis. A year? And on the draft language that we have
before us, I understand you provided technical assistance to
Mr. Gillmor. When did you begin in that process to actually
craft the legislation?
Ms. McMurray. Well, I would have to ask the Chairman when
he first put forward this legislation. But if I were to venture
a guess here, I would say it has been a couple of months we
have been working.
Ms. Solis. A couple of months?
Ms. McMurray. Yes.
Ms. Solis. More than two?
Ms. McMurray. It might be slightly more than two, but I do
not think it has been that long.
Ms. Solis. Just another question. I had heard that OMB was
also involved in this process. This legislation was actually
approved by them. I mean, it went all the way up, I guess,
leaving your agency up the chain of command now. Is that true?
Ms. McMurray. Well, Congresswoman, we have a standard
process for reviewing legislation of any subject matter through
the administration. And OMB provides in general a coordinating
function. Especially if agencies disagree on particular issues,
they'll bring all of us together and figure out a way to
develop a comprehensive administrative position, so----
Ms. Solis. So this has had to take a good amount of time if
it went to that level, and obviously there were differing
points of view.
Ms. McMurray. Yes.
Ms. Solis. What I am amazed at is that, and I do not mean
to be rude, but it just sounds to me that the process if we
really want to achieve a bipartisan effort here, that we could
have been involved in some way or at least given knowledge that
this was in the works. I think we all agree that there has to
be a standard, a set standard to help regulate the POPs and
what have you. And I really believe that there are members on
this side of aisle who really want to achieve that. I am just
concerned that we were not allowed to be a part of the process.
And in our conversation last week we spoke also regarding
your input on potential draft legislation that I could share
with you. And I got word from your office late yesterday that
you could not at that time provide me with any assistance for
such a turnaround.
Ms. McMurray. Yes. If I could clarify. First of all, we
would be most willing to provide the same amount of technical
assistance that we provided to the majority staff on this
committee and also to the Environment and Public Works
Committee on both sides of the aisles.
In addition, I can tell you that while we have taken a
preliminary look at other legislation other than what is
offered by the chairman here, we do have a process that
requires clearance by every agency effected by the legislation.
And I would be happy to make sure that that process is
expedited on your behalf.
Ms. Solis. Okay.
I have no further questions at this time.
Mr. Gillmor. Thank you very much.
We have a series of three votes which have been called.
Let us break at this point. It is impossible to estimate on
how long these things take. They are three votes and we are
about 10 minutes into this vote. Probably about 25 minutes when
members would be able to get back.
We stand in recess.
[Brief recess.]
Mr. Gillmor. The committee will come to order.
I might advise you that the 3 votes took longer than we
anticipated because of the process of the first vote. The
voting machine broke down, so they had to reboot it and we had
to do all those votes over again. So that is why it took so
long.
I would like to recognize----
Mr. Otter. Mr. Chairman, is that just today's vote or do we
get to go all the way back to last week?
Mr. Gillmor. I do not know.
I recognize the gentlelady from California.
Ms. Solis. Thank you, Mr. Chairman.
Mr. Chairman, I understand that as we were away voting that
we were notified that the official from the State Department
left without apparently giving us notification. And, as you
know, under House rules each committee shall apply up to 5
minute rule during the questioning of witnesses and hearing
until such time as each member of the subcommittee who desires
has had an opportunity to question a question. And my inquiry
is to how was she able to leave without giving us notification?
Mr. Gillmor. You remember in my opening statement I
mentioned that some of the witnesses had planes to catch and
asked the members be mindful of that in their questioning.
I was called and told that because of this vote she was
going to have to leave. I asked staff to inquire if she would
answer questions in writing, I do not feel like it was
appropriate for us to make her miss her plane after she had
told us in advance she had one.
Plus, we do not have any power to hold a witness here
anyway. They can thumb their nose at us and walk out whenever
they want, once we subpoena, which we have not done.
Ms. Solis. Mr. Chairman, with all due respect, it is a rule
of the committee. And I would just ask that we at least allow
for members who did show up be given the opportunity to ask
questions and submit them in writing.
Mr. Gillmor. Yes, we have already done that. I have already
done that. And the witness has agreed to answer questions----
Ms. Solis. In writing.
Mr. Gillmor. [continuing] that any members might submit.
Let us see if there are further questions of the witness. I
believe we go to Mr. Otter? No questions?
Mr. Otter. I do not have any questions.
Mr. Gillmor. Ms. Capps, gentlelady from California.
Ms. Capps. Thank you.
Well, I did have a question for Ms. McMurray, panel 1. But
I will express it to you, Ms. Hazen, if I may. It has to do
with polybromated diphenyl ethers, PBDEs. And these are
chemicals that are used as flame retardants on plastic. These
chemicals have been shown to disrupt thyroid functions and
cause developmental problems in unborn or fetuses. And in the
State of California, my State, there is a ban for several forms
of PBDEs with a phaseout to occur the year 2008. If PBDEs are
recommended to be added to the treaty, will California law be
allowed to stand no matter what action EPA takes, or could the
California law be preempted under this discussion draft?
Ms. Hazen. Congresswoman, I will take an attempt at
answering that with Claudia not being here.
Ms. Capps. Sure.
Ms. Hazen. As you said, California has a ban that will
phase in up until year 2008. Currently in the U.S., most of the
production and use of PBDEs is in the process of being
regulated. The one manufacturer of most of them has voluntarily
agreed to discontinue its production, and that will be covered
by an action from EPA, a significant new use rule, which would
prohibit further production without prior notification. It
would make sure that future production notifications would have
to come to the agency.
The reason I mention that is because, obviously then there
will be no domestic manufacture, therefore no domestic use in
the U.S. The significant new use rule that I mentioned will
also cover imports. Therefore, the U.S. will not be importing
any of these flame retardants for use in products. So that,
too, is the next stop gap for their use in products in the
United States.
The answer to your question, which gets to States' issues
regarding Federal regulations, is as follows. As you know,
States, the interpretation as I understand it and again I am
perhaps a little over my head here, but States are always able
to regulate more stringently than the Federal Government. In
that case, I do not believe there is an issue.
I would be happy to take this question back, however, and
make sure that the answer I have given you is correct. And if
there is any inaccuracy in my statement, we will get back to
you with that.
Ms. Capps. Well, your statement is, of course, something I
would like to hear.
Ms. Hazen. I understand.
Ms. Capps. Because we are not only talking about domestic
use, but importing and also then that means whether or not this
chemical is not allowed to be imported to our country, whether
or not it is part of the ban, part of the POPs then there would
be a chilling effect. However, on page 60 and I understand you
were just speaking generally, but this is the question that I
have which relates not only to PBDEs, but I used it as an
example, page 60 of the discussion draft, line 20 states which
I think contradicts what you said. And that is what I would
like to see clarified if not today, but you personally. And I
do not want to put you on the spot. But if we could have follow
up in writing.
This is the quote from page 60: ``No State or political
subdivision may establish or continue in effect any requirement
that is applicable to a POPs chemical substance or mixture.''
And then that would follow to me that California law would be
preempted. And that is a great concern. Not just with this
particular chemical, but with any future chemical that might be
proposed as being part of the POPs ban during that time that
this draft is asking us to study further prolonging the time of
use of what a State has considered to be a dangerous substance,
you see, then it really does violate State rights.
What if EPA action is less stringent than the California
law? Would California law or any State law be allowed to stand
under this discussion draft? That is my question. And if you
want to consult with staff, that is fine.
Ms. Hazen. Congresswoman, what I would like to do is take
this back and make sure we get you a response for the record. I
do have a copy here of the relevant provision of TSCA. But
rather than try to read and respond to you at the same time,
let us take this back so that we get you accurate information.
Ms. Capps. Okay. I guess I am just about out of time.
I had another topic, which I will just lay out, but I am
very concerned about this draft. Maybe somebody else will
follow up, which is the precautionary approach that is set
forth in principle 15 of the Rio Declaration of Environment and
Development, the objective of the convention being to protect
human and environment from persistent organic pollutants, but
where does this discussion draft specifically include the
precautionary approach as a principle consideration for
regulation, to reflect the primary goal of the treaty? And that
could be another 5 minutes. But I am very concerned that we do
justice to the previous convention with respect to the value of
human life.
Thank you.
I yield back.
Ms. Hazen. Thank you.
Mr. Gillmor. The Chair would recognize Ms. Solis for
another 5 minutes, second round.
Ms. Solis. Thank you, Mr. Chairman. I probably will not
take all of the five. But I did have a question for Ms.
McMurray, but she has left. But I wanted to ask Ms. Hazen if
she had seen the letter that Mr. Dingell and I had sent the
State Department that at the last meeting we had she was going
to respond to? And in that letter what I wanted to ask is
whether or not the State Department described an extensive
science-based process used to decide whether to regulate a
pollutant according to section 8 of the convention, and you
believe this process allows parties and observers to bring all
appropriate scientific and alternative information necessary to
make a credible listing decision?
Ms. Hazen. Congresswoman Solis, I have seen the response
that the State Department provided. The process laid out in
that particular section of the treaty allows for a fairly
robust opportunity for all countries to bring to the table any
information that they believe is relevant to the decision.
Ms. Solis. So you agree then?
Ms. Hazen. I agree that the treaty provides an opportunity
for any country who is a party to bring any piece of relevant
information to the table, yes.
Ms. Solis. Okay. My next question is the House Republican
bill in my opinion establishes a new regulatory cost benefit
standard with criteria that go beyond existing law and imposes
a new analysis and assessment on EPA. Do you agree with the
U.S. process to decide to regulate, and how should that be
constructed to allow the U.S. to act promptly and efficiently
to regulate, if necessary?
Ms. Hazen. Congresswoman, if I understand your questions
correctly, the domestic statute, TSCA, is a cost benefit
statute, and it does provide for cost benefit analysis as does
FIFRA, for example, for nonfood uses of pesticides.
Ms. Solis. But, ma'am, that is a standard that has not been
effectively use to regulate asbestos.
Ms. Hazen. That standard, the cost benefit standard and the
related least burdensome approach provision of TSCA, were the
two issues that the court brought into question, yes.
Ms. Solis. ``Least burdensome,'' those are critical here.
Ms. Hazen. With respect to the least burdensome approach,
the court specifically referenced that the agency had not taken
that into consideration in the asbestos issue.
Ms. Solis. So in my opinion that standard is not sufficient
then to be used?
Ms. Hazen. The combination of cost-benefit and least
burdensome approach, the combination of the two, provided the
basis for the court's decision in asbestos.
The draft discussion bill, while it envisions discussion
and consideration of a balance of environmental and economic
costs and benefits, does not bring into play the issue of the
least burdensome approach. That is not----
Ms. Solis. But the term using ``balance,'' that does not
show up in the legislation. So, you are making your own
interpretation here. That is not in the law.
Ms. Hazen. I'm sorry, which----
Ms. Solis. You just said ``balanced.''
Ms. Hazen. A reasonable balance of social, environmental
and economic costs I believe is the language in the discussion
bill, is that not correct?
Ms. Solis. I mean in the current print law.
Ms. Hazen. Current?
Ms. Solis. No.
Ms. Hazen. TSCA talks about cost benefit and least
burdensome, you are correct.
Ms. Solis. I have no further questions, Mr. Chair.
Mr. Gillmor. The Chair would recognize the gentleman from
Michigan for 5 minutes.
Mr. Stupak. Thank you, Mr. Chairman.
Ms. Hazen, I appreciate you urging us to move as quickly as
possible, to move this legislation. But this bill has been
sitting--I should say treaty has been sitting for 3 years after
the President announced that the U.S. would become a party to
the Stockholm Convention.
As I mentioned in my opening statement, I have another
concern though, another important agreement does not seems to
be a priority with the administration, and the U.S./Canadian
Transboundary Movement of Hazardous Waste to protect the
citizens from Michigan from unwanted trash and possible
hazardous waste material.
A year ago at a hearing held by this subcommittee I asked
the administration when could we expect legislation to be sent
up to allow this important agreement to be enforced, and they
said shortly. It has been a year ago, nothing has been sent up.
Do you have any idea where that proposed legislation would be?
Ms. Hazen. Congressman, I apologize, but I will have to
take that question for the record. That is not a piece of
legislation that I have been involved in.
Mr. Stupak. Well, can you explain to me what ``shortly''
means then for the EPA? I asked the same question in 1994. In
1994 the EPA said it would be shortly. I asked the same
question in 2003. The EPA said it would be shortly. Here we are
in 2004 and if all these agreements, especially international
agreements are such a priority, I would think after 10 years
shortly would become a reliability and we would get some kind
of direction from the administration.
Ms. Hazen. Congressman, I can certainly understand the
frustration with the amount of time you cite as having waited.
And I will, as I say, go back and get answers for you for the
record.
Mr. Stupak. And would you also ask them then, ask the Bush
administration then if they would take a position on H.R. 411
and H.R. 1730 bipartisan pieces of legislation which again
deals with the movement of Canadian trash in Michigan and Ohio,
and other States, would you ask them to do that for us? That
has been a over on that legislation also?
Ms. Hazen. I will certainly address those.
Mr. Stupak. Okay. Ms. Hazen, Dr. Goldman who was the
assistant administrator of your office for 6 years in the
1990's stated the following about the regulatory standard in
Gillmor, what we have been calling the discussion draft here
this afternoon. And in her prepared testimony she says ``These
proposed standards are actually worse than the provisions of
current law and would render the EPA's efforts completely
ineffective.''
Has the EPA made any effort in the past few months to work
with knowledgeable officials like Dr. Goldman in the public
health community in an effort to forge a broad consensus for
implementing this legislation?
Ms. Hazen. Congressman, the agency has provided technical
assistance for those committees who have come to the agency
asking for technical assistance. We have also made ourselves
available to meet with any groups that have asked to meet with
us. I personally have attended two meetings with members of the
environmental community, we have had meetings with others. If
one were to look at----
Mr. Stupak. I guess I am not looking for groups. I am
looking for legislators. Have you worked with any legislators
other than Mr. Gillmor to get a broad consensus for just
implementing the legislation? If I heard Ms. McMurray testify,
in 6 weeks is sort of a critical time line we had this
legislation that this side of the aisle has not been consulted
with, we have grave concerns. So how do you forge a broad
consensus for implementing legislation? If we are on this fast
track to get this thing done, I would think you would want to
work with everybody up here so we could get it done and get it
passed. And not only our committee, I am sure other committees
want jurisdiction on this legislation, too. So I would think
you would want to do a broad consensus.
So my question was really what groups form that broad
consensus?
Ms. Hazen. In August 2003 and October 2003 we met with full
committee staff of the Energy and Commerce Committee. What we
presented at that time was the SEPW draft that had been worked
on and the provisions of that draft. And at that time expressed
the administration's desire to move as rapidly as possible. At
that time we did invite anyone who was interested in working
with us to provide us their thoughts or ask us for our thoughts
or technical assistance. We made ourselves available to them.
Mr. Stupak. If it was October 2003, why are we waiting then
with like 20 days left in this sessions then to put forth
legislation?
Ms. Hazen. Congressman, all I can say is that we made folks
aware that we were putting POPs forward as a priority, offered
up our technical assistance where we could, and provided it
whenever requested.
Mr. Stupak. It sounds like the Chairman has taken the EPA's
definition of shortly then. Just a joke.
What other outside groups have you worked with on this?
Have you worked with some of the environmental groups, and some
of the business groups to try to develop this legislation? Once
you get the legislation, would you sit down any of the groups;
let me ask it like that. Once you got the Chairman's discussion
draft were you able to sit down with any of the groups to try
to solicit support for implementing legislation?
Ms. Hazen. We have not specifically done so with this
particular draft, but we have sat down with many groups to hear
their thoughts and ideas, their concerns on how this treaty
should be implemented and enforced. In fact, we have met with
folks who were instrumental in the actual development of the
treaty itself.
Mr. Stupak. Yes. But since the legislation you have not met
with any groups yet?
Ms. Hazen. No, we have not.
Mr. Stupak. Okay.
Mr. Rogers [presiding]. Mr. Stupak, your time is up.
Mr. Stupak. Thank you, Mr. Chair.
Mr. Rogers. I'm going to give Ms. Capps of California
another 3 or 4 minutes.
Ms. Capps. I do appreciate your staying for this
opportunity for a second round.
I brought up this topic just at the end of my last 5
minutes with you, and it is to follow on what the ranking
member has brought up, because I think it is so important.
As you know, Ms. Hazen, the substances regulated under the
Persistent Organic Pollutants Treaty are some of the most
dangerous persistent and well traveled substances known to man
with potentially widespread and long term effects on human
health and the environment. Because of this, the very first
thing the treaty says in article 1, and I am quoting now and
the emphasis is on precautionary approach: ``Mindful of the
precautionary approach as set forth in principle 15 of the Rio
Declaration of Environment and Development, the objective of
this Convention is to protect human health and the environment
from persistent organic pollutants.'' Precaution including
transparency and public participation is a guiding approach
throughout this treaty.
Yet I cannot find anything in this draft that resembles
such a precautionary approach. So my question is where does the
discussion draft specifically include the precautionary
approach as a principle consideration for regulation to reflect
the primary goal of the treaty.
Ms. Hazen. Congresswoman, if you are looking for a specific
reference to the word ``precautionary approach,'' they will not
be there. What has been built in, as I have been able to read
through it, is a number of things that I think are important.
In terms of transparency, there are multiple opportunities
during the process envisioned in the bill to engage the public,
the public in its broadest possible sense, in understanding
what is happening in terms of chemicals that are being
considered, chemicals where the U.S. is trying to negotiate or
put forward a position. So there are multiple opportunities to
bring the broad public in in terms of stakeholder involvement.
As I said earlier, I think it is critical to involve our
stakeholders because the U.S. has probably the most robust data
base in the world to bring to the table the information that
will allow us to be--if you put quotes around the word
``precaution'' in the sense that I think what we bring to the
table is the most robust source of information which allows----
Ms. Capps. I do not mean to interrupt you, but I do want to
make this point clear. Then why was not the precautionary
approach, which is so central to the treaty, why is it
deliberately omitted even though you are talking about a lot of
things that surround it. It is a guiding principle of the
treaty. Instead what I hear and the language that I see in this
drift is being substituted by the phrase ``reasonable
balance.'' And that, I think is such a difference from the
treaty to how we are disguising it now. It is as though you
have a scale and on one side you put fetal deformatives, you
put increases in cancer, you put mental retardation. And on the
other side you put business cost. And somewhere we are trying
to draft legislation with all this data, which we do have, but
we are talking about value of life. I am begging for a
affirmation of a precautionary principle which does justice to
this goal. And maybe you can find something else. But to me
this draft does not rise to the level that the treaty asks for.
Ms. Hazen. Congresswoman, I hear exactly what you are
saying. I do not think you will find the term precautionary
approach in any of the various bills that have been put
forward. What I can say, and I----
Ms. Capps. Can you tell me why?
Ms. Hazen. Let me----
Ms. Capps. Okay. You are going to tell me why? Go ahead.
Ms. Hazen. Well, I am going to explain at least my
perception of it.
Ms. Capps. Good.
Ms. Hazen. I think to get specific answers probably we need
to discuss the issue with the drafters themselves.
But I think the term ``reasonable balance'' of social,
environmental and economic costs, and I understand your concern
with the balance issue; my understanding of the ``social and
environmental'' cost component of that would certainly bring in
this concept of precaution. As I say, it is not a term of art
that has been any of the bills that have been drafted. But I
think the consideration of social costs, the very issues that
you raise and they are obviously of concern, have the ability
to be brought in here and be part of the equation.
Ms. Capps. Right.
Well, Mr. Chairman, I know I have used my time. But I just
want to go on record as saying I think it is quite remarkable
that the language that is so prominent in the treaty of
precautionary approach is absolutely missing from any of the
bills that have to do with its ratification.
Mr. Rogers. The gentlelady's time is up.
We do have another panel of eight folks. I thank the first
panel, Ms. Hazen, and you can excused. And we would invite the
second panel to come forward.
Ms. Hazen. Thank you.
Mr. Rogers. We have: Michael P. Walls the Senior Counsel of
the American Chemistry Council; Steven Goldberg, CropLife
America; Jim Roewer, Executive Director Utility Solid Waste
Activities Group; Mr. Scott Slesinger, Vice President,
Governmental Affairs, Environmental Technology Council; Brooks
P. Yeager, the Vice President of Global Threats World Wildlife
Fund; Dr. Lynn Goldman, the Professor of the Environmental
Health Sciences, Bloomberg School of Public Health, Johns
Hopkins University; Ms. Lisa Heinzerling, Professor of Law,
Georgetown University Law Center, and; Mr. Glenn Wiser, Senior
Attorney and Intern Coordinator for the Center for
International and Environmental Law.
I would say up front that your entire statements if you
want to abbreviate them, will be submitted for the record.
We would like you to stay within the 5 minute time limit.
We will go ahead and start with Mr. Walls.
STATEMENTS OF MICHAEL P. WALLS, SENIOR COUNSEL, THE AMERICAN
CHEMISTRY COUNCIL; STEVEN GOLDBERG, CROPLIFE AMERICA; LYNN
GOLDMAN, PROFESSOR OF THE ENVIRONMENTAL HEALTH SCIENCES,
BLOOMBERG SCHOOL OF PUBLIC HEALTH, JOHNS HOPKINS UNIVERSITY;
BROOKS P. YEAGER, VICE PRESIDENT OF GLOBAL THREATS WORLD
WILDLIFE FUND; LISA HEINZERLING, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER; GLENN M. WISER, SENIOR ATTORNEY AND
INTERN COORDINATOR, CENTER OF INTERNATIONAL AND ENVIRONMENTAL
LAW; SCOTT SLESINGER, VICE PRESIDENT, GOVERNMENTAL AFFAIRS,
ENVIRONMENTAL TECHNOLOGY COUNCIL; AND JAMES R. ROEWER,
EXECUTIVE DIRECTOR UTILITY SOLID WASTE ACTIVITIES GROUP
Mr. Walls. Thank you, Mr. Chairman. Good afternoon.
I am Michael Walls, I am Senior Counsel at the American
Chemistry Council. And we appreciate the opportunity to be here
today to reiterate the chemical industry's support, not only
for the treaties that are the subject of this hearing, but also
our support for the draft legislation that has been put forward
for consideration. In our view these agreements are an
important step in achieving appropriate harmonized controls on
the small side of chemicals that pose global and environmental
risks.
We also believe that the draft amendment developed by the
subcommittee is an important step in assuring that the United
States will be able to continue its leadership role in the
international implementation of these agreements. And we urge
the subcommittee to act on that legislation as soon as
possible.
Now, we believe that the draft legislation provides all the
statutory authority necessary for the United States to fulfill
its obligations under the agreements. TSCA already provides EPA
with consideration authority to regulate in a manner consistent
with the convention. There are some modest amendments that are
absolutely required as part of the legal obligations that the
U.S. would exceed to under these agreements. But let me focus
specifically on the question of additions to the list of
chemicals, the list of POPs in particular.
Strictly speaking, the POPs agreements do not obligate the
parties to establish a domestic mechanism to address the treaty
amendment. In our view, however, it would it be prudent for the
Congress to consider such an adding mechanism as part of the
implementing legislation.
Now under the treaty process a chemical is nominated as a
POPs. That nomination is considered by a review committee along
with information on the hazards, uses, exposures, risks and
social economic consideration attendant that listing, and a
decision is made by the parties to the agreement. Now, there
are two major aspects to that additions process that merit
comment with respect to U.S. implementation.
First, ACC believes it is important that the United States
have an opportunity to take an independent look at a proposed
listing before regulating domestically. There may be any number
of reasons why; a listing agreed under the treaties does not
warrant U.S. action or regulatory response.
Second, the POPs agreements themselves adopt a process for
additions that are grounded in science, risk and cost benefit
considerations. The governments that negotiated the POPs
agreements did not say that hazard alone was the basis for
regulation. They explicitly called for the consideration of
scientific evidence, risk analyses and cost benefit
considerations to inform their decisions.
Annex D and E to the Stockholm Convention, for example,
established the information requirements for nominated
chemicals. The purpose of this information is to establish that
as a result of its long range transport a particular substance
is likely to cause significant health and environmental impacts
such that action under these agreements is warranted.
The review committees are consider, as I said, hazard
information, production use and exposure information, data on
environmental fate and transport, risk assessments and
evaluations, even those conducted at the national and
international level.
Annex F to the Stockholm Convention goes even further and
says that the parties will consider a series of cost
considerations in considering a new listings. These include the
cost of possible control measures in meeting the risk reduction
goals, the cost of alternative products and processes, the
positive or negative impact on society, the control measures
and even the costs of waste and disposal implications for those
POPs.
In short, the agreements adopt a risk based science
justified approach to listing new substances supported by cost
benefit information. That international process is intended to
achieve a decision that balances environmental health, social
and economic impacts. The process adopted in the agreements is
exactly the same process adopted in the draft legislation that
has been put before the subcommittee.
Decisions under the Stockholm Convention, as various
members had mentioned, are to be taken in a precautionary
manner. But even that precautionary approach referred to in the
convention anticipates a similar balancing of social, economic,
environmental and health considerations.
In short, Mr. Chairman, this approach is consistent not
only with the agreements but also with longstanding U.S. law
and practice. It allows for an independent U.S. judgment on
proposed additions and provides a basis for risk-based
regulatory decisions.
Mr. Chairman, I will conclude my remarks there and will be
happy to answer any questions later.
Thank you.
[The prepared statement of Michael P. Walls follows:]
Prepared Statement of Michael P. Walls, American Chemistry Council
i. introduction
The American Chemistry Council (ACC) has been a consistent
supporter of the three international agreements that are the subject of
this hearing: the Stockholm Convention on Persistent Organic Pollutants
(POPs), the U.N. Economic Commission for Europe's POPs Protocol to the
Convention on Long-Range Transboundary Air Pollution (LRTAP POPs
Protocol) and the Rotterdam Convention on Prior Informed Consent (PIC).
ACC and its members believe that the Subcommittee's draft amendment to
the Toxic Substances Control Act (TSCA) represents an important step
forward in assuring that the United States can continue its
international leadership role under these agreements. We urge the
Subcommittee to act on the draft legislation as soon as possible.
ACC is the national trade association whose member companies
represent more than 90 percent of the productive capacity for basic
industrial chemicals in the United States. ACC members represent an
industry on the cutting-edge of technological innovation and progress,
whose products provide significant benefits to every sector of the
global economy. The chemical industry has been engaged in the
international discussions on POPs and PIC for many years. The three
agreements currently under consideration are an important step in
achieving appropriate, harmonized controls on the small set of
chemicals that pose potential global health and environmental risks.
The chemical industry's support for the agreements and their
reasonable implementation into U.S. law is based on some fundamental
considerations.
The industry's commitment to product stewardship, including the goal
of preventing health and environmental damage in the
manufacture and use of chemical products. Our industry's
product stewardship commitment is an integral part of our
Responsible Care ' program, which is now being
implemented by the chemical industry in more than 42 countries.
The agreements adopt processes for additions to the list of covered
chemicals that are grounded in science, risk, and cost-benefit
considerations. These are approaches that are entirely
consistent with long-standing U.S. law and practice, and that
will lead to appropriate global controls on priority chemicals.
The participation of the United States is essential in assuring the
effective and efficient implementation of the agreements at the
international level.
ii. the chemical industry supports the agreements and their reasonable
implementation into u.s. law.
The U.S. chemical industry's work on the POPs issue began shortly
after the Rio Summit on Environment and Development, in 1992. We worked
with the Intergovernmental Forum on Chemical Safety (IFCS) in its
effort to map the best approaches to dealing with POPs, particularly in
discussions on criteria for identifying potential POPs substances and
the decision-making process on those substances. The industry was a
visible and positive contributor to the negotiations on the LRTAP POPs
Protocol and the Stockholm Convention. Similarly, the industry worked
closely with the U.N. Environment Programme to develop and implement
the international program for government information exchange that
ultimately led to the adoption of the Rotterdam PIC Convention.
As the Subcommittee is aware, the LRTAP POPs Protocol, the
Stockholm Convention and the PIC Convention are all in force. The first
meeting of the Parties under the Rotterdam Convention will be held in
September 2004, the first meeting of the Parties under the Stockholm
Convention is scheduled for May 2005, and the first formal meeting of
the Parties to the POPs Protocol will be held in December 2005. At
these meetings, decisions critical to the future implementation of the
agreements will be taken. For example, the Stockholm Parties will
consider the rules of procedure for the review committees that will
consider candidate POPs substances. Parties to the LRTAP POPs Protocol
will make initial decisions concerning additional chemicals. The
ability of the United States to lead and appropriately influence the
decisions that have long-term consequences for the operation of the
agreements is significantly reduced when our government is not a Party.
The United States cannot be a full Party, however, until the Senate
provides advice and consent to ratification. Although there is
precedent for Senate action on a treaty before the Congress has
addressed the necessary implementing legislation, the clear preference
is that the legislation comes before the treaty vote. In the case of
the POPs, LRTAP POPs and PIC agreements, amendments to the Toxic
Substances Control Act (TSCA) and the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) are necessary in order to assure that the
United States can meet its obligations. In ACC's view, the TSCA
amendment outlined in Mr. Gillmor's draft legislation ensures full and
effective implementation of all U.S. obligations under the treaties.
iii. the subcommittee's draft addresses all obligations of the united
states under the agreements.
Mr. Gillmor's draft implementing legislation addresses all of the
necessary changes to TSCA required to ensure that the United States can
meet its obligations under the treaties. The modest statutory changes
required include:
Extending EPA authority to prohibit export of current POPs substances
for purposes prohibited by the Convention.
Imposing certification requirements for exports to countries not
party to the POPs agreements.
Codifying the treaty exemptions in TSCA.
Integrating the Rotterdam PIC export notification provisions into
existing TSCA export notification requirements.
In ACC's view, there is no real disagreement that these elements
must be addressed in implementing legislation.
Although the POPs agreements do not obligate the Parties to
establish mechanisms to address treaty amendments, the treaties
contemplate the possibility that chemicals will be added to the list of
covered substances in the future. ACC believes it is prudent to
recognize the possibility of amendments in the implementing
legislation, and establish a domestic process and EPA authority to
prohibit or restrict the manufacture, use, or export of POPs substances
listed by future decisions under the treaties.
Under the Stockholm Convention, for example, a new chemical will be
added to the list through the following process:
1. A Party nominates a chemical for consideration as a POP substance.
2. The treaty Secretariat reviews the nomination to ensure that it
meets the minimum criteria established in Annex D (e.g., that
the nomination includes information on the persistent,
bioaccumulative, and toxic properties of the substances, and
the propensity for long-range transport). If the nomination
meets the criteria, it is forwarded to the POPs Review
Committee (POPRC).
3. The POPRC reviews the nomination, and if further consideration is
warranted, the Committee requests information necessary to
prepare a Risk Profile on the substance pursuant to Annex E.
4. The POPRC reviews the Risk Profile. If the POPRC decides that
further consideration is warranted because long-range transport
of the substance will lead to significant health or
environmental impacts such that global action is necessary, the
Committee requests information to prepare a risk management
evaluation, including information on the socio-economic benefit
and alternatives to the nominated substance, pursuant to Annex
F.
5. On the basis of the risk management evaluation, the POPRC makes a
recommendation to the Conference of the Parties (COP) whether
the chemical should be listed in Annex A, B or C of the treaty.
Mr. Gillmor's draft legislation requires EPA to provide public
notice and an opportunity to comment at each decision point in this
process--upon the nomination of a substance, the preparation of the
risk profile and risk management evaluation, and the recommendation to
the COP. The process will provide ample public notice of activities
under the treaties, and it will assure that U.S. representatives in the
POPRC and the COP have all relevant information before them at each
stage of the international process.
It is important to note that the international agreements adopt a
flexible approach to risk management measures. For example, elimination
of a substance is not a legal requirement for a POP substance, but
constitutes one option to manage the risks of a POPs release. As the
treaty provisions and annexes make clear, risk and cost/benefit
considerations are not trumped by the need for precaution. Rather,
those considerations give substance to the precautionary decisions made
through the treaty process.
Mr. Gillmor's draft addresses the issue of future amendments by
establishing a domestic regulatory process for new POPs substances that
mirrors the procedural and substantive decisions under the Stockholm
Convention and the LRTAP POPs Protocol. When EPA regulates newly listed
substances, it is to regulate ``to the extent necessary to protect
human health and the environment in a manner that achieves a reasonable
balance of social, environmental, and economic costs and benefits.'' In
reaching its regulatory decision, EPA is to consider:
The effects and magnitude of the effects of the substance on health
or the environment.
The benefits of the substance and the availability, risks and
economic consequences of alternatives to the substance.
The economic consequences of the proposed risk management
requirement.
The domestic and international consequences likely to arise as a
result of the domestic regulatory action.
Additional information in the domestic or international record.
The decision-making standard and the first three required elements
in EPA's regulatory considerations provide the necessary domestic
counterpart to the process outlined in the POPs agreements. The
treaties ensure that relevant social, economic, environmental and
health information is considered in reaching a decision to list a new
chemical; the draft legislation ensures that the same information is
considered in reaching a domestic decision. Between the notice and
comment requirements and the international process, EPA will have a
robust record to consider in reaching a domestic regulatory decision--
and a sufficient opportunity to ensure that the record supports its
subsequent decisions. The bottom line is that a domestic regulatory
decision is necessary to implement any new treaty obligations for added
chemicals, particularly to outline permitted uses or exemptions.
The international agreements adopt a risk/benefit approach in
implementing appropriate regulatory controls on listed chemicals, and
in considering chemicals nominated as potential POPs. The agreements
rely on technical and economic considerations to ensure that priority
pollutants are targeted and meaningful control actions taken on a
global basis.
Mr. Gillmor's draft legislation does no less, and provides the
means by which the United States can address future amendments to the
treaties. ACC and its members believe it is critical to assure that
science and risk considerations inform decisions. The risk-based,
science-justified standard adopted in the draft legislation is
consistent with the Safe Drinking Water Act, the report of the
President's Commission on Risk Assessment and Risk Management, and the
efforts of both the Clinton and Bush Administrations (contained in
Executive Order 12866, for example) to support the use of analytical
tools such as risk assessment and cost/benefit analysis.
Section 6 of TSCA already provides EPA the necessary authority to
prohibit or restrict the manufacture, processing, use, distribution or
disposal of a chemical substance. Due to the special global
considerations that apply to substances nominated as POPs, the chemical
industry has been willing to consider an appropriately narrow
modification to the approach used in TSCA Section 6. For example, the
draft legislation imposes no requirement on EPA to demonstrate that a
substance poses an ``unreasonable risk'' to health or the environment,
does not require EPA to demonstrate that its preferred risk management
approach is the ``least burdensome regulatory alternative,'' and
imposes none of the procedural elements of Section 6, such as the
informal hearings required for proposals under that section.
The regulatory authority established in Mr. Gillmor's draft is
narrowly drawn for the purpose of implementing U.S. obligations under
the Stockholm Convention and LRTAP POPs Protocol. Even so, the
authority to prohibit or restrict the manufacture, processing, use,
distribution or disposal of a substance is very broad. In ACC's view,
that broad grant of authority must be exercised very carefully--and the
careful exercise of that authority warrants EPA consideration of
scientific evidence, risk considerations and cost/benefit analyses.
Notably, Mr. Gillmor's draft does not prevent EPA from regulating
POPs substances under its existing statutory authority, including TSCA.
The United States regulated the existing POPs long before the
international agreements were drafted, employing a regulatory process
that considered scientific evidence, risks to health and the
environment, and socio-economic consequences. The domestic POPs process
established in the draft simply adapts existing requirements in a
manner that ensures the United States can meets its international
obligations.
Mr. Gillmor's draft relies on existing provisions of TSCA to
complement the treaty-specific provisions. TSCA Section 19 is expanded
to ensure that all persons have the right to seek review of EPA's
decisions on treaty-related matters. EPA's enforcement and seizure
authority under TSCA Sections 11, 15 and 17 are extended to include
possible violations of the POPs and PIC agreements. The export
notification requirements of TSCA Section 12 are amended to include
export notices required under the PIC Convention, and where
appropriate, integrated to ensure that export notices to importing
countries have their intended effect.
In ACC's view, Mr. Gillmor's draft appropriately establishes a
requirement that the Executive Branch consult with Congress as
amendments to the treaty obligations are considered. This provision
constitutes no restriction on the President's power to conduct foreign
policy, and ensures that Congress is made aware of significant
developments in the future implementation of the agreements.
iv. conclusion
The American Chemistry Council believes that the Stockholm
Convention, LRTAP Protocol, and Rotterdam Convention are significant
steps in securing international action on chemicals that pose priority
global risks. The agreements establish a harmonized approach for action
on listed chemicals, and should produce meaningful improvements in
public health and environmental protection. The United States should
become a Party to the agreements as soon as possible.
The draft legislation before the Subcommittee fully implements U.S.
obligations under the three agreements into TSCA. The draft complements
EPA's existing regulatory authority, provides proper public notice and
an opportunity to comment at all stages of the international process,
and ensures that the United States can cooperate with the international
community in addressing global risks.
ACC strongly supports the draft legislation. We urge the
Subcommittee to take quick action to ensure that the United States can
become a Party to the agreements.
Mr. Gillmor. Thank you very much, Mr. Walls.
And we will go to Mr. Goldberg.
STATEMENT OF STEVEN GOLDBERG
Mr. Goldberg. Thank you, Mr. Chairman, members of the
subcommittee. Again, I am Steve Goldberg. I am Vice President,
Associate General Counsel for Product and Trade Regulation at
BASF Corporation. And I am here today representing CropLife
America.
CropLife America is the trade association representing
developers, manufacturers, formulators and distributors of
plant science solutions for agriculture and pest management in
the United States. Our members companies develop, produce,
distribute and sell virtually all of the crop protection and
biotechnology products used by American farmers.
CropLife America and its members support the POPs and PIC
international agreements. Our member companies are committed to
the spirit and letter of those agreements and welcome the
opportunity to make recommendations about their integration
into U.S. law. The United States has the strongest and most
emulated pesticide regulatory system in the world through the
Federal Insecticide, Fungicide and Rodenticide Act, FIFRA, and
the Food Quality Protection Act Congress has provided for an
increasingly comprehensive pesticide regulatory system as the
basis for EPA pesticide decisions.
For example, FIFRA's strict provisions for bringing
pesticides to market require registrants to perform up to 120
separate scientific safety tests to ensure that a product when
used properly does not present health or environmental
concerns.
FQPA and the recently enacted Pesticide Registration
Improvement Act are designed to ensure that EPA in fact reviews
new and old pesticides to ensure that they meet the rigorous
scientific standards that EPA imposes.
We commend subcommittee Chair Gillmor and the entire
Committee on Energy and Commerce for providing leadership on
this complex issue. And we support the discussion draft bill as
a positive step toward implementing the POP and PIC agreements.
At the same time, however, we believe there are some
provisions that blur the jurisdictional lines between TSCA and
FIFRA. We believe that FIFRA provides the necessary statutory
framework to implement the conventions without adding pesticide
provisions to TSCA. We believe, in fact, that is the
subcommittee's intent to maintain that jurisdictional split,
and we look forward to working with the committee to ensure
that this separation is clear.
FIFRA with its protective health and safety provisions
should be the basis for U.S. pesticide provisions under
implementing legislation for POPs and PIC. At the same time we
support the provisions in this proposal that provide notice and
comment after each step in the international decisionmaking
process regarding proposals for listing additional chemicals.
Consultation with stakeholders and soliciting broad
stakeholder input will ensure full consideration of potential
impacts of the proposed listing and provide broad input into
EPA decisionmaking.
Ultimately the POPs Convention recognizes that beneficial
uses of POPs chemical still exist. For example, with regard to
developing countries. Those are reflected in specific
exemptions and annexes to both POPs and PIC agreements. Thus,
with regard to domestic use exemptions, any change should be
effectuated through FIFRA section 6 process.
The draft legislation implements these provisions where the
POPs treaty had called for a reasonable evaluation of risks,
including uses and benefits of the chemicals listed. Thus, we
support the provisions of this bill that ensure that the U.S.
Government will use and consider the best scientific
information available.
Our industry is concerned with the timing of passage of
legislation implementing the POPs and PIC treaties. Expeditious
U.S. ratification and implementation of these treaties is
vital. Prior witnesses have talked about the various meetings
upcoming. And all of these meetings will impact the U.S.
including U.S. business. And it is imperative that the U.S.
have a seat at the table. The U.S. cannot participate in a
meaningful way unless ratification is complete and implementing
legislation is signed into law before the end of this
legislative session.
In conclusion, we support this legislation with
clarifications that FIFRA remains the sole statute under which
crop protection products are regulated. We urge the committee
and Congress to enable the U.S. to have an active presence
before the international bodies making important decisions.
This can only be accomplished by passing implementing
legislation before the close of this session.
We thank you for the opportunity to share our views with
the committee, and we look forward to working the Chairman and
members to ensure that POPs and PIC are properly implemented to
meet the global health and environmental goals set forth in
this agreement.
And we will take questions when appropriate.
[The prepared statement of Steven Goldberg follows:]
Prepared Statement of Steven Goldberg on Behalf of CropLife America
introduction
Mr. Chairman and Members of the Subcommittee: I am Steven Goldberg,
counsel to BASF Corporation and here today representing CropLife
America. CropLife America is the national trade association
representing the developers, manufacturers, formulators and
distributors of plant science solutions for agriculture and pest
management in the United States. Our member companies develop, produce,
sell and distribute virtually all the crop protection and biotechnology
products used by American farmers. Our mission is to foster the
interests of the general public and CropLife member companies by
promoting innovation and the environmentally sound discovery,
manufacture, distribution and use of crop protection and production
technologies for safe, high quality, affordable, abundant food, fiber
and other crops.
We commend Subcommittee Chairman Gillmor and the entire Committee
on Energy and Commerce for providing leadership on this complex issue.
I appreciate the opportunity to testify before you this morning on the
legislative proposal for implementing the Stockholm Convention on POPs
and the Long-Range Transboundary Air Pollution (LRTAP) Protocol on
POPs, as well as the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (PIC).
CropLife America supports the POPs and PIC international
environmental agreements. The crop protection industry acknowledges its
role and responsibility in protecting human health and the environment
in the manufacture, distribution and use of pesticides. Our member
companies are committed to the spirit and letter of these agreements,
and we welcome the opportunity to make recommendations about their
integration into U.S. law. We also recognize the importance of
including a process in the legislation to address U.S. decisionmaking
on pesticides proposed for future inclusion in the international POPs
listing.
It may seem obvious, but our industry's products provide many
benefits to people and the environment. Our products have an enormous
impact on the availability of abundant and affordable food and fiber
while also protecting people, animals, and our homes and businesses
from disease-carrying pests. Pesticides control outbreaks of crop-
damaging fungus, insect infestation and noxious weeds to enhance U.S.
food and fiber production. Pesticides are also used to combat damaging
and health-threatening pests and insects. Pesticides control and
eliminate vector borne illness caused by rats, mosquitoes (West Nile
virus and other encephalitis) and ticks (lyme disease), among others.
They combat cockroaches and mold/mildew in housing, restrooms,
cafeterias and elsewhere, reducing known allergens causing asthma and
other disease. Other insects and plant pests, such as poison ivy, fire
ants and spiders are controlled effectively by pesticides.
Using a sustainable approach, pesticides also contribute to
producing an abundant food supply and combating world hunger and
malnutrition. Sustainability using high-yield conservation helps meet
growing demand for food, animal feed, timber and paper while protecting
wildlife habitat and wild species from expansion of cropland
production. Two Nobel Peace Prize laureates and the co-founder of
Greenpeace have commented favorably on the relationship between high-
yield agriculture and conservation. ``Growing more crops and trees per
acre leaves more land for nature,'' according to Nobel Peace Prize
winner Norman Borlaug. Former U.S. Senator George McGovern agrees
saying, ``Modern, high-yield farming has been a significant
environmental and humanitarian success . . .'' And Patrick Moore, co-
founder of Greenpeace, has said that ``high-yield agriculture--is a
solution.'' As you move forward with the implementing legislation, we
urge you to keep these positive contributions in mind.
We believe the United States has the strongest and most emulated
pesticide regulatory system in the world. Congress saw the need for a
separate statute regulating pesticides in order to provide for
extensive health and safety testing when it passed the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) in 1947. Through
subsequent major revisions to FIFRA in 1972, 1975, 1978 and 1988, and
the passage of the Food Quality and Protection Act (1996), Congress has
provided for an increasingly comprehensive pesticide regulatory system
as the basis for EPA pesticide decisions.
For example, under FIFRA's strict provisions the process of
bringing pesticides to market by securing an EPA registration is
complex and demanding, based on strong scientific principles and
undertaken according to stringent government review and regulation. EPA
requires up to 120 separate scientific safety tests to ensure that a
product, when used properly, does not present health or environmental
concerns. On average, only one in 20,000 chemicals makes it from the
chemist's laboratory to the farmer's field. Pesticide development,
testing and EPA approval takes eight to 10 years and costs
manufacturers $75 million to $100 million for each product.
Given Congress' specific and recurrent decisions on pesticide law
over the years, we believe FIFRA provides the necessary statutory
framework to implement the conventions without adding pesticide
provisions to the Toxic Substances Control Act. We believe it is this
Subcommittee's intent to maintain the existing jurisdictional split
between FIFRA and TSCA, and we look forward to working with the
Committee to ensure this separation continues.
CropLife America supports the sovereign right of individual
countries to decide which pesticides they will permit to be used
domestically and allow to be brought into their country. Importantly,
the POPs and PIC Conventions recognize this and include provisions
providing for each nation's right to implement the agreements within
their domestic regulatory framework. FIFRA, with its protective health
and safety provisions, should be the basis for U.S. pesticide decisions
under implementing legislation for POPs and PIC. Specifically, our
industry urges that workable implementation legislation recognize the
existing risk-benefit standards of FIFRA. The United States may become
party to other international agreements, and POPs and PIC implementing
legislation may serve as a precedent for the future. Health and
environmental protections afforded by FIFRA's stringent scientific
standards and U.S. law should be upheld when implementing such
agreements.
EPA must play an active role in upholding the scientific integrity
of the listing criteria and procedures in the POPs and PIC
international agreements. We urge that implementing legislation not
enable other countries to use these agreements to adversely impact the
availability of U.S. registered pesticides that meet FIFRA standards
used for agriculture, public health protection and other purposes. The
agreements should not become vehicles to impose artificial barriers to
trade, impose a competitive disadvantage on U.S. growers or adversely
impact public health. We strongly support FIFRA as the basis for
pesticide decisions by the U.S. government since it provides rigorous
protection for human health and the environment.
We believe that the expedient U.S. ratification and implementation
of these treaties is vital to protect our country's interests. There
are several international meetings occurring in the near term where it
will be important to have U.S. representation present in an active
role: the first meeting of the Conference of the Parties to the
Rotterdam Convention will be held in September, 2004; LRTAP POPs
Protocol countries will be meeting in December 2004 regarding potential
additions of eight chemicals; and in May 2005 the POPs Review Committee
will meet to organize and complete guidance and requirement principles
for specific industry sectors on management of POPs byproducts. All of
these meetings will impact U.S. businesses and markets. It is
imperative that the U.S. have a seat at the table and a voice in making
these important decisions. The U.S. will be excluded from these
meetings unless implementing legislation and ratification of the
treaties is signed into law before the end of this legislative session.
lrtap pops protocol and stockholm pops convention
CropLife America actively supported the inter-governmental
negotiations that led to the U.S. signing of both the Convention on
Long-Range Transboundary Air Pollution on Persistent Organic Pollutants
and Stockholm POPs Convention. Our support of both agreements is based
on established policies and procedures in the POPs agreements for:
1. Identifying new POPs chemicals within a transparent, science-based,
risk/benefit assessment process. Final determination of the
POPs status for a pesticide is based on a consideration of
socio-economic benefits and risks.
2. Recognizing the sovereignty of each nation to undertake mitigation
requirements for POPs or to ``opt-in'' or ``opt-out'' of the
international POPs listing based on their domestic risk
management conclusions.
3. Contemplating the process for developing national regulatory
programs for countries that do not have a regulatory framework
in place, while recognizing the sovereignty of existing
regulatory programs.
Our industry believes that if a pesticide use is contemplated for
international POPS listing, then any alternatives--if they exist--
synthetic pesticide or otherwise, should be subject to the same risk-
benefit analysis and process to ensure that appropriate alternatives
exist.
We agree with the findings of the Conventions regarding POPs
pesticides, and recognize that beneficial uses still exist, for example
in developing countries, as reflected in the specific exemptions in
annexes of both agreements.
Companies represented by CropLife International, our industry's
global association, have been working with the United Nations Food and
Agriculture Organization on the safe collection and disposal of
obsolete crop protection product stocks in Africa, Asia and Latin
America. Through partnering and cost-share arrangements with donor
agencies, governments and other stakeholders, this effort has resulted
in the disposal of over 3,000 tons of obsolete pesticide stocks,
including 800 tons of POPs pesticides. In 2003 alone, 1500 tons of
obsolete pesticides were incinerated in Ethiopia and approximately 307
tons were successfully retrieved from Senegal. Our commitment and work
on such disposal projects will continue.
rotterdam convention on prior informed consent
CropLife America supports the Rotterdam Convention on Prior
Informed Consent. The PIC Convention is first and foremost an
information exchange mechanism to assist decision-making in developing
countries. It makes an important contribution to developing countries'
ability to make informed judgments in their national interest.
Furthermore, PIC affirms the right of each government to make
regulatory decisions that take into account the benefits of product use
to agriculture and the public good. We are pleased with the balanced
distribution of obligations between importing and exporting countries.
The obligations in PIC are consistent with our industry's product
stewardship efforts to ensure the safe use of our products.
Our industry has actively supported the voluntary PIC procedure
first established in the late 1980's as part of the FAO Code of
Conduct, and we participated as a non-governmental organization in the
intergovernmental negotiations that led to the current Convention. We
look forward to continuing this tradition of cooperation with the
Committee. In particular, we support the provisions in this legislative
proposal that direct the Administration to provide notice and comment
after each step in the international decision-making process regarding
proposals for listing additional chemicals. Consulting with
stakeholders and soliciting broad stakeholder input will ensure full
consideration of potential impacts of a proposed listing and provide
broad input into EPA decision-making. It is important that these
provisions remain through any further alterations to the bill
recommendations for pops and pic implementing legislation
Our industry looks forward to the opportunity to fully support
implementing legislation to accompany the POPs and PIC agreements. We
are committed to work with this Subcommittee to ensure that these
agreements are fully implemented, without unintended consequences, and
offer the following recommendations:
EPA
We support EPA as the pre-eminent pesticide regulatory agency that
recognizes the risks of pesticides and the beneficial role
pesticides play in protecting human health and the environment
and providing for a safe and abundant food supply. FIFRA is the
only appropriate statute through which U.S. decisions on POPs
and PIC pesticides should be made.
With regards to modifying existing domestic use exemptions for banned
pesticides, any change must be effectuated through the existing
FIFRA Section 6 process.
summary
Our industry is committed to the improvement and building of
regulatory capacity, especially in the developing world. We have been
active participants in the OECD and NAFTA international forums to
harmonize pesticide registration processes for the past 10 years. We
are also committed to a transparent, science-based process for
implementing the Conventions and we believe that current statutory
framework under FIFRA is ample, with appropriate adjustments, to
successfully implement U.S. industry's obligations.
This hearing is an important step towards U.S. participation in
these treaties. This is a complicated issue, and I commend the Chairman
and the Subcommittee for the progress that has been made towards
crafting implementing legislation.
Thank you again for the opportunity to share our views with the
Committee. We look forward to working with the Chairman and other
Committee members to ensure that POPs and PIC are properly implemented
to meet the global human health and environmental goals set forth in
the three international agreements.
Mr. Gillmor. Thank you very much, Mr. Goldberg.
We will now go to Dr. Lynn Goldman of the Bloomberg School
of Public Health at Johns Hopkins University.
STATEMENT OF LYNN R. GOLDMAN
Ms. Goldman. Mr. Chairman and members of the subcommittee,
it is an honor to testify before you today on draft
legislation.
I am going to summarize my written comments, which have
been submitted to you for the record with your consent.
As you know, I served between 1993 and 1998 as Assistant
Administrator for Prevention, Pesticides and Toxic Substances
at the U.S. EPA. But the views I present today are my own.
I am going to first talk a little bit about PIC. Obviously,
while trade in chemicals is associated with great economic
progress worldwide, there can be serious adverse consequences.
In most of the countries in the world today there is no system
in place for regulating the commerce in chemicals. And, in
fact, most governments do not even know which chemicals are on
the market in their countries. And so the Rotterdam Convention
on the prior informed consent procedure for certain hazardous
chemicals and pesticides in international trade does fill a gap
that is very important for developing countries. And so it is
quite urgent that Congress should enact domestic implementing
legislation that would give EPA clear authority to carry out
all of the provisions of the PIC in a prompt and expeditious
manner, including that the United States may want to notify the
international authority that we do not want to receive a
particular PIC listed chemical. Unfortunately, the June 17
discussion draft does not do this, nor have we seen any sign
from the administration that they asking for that particular
authority.
When it comes to POPs, I know that you are aware that these
are persistent chemicals that are very toxic and can be
associated with numerous types of health problems, especially
for children. As a pediatrician I am most aware of how these
chemicals are passed from the mother to the fetus in utero, and
to the baby via breast milk. And I think of the POPs Convention
as a convention that is there for protecting the fetus and
protecting infants globally.
The LRTAP POPs is a very important regional agreement. I
think it is especially important as kind of a breeding ground,
if you may, for policies that end up being perhaps exported
into the global POPs Convention.
The Stockholm Convention on Persistent Organic Pollutants
initially targets 12 POPs, but of course it does have a
provision for adding new POPs and opt-in or opt-out provisions.
The convention, it is important to recognize, did enter into
force on May 17 of this year.
I have reviewed the June 17 discussion draft and find that
it does fall short in a number of ways. And I should say that
these comments are intended to be offered in a constructive
manner. Even though I am critical, I am very hopeful as well
that there is an openness to the feedback that we have.
First, I think that the bill needs to be a clean bill. As
currently drafted it imposes new standards on the EPA,
standards that EPA would opt-in only ``to the extent necessary
to prevent protecting and helping the environment in a manner
that achieves a reasonable balance of social, environmental and
economic costs and benefits.''
In addition, the discussion draft contains new ``sound
science'' requirements that I think are problematic.
Second, the discussion draft does not presume that the EPA
will implement the POPs conventions. I think that instead of a
burden on EPA to prove that a listed chemical should be further
regulated, there needs to be a burden on EPA for why we don't
take a POPs listing seriously and implement it. In other words,
there should be a presumption that we will adopt the decision
of the conventions.
Third, the discussion draft does undermine the U.S.
leadership role that we have held for decades in this area. It
states that EPA should not take action that is more stringent
than the action that is prescribed in the convention. It
actually encourages a practice that is very much against our
best interests, which would be the export of POPs chemicals
that we have determined to be too risky in the U.S. It also
specifies that every single available exemption would be taken
by us. I do not understand why we would want any of those
provisions, quite frankly.
Fourth, the decision standard in the discussion craft is
not in alignment with the current standard in the POPs
convention, which is ``to protect against significant adverse
human health and environmental effects associated with the
chemical substance or mixture.''
And there is weak authority for information collection. I
think it is very important that there is transparency and
opportunity for notice and comment. Such an opportunity should
be front loaded into the process, not after an action is taken
globally. Because regardless of whether we opt-in or opt-out,
we are affected by the actions that are taken by the rest of
the world.
I should conclude by saying in numerous places that I have
mentioned this proposed language is actually weaker than the
provisions of the current law, and I think would render the
EPA's efforts ineffective.
In conclusion, the U.S. should assume its share of the
responsibility to assuring global chemical safety. As draft
legislation is considered we must keep foremost the purpose of
such legislation, which is the protection of health and the
environment from highly toxic and persistent chemicals. I am
encouraged to hear that the Chairman and committee members are
open to our comments about this discussion draft, and I hope
that you will receive these comments in the constructive spirit
in which they are intended.
Thank you very much.
[The prepared statement of Lynn R. Goldman follows:]
Prepared Statement of Lynn R. Goldman, Professor, Environmental Health
Sciences, Johns Hopkins University, Bloomberg School of Public Health
Mr. Chairman and members of the Subcommittee on Environmental and
Hazardous Materials, it is my honor to testify today on proposed
legislation to implement the POPs, PIC, and LRTAP agreements. I am a
board-certified pediatrician and an environmental epidemiologist.
Between 1985 and 1993 I served in various positions in the California
Department of Health Services, most recently as Chief of the Division
of Environmental and Occupational Disease Control. From 1993-98, I
served as Assistant Administrator for Prevention, Pesticides and Toxic
Substances at the U.S. Environmental Protection Agency (EPA). While
serving in that position I was involved with the regulation of
chemicals and pesticides and with efforts related to the development of
the POPs, PIC and LRTAP PIC agreements. In January 1999 I left the EPA
and joined the Johns Hopkins University where I presently am a
Professor of Environmental Health Sciences at the Bloomberg School of
Public Health. This testimony reflects my views and not necessarily
those of any of the above organizations.
As a physician and an advocate for public health protection, I
firmly support U.S. ratification of these three agreements coupled with
domestic implementation that is faithful to the letter and spirit of
the underlying agreements. As a former federal regulator, I believe
that it is in the long-term interest of the United States, its citizens
and environment, its industry, and the entire global community for the
United States to be a full participant in these important international
processes. That said, I believe that implementing legislation must be
developed carefully and not considered hastily. With my testimony today
I will present some important background information for Congress to
consider. I will also present with my views on a set of principles that
should guide the development of sound implementing legislation, and why
I believe that the current draft bill circulating in this subcommittee
does not meet this test.
international context for chemicals conventions
In 1992 the United States and other countries met for the United
Nations Conference on Environment and Development (UNCED) and developed
a document called Agenda 21, which is a blueprint for protection of the
global environment. Agenda 21 Chapter 19, ``Environmentally Sound
Management of Toxic Chemicals, Including Prevention of Illegal
International Traffic in Toxic and Dangerous Products'' established an
ambitious international agenda for industrial chemicals. Six program
areas were established, with a number of specific targets under each
area: (1) expanding and accelerating the international assessment of
chemical risks; (2) harmonizing classification and labeling of
chemicals; (3) increasing information exchange on toxic chemicals and
chemical risks; (4) establishing new risk reduction programs; (5)
strengthening national capabilities and capacities for management of
chemicals; and (6) preventing illegal international traffic in toxic
and dangerous products. Together, the three intergovernmental
agreements we are discussing today represent a major step forward
toward these goals.
It must be said that the United States is a long-time leader in
international chemicals policy and regulation. Most chemicals in the
world are manufactured by large multinational corporations based in the
U.S. and other industrialized nations. The U.S. is arguably home to the
strongest and most advanced cadre of toxicology, chemical engineering,
and industrial science expertise in the world, providing the technical
capacity needed to achieve international goals. So it should come as no
surprise to Congress that the United States has been very involved in
international chemicals policy efforts. However, self interest is
involved as well. Pollution can cross boundaries, whether via air and
water or via products. The health of our people and the health of the
environment can be negatively impacted by transboundary pollution. Less
obviously, the U.S. has a national economic interest in being a major
player, in that global actions will likely have an affect on commerce
and trade while the chemical and pesticide industry continues to play a
key role in the U.S. economy. Thus, there are many reasons for the U.S.
to be a participant in the development of global approaches to chemical
management, and very little reason to sit on the sidelines.
the toxic substances control act
Historically in the U.S., regulation of chemicals lagged
significantly behind the growth and development of the industry. Until
1976, there were no laws in the United States specifically related to
the introduction of chemicals into commerce and the control of hazards
of existing chemicals. Up to that point regulation of chemicals was
limited to food additives, cosmetics, and pharmaceuticals by the Food
and Drug Administration (FDA) and pesticides (initially by the USDA and
the FDA and in 1972 by the newly created EPA). By 1976, it is estimated
that there were 60,000 chemical substances in commerce in the U.S.;
however, the government did not have an inventory of chemicals
manufactured and imported into the country. Congress identified a need
for a comprehensive framework for the prevention of risks that might be
posed by those chemicals. In 1976, Congress enacted the TSCA to address
three major concerns:1
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\1\ Toxic Substances Control Act, in U.S.C. 1976.
Those who manufacture and process chemical substances and mixtures
should develop adequate data with respect to the effect of
chemical substances and mixtures on health and the environment;
The government should have adequate authority to regulate chemical
substances and mixtures which present ``an unreasonable risk of
injury to health or the environment, and to take action with
respect to chemical substances and mixtures which are imminent
hazards''; and
Government's authority over chemical substances and mixtures should
be exercised ``in such a manner as not to impede unduly or
create unnecessary economic barriers to technological
innovation'' while assuring that such substances and mixtures
do not present ``an unreasonable risk of injury to health or
the environment.''
Further, Congress made clear its intention that government ``shall
consider the environmental, economic, and social impact of any action
the Administrator takes or proposes to take under this chapter.'' Most
of the regulatory authority for TSCA is delegated to the EPA's Office
of Prevention, Pesticides and Toxic Substances, the office I led during
my years at the EPA. Over the years, the core 1976 TSCA legislation has
never been reauthorized or amended, but new titles have been added to
specifically regulate asbestos (1986, Title II), radon (1988, Title
III), and lead (1992, Title IV) and the original legislation contained
specific requirements with regards to polychlorinated biphenyls (PCBs).
The radon program is located in EPA's Office of Air and Radiation.
TSCA provides the authority for EPA to assess and control chemicals
in commerce or new chemicals. These provisions broadly direct the EPA
to assure that the public will be protected from ``unreasonable risks''
to health and the environment. The statute did not clearly define
``unreasonable risk'', however, this has come to be interpreted as
including aspects of both risk analysis (the severity and magnitude of
health and environmental effects) and economic analysis (the economic
benefits of the use of the substance as well as the availability and
costs of switching to alternatives.) In the case of PCBs, asbestos,
radon and lead, Congress saw fit to identify that unreasonable risks
did indeed exist and gave the EPA very specific direction for how to
address those risks. In essence, the TSCA framework treats existing and
new chemicals very differently. The presumption for an existing
chemical is that it is safe unless EPA makes a regulatory finding to
the contrary. However, new chemicals must be reviewed by EPA prior to
manufacture. Although this review is not very extensive, it nonetheless
provides some additional safety for new chemicals.
Regulation of existing chemicals under TSCA has been modest, to say
the least. The GAO in 1994 concluded that the EPA regulates few
chemicals under TSCA, listing only five (PCBs, chlorofluorocarbons,
dioxin, asbestos and hexavalent chromium) and noted that the act itself
required the regulation of one of the five, PCBs. In only two cases,
for PCBs and asbestos, did the EPA take a comprehensive approach to the
regulation of chemicals and in one of these cases, asbestos, the rule
was essentially overturned by the courts.\2\. The failure of EPA to
prevail in the asbestos phase-out has been widely recognized as a clear
indication that the heavy burden imposed on the EPA to prove that
asbestos would meet the TSCA standard of ``an unreasonable risk of
injury to health and environment'' is too onerous to provide an
effective means for the EPA to regulate any chemicals, including POPs.
If the EPA cannot make such a finding for asbestos, a known human
carcinogen which has caused at least 200,000 deaths in the U.S., then
the situation for other agents is impossible as well. The case of PCBs
is instructive because this is the only class of chemicals named in the
1976 law for which Congress specified that manufacture shall cease,
imports and exports banned (with a provision for exceptions by rule
making), and continued use be carefully controlled. So in the case of
PCBs EPA was not required to make any finding of ``unreasonable risk''
and in consequence more protective actions have been taken. Yet,
compared with developing countries, the United States has made
remarkable progress.
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\2\ Corrosion Proof Fittings v. EPA. 1991, 5th Circuit. p. 1201.
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rotterdam convention on prior informed consent (pic)
As should be clear from the proceeding, in my opinion TSCA is an
outdated statute that does not give the EPA sufficient authority in a
number of areas. Yet, compared with developing countries, the U.S. has
made remarkable progress. Under TSCA we have an inventory of chemicals
that have been manufactured in the U.S. while all ``new'' chemicals
since TSCA's enactment have been allowed on the market only after
filing of a Premanufacture Notice (PMN). By contrast, in most
countries, no one knows which chemicals are on the market and which are
not. At the same time, a myriad of chemicals and pesticides have been
marketed (or donated) to developing countries. Most often this commerce
has helped to advance economic progress since chemicals are at the core
of most industrial processes. Unfortunately, at times, there have been
serious adverse consequences.
In the 1980s, it became clear that there was a need for
international information exchange from chemical exporters to importers
for certain highly hazardous chemicals. Initially established as a
voluntary procedure, the principle of prior informed consent is quite
simple. Exporting countries should notify importing countries prior to
shipping a chemical that is ``banned or severely restricted.'' In the
1990s, developing countries pressured for a legally binding convention
on prior informed consent. They believed that such a convention would
not only provide needed information exchange but also strengthen their
national capacities and provide a means of legal enforcement of making
such notices mandatory. Given that the voluntary system appeared to be
workable, the U.S. and other nations directed UNEP to form a process to
develop such a convention.
The Rotterdam Convention on the Prior Informed Consent Procedure
for Certain Hazardous Chemicals and Pesticides in International Trade
was signed in 1998, two years before the target date in Chapter 19 of
Agenda 21. The Convention requires that chemicals and pesticides that
have been added to the convention because they are banned or severely
restricted in at least one country in each of two regions shall not be
exported unless explicitly agreed by the importing country. The PIC
list also includes certain pesticide formulations that are too
dangerous to be used in countries where high-level protective equipment
may not be available; these are considered to be ``severely
restricted'' when approved for use in the U.S. The Convention came into
force in February 2004 and the first Conference of Parties will be held
this September. Until the U.S. ratifies this convention, decisions
about adding further chemicals to the list will be made without a U.S.
vote. Clearly, the U.S. should promptly step forward to ratify the PIC
so that it can be a full participant in this important effort. Just as
clearly ratification of the PIC convention should be a straightforward
process. The U.S. ratification should follow the enactment of domestic
implementing legislation which should give EPA clear authority to carry
out all the provisions of PIC in a prompt and expeditious manner,
including notifying the international authority that the U.S. does not
wish a particular PIC listed chemical to be imported into the U.S. As
obvious as this should seem, at this point there seem to be no plans by
the U.S. government to put such a process in place.
persistent organic pollutants
Persistent organic pollutants (POPs) are chemical substances that
possess characteristics of persistence in the environment,
bioaccumulation in organisms, and toxicity. POPs is a category of
substances that includes chemicals and pesticides like dioxin, PCBs,
and DDT. Each of these substances is associated with an array of health
effects, including cancer, neurological, developmental and reproductive
effects. Once released into the environment, POPs can cause harm to
health and the environment thousands of miles away. They accumulate and
magnify in the food chain; we are exposed when we eat foods near the
top of the food chain (mostly animal products). Food is usually an
innocent carrier of POPs that are present in the general environment
but there have been incidents where the POPs were introduced via
contaminated animal feeds. In consequence of food contamination by
POPs, all of us have many of these chemicals in our bodies. POPs are
transferred from a mother to her fetus through the placenta, and later
to the infant via breast milk. This is of particular concern because
the fetus and infant are most susceptible to many of the known adverse
health effects of POPs. Breast milk is the best food for young infants
and the American Academy of Pediatrics recommends that, whenever
possible, infants be breastfed for at least the first six months of
life. Control of POPs therefore is about protecting our food supply,
protecting the fetus and protecting the safety of breast milk for
infants. Clearly, POPs are among the substances that are of most
concern on a global basis. Additionally, POPs are among the areas where
Chapter 19 of Agenda 21 called for specific attention to risk
reduction.
In addition to actions taken on individual POP chemicals and
pesticides, the EPA has established some general policies to address
POPs. In 1998, EPA published a final policy under TSCA for PBT
chemicals that established a practice of placing controls or bans on
chemicals that are above certain thresholds for persistence and
bioaccumulative potential, pending further testing to prove that the
chemicals are safe for humans and ecosystems.3 In 2000, the
EPA received 1,650 Premanufacture Notices. Of these, the EPA identified
53 with potential PBT characteristics, of which seven were dropped from
review after further scrutiny. Among the remaining 46, production was
banned for 11 pending further testing and 35 were regulated to control
their release into the environment.4 The EPA also developed
and tested a software program they call the ``PBT Profiler'', which is
used to predict whether new chemical structures are above thresholds
for PBT chemicals. EPA made this software available to industry so they
can predict in advance whether chemicals are likely to trigger concerns
under this policy.
---------------------------------------------------------------------------
\3\ U.S. Environmental Protection Agency, Persistent
Bioaccumulative Toxic Chemicals: Lowering of Reporting Thresholds for
Certain PBT Chemicals; Addition of Certain PBT Chemicals; Amendments to
Proposed Addition of Dioxin and Dioxin-like Compounds Category; Toxic
Chemical Release Reporting; Chemical Right-to-Know: EPA 49 CFR Part
372, Final Rule. Federal Register, 1999. 64(209): p. 58666-58753.
\4\ U.S. Environmental Protection Agency, 2000 PBT Accomplishments.
2001, EPA: Washington, DC. p. 28.
---------------------------------------------------------------------------
In 1999, EPA also lowered the reporting threshold for several of
the most persistent bioaccumulative chemicals under the Toxics Release
Inventory (TRI): aldrin, benzo (a) pyrene, chlordane, dioxins and
furans, heptachlor, hexachlorobenzene, isodrin, lead and lead
compounds, mercury and mercury compounds, methoxychlor,
octachlorostyrene, pendimethalin, pentachlorobenzene, polycyclic
aromatic compounds, PCBs, tetrabromobisphenol A, camphechlor
(toxaphene) and Trifluralin.5 This rule also created a new
category of dioxin and dioxin-like compounds under TRI and set a low
reporting threshold (0.1 grams) for this category. These lower
thresholds for reporting were in effect as of calendar year 2000,
except for lead and lead compounds, which began in calendar year 2001,
after a decision in February 2001 to delay the effective date of the
rule 6. Thus, EPA has taken steps to increase the public
access to information on PBTs in the U.S.
---------------------------------------------------------------------------
\5\ U.S. Environmental Protection Agency, Persistent
Bioaccumulative Toxic Chemicals: Lowering of Reporting Thresholds for
Certain PBT Chemicals; Addition of Certain PBT Chemicals; Amendments to
Proposed Addition of Dioxin and Dioxin-like Compounds Category; Toxic
Chemical Release Reporting; Chemical Right-to-Know: EPA 49 CFR Part
372, Final Rule. Federal Register, 1999. 64(209): p. 58666-58753. U.S.
Environmental Protection Agency, Lead and Lead Compounds; Lowering of
Reporting Thresholds; Community Right-to-Know Toxic Chemical Release
Reporting, 40 CFR Part 372; Final Rule. Federal Register, 2001. 66(11):
p. 4500-4577.
\6\ U.S. Environmental Protection Agency, Lead and Lead Compounds;
Lowering of Reporting Thresholds; Community Right-to-Know Toxic
Chemical Release Reporting: Delay of Effective Date. Federal Register,
2001. 66(33): p. 10585.
---------------------------------------------------------------------------
Unfortunately, EPA's efforts under TSCA and TRI have not prevented
the discovery of new persistent toxic chemicals among the chemicals
that are already on the market. In the 1990's, two new classes of
persistent substances have risen to greater levels of concern, namely
polybrominated diphenyl ethers or PBDEs (flame retardants) and
perfluorinated chemicals (PFCs), which are used in many products
including stain repellants and coatings. In October 2000 EPA proposed a
``significant new use rule'' to limit the introduction of new uses of
PFCs; this rule has not been made final. It is evident that, although
most of the chemicals in commerce are probably safe, there are new
categories of persistent chemicals that we are still discovering.
On the international front, the U.S. Government first took
multilateral action on POPs in the context of the North American
region. One vitally important environmental resource is the Great
Lakes. Shared by the U.S. and Canada, the Great Lakes system contains
one-fifth of the world's supply of fresh water. To protect the shared
resource, the U.S. and Canada established the Boundary Waters Agreement
of 1909; in 1978 the two countries signed the first agreement to rid
the lakes of ``persistent toxic substances.'' In 1997, Canada and the
U.S. signed an agreement called the ``Great Lakes Binational Toxics
Strategy'', which aimed for ``virtual elimination'' of releases to the
Great Lakes of a number of POPs: aldrin/dieldrin, benzo(a)pyrene,
chlordane, DDT, hexachlorobenzene, alkyl-lead, mercury and compounds,
mirex, octachlorostyrene, PCBs, dioxins and furans, and toxaphene In
1993, the U.S. signed the North American Free Trade Agreement (NAFTA);
under the ``environmental side agreement'' to NAFTA the North American
Commission for Environmental Cooperation (CEC) was formed. One of the
activities under the CEC is called ``Sound Management of Chemicals''
(SMOC) and it should come as no surprise that an early priority for
joint efforts by the U.S., Canada and Mexico was POPs. In 1998 the EPA
issued an action plan for twelve of the most toxic persistent
chemicals: aldrin/dieldrin, alkyl lead, benzo (a) pyrene, camphechlor
(toxaphene), DDT (Dichlorodiphenyltrichloroethane) and DDD/DDE,
dioxins/furans, hexachloro-benzene, mercury and mercury compounds,
mirex, octachlorostyrene, and PCB's.7 These action plans
were issued in alignment with both the Binational Toxics Strategy and
the CEC action plans.
---------------------------------------------------------------------------
\7\ U.S. Environmental Protection Agency, Draft Multimedia Strategy
for Priority Persistent, Bioaccumulative, and Toxic (PBT) Pollutants.
1998, EPA: Washington, DC. p. 29.
---------------------------------------------------------------------------
lrtap and stockholm pops agreements
The LRTAP (Convention on Long-range Transboundary Air Pollution)
POPs agreement came next. In place since 1983, the LRTAP is under the
UN Economic Commission for Europe and has been ratified by virtually
every nation in Europe, the U.S., Canada, and the European Commission.
The LRTAP includes protocols on a number of pollutants and adopted the
POPs protocol in 1998. The LRTAP POPs protocol initially targets 16
POPs, banning the production and use of aldrin, chlordane, chlordecone,
dieldrin, endrin, hexabromobiphenyl, mirex and toxaphene; phasing out
production of DDT, heptachlor, hexaclorobenzene, and PCBs; severely
restricting the use of DDT, HCH (including lindane) and PCBs; reducing
emissions of dioxins, furans, PAHs and HCB; and setting limit values
for emissions from municipal, hazardous, and medical waste
incinerators. This protocol came into force in October 2003, but the
United States has not yet been ratified by the U.S. (although we have
ratified the overarching LRTAP convention). Actions taken by countries
in the LRTAP POPs context are important regionally and as a precedent
for actions under the global POPs convention.
Negotiated between 1998 and late 2000, the Stockholm Convention on
Persistent Organic Pollutants (POPs) was signed by a number of nations
including the United States in May 2001. The treaty initially targets
12 POPs, eliminating the pesticides aldrin, chlordane, dieldrin,
endrin, heptachlor, hexachlorobenzene (HCB), mirex and toxaphene, as
well as the industrial chemical polychlorinated biphenyls (PCBs);
restricting of use of the pesticide DDT to disease vector control until
safe, affordable, and effective alternatives are in place; mandating
removal of PCB equipment; and encouraging minimization of unintentional
release of dioxins and furans. Importantly, like the LRTAP POPs
protocol, it includes provisions to consider and add other POPs to the
treaty and prevent the introduction of new POPs into commerce. It also
provides for technical and financial assistance to developing countries
and countries with economies in transition.
For adding new chemicals, an international committee of government-
appointed scientists will decide whether the required criteria of
persistence, bio-accumulation, potential for long-range transport, and
adverse effects to human health or the environment are met, and
therefore whether to recommend that the Conference of the Parties
consider adding the chemical to the treaty. Assuming the United States
takes advantage of the treaty's so-called ``opt-in'' provision upon
ratification (which is expected given that the U.S. was the primary
advocate for this provision), an amendment to add a chemical to the
Stockholm Convention can only apply to the United States only if our
government affirmatively opts in. Alternatively, the U.S. can choose to
``opt out'' of a POPs chemical listing. It is important to note that
the universe of potential additional POPs is not large, and the Bush
Administration estimates that it will typically take about five years
for a chemical to be nominated, clear the science-based review process,
and be added to the Convention. This is enough time to involve industry
and the public in a deliberative process and to assure that the outcome
is not a surprise to anyone.
After achieving the necessary 50 ratifications last February, the
Stockholm Convention entered into force on May 17, 2004, and the first
Conference of the Parties will meet in May 2005. This agreement is
expected to address one of the risk reduction actions of Chapter 19 of
Agenda 21.
principles for implementing legislation
The problem today is that while the U.S. has delayed ratification
of the Rotterdam PIC, LRTAP POPs and Stockholm POPs conventions, these
agreements are coming into force, and work will continue
internationally without the direct involvement of the U.S. government.
While the parties to these agreements will certainly provide a forum
for the U.S. to give input to the ongoing work, the fact remains that
the U.S. will not be a full voting member unless and until it ratifies
these conventions. Further, whether or not the U.S. participates, our
environment and our industry will be affected in profound ways by
decisions that are made by this convention. But ratification requires
that EPA be given the appropriate regulatory authority to fully and
faithfully implement these agreements.
While the three agreements have been bundled legislatively, it is
clear that there are few controversies standing in the way of U.S.
ratification of the PIC convention. Certainly there is a need to
harmonize the approaches for the PIC and the POPs conventions. However,
the Congress could choose to ratify PIC first and hold off the
ratification of the POPs agreements while continuing to develop
legislative approaches.
With regard to the POPs and LRTAP POPs agreements, there are a
number of principles that I believe must serve as a framework for any
sound implementing legislation:
1. ``Clean bill'': First and foremost, the legislation must respect the
negotiation process that occurred in the context of the
Stockholm POPs Convention in particular. Both the State
Department and EPA utilized open and transparent processes that
brought in industry, health and environmental groups to assure
that the language in the POPs convention would be widely
supported in the U.S. U.S. negotiators won large concessions
from other countries to accept scientific risk assessment as a
guiding principle for adding new chemicals to the Convention,
as well as full consideration of ``risk-risk'' tradeoffs,
socioeconomic considerations, and other factors (see Annex F of
the convention). Therefore, implementing legislation should be
``clean'' and should not attempt to impose new layers of
standards onto domestic implementation of the POPs agreements.
2. Open, transparent processes: Any enabling legislation needs to
guarantee that there will be open and transparent processes for
development of U.S. positions within the POPs agreements. Such
processes need to include notices in the federal register and
open meetings with stakeholders as well as with the EPA and the
State Department.
3. Meaningful public involvement: Whenever possible, public
participation in the deliberations of the Stockholm convention
needs to occur prior to the expert meetings, negotiations and
decision making by the convention. This is particularly
critical since, whether or not the U.S. chooses to ``opt in''
to a listing under the Convention, there are likely to be major
consequences internationally for any decisions that are made.
4. Presumption of implementation: Congress needs to establish a
presumption that the EPA will implement decisions made by the
Stockholm Convention, including amendments adding chemicals.
Presumably, the U.S. Government will agree with most of the
decisions of the convention if it has fully participated in the
process and for that reason it is preferable for the Congress
to give the EPA the option either to take the ``opt out'' or
the ``opt in'' road for implementation. To facilitate the
decision with regards to listing decisions with which the U.S.
might disagree, the Congress can establish a mechanism for
parties to provide information to the EPA (or for the EPA
itself) to rebut the presumption of implementation. This kind
of rebuttable presumption will provide a safety mechanism such
that the U.S. government would not be required to implement any
decisions with which it disagrees. At the same time, the
rebuttable presumption shifts the burden to the EPA to
establish why not to further control a newly listed POPs
chemical rather than burdening the EPA, in every case, with
making a case for control of the chemical. Congress should also
give EPA clear statutory deadlines for rulemaking or for a
decision to opt out.
5. U.S. leadership: As it has in the past, the U.S. government needs to
continue to lead the way toward identifying and eliminating
persistent toxic chemicals from the environment, and from the
bodies of infants and children. Where exemptions are available,
the U.S. generally should be reluctant to take advantage of
them. In fact, in every case possible, the U.S. should strive
to go beyond the lowest common denominator for the world, given
the relative advantage we hold with superior technology and the
most innovative chemical industry in the world. Where the U.S.
has banned or severely restricted POPs substances already, we
should do what we can to prevent U.S. companies from
manufacturing and exporting those substances to other
countries, even when they have exemptions. This is because the
use of such substances anywhere will contaminate the global
environment, including ours. Likewise, implementing legislation
for PIC should give EPA clear authority to carry out all the
provisions of PIC in a prompt and expeditious manner, including
notifying the international authority that the U.S. does not
wish a particular PIC listed chemical to be imported into the
U.S. The US should use the opportunity these conventions
provide to assert our position as producer of the best and
safest technologies in the world; this is what gives us a
competitive advantage in the world market for chemicals. It is
also because the U.S. needs to maintain its competitive
advantage in the world market as a producer of the best and
safest technologies in the world, rather than losing that
position to other countries, who are more willing to lead in
this arena.
6. Consistent and health protective decision standard: It is critical
that the decision standard for implementation of the Stockholm
and LRTAP agreements be protective of the environment and
health, especially the health of vulnerable populations and age
groups like infants and children. In this regard, the existing
TSCA section 6 ``unreasonable risk'' standard is ineffective,
as was demonstrated in the court decision which threw out EPA's
attempt at regulation of asbestos, and should not be used as
the standard for attempting to regulate POPs or that attempt
will be doomed to failure. It is also important that the
standard be consistent with the language negotiated in the POPs
conventions, that is, to ``protect against significant adverse
human health and environmental effects associated with the
chemical substance or mixture.'' Further, the bill should not
be loaded down with prescriptive language regarding ``sound
science'' and various kinds of risk-analytical determinations
in vogue today, which are certain to contribute nothing of
value beyond the expert process of the convention, but rather
to increase the burden to EPA as well as opening opportunities
for litigation over the minor process issues.
7. Full package of information for deliberations: Currently, under
TSCA, EPA has the authority to require those who manufacture,
process or otherwise use chemicals to report information about
those chemicals. In practice these provisions are overly
burdensome for EPA to utilize and would not be workable in the
context of a real-time negotiation within the Stockholm
Convention. To be truly competitive in such a process, the EPA
needs to be required to issue a call in for core data items
that will be necessary to fulfill the criteria for listing
under the convention (see especially annexes E ``Risk Profile''
and F ``Socioeconomic Considerations'' of the Stockholm
convention.) It is the U.S. government (informed by industry)
which insisted on such science-based and information-intensive
criteria for decision makers. We cannot expect that our
negotiators will be able to do a good job in the first place
unless they have a full set of information to inform decisions
under these annexes. And, as noted earlier, it is important
that a full set of information be made available to the U.S.
EPA prior to negotiations, and not just at the time of an ``opt
in'' decision. Congress can assure this by including a mandate
for information collection.
june 17, 2004 discussion draft
Having established some principles for implementing legislation it
is useful to examine current drafts that are under discussion. I have
carefully reviewed the June 17, 2004 discussion draft and find that it
falls short in a number of ways.
First, the discussion draft is not ``clean''. It would impose a new
standard under which EPA would decide to ``opt in'' only ``to
the extent necessary to protect human health and the
environment in a manner that achieves a reasonable balance of
social, environmental, and economic costs and benefits.'' In
addition the discussion draft contains new ``sound science''
requirements that really are invitations to litigation and
would not provide any improvement of scientific processes.
These proposed standards are actually worse than the provisions
of current law and would render the EPA's efforts completely
ineffective.
Second, although the discussion draft provides for a number of
opportunities for open and transparent processes, these
processes need to be front-loaded. It is important to assure a
full range of involvement before a new substance is listed by
the convention.
Third, the discussion draft does not presume that the EPA will
actually implement of the Stockholm and LRTAP conventions nor
does it fully implement the PIC convention. The burden should
be placed on the EPA to show why a listed chemical should not
be controlled by the U.S., rather than the reverse. The
language in this regards is worse than current law and again
would render EPA ineffective.
Fourth, the discussion draft does not promote U.S. leadership. It
ties the hands of the EPA when it comes to taking action more
stringent or in advance of action taken under the Conventions.
It specifies that the U.S. will take advantage of every single
exemption that is available to every single country in the
world. Again, these provisions are much worse than current law.
Further, it is completely against our interest, in terms of
protection of health and the environment, to allow the export
POPs chemicals that we have determined to be too risky to use
in the U.S. Also, in terms of protecting the health and
environment of the U.S., the PIC implementation legislation
does not provide authority for the U.S. to reject the
importation of PIC chemicals.
Fifth, the decision standard in the discussion draft is not in
alignment with the standard that we agreed to in the POPs
Convention. It is worse than current law and is an additional
provision that would make EPA implementation ineffective.
Finally, the draft does not include any provision for
collection of information to support negotiation and ``opt in''
decisions. Given the weak authority for information collection
under TSCA, it is incumbent on Congress to require that the EPA
collect such information.
conclusion
In closing, the U.S. needs to step up to the plate to assume its
share of the responsibilities for assuring global chemical safety. The
U.S. could ratify the PIC convention today. In the best of all possible
worlds we would be a member of the LRTAP POPs and Stockholm Conventions
from the beginning. As draft legislation is considered, we must keep
foremost the purpose of such legislation, which is protection of health
and the environment from toxic chemicals.
Mr. Gillmor. Thank you, Dr. Goldman.
And we will go to Brooks Yeager, who is Vice President of
Global Threats for the World Wildlife Fund.
STATEMENT OF BROOKS B. YEAGER
Mr. Yeager. Thank you, Mr. Chairman and Congresswoman
Solis. I am honored to be invited to testify before you today.
My name is Brooks Yeager. You have given my title. I will
not repeat it. I hope that my longer testimony can be included
for the record.
Mr. Gillmor. Without objection it will be.
Mr. Yeager. Let me just say, before joining WWF 3\1/2\
years ago I served in the position that Ms. McMurray now holds
at the State Department as Deputy Assistant Secretary for
Environment and Development. And in that capacity I was the
head of delegation and the lead negotiator for the Stockholm
POPs Convention.
The focus of my testimony today will be the international
process for adding new chemicals to the convention and the
corresponding U.S. regulatory process set out in the
implementing legislation. I think other witnesses, and the
statements have covered many of the important aspects of the
convention and the desirability of having it ratified.
The point I would like to make is that many protections for
the U.S. national interest were written into the convention at
the insistence of the U.S. delegation itself, and that at least
in my view they make many of the further extraordinary
regulatory protections in some of the legislative efforts
somewhat superfluous and perhaps unnecessary.
WWF supports U.S. ratification of the treaty, Mr. Chairman.
We think it is very important for the reasons stated by many
here today, and we urge the administration to become a party.
But we cannot support ratification at the expense of defective
implementing legislation that may set unfortunate precedents
for U.S. environmental regulation in the future.
Mr. Chairman, this treaty reflects a careful balance of
interests achieved through negotiation and compromise. The
fundamental U.S. interest as we articulated during the
negotiations was to achieve an ambitious treaty that would
address the global environmental damage caused by POPs but do
so in a way that would be practical, implementable, financially
efficient and consistent with the fundamental structure of a
national approach to chemical regulation.
We felt at the end of that process that we had achieved
that result. The process of balancing interests and finding a
unified way forward was critical in particular to developing a
consensus as to how add POPs chemicals to the treaty over time.
All parties clearly recognized that the convention could not be
successful if it were limited solely to the 12 conventions
already on the list. All parties recognized and stated that the
convention was intended to be dynamic rather than static.
For the United States it was critical that this process be
scientifically driven and not subject to political whim. For
some in EU countries and elsewhere, it was critical that the
process for adding chemicals not be subject to endless
procedural roadblocks. This concern reflected an anxiety that
effected industries or governments might use procedural
challenges to block the addition of chemicals that will
legitimately qualify for the list on scientific grounds.
The procedure for adding new chemicals that was finally
adopted is a genuine compromise but which fully protects the
U.S. interests.
First, it requires scientific criteria according to which a
nominated chemical would be evaluated. And these criteria are
contained in Annex D.
Second, we negotiated a process through which these
criteria would be applied by a scientific screening committee.
Finally, we negotiated the terms under which the POPs
Review Committee would review the recommendations of the
scientific group.
It is worth noting, Mr. Chairman, that at each stage of
this process the agreement sets a high standard for the
addition of chemicals. The chemical must meet the scientific
screening criteria for bioaccumulation, potential for long
range transport and adverse effects. It must be found by the
review committee to fit the risk profile in Annex E, that is
that it is likely as a result of its long range environmental
transport to lead to significant adverse human health and/or
environmental effects even to be recommended. And based on the
scientific review conducted by the review committee, which the
United States fully intends to be a member of, we believe, the
conference of the parties must act preferably by consensus or
at the very least by a three-quarters majority to add the
chemicals to the list. And even at that point, individual
parties including the United States can prevent the entry into
force of the new obligation by opting out or refusing to opt-
in, as stated by Deputy Assistant Secretary McMurray.
The point that we would like to make or that I would like
to make, Mr. Chairman, is that given these protections written
for the U.S. into the treaty, we need to balance those careful
protections against the clear intent of all the governments who
negotiated the convention to assure that chemicals meeting the
POPs criteria are regulated with great precaution. This is the
point that Congresswoman Capps was making so eloquently.
Once chemicals have been deemed to warrant global action
under the convention, the clear intent is that they be
eliminated or at the very least highly restricted by all the
parties to the convention. And considering how this balance
should be reflected in U.S. implementing legislation, we
believe we should look very carefully at the standards set in
the regulatory process in the U.S. for achieving that balance.
I would only echo here, because my time is coming to an
end, but the points made by Ms. Goldman and others that will be
made later that we believe the standards in the draft
legislative draft are problematical in that respect. The
legislation sets up a new standard that has no presumption that
the EPA would regulate a newly listed POP, even if the United
States supported the listing. But if EPA decided to regulate,
it would do so only to achieve a reasonable balance of social,
environmental and economical costs and benefits. In our view
this standard fails to reflect the intent of the Stockholm
Convention that new chemicals found to have the characteristics
of POPs and to warrant global action and global concern be
regulated with great precaution.
Mr. Chairman, I have made a number of other points in my
testimony regarding the draft. I would be glad to discuss them
in a question and answer period.
I see that my time is at an end. And I want to thank you
very much for the opportunity to testify.
If in fact, I can offer the committee members any
assistance in understanding the negotiating setting of the
treaty, I would be happy to do that. I think we as WWF would be
pleased to work with the committee staff to see if we can, in
fact, achieve an implementing language that tracks the
convention process, supports the precautionary intent of the
convention and allows the U.S. to achieve its responsibilities
without setting unfortunate precedents for domestic law.
Thank you.
[The prepared statement of Brooks B. Yeager follows:]
Prepared Statement of Brooks B. Yeager, Vice President for Global
Threats, World Wildlife Fund
Mr. Chairman and Members of the Committee: On behalf of World
Wildlife Fund's 1.2 million members, thank you for the opportunity to
testify on the implementing legislation for the Stockholm Convention on
Persistent Organic Pollutants (POPs). Known worldwide by its panda
logo, World Wildlife Fund (WWF) is dedicated to protecting the rich
biological diversity on which the prosperity and survival of human
societies depends. As the leading privately supported international
conservation organization in the world, WWF has sponsored a wide range
of conservation activities in more than 100 countries since 1961.
For the record, I am Brooks Yeager, Vice President for Global
Threats at WWF, where I supervise programs to conserve global forest
and ocean resources, to avert damage to the global environment from
climate change and toxic pollution, and to ensure the environmental
sustainability of global commerce. Before joining WWF, I served as
Deputy Assistant Secretary for Environment and Development at the U.S.
State Department. At State I was responsible for the development and
negotiation of U.S. Government policy in a range of bilateral and
global environmental discussions and undertakings.
In my capacity at State, I served as the United States' lead
negotiator for the Stockholm POPs Convention. We are here today to
discuss the implementing legislation for this ground-breaking treaty. I
hope I can offer insights today both from my position as U.S. lead
negotiator and in my current role at WWF. The focus of my testimony,
which has been at the center of the Committee's interest, is the
international process for adding new chemicals to the Convention, and
the corresponding U.S. regulatory process set out in the implementing
legislation.
First I would like to offer some background on the treaty itself.
The Stockholm POPs Convention represents the most important effort by
the global community, to date, to rein in and ultimately halt the
proliferation of toxic chemicals of global concern. It's an agreement
that is at once ambitious, comprehensive, and realistic. The treaty
targets some of the world's most dangerous chemicals--POPs include
pesticides such as chlordane, industrial chemicals such as PCBs, and
by-products such as dioxins.
POPs pose a particular hazard because of four characteristics: they
are toxic; they are persistent, resisting normal processes that break
down contaminants; they accumulate in the body fat of people, marine
mammals, and other animals and are passed from mother to fetus; and
they can travel great distances on wind and water currents. Even small
quantities of POPs can wreak havoc in human and animal tissue, causing
nervous system damage, diseases of the immune system, reproductive and
developmental disorders, and cancers.
Persistent organic pollutants are a threat to human health,
wildlife, and marine and terrestrial ecosystems in the United States
and around the world. From Alaska to the Great Lakes to Florida,
Americans face an insidious but largely invisible threat from POPs
chemicals. Despite more than two decades of U.S. efforts to control
domestic sources of POPs pollution, POPs used and released in other
countries--often thousands of miles from our borders--continue to
contaminate our lands and waterways, the food we eat, and the air we
breathe. WWF's recent report, ``Causes for Concern: Chemicals and
Wildlife'' (January 2004), highlights a number of these emerging
chemical threats, some of which may be candidates for Stockholm
Convention annexes in the future. (http://www.panda.org/detox).
Our government made a concerted effort, starting not long after the
publication of Rachel Carson's pathbreaking Silent Spring, to eliminate
the production and use of known POPs chemicals in the United States--
yet we are still vulnerable to POPs pollution. Our environment,
wildlife, and human health continue to be affected by POPs from
unremediated contaminated sites at home and the production and use of
POPs elsewhere in the world. This last fact is central to understanding
the United States' strong national interest in the success of this
global effort to reduce and eliminate POPs. POPs' mobility in air and
water currents, for example, makes possible their presence along with
metals and other particulates in incursions of Saharan dust into the
continental United States. African dust is the dominant aerosol
constituent in southern Florida's dense summer hazes. Similarly, one
potential source of DDT in some salmon returns to Alaska rivers is its
extensive use in Asian agriculture. A global mechanism to reduce these
``chemical travelers without passports'' is urgent, and very much in
our national interest.
The Stockholm POPs Convention was negotiated by more than one
hundred and twenty governments over a four-year period, from 1998 to
2001. As the head of the U.S. delegation, I was responsible for
developing the United States' negotiating objectives and strategies,
and for assuring that our national interest, positions, and
requirements were reflected in the final text. Development of the U.S.
position was accomplished through a thorough, not to say exhaustive,
domestic process involving regular consultations with seven domestic
agencies, industry, the environmental and public health communities,
Native American representatives, and various interested state
governments, including the State of Alaska.
This careful process of developing the U.S. negotiating position is
one of the reasons, I believe, that President Bush's decision to sign
the Stockholm Convention in April 2001 received such broad support. WWF
and many others--including the chemical industry, environmental and
public health organizations and members of Congress on both sides of
the aisle--applauded the President's Rose Garden announcement. We were
pleased that the President had decided to send the treaty package to
the Senate for ratification.
In fact, both industry and environmental representatives made
important contributions to the final product. I would like to note in
particular the constructive roles played by Mr. Michael Walls and Mr.
Paul Hagen of the American Chemistry Council (ACC). A letter to
Governor Whitman on February 26, 2002, from Mr. Frederick Webber, ACC's
President and CEO at that time, noted that,
ACC strongly recommends that the Administration seek the U.S.
Senate's advice and consent to ratification as soon as
possible. We believe it is important for the United States to
continue its leadership role in the global effort to address
the risks posed by POPs emissions, and believe that the United
States should make every effort to be among the first 50
countries ratifying the Convention.
Seventy countries have now ratified the Convention, but the United
States has not, due to the complexity of the negotiations on
implementing legislation in the Congress and, I believe the Bush
Administration's repeated efforts to use proposed implementing
legislation for the treaty as a vehicle to advance its overall effort
to weaken domestic environmental, health, and safety protections. WWF
supports U.S. ratification of this important treaty and we urge the
Administration to become a party as soon as possible. But we do not
support ratification at the expense of defective implementing
legislation that sets U.S. environmental law on the wrong track, as we
will discuss shortly.
The POPs treaty represents a significant and innovative
breakthrough in global chemicals management, calling for concrete steps
to restrict or phase out dangerous chemicals rather than relying on
expensive, end-of-pipe measures such as pollution scrubbers and
filters. The treaty's ambitious control obligations were developed with
enough flexibility that they can be accomplished largely within the
established U.S. statutory and regulatory structure. Only limited
adjustments are needed to the Toxic Substances Control Act (TSCA) and
to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to
allow full U.S. implementation.
Overview of the Stockholm POPs Convention
Before delving into the specifics of the proposed implementing
legislation, a brief overview of the structure and mechanisms of the
Stockholm POPs Convention may be in order. The POPs treaty is designed
to eliminate or severely restrict production and use of POPs pesticides
and industrial chemicals; ensure environmentally sound management and
chemical transformation of POPs waste; and avert the development of new
chemicals with POPs-like characteristics.
Eliminating intentionally produced POPs. The agreement targets
chemicals that are detrimental to human health and the environment
globally, starting with a list of 12 POPs that includes formerly used
pesticides, dioxins, and PCBs. Most of the pesticides are slated for
immediate bans once the treaty takes effect. A longer phase-out (until
2025) is planned for certain PCB uses. With regard to DDT, the
agreement sets the goal of ultimate elimination, with a timeline
determined by the availability of cost-effective alternatives for
malaria prevention. The agreement limits use in the interim to disease
vector control in accordance with World Health Organization guidelines,
and calls for research, development, and implementation of safe,
effective, and affordable alternatives to DDT.
Ultimately eliminating byproduct POPs. For dioxins, furans, and
hexachlorobenzene, parties are called on to reduce total releases with
the goal of their continuing minimization and, where feasible, ultimate
elimination. The treaty urges the use of substitute or modified
materials, products, and processes to prevent the formation and release
of by-product POPs.
Incorporating precaution. Precaution, including transparency and
public participation, is a guiding approach throughout the treaty, with
explicit references in the preamble, objective, provisions for adding
POPs, and determination of best available technologies.
Disposing of POPs wastes. The treaty includes provisions for the
environmentally sound management and disposal of POPs wastes (including
stockpiles, products, articles in use, and materials contaminated with
POPs). The POP content in waste is to be destroyed, irreversibly
transformed, or, in very limited situations, otherwise disposed of in
an environmentally sound manner in coordination with Basel Convention
requirements.
Controlling POPs trade. Trade in POPs is allowed only for the
purpose of environmentally sound disposal or in other very limited
circumstances where the importing State provides certification of its
environmental and human health commitments and its compliance with the
POPs treaty's waste provisions.
Allowing limited and transparent exemptions. Most exemptions to the
treaty requirements are chemical-and country-specific. There are also
broader exceptions for use in laboratory-scale research; for small
quantities in the possession of an end-user; and for quantities
occurring as unintentional trace contaminants in products. Notification
procedures and other conditions apply to exemptions for POPs as
constituents of manufactured articles and for certain closed-system
site-limited intermediates.
Funding commitments enabling all countries to participate. The
ability of all countries to fulfill their obligations will be integral
to the treaty's success. The treaty contains a sensible and realistic
financial mechanism, utilizing the Global Environment Facility (GEF),
through which donor countries have committed to assisting developing
countries and transitional economies in meeting their obligations under
the treaty. Adequacy, predictability, and timely flow of funds are
essential. The treaty calls for regular review by the Conference of
Parties of both the level of funding and the effectiveness of
performance of the institutions entrusted with the treaty's financial
operations.
The POPs Treaty as a Careful Balance of Interests
In my view, Mr. Chairman, this is a solid and carefully crafted
treaty. But it is also a treaty that reflects a careful balance of
interests achieved through negotiation and compromise. The U.S.
interest, as we articulated it during the negotiations, was to achieve
an ambitious treaty that would address the global environmental damage
caused by POPs, but do so in a way that would be practical,
implementable, financially efficient, and consistent with the
fundamental structure of our national approach to chemical regulation.
Other countries had different interests, some similar, some at
variance with ours. The developing countries were neither willing nor
able to invest in what to them was a new environmental priority such as
POPs control and remediation without financial and technical assistance
from the developed world. The G-77 negotiators insisted throughout the
negotiation on a new financial mechanism, specific to the Convention,
with mandatory assessments. The establishment of the GEF as the
Convention's interim financial mechanism represents a genuine
compromise in which the donor countries committed to provide additional
financial resources, but through a channel with a proven track record
and one over which donor countries exert significant control.
Similarly, the EU and a number of other countries insisted early in
the negotiations on a framework for regulating byproducts such as
dioxins based on quantitative baselines and mandatory percentage
reductions. The United States and some developing countries considered
this unrealistically rigid, in view of the highly varying levels of
knowledge regarding dioxin sources in various national contexts and the
even higher variation among countries in the capacity to address such
sources. The framework for dioxin regulation which emerged sets an
ambitious goal of ``ultimate elimination . . . where feasible,'' but
seeks to reach this goal through a nationally-driven process of
inventory, planning, and appropriate regulation, under guidance from
the Convention. This too was a genuine compromise that should produce
real progress in dioxin source reduction in the coming years.
The process of balancing interests and finding a unified way
forward was critical to developing a consensus as to how to add new
POPs chemicals to the treaty over time. All parties clearly recognized
that the Convention could not be successful if it were limited solely
to the 12 chemicals already on the POPs list. All parties recognized,
and stated, that the Convention was intended to be dynamic rather than
static. But the question of what scientific and institutional process
to use in adding chemicals to the list was fraught with difficulties
and misunderstandings.
For the United States, it was critical that this process be
scientifically-driven and not subject to political whim. Some in the
U.S. feared that other countries might be almost cavalier in adding
chemicals to the list, and that such an approach would distort the
treaty and distract parties from the strong efforts needed to deal with
the chemicals already on the list.
For some in the EU and elsewhere, it was critical that the process
for adding chemicals not be subject to endless procedural roadblocks.
This concern reflected an anxiety that the affected industries or
governments might use procedural challenges to block the addition of
chemicals that would legitimately qualify for the list on scientific
grounds, and that this approach would impede the effectiveness of the
Convention over time.
The procedure for adding new chemicals which was finally adopted
is, once again, a genuine compromise, but one which, in my view,
successfully protects the U.S. interest in every respect. It may be
useful to give a short account of the negotiations on this important
issue.
First, the U.S. negotiating team insisted on, and successfully
negotiated, the scientific criteria according to which a nominated
chemical would be evaluated. These criteria are contained in Annex D of
the Convention. Then we negotiated the process through which these
criteria should be applied, by a scientific screening committee (the
so-called POPs Review Committee or ``POPRC''), working under the
supervision of the Conference of the Parties (the COP). Finally, we
negotiated the terms under which the COP would review the
recommendations of this scientific group, the conditions under which
the COP could make a decision to add or reject a chemical, and the
procedures for party governments to accept or reject the COP's
decision.
The process which emerged is described in more detail in our
substantive discussion of the new chemicals provisions. Let me just say
here that the final agreement offers the United States the safeguards
of rigorous science, a careful review procedure, a high institutional
threshold for COP decisions to add chemicals, and the right to reject
the addition of a new chemical, if appropriate. In addition, this
compromise also successfully resolved, at least in this context, the
long-running controversy between the United States and the European
Union on the subject of precaution, and did so in a way which may have
useful applications in the future.
Congressional Action Needed to Implement the Stockholm Convention
The Congressional action necessary to implement the POPs treaty
must come in two areas--implementing legislation and financial support
of the Global Environment Facility, the treaty's financial mechanism.
In today's discussion I focus on the need for sound implementing
legislation.
In so doing, I would like to note that WWF appreciates the efforts
of Chairman Gillmor and staff in developing and distributing a
discussion draft bill in mid-June. Chairman Gillmor's ``Stockholm and
Rotterdam Toxics Treaty Act of 2004'' would amend the Toxics Substances
Control Act (the first amendments to TSCA since its enactment in 1976)
to implement the Stockholm POPs Convention as well as the Protocol on
POPs to the Convention on Long-Range Transboundary Air Pollution (LRTAP
POPs Protocol) and the Rotterdam Convention for trade in hazardous
chemicals. My comments will address primarily the implementing
legislation for the Stockholm Convention.
Before I go into specific aspects of the bill, I'd like to offer a
few further background points about the way in which the negotiators
considered these issues. The international community envisioned a
dynamic instrument that could take into account emerging scientific
knowledge about chemicals beyond the initial 12. Integral to the treaty
is a process for nomination, science-based assessment (including risk
profiles and risk assessments), and decision-making that involves both
the subsidiary POPs Review Committee and the Conference of Parties
before a substance can be added to the treaty's annexes. Unless this
element of the treaty is considered to be self-executing, the legal
mechanism to eliminate the production, use, and export of new POPs must
be reflected in the implementing legislation.
In our view, as I have already mentioned, the Convention as
negotiated provides the U.S. with a great deal of flexibility in
deciding whether and how to take domestic action against future POPs:
The international selection process involves input from all countries
that are Parties to the Convention: Article 8 of the Convention
provides for the evaluation and addition of chemicals beyond
the initial 12. Upon entry into force, the Conference of the
Parties (COP) will establish a Persistent Organic Pollutants
Review Committee (POPRC). Parties will submit chemical
nominations to the POPRC, which will evaluate them based on
agreed scientific criteria including persistence,
bioaccumulation, long-range transport, and toxicity. The POPRC
must prepare a draft risk profile in accordance with Annex E,
to be made available for input from all Parties and observers.
The POPRC will then make recommendations that must be approved
by the entire Conference of the Parties before a nominated
chemical can be added to the treaty as a binding amendment.
The Convention does not automatically obligate the U.S. to eliminate
each new POP that is added internationally: Under Article 22(3)
of the Convention, COP-agreed amendments to add new chemicals
become binding upon all Parties, subject to the opportunity to
``opt out'' of such obligations within one year. However, there
exists another safeguard under Article 25(4), which was
proposed by the U.S., allowing a Party to declare when
ratifying the Convention that it will be bound by new chemical
amendments only if it affirmatively ``opts in'' via a separate,
subsequent ratification process. The State Department has
indicated that the U.S. will take advantage of the ``opt in''
provision, enabling the Senate to give its advice and consent
to the addition of each new POP in the future.
Including these and other safeguards in the POPs treaty was a major
objective of U.S. negotiators, one which I believe was fully achieved.
At the end of the long, hard concluding week of negotiations in
Johannesburg in December 2000, I can say that the U.S. negotiators felt
extremely pleased with the balance of the treaty, and were fully
satisfied with the particular provisions for the addition of new
chemicals.
I would also like to reference the views that national
environmental and public health organizations have developed on this
issue. The perspectives of WWF and 17 other national environmental and
public health organizations were recently summarized in a letter
stating three core principles to the Chair and Ranking Members of the
House and Senate Agriculture Committees.1 While the focus of
the agriculture committees is the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), rather than the Toxic Substances Control Act
(TSCA) which this Committee oversees, the principles for effective
implementing legislation are essentially the same. I am re-stating
those principles here in the context of TSCA:
---------------------------------------------------------------------------
\1\ The 18 organizations are: American Rivers, Center for
International Environmental Law, Defenders of Wildlife, Environmental
Defense, Environmental Working Group, Friends of the Earth, Greenpeace,
League of Conservation Voters, National Environmental Trust, National
Wildlife Federation, Natural Resources Council, Oceana, The Ocean
Conservancy, Pesticide Action Network North America, Physicians for
Social Responsibility, Sierra Club, U.S. Public Interest Research
Group, and World Wildlife Fund.
The implementing legislation must require EPA to use an environment/
health based standard to regulate POPs and other persistent,
bio-accumulative, toxic substances. This approach would ensure
consistency with the Convention's Article 8(7)(a) mandate that
candidate substances be put forward for listing by the Parties
if their long-range environmental transport is likely to lead
to ``significant adverse human health and/or environmental
effects such that global action is warranted.''
The Stockholm Convention decisions supported by the United States
should provide the starting point for domestic regulation of
POPs--there is no need to start from scratch. Because the
international process to ban additional POPs will be a
painstaking, multi-year, science-based one in which the United
States will fully participate, decisions by the Stockholm
Conference of the Parties to ban or severely restrict
additional POPs should provide the initial basis for U.S.
domestic regulation; and
The U.S. regulatory process must parallel the international decision-
making process. The TSCA amendments should facilitate
transparency and public participation in the international
listing process. They should give EPA a clear mandate to obtain
information at key stages of the international process, and to
solicit public comments on proposed international actions and
their possible implications for domestic policy.
Chairman Gillmor's Draft Bill
I would like to mention that in certain respects, such as the
tracking of international regulatory steps, Chairman Gillmor's draft
does a solid job, although we believe these information input
provisions should be mandatory rather than voluntary. Making those
linkages with the Convention's requirements for considering new POPs is
very important.
Unfortunately, WWF believes that the draft as currently presented
includes several major shortcomings that would make it extremely
difficult to regulate POPs in the United States. It is also our view
that the inclusion of these seriously flawed provisions would
jeopardize U.S. participation in the Convention and injure the
credibility of the United States in this context. It would establish
standards which dissociate the domestic legislative process from the
painstaking, multi-year international process to review and list a new
POPs chemical, even though the U.S. was a principal architect of that
meticulous science-based process and will remain a key player in those
deliberations as a party to the Convention. Finally, it would set
damaging and unacceptable precedents for domestic management of
chemicals.
Over the past couple of weeks, WWF, CIEL, Physicians for Social
Responsibility, U.S. PIRG, Oceana, National Environmental Trust, and
other environmental and public health groups put together a brief
outline of some of the key concerns with Chairman Gillmor's draft bill.
Restated here, in part, six issues deserve further attention:
1. The proposed regulatory standard for considering additional POPs is
not acceptable and would set troubling precedents.
Under the Discussion Draft, EPA would have complete discretion to
decide whether or not it should prohibit or restrict an
additional POP. But if it decided to regulate, it could do so
only ``to the extent necessary to protect human health and the
environment in a manner that achieves a reasonable balance of
social, environmental, and economic costs and benefits,'' a new
term of art bound to result in years of litigation and judicial
interpretation.
By contrast, under the Stockholm Convention, governments (including
the United States) must decide upon additional POPs ``in a
precautionary manner.'' Yet the Discussion Draft would prohibit
EPA from regulating with anything remotely resembling a
precautionary manner. Instead of acting to guard human health,
EPA would have to strike a ``reasonable balance'' between the
costs of the regulation to chemical companies, and the benefits
of protecting women, children, Native Americans, and others
from some of the world's most dangerous chemicals.
The language implies a requirement for the strict application of
cost-benefit analysis, a tool which, in the view of many
analysts, nearly always results in an overvaluation of the
costs of regulation and a dramatic under-valuation of the
benefits, most of which (e.g., good health, children whose
development is not impaired by toxic chemicals, etc.) cannot be
realistically or fully valued in monetary terms.
2. In weighing scientific information, EPA would have to apply new,
onerous ``sound science''-type requirements that would, in
practice provide litigation fodder rather than improve the
quality of EPA's decision making.
The modern regulatory catch phrase of ``sound science'' was developed
by the tobacco companies as a way to confuse the public, thwart
attempts at regulation, and obfuscate the fact that their
products are among the most dangerous items legally sold. Under
the guise of ``sound science,'' industry groups have
systematically tried to discredit or cull high quality research
in an effort to roll back environmental and public health
protections. The ``sound science''-type provisions in the
discussion draft offer unnecessary, new opportunities for
industry to challenge the scientific basis for decision-
making., and, again, would likely result in years of
litigation.
3. While the Discussion Draft would make it very difficult or
impossible for EPA to implement a Stockholm Convention new
listing decision, the Draft would simultaneously establish a
regulatory ceiling by prohibiting EPA from regulating more
strictly than minimum Convention standards.
Even if EPA decided to regulate an additional POP, the Discussion
Draft would prohibit it from regulating any production or use
of the substance if an exemption were available under the
Convention. Although the Convention's exemptions process was
designed to take account of a variety of national
circumstances, the basic idea of these exemptions is that
developing countries needing flexibility can phase out a
prohibited chemical over time. For our law to require us to
take these exemptions--whether or not they are justified in the
U.S. context--would represent a perverse abdication of U.S.
leadership in international chemicals management.
EPA could be prohibited from using its existing authority under TSCA
6(e) to strengthen the regulation of PCBs, because the
Discussion Draft would allow EPA to do so only as ``necessary
for the United States to comply with its obligations under the
POPs Convention.''
4. The Discussion Draft decouples the international process and the
domestic regulatory process.
Although the Discussion Draft tracks the international process rather
well, it contains no requirement that EPA do anything after an
international decision to add a POP to the Convention, even if
the United States supports the international decision.
There is no timeline within which EPA must act (or declare its
intention not to act).
There is no requirement(similar to what is already found in TSCA
5(for EPA to publish a statement of reasons for its inaction.
There is no citizens petition process(similar to what is already
found in TSCA 21(to challenge EPA to act if it fails to do
so.
5. The Draft would require EPA to undergo unnecessary and duplicative
analysis in the event it chooses to regulate.
As a party to the Stockholm Convention, the United States will
participate in a thorough scientific investigation of
additional POPs before they are added to the Convention.
Yet the Discussion Draft would all but ignore the results of this
international investigation, and would instead require EPA to
undertake additional, duplicative, time-consuming assessments
before it could issue a rule in response to a new-listing
decision.
6. The Discussion Draft oversteps by attempting to constrain the
President's constitutional power to conduct international
negotiations.
Despite multiple safeguards that ensure U.S. decision-making
autonomy, the Discussion Draft would require the United States
to take the Stockholm Convention ``opt in'' election, which
provides that an additional chemical amendment will only bind
the United States if it affirmatively ``opts in'' to it. We do
not believe it is appropriate for the Congress to legislate a
requirement as to which option the President may choose.
In summary, the Chairman's draft adds considerable regulatory
baggage, including cost benefit and ``sound science'' requirements, to
a piece of domestic environmental legislation that is already anemic
and largely ineffectual (TSCA has not even been able to regulate
asbestos), virtually ensuring that no chemical will surmount the
bureaucratic hurdles. Even though this small subset of chemicals have
been determined to be among the world's most dangerous, the draft
applies an economic cost-benefit standard instead of one centered on
protecting human health and the environment. At the same time, the
draft bill goes out of its way to divorce domestic regulatory action
from the international treaty process, and there is no requirement that
EPA do anything after an international decision to add a POP to the
Convention, even when the United States supports the international
decision. From the point of view of one who negotiated the treaty,
these provisions appear ill-advised and unnecessary. From the point of
view of their broader and precedential impact on U.S. chemical
regulation, they are unacceptable.
LRTAP POPs Protocol
WWF also supports the inclusion of implementing legislation for the
Economic Commission for Europe's Long-Range Transboundary Air Pollution
(LRTAP) POPs Protocol. An outgrowth of scientific findings linking
sulfur emissions in continental Europe to acid deposition in
Scandinavian lakes, LRTAP was the first legally-binding agreement to
address air pollution problems on a broad regional basis. Parties to
LRTAP include the United States, Canada, and Western and Eastern
European countries including Russia.
The LRTAP POPs Protocol--the first legally-binding multi-lateral
instrument on POPs--was added in 1998. It targets 16 substances
including the 12 POPs chemicals plus chlordecone, hexabromobiphenyl,
and hexachlorocyclohexane (including lindane). It also includes
obligations to reduce emissions of polycyclic aromatic hydrocarbons
(PAHs) which--as with other byproduct chemicals--do not require changes
to TSCA or FIFRA. Although the LRTAP POPs Protocol includes more
chemicals than the POPs treaty, it is not a replacement. LRTAP deals
with transmission of POPs through only a single medium (air); confines
its reach to northern, largely European countries; and does not address
many of the issues involving developing countries.
To date, twenty countries have ratified the LRTAP POPs Protocol,
which entered into force on October 23, 2003. WWF would welcome U.S.
participation in these regional efforts. Given POPs' global reach,
however, a realistic and comprehensive solution needs to include
developing countries as well. The United States and other donor
countries must assist the developing world in coming to grips with the
POPs problem--and the global POPs treaty is the ideal vehicle through
which to do this.
Rotterdam Convention on Prior Informed Consent
We are pleased to see that Chairman Gillmor's draft has bundled the
Rotterdam PIC Convention in its implementing legislation alongside the
POPs treaty and the LRTAP POPs Protocol. The PIC treaty alerts
governments as to what chemicals are banned or severely restricted, by
which governments, and for what reasons. The cornerstone of the treaty
is prior informed consent, a procedure that enables Parties to review
basic health and environmental data on specified chemicals and to
permit or refuse any incoming shipments of those chemicals. Each
Party's decisions are disseminated widely, allowing those countries
with less advanced regulatory systems to benefit from the assessments
of those with more sophisticated facilities. Instituting PIC is a
critical first step in the process of improving chemical management
capacity. The Rotterdam Convention replaces the voluntary PIC
procedure, which has been operated by UNEP and FAO since 1989.
The PIC treaty includes provisions for:
alerting countries when there is an impending import of a chemical
which has been banned or severely restricted in the exporting
country;
labeling hazards to human health or the environment; and
exchanging information about toxicological findings and domestic
regulatory action.
The Rotterdam Convention entered into force on 24 February 2004 and
by now has 73 Parties. The treaty makes an important contribution to
global chemicals management by drawing attention to those substances
causing the greatest harm, disseminating that information, and
facilitating national decision-making on chemical imports.
Many of the POPs-, LRTAP-, and PIC-related legislative provisions
are inter-related. WWF would be happy to work with Energy and Commerce
staff to help ensure that the implementing legislation facilitates
rather than hinders the efficient working of U.S. environmental laws.
In closing, we wish to thank the subcommittee Members and staff for
the hard work and initiative that went into preparing the draft bill.
More work, though, is needed to strike an effective balance between our
domestic and international responsibilities. Full implementation of the
POPs, PIC, and LRTAP agreements is essential to protecting the American
people and the global community from the threat of POPs and other toxic
substances.
Thank you for the opportunity to testify today. I would be happy to
answer any questions.
Mr. Gillmor. Thank you very much.
And we will go to Lisa Heinzerling, Professor of Law,
Georgetown University Law Center.
STATEMENT OF LISA HEINZERLING
Ms. Heinzerling. Thank you. And thank you for the
opportunity to testify before you today. In these remarks I
wish to make two basic points. As currently interpreted the
Toxic Substances Control Act is not an adequate mechanism for
regulating toxic substances in this country. Thus, the
implementation of international agreements on POPs is of
critical importance in ensuring the adequacy of future controls
on toxic substances.
Second, the analytical procedures contemplated by the so
called discussion draft would virtually guarantee that no new
toxic substances would be added to the list of substances
regulated by international agreements on POPs.
The Toxic Substances Control Act or TSCA appears to hold
great promise in controlling toxic substances. Section 6 of the
statute provides the EPA with broad authority to control toxic
substances. Unfortunately, however, the first and only judicial
interpretation of EPA's authority to ban a substance under
section 5 severely limited EPA's authority under this
provision.
Among other things, the court held that in examining costs
and benefits of regulatory action under TSCA, EPA was required
to discount benefits as well as costs which in effect means
treating regulatory benefits such as human lives saved as if
they were a financial investment on which interest accrues.
Discounting benefits in the context of toxic chemical controls
places a large thumb on the scale against regulation.
A second part of the holding was that EPA may not use
unquantified benefits to justify regulating a harmful chemical
except in so called close cases. But it is hard to identify a
close case where by definition some benefits are quantified and
some are not.
Another part of the court's holding was that EPA may not
exceed undefined limits on how much money it requires industry
to spend to save a human life.
Each of these elements of the court's decision has a
stultifying effect on EPA's power to regulate persistent
organic pollutants under TSCA. However, the discussion draft
threatens to be even more paralyzing to the process of toxic
substance control than this decision has been. If Congress
wanted to ensure that no new harmful substances would ever be
regulated by the U.S. under the international agreements on
POPs, it could hardly do better than to pass the discussion
draft bill now circulating in the House. Merely duplicating the
already ineffective requirements of TSCA as prerequisites for
regulating new POPs would be bad enough. The discussion draft
goes even further and offers whole new obstacles to meaningful
toxic substance control.
Despite the thorough science-based review proceeding the
international listing process, the discussion draft would
require EPA essentially to start all over again, if it acts at
all, in response to international recommendations.
I discuss numerous problems with the discussion draft in my
written statement. Here I'll focus on the shortcomings of cost
benefit balancing.
The discuss draft directs EPA to regulate a newly listed
POP only if doing so achieves a so called reasonable balance of
social, environmental and economic costs and benefits. The
draft affords no clue, however, as to how a reasonable balance
is to be identified.
In addition, cost benefit analysis is notoriously and
systematically biased against environmental protection. It is
particularly skewed against environmental protection that
targets pollutants like the persistent organic pollutants;
pollutants with large but insidious and sometimes subtle
effects spread over a vast population and reaching into the
distant future.
Cost benefit analysis is skewed in the following specific
ways:
Many of the benefits of reducing these pollutants cannot be
qualified. In many cases avoiding cancer is the only benefit
that can be quantified. This leaves all other causes of death
plus all nonfatal illnesses avoided and all ecological effects
left out of the numerical tally of costs and benefits.
Two, the costs of regulating environmental risks are often
overstated and often by a large amount.
Three, even when benefits can be quantified, the process of
fitting values like human lives and health into a cost benefit
balance is fraught with difficulty. Attaching monetary values
to benefits such as human lives is a process that is filled
with questionable assumptions and rests on an exceptionally
problematic premise; that is that human life can be
meaningfully translated into dollar terms.
Five, the technique of discounting belittles desires to
protect this and future generations against long term and
persistent risk, yet protection of the future for our
generation, our children's generation and generations yet to
come is one of the basic principles animating a document like
the POPs treaty.
Thank you.
[The prepared statement of Lisa Heinzerling follows:]
Prepared Statement of Lisa Heinzerling, Professor of Law, Georgetown
University Law Center, Member Scholar, Center for Progressive
Regulation
Thank you for the opportunity to testify before you today. My name
is Lisa Heinzerling. I am a Professor of Law at the Georgetown
University Law Center. I have also been a visiting professor at the
Harvard and Yale Law Schools. I am a graduate of the University of
Chicago Law School, where I served as editor-in-chief of the University
of Chicago Law Review. After law school I clerked for Judge Richard
Posner on the U.S. Court of Appeals for the Seventh Circuit, and then
for Justice William Brennan of the U.S. Supreme Court. I was an
Assistant Attorney General in the Environmental Protection Division of
the Massachusetts Attorney General's Office for three years before
coming to Georgetown in 1993. My expertise is in environmental and
administrative law. I am also a Member Scholar of the Center for
Progressive Regulation.
The Center for Progressive Regulation is a nonprofit research and
educational organization of university-affiliated academics with
expertise in the legal, economic, and scientific issues related to
regulation of health, safety, and the environment. CPR supports
regulatory action to protect health, safety, and the environment, and
rejects the conservative view that government's only function is to
increase the economic efficiency of private markets. Through research
and commentary, CPR seeks to inform policy debates, critique anti-
regulatory research, enhance public understanding of the issues, and
open the regulatory process to public scrutiny.
My testimony today concerns U.S. legislation designed to implement
international conventions on persistent organic pollutants (``POPs'').
I will make three basic points in this testimony:
1. As currently interpreted, the Toxic Substances Control Act is not an
adequate mechanism for regulating toxic substances. Thus the
implementation of international agreements on POPs is of
critical importance in ensuring the adequacy of future controls
on toxic substances.
2. The paralyzing procedures contemplated by the ``Gillmor Discussion
Draft'' [hereinafter ``Discussion Draft''] circulating in the
House would virtually guarantee that no new toxic substances
would be added to the list of substances regulated by
international agreements on POPs.
3. Recent assertions by the Executive Branch concerning supposed
constitutional limits on using international decisions to
trigger domestic obligations, and on requiring public notice-
and-comment procedures based on such international decisions,
are without merit.
i. the inadequacy of the toxic substances control act in regulating
toxic substances
The Toxic Substances Control Act (``TSCA''), 15 U.S.C. 2601 et
seq., appears to hold great promise in controlling toxic substances.
However, in reality, TSCA has delivered very little in the way of such
control. As explained below, one problematic but influential appeals
court decision significantly narrowed the scope of TSCA's most
ambitious program for regulating toxic substances.
Section 6 of TSCA provides the Environmental Protection Agency
(EPA) with broad authority to control the manufacture, processing,
distribution in commerce, use, and disposal of chemical substances and
mixtures. Section 6(a) gives the agency a wide-ranging menu of options
for controlling harmful chemicals, including everything from requiring
labeling for such chemicals to banning them altogether. Section 6(a) of
TSCA requires EPA--through the use of the mandatory ``shall''--to
regulate a chemical substance when the agency finds there is a
``reasonable basis'' to conclude that it poses an ``unreasonable risk
of injury'' to human health or the environment. 15 U.S.C. 2605(a).
This provision requires the agency to regulate such a substance ``to
the extent necessary to protect adequately against such risk using the
least burdensome requirements.'' Id. Section 6(c)(1) instructs the
agency, when issuing a rule under section 6(a), to ``consider and
publish a statement with respect to'' the effects of a chemical on
human health and the environment, the magnitude of exposures to such
chemical, the benefits of the chemical for ``various uses and the
availability of substitutes for such uses,'' and ``the reasonably
ascertainable economic consequences of the rule, after consideration of
the effect on the national economy, small business, technological
innovation, the environment, and public health.'' 15 U.S.C.
2605(c)(1).
TSCA's section 6 is unique among the federal environmental laws in
the extent to which it allows EPA to regulate harmful substances across
exposure contexts (e.g., workplace and environmental) and across whole
industries, thus giving the agency the opportunity to control
essentially all of the important risks from a harmful chemical at once.
As noted, moreover, the statute also provides the agency with a virtual
smorgasbord of regulatory options for controlling harmful chemicals. As
enacted, therefore, TSCA's section 6 offered a good deal of promise in
the ongoing effort to reduce the harmful effects of chemicals in our
society. Ultimately, however, the law's rather vague injunction to
protect against ``unreasonable risks,'' and its directive to EPA to
undertake a cost-benefit balancing under section 6, contributed to a
judicial decision which all but doomed the law to oblivion.
The first and only judicial interpretation of EPA's authority to
ban a substance under section 6(a) so limited EPA's authority under
this provision that section 6 has not played a significant role in
limiting toxic chemicals in this country. The interpretation came in
the context of a challenge to EPA's ban on virtually all manufacturing,
processing, distribution in commerce, and use of asbestos, the agency's
first and only such ban under TSCA.
In 1979, EPA began looking into the possibility of banning asbestos
under section 6 of TSCA.1 The agency acted in response to
increasing concerns about the harms to human health caused by asbestos.
Ten years and a 45,000-page record later,2 EPA produced a
final rule banning virtually all uses of asbestos in several
phases.3 The agency found that asbestos posed an
unreasonable risk to human health in all stages of its production and
use, and that the substance was thus an appropriate candidate for the
kind of comprehensive regulation offered by TSCA's section
6.4
---------------------------------------------------------------------------
\1\ Commercial and Industrial Use of Asbestos Fibers, 44 Fed. Reg.
60,061.
\2\ Percival et al., Environmental Regulation: Law, Science, and
Policy at 409 (Aspen, 4th ed. 2003).
\3\ EPA, Asbestos: Manufacture, Importation, Processing, and
Distribution in Commerce Prohibitions, 54 Fed. Reg. 29,460 (1989).
\4\ Id. at 29,461.
---------------------------------------------------------------------------
The inevitable legal challenge ensued, and in 1991, the U.S. Court
of Appeals for the Fifth Circuit struck down EPA's ban on asbestos in
what remains the only judicial treatment of the basic parameters of
section 6(a) of TSCA. The court's decision in Corrosion Proof Fittings
v. EPA, 947 F.2d 1201 (5th Cir. 1991), included, among others, the
following holdings:
1. In order to regulate under section 6(a) of TSCA, EPA must begin by
examining the least intrusive regulatory alternative (such as
labeling), considering the costs and benefits of such
alternative. EPA may consider a more intrusive regulatory
option only if ``unreasonable risks'' are predicted to remain
under the less onerous alternative. In order to justify a ban--
like the asbestos ban--EPA would have to examine the costs and
benefits of numerous less onerous regulatory alternatives, and
conclude that each would allow unreasonable risks to remain
unaddressed.
2. In examining costs and benefits under section 6(c) of TSCA, EPA was
required to ``discount'' benefits as well as costs--which, in
effect, means treating regulatory benefits such as lives saved
as if they were a financial investment. Discounting benefits in
the context of toxic chemical control places a large thumb on
the scale--against regulation.
3. EPA may not use unquantified benefits to justify regulating a
harmful chemical, except in close cases.
4. EPA may not exceed undefined limits on how much money it requires
industry to spend to save a human life.
I examine each of these elements of the court's decision, and its
paralyzing effect on EPA's power to regulate persistent organic
pollutants under TSCA's section 6, in turn.
Detailed Analysis of Less Burdensome Alternatives
In deciding to ban virtually all uses of asbestos, EPA had
concluded that less onerous regulation would not eliminate the
unreasonable risks of asbestos. The agency considered several
regulatory alternatives short of a ban, but concluded that these
options would not adequately reduce the relevant risks. The agency did
not conduct a separate analysis of costs and benefits for each of the
less restrictive alternatives it considered.
The court of appeals hearing the challenge to EPA's rule held that
EPA should have considered each regulatory alternative in detail,
beginning with the least burdensome one and continuing on to more
burdensome alternatives only if, at any given stage, the alternative
under consideration did not reduce risks to a reasonable level. At each
stage, moreover, the agency was required to assess the costs and
benefits of the option under consideration. As the court put it:
Upon an initial showing of product danger, the proper course
for the EPA to follow is to consider each regulatory option,
beginning with the least burdensome, and the costs and benefits
of regulation under each option. The EPA cannot simply skip
several rungs, as it did in this case, for in doing so, it may
skip a less-burdensome alternative mandated by TSCA. Here,
although the EPA mentions the problems posed by intermediate
levels of regulation, it takes no steps to calculate the costs
and benefits of these intermediate levels. Without doing this
it is impossible, both for the EPA and for this court on
review, to know that none of these alternatives was less
burdensome than the ban in fact chosen by the agency.
947 F.2d at 1217 (citation omitted). The court justified the imposition
of this heavy procedural burden on the agency by reference to the
language of TSCA, which, the court concluded, offered regulatory
options in an order proceeding from most to least stringent. Id. at
1215-16. In fact, however, the regulatory options identified in TSCA
6 are not arranged in the tidy order the court perceived.5
Moreover, even if they were, nothing in TSCA suggests that EPA is bound
to follow the rigid and onerous procedure required by the court in
Corrosion Proof Fittings. Indeed, where, as EPA did with respect to
asbestos, the agency finds that a substance poses unreasonable risks
throughout its industrial life cycle, then the agency is bound by the
terms of the statute to protect against ``such risk.'' 15 U.S.C.
2605(a). In those circumstances, a product ban happens to be the
``least burdensome'' method available to protect against ``such risk.''
---------------------------------------------------------------------------
\5\ For a critique of the court of appeals' decision on this ground
and others, see Thomas O. McGarity, The Courts and the Ossification of
Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525,
541-49 (1997).
---------------------------------------------------------------------------
Nevertheless, unless the decision is overturned by either the
courts or Congress, Corrosion Proof Fittings remains the definitive
statement of what is required to ban a substance under TSCA. And what
is required is unreasonably and unrealistically onerous. In banning
asbestos, as I have mentioned, EPA spent ten years and produced a
45,000-page record. Yet it compiled detailed cost and benefit
information only on the alternative of banning asbestos. Imagine the
time, resources, and analysis required under the court of appeals'
approach, which requires EPA to conduct a detailed cost-benefit
analysis of every regulatory option available under TSCA section 6.
Such a process is not merely onerous; it may well be impossible. In
analyzing the costs and benefits of a ban of asbestos, EPA was faced
with the difficult but not impossible task of trying to identify the
risks that would be avoided if asbestos were no longer used or produced
(with very limited exceptions). Even so, the task was complicated and
time-consuming, and many of the benefits of EPA's ban--including the
prevention of nonfatal illnesses associated with asbestos, and the
prevention of death from any disease other than cancer--remained
unquantified by the agency. Under the court of appeals' approach,
however, EPA would be forced to figure out how many lives would be
saved by, for example, a particular labeling requirement; how many
saved by a particular disposal requirement; and so forth. The
analytical demands imposed by the court of appeals' decision are
positively paralyzing.
Discounting Benefits
In evaluating the costs and benefits of banning asbestos, EPA did
not engage in formal cost-benefit analysis, which would have involved
translating regulatory benefits--such as human lives saved--into
monetary terms. Instead, EPA estimated the economic costs and life-
saving benefits of the rule, and compared the costs and benefits
without use of the common metric of dollars. However, EPA did employ a
separate technique distinctive to formal cost-benefit analysis: it
``discounted'' the future life-saving benefits of its rule by 3 percent
per year from the year in which the benefits would accrue. EPA thought
that the regulatory benefits of its rule would accrue as soon as the
risks from asbestos were reduced, and so it discounted these benefits
from the (quite near-term) date on which exposures to asbestos would be
reduced.
The court of appeals upheld EPA's choice of a discount rate, but
disagreed with EPA's choice of a date from which to discount. The court
thought EPA should have discounted life-saving benefits from the time
when a life-threatening illness would materialize, rather than from the
time when exposures would be reduced. 947 F.2d at 1218. For diseases
with long latency periods, such as the cancers caused by asbestos and
prevented by EPA's rule, the court of appeals' approach means
discounting future benefits for years or, more likely, decades longer
than EPA's preferred approach would have required. Discounting future
benefits over many years greatly reduces their apparent magnitude. To
take one famous example, the deaths of 1 billion people 500 years from
now, if discounted to ``present value'' at a rate of 5 percent, become
equivalent to the death of less than one person today.
The court in Corrosion Proof Fittings held, moreover, that EPA had
no choice but to discount future benefits. Since EPA had chosen to
discount the future monetary costs imposed by its rule, the court
stated that the agency was required to discount the future benefits as
well. Citing only an article from The Economist magazine, the court
reasoned that discounting benefits was required to maintain an
``apples-to-apples'' comparison between costs and benefits. 947 F.2d at
1218.
On the matter of discounting, too, the court of appeals' opinion in
Corrosion Proof Fittings is deeply problematic. In an ordinary case,
one would expect a court to defer to the agency's determination that
benefits accrued as soon as the risk from asbestos was reduced. In
everyday life, after all, we regard the removal of a risk as a benefit
as soon as it happens; we don't ordinarily react to the removal of a
carcinogen in our environment, for example, by announcing that we will
hold off feeling relieved until the date when we might have developed
cancer had the carcinogen not been taken away.
Moreover, nothing in TSCA requires the discounting of future non-
monetary benefits such as lives saved. And, since under EPA's mode of
cost-benefit balancing, lives were not translated into dollars, EPA was
already comparing apples and oranges by considering economic costs on
the one hand and human lives on the other. Nothing in TSCA forbids EPA
to make such a comparison.
Indeed, a large and growing literature challenges the notion that
one must compare monetary costs and human lives on common terms--such
as dollars--in order to make coherent regulatory policy. This
literature argues, to put it simply, that to compare money and lives is
necessarily to compare apples and oranges, no matter how elaborate the
economic theory underlying the effort to transform lives into
dollars.6 This literature also criticizes the technique of
discounting itself, which renders future regulatory benefits trivial
over any substantial discounting interval.7
---------------------------------------------------------------------------
\6\ See, e.g., Frank Ackerman & Lisa Heinzerling, Priceless: On
Knowing the Price of Everything and the Value of Nothing (The New Press
2004).
\7\ Id., ch. 8.
---------------------------------------------------------------------------
The international agreements on POPs are aimed at phasing out
pollutants that, among other things, cause long-latency human diseases
such as cancer. The agreements are also aimed at phasing out pollutants
that persist in the environment over long periods of time and thus pose
risks to future generations. The benefits produced by the treaty are
the very kinds of benefits trivialized through the use of discounting,
as required by the court in Corrosion Proof Fittings. TSCA, as
currently interpreted, is thus not an effective mechanism for
controlling these substances.
Limited Role for Unquantified Benefits
In seeking to ban virtually all uses of asbestos, EPA had justified
its decision based partly on unquantified benefits. For example, the
agency used a 13-year time horizon in its analysis of costs and
benefits, but emphasized that the benefits of the rule--though
unquantified beyond the 13-year horizon--would continue to occur even
past its analytical horizon. 54 Fed. Reg. at 29,486-88. In addition,
although the agency was able to quantify only the benefits of saving
lives due to cancers averted, the agency also cited many other,
unquantifiable benefits in support of its rule--including nonfatal
illnesses, fatalities due to causes other than cancer, and ecological
effects. Id. at 29,479, 29,498.
The court in Corrosion Proof Fittings chastised EPA for relying too
heavily on unquantified benefits. The court stated, cryptically, that
while EPA could use unquantified benefits to justify a rule in close
cases, it could not use unquantified benefits to ``effect a wholesale
shift on the balance beam.'' 947 F.2d at 1219.
The court's ruling, again, is problematic. Where some benefits are
unquantifiable, how can one even determine whether the quantified part
of the case for a rule is ``close''? Again, moreover, the court cites
nothing in TSCA itself that requires the agency to give more respectful
attention to quantified values than to unquantified ones.
And, once more, the court's interpretation of TSCA makes this
statute an especially weak tool in the context of persistent
pollutants. The benefits of reducing such pollutants are notoriously
difficult to quantify. In many cases, the one benefit that can be
quantified with any precision--as in Corrosion Proof Fittings itself--
is the prevention of death from cancer. Many other serious adverse
effects--such as endocrine disruption, neurological impairment, immune
system impairment, ecological damage, and so forth--are not amenable to
precise quantification at this time, in most cases. The court of
appeals' dismissal of the importance of unquantified benefits--except
in the ill-defined ``close cases'' category--renders TSCA an
ineffective means of addressing the harms of POPs.
How Much to Spend to Save a Human Life
One last aspect of the decision in Corrosion Proof Fittings that
renders TSCA's 6 a weak mechanism for controlling toxic substances is
the court's holding that EPA had, with the asbestos ban, required
industry to spend too much to save a human life. The court pointed to
cost figures per life saved, disaggregated by industry. These figures
showed how much it would cost to save a life in, for example, the
asbestos pipes industry vs. the asbestos shingles industry vs. the
asbestos brakes industry. In some industries, the cost per life saved,
when lives were discounted at 3 percent per year, reached into the tens
of millions of dollars. 947 F.2d at 1218, 1222.
The court thought that EPA's decision to require the asbestos
industry to spend this much to save human lives meant that its review
of the costs of the asbestos rule was deeply flawed: ``The EPA's
willingness to argue that spending $ 23.7 million to save less than
one-third of a life reveals that its economic review of its
regulations, as required by TSCA, was meaningless.'' 947 F.2d at 1223.
Thus the court overturned the rule on this ground as well.
Legal scholars have expressed alarm at the court's aggressive
review of EPA's asbestos ban.8 One example of the court's
aggressiveness is, of course, the court's intrusion into the agency's
basic policy choice of how much to spend to save a life. The court
cited no statutory authority (other than the general injunction to
consider costs) in coming to its decision, nor did it explain why
disaggregating costs, industry by industry, was the only way to look at
the cost imposed by the rule. Notice, for example, that at an estimated
expense of approximately $460 million, and a savings in lives of at
least 202, the lives ``cost'' approximately $2.3 million apiece--not a
bad bargain as these things go. In addition, recall that many of the
benefits of the rule could not be quantified. Or, to describe the
asbestos rule another way, it would have cost approximately 14 cents
for each person in the U.S.9 Described in ways other than
the one way chosen by the court of appeals, the asbestos rule seems
like quite a reasonable expenditure for the amount of good it would
have done.
---------------------------------------------------------------------------
\8\ See, e.g., Thomas O. McGarity, The Courts and the Ossification
of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525
(1997).
\9\ See Lisa Heinzerling, Political Science, 62 U. Chi. L. Rev.
449, 463-64 (1995) (reviewing Stephen Breyer, Breaking the Vicious
Circle: Toward Effective Risk Regulation (Harvard 1993)).
---------------------------------------------------------------------------
TSCA Today
Despite the promise suggested by the text of TSCA section 6(a),
that promise has remained unfulfilled in the years since Corrosion
Proof Fittings was decided. For here was a case in which the agency had
spent a decade compiling a thorough and careful record of the harms
caused by one of the hazardous substances about which we know the most,
and yet the court overturned the agency's rule and required the agency
to conduct almost impossibly detailed analysis before attempting to ban
another substance under the statute. Perhaps it goes without saying
that the agency has not tried again.
TSCA's transformation from potentially powerful tool against toxic
substances into an ineffective law is well illustrated by the next
action EPA proposed under section 6(a): a ban on lead fishing sinkers
used by fishermen. EPA, Lead Fishing Sinkers, 59 Fed. Reg. 11122 (Mar.
9, 1994). Even this rather small action--in comparison to the
nationwide, staged ban on asbestos--never became final. Likewise, EPA's
recent suggestion that it would use TSCA 6 to ban the fuel additive
MTBE, after MTBE had contaminated groundwater supplies all over the
country, was dropped without ceremony by the Bush Administration. See
Pete Yost, How the White House Shelved MTBE BAN, Associated Press, Feb.
16, 2004.
The plain fact is that TSCA 6 is not now a viable mechanism for
meaningfully reducing the risks of toxic substances in this country.
This is why effective implementation of the international agreements on
POPs is so important. However, as I next discuss, current proposals for
such implementation threaten to be even more paralyzing to the process
of toxic substance control than the Corrosion Proof Fittings decision
has been.
ii. the paralyzing requirements of the ``discussion draft''
If Congress wanted to ensure that no new harmful substances would
ever be regulated by the U.S. under the international agreements on
POPs, it could hardly do better than to pass the ``Discussion Draft''
bill now circulating in the House. Merely duplicating the already-
ineffective requirements of TSCA as prerequisites for regulating new
POPs would be bad enough; the Discussion Draft goes even further and
offers whole new obstacles to meaningful toxic substance control.
Better, in truth, to have no mechanism at all for adding new substances
to the list--the route originally preferred by the current
Administration 10--than to offer this charade in place of a
meaningful listing process.
---------------------------------------------------------------------------
\10\ Eric Pianin, White House Move on Toxic-Chemicals Pact
Assailed, Washington Post, Apr. 12, 2002, at A13.
---------------------------------------------------------------------------
Before delving into the details of the Discussion Draft, it is
worth bearing in mind the context in which EPA action under the POPs
implementing legislation will occur. The domestic listing process
contemplated in the Discussion Draft begins only after international
panels have engaged in a thorough, science-based process of review and
have concluded that a new substance warrants regulation under the
international agreements for POPs.11
---------------------------------------------------------------------------
\11\ For a concise and helpful discussion of the background and
requirements of the POPs treaty, see Joel A. Mintz, Two Cheers for
POPs: A Summary and Assessment of the Stockholm Convention on
Persistent Organic Pollutants, 14 Geo. Int'l Envtl. L. Rev. 319 (2001).
---------------------------------------------------------------------------
This process includes scientific findings by the so-called
Persistent Organic Pollutants Review Committee, a group of experts in
risk analysis designated by parties to the POPs treaty and chosen for
their expertise and with equitable geographical distribution in mind.
Stockholm Convention art. 19(6)(a). The Committee reviews chemicals for
possible inclusion on the POPs list through evaluation of the chemicals
in light of several screening criteria. Id., art. 8(3). If the
Conference of the Parties decides that a chemical is a good candidate
for listing, then the Committee goes back to work and conducts a
detailed risk profile of the chemical in question. If, based on this
analysis, the Committee determines that a chemical ``is likely, as a
result of its long-range environmental transport, to lead to
significant adverse human health and/or environmental effects such that
global action is warranted,'' id., art. 8(7)(a), then the matter
returns to the Conference of the Parties, which decides whether to list
the chemical based on an assessment of the scientific evidence and
analysis of possible control measures for the chemical. Id., Annex F.
The POPs treaty explicitly takes a protective, precautionary
approach to regulating POPs. The preamble states: ``Mindful of the
precautionary approach as set forth in Principle 15 of the Rio
Declaration on Environment and Development, the objective of this
Convention is to protect human health and the environment from
persistent organic pollutants.'' Stockholm Convention, art. 1. Article
8(7)(a) of the Convention specifically states that ``[l]ack of full
scientific certainty shall not prevent the proposal [to list a new
chemical] from proceeding,'' and Article 8(9) provides that the
Conference of the Parties, ``taking due account of the recommendations
of the Committee, including any scientific uncertainty, shall decide,
in a precautionary manner, whether to list the chemical.'' In the
fierce current debates over precautionary approaches to environmental
policy, therefore, the POPs treaty comes down firmly on the side of
precaution.12
---------------------------------------------------------------------------
\12\ See generally Pep Fuller & Thomas O. McGarity, Beyond the
Dirty Dozen: The Bush Administration's Cautious Approach to Listing New
Persistent Organic Pollutants and the Future of the POPs Convention, 28
Wm. & Mary Envtl. L. & Pol. Rev. 1 (2003).
---------------------------------------------------------------------------
Despite the thorough, science-based review preceding the
international listing process, the Discussion Draft would require EPA
essentially to start all over again, if it acts at all in response to
the international recommendations. The problems with the Discussion
Draft's approach to listing new POPs include the following: excessive
discretion on the part of EPA; duplication of scientific effort;
unnecessary and problematic injunctions to the agency to use ``sound
science''; and biased and paralyzing directives to undertake cost-
benefit balancing and to give economic costs particularly close
attention. I discuss each of these problems in turn.
EPA discretion
The Discussion Draft does not require EPA to act at all in response
to international recommendations on listing new POPs. Instead, it
simply states that EPA ``may'' regulate in response to such
recommendations. 502(e)(1)(A). In addition, after international
bodies have undertaken painstaking review of the harms caused by
substances that are candidates for regulation, EPA has discretion
whether even to consider those bodies' recommendations; here, too, the
permissive ``may'' is used in the Discussion Draft. 502(e)(3). So
little, apparently, do the Discussion Draft's authors think of the
international scientific review process, that the findings from this
process are labeled merely ``additional considerations'' in the Draft.
Id.
Moreover, even if EPA does act in response to the international
recommendations, there is no deadline in the Discussion Draft for a
conclusion to be reached and a regulation to issue. Finally, if EPA
does not act, there is no ``action-forcing'' mechanism, such as the
citizen petition process contained in TSCA 21, which would bring
pressure to bear on EPA for its failure to act.
The Discussion Draft, in short, leaves the decision whether to do
anything in response to international recommendations on regulation of
new substances completely up to EPA.
Duplication of scientific effort
As discussed, the international scientific review committee on POPs
will conduct a detailed analysis of the scientific case for adding a
new chemical to the list under the POPs treaty. Remarkably, however,
the Discussion Draft not only, as noted above, gives EPA discretion in
deciding whether even to consider the international recommendations on
new POPs listings, it also directs EPA to conduct entirely new
scientific analyses of candidate chemicals. EPA is, according to the
Discussion Draft, required to consider a scientific assessment of the
effects of candidate chemicals on health and the environment, and to
consider the magnitude of exposures of these chemicals experienced by
humans and the environment. 502(e)(2)(A-B). It is unclear what is
expected to be gained by this duplicative scientific review.
Compounding the problem is, as I discuss next, the Discussion Draft's
cryptic and troubling invocations of ``sound science.''
``Sound science''
The Discussion Draft provides:
In assessing risks and effects, the Administrator shall use
sound and objective scientific practices, and shall determine
the weight of the scientific evidence concerning such risks or
effects based on the best available scientific information,
including peer-reviewed studies, in the rulemaking record.
502(e)(4).
It is hard to know quite what to make of this provision. On the one
hand, it is not unusual for federal laws regulating risks to direct the
relevant agencies to use the ``best available evidence'' in coming to
their decisions. See, e.g., 29 U.S.C. 655(b)(5) (regarding health
standards under Occupational Safety and Health Act). Viewed in that
light, the provision is a rather benign reminder to EPA to use good
science in deciding whether to regulate additional POPs--a reminder
that merely duplicates the Administrative Procedure Act's injunction
against arbitrary and capricious agency decision making.
On the other hand, ``sound . . . scientific practices,'' or ``sound
science,'' has, in conservative circles, become a buzzword for
skepticism about findings of risk to humans and the environment due to
chemicals, products, industrial pollution, etc. The movement for
``sound science,'' in fact, began with the tobacco industry's efforts
to counter scientific evidence of the harms of their products. Thus the
presence in this bill of references to the ill-begotten ``sound
science'' theme raises the troubling possibility that this provision
will be used not merely to duplicate the APA's salutary injunction
against arbitrary and capricious agency decisions, but instead will be
used somehow to block important scientific information from being
considered in the process of deciding whether to regulate additional
POPs.
The Discussion Draft's reference to ``peer-reviewed studies''
raises similar possibilities. On the one hand, the bill does not limit
EPA's consideration only to peer-reviewed studies, and thus the bill
may be taken to mean simply that EPA should include peer-reviewed
studies, where possible, in its scientific examinations--something the
agency does routinely in any event. On the other hand, ``peer review,''
like ``sound science,'' has become a kind of rallying cry for industry
and regulatory skeptics within the Administration, and sometimes has
come to mean review by ``peers'' within industry is favored over review
by other scientific experts. Here, too, therefore, the meaning of the
provision on science is unclear, but portents of mischief abound.
Cost-benefit analysis
The Discussion Draft would weigh down the process for listing new
POPs with stultifying, time-consuming, resource-intensive, and
systematically biased analytical requirements. I discuss these
requirements below. But first, it is important to note that nothing in
the Discussion Draft requires EPA even to publish the results of its
detailed analysis. Whereas TSCA itself explicitly states the EPA must
``consider and publish a statement with respect to'' costs, benefits,
and potential substitute substances, 15 U.S.C. 2605(c)(1), the
Discussion Draft merely requires EPA to ``consider'' the listed
factors. 502(e)(2). The contrast between TSCA and the Discussion
Draft is striking particularly because the language regarding
publishing a statement comes from the part of TSCA that is otherwise
quoted quite closely in the Discussion Draft.
If EPA decided not to regulate a POP newly listed pursuant to the
POPs treaty, therefore, there is no guarantee that EPA would even be
forced to explain why it decided not to do so. This is especially so
since the Discussion Draft provides no process for citizen petitions
calling upon the agency to act when it has failed to act. If EPA
decided to regulate a newly listed POPs, however, it would of course
have to explain its decision under the APA. Thus the Discussion Draft
in this way, too, contains an internal bias against listing new POPs.
The problems go deeper still. The Discussion Draft allows EPA to
regulate a newly listed POP only ``to the extent necessary to protect
human health and the environment that achieves a reasonable balance of
social, environmental, and economic costs and benefits.''
502(e)(1)(A). The Draft affords no clue, however, as to how a
``reasonable balance'' is to be identified. Although the Draft does
provide a laundry list of factors EPA is to consider in coming to a
decision, 502(e)(2)(A-E), it does not give EPA guidance as to how to
figure out what a ``reasonable balance'' of costs and benefits is.
Here, too, therefore, the Discussion Draft affords EPA a huge amount of
discretion in making decisions on newly listed POPs. Moreover, given
the precedent of Corrosion Proof Fittings, one must worry about the
courts' ultimate role in policing exactly which regulatory measures
afford a ``reasonable balance'' between costs and benefits and which do
not.
Quite apart from the large amount of discretion afforded by the
ill-defined ``reasonable balance'' standard is the internal bias
against regulation embedded in that standard. Cost-benefit balancing is
notoriously, and systematically, biased against environmental
regulation. It is particularly skewed against environmental regulation
that targets pollutants like the POPs--pollutants with large but
insidious and sometimes subtle effects, spread over a vast population
(in this case, the whole world) and reaching into the distant
future.13
---------------------------------------------------------------------------
\13\ See generally Lisa Heinzerling, Environmental Law and the
Present Future, 87 Geo. L.J. 2025 (1999).
---------------------------------------------------------------------------
Here are some of the basic features of cost-benefit balancing that
systematically bias it against environmental protection, particularly
protection against pollutants like POPs: 14
---------------------------------------------------------------------------
\14\ These arguments are elaborated in Frank Ackerman & Lisa
Heinzerling, Priceless: On Knowing the Price of Everything and the
Value of Nothing (The New Press 2004).
Many of the benefits of reducing these pollutants cannot be
quantified. In many cases, avoiding cancer is the only benefit
that can be quantified. This leaves all other causes of death,
plus all nonfatal illnesses avoided and all ecological effects,
left out of the numerical tally of costs and benefits. When a
benefit is not quantified, its worth is typically treated as if
it were zero in a cost-benefit balancing.
The costs of regulating environmental risks are often overstated, and
often by a large amount.15
---------------------------------------------------------------------------
\15\ See, e.g., Thomas O. McGarity and Ruth Ruttenberg, Counting
the Cost of Health, Safety, and Environmental Regulation, 80 Texas L.
Rev. 1197 (2002).
---------------------------------------------------------------------------
Even when benefits can be quantified, the process of fitting values
like human lives and health into a cost-benefit balance is
fraught with difficulty. Sometimes, monetary values are
attached to benefits such as human lives. These values are
generally based on the amount of extra income male workers in
the 1970s were willing to accept in exchange for increased
workplace risks. The monetary values arising from this context
not only tell us little about these workers' own values (there
is no evidence they actually knew the precise risks they faced,
or could afford to turn down a risky job even if they did
know), but tell us even less about the monetary values one
might attached to risks of cancer, risks that are involuntarily
imposed, risks to future generations, and so forth. They tell
us little, in other words, about the value of controlling the
risks of POPs.
The technique of discounting--required by the court in Corrosion
Proof Fittings despite the absence of a statutory mandate for
it--belittles desires to protect this and future generations
against long-term and persistent risks. Discounting would
easily trivialize the benefits of regulating POPs. Yet
protection of the future--for our own generation, our
children's generation, and generations yet to come--is one of
the basic principles animating a document like the POPs treaty.
Discounting, through an arcane and seemingly technical process,
silently undermines this animating principle.16
---------------------------------------------------------------------------
\16\ For more detailed discussion, see Lisa Heinzerling,
Discounting Our Future, 34 Land & Water L. Rev. 39 (1999).
---------------------------------------------------------------------------
Cost-benefit balancing typically relies on a starkly impoverished
view of what matters when it comes to risk. Frequently, cost-
benefit analysis looks solely at the probability and magnitude
of harm, in numerical terms, rather than also at the cultural
and moral context in which that harm might be inflicted. Thus
cost-benefit analysis most often ignores the kinds of
considerations--an aversion to involuntary and uncontrollable
risks, a preference for an equitable distribution of risk, a
desire to avoid consequences that threaten whole communities--
that most people take into account in judging risk.
These are, in brief, some of the most fundamental reasons why cost-
benefit balancing is a bad idea in the context of environmental
protection. Its use in the POPs implementing legislation would
virtually ensure that no new POPs will be regulated in this country
pursuant to the international agreements on POPs. If this is what the
authors of the Discussion Draft desire, they should say so directly,
and not hide behind the seemingly objective face of cost-benefit
balancing.
Even if cost-benefit balancing were not systematically biased
against regulation of POPs, the analytical requirements imposed by the
Discussion Draft would nevertheless paralyze any effort to regulate
POPs. The Discussion Draft goes beyond TSCA 6--which, you will
recall, has been buried under the onerous analytical requirements
ladled into it by the court in Corrosion Proof Fittings--and adds even
more factors for EPA to consider in deciding whether to regulate POPs.
In addition to all of the factors listed in TSCA's 6, the Discussion
Draft would also require EPA to consider the risks and economic
consequences of, plus a laundry list of other factors relating to,
substitutes for chemical substances. 502(e)(2)(C). In addition, the
Draft would require EPA to consider not only the costs, benefits,
effects on the national economy, etc., of a regulatory decision, but
also ``the degree to which the manufacture, processing, distribution in
commerce for export, use, or disposal of the chemical substance or
mixture is necessary to prevent significant harm to an important sector
of the economy. 502(e)(2)(D). In other words, even if the cost-
benefit profile tilted in the direction of regulation, EPA must
nevertheless go on to consider whether an industry would be too hard-
hit by a regulation to proceed. Finally, EPA must, according to the
Discussion Draft, also consider not only the national, but also the
international, consequences of a regulatory action. 502(e)(2)(E).
This is a research agenda and analytical program to fill several
lifetimes. Even under the relatively ``streamlined,'' pre-Corrosion
Proof Fittings version of TSCA, it took EPA ten years and 45,000 pages
to justify its asbestos ban. And even then the court overturned the
rule for lack of sufficient analysis. The Discussion Draft dumps even
more analytical requirements on EPA, with the likely result that no
rule would ever see the light of day under this framework.
iii. the administration's constitutional arguments regarding
implementation of the pops conventions are without merit
The Bush Administration has recently voiced two different kinds of
arguments implicating Congress's authority to enact legislation
implementing the international agreements on POPs. Both arguments are
without merit.
First, the Department of Justice has argued, in a letter to Senator
Tom Harkin dated March 25, 2004, that mandatory notice-and-comment
procedures in POPs implementing legislation (there, the Department was
discussing amendments to the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA)), would ``raise constitutional concerns.''
Letter from William Moschella, Assistant Attorney General, Office of
Legislative Affairs, to The Honorable Tom Harkin (March 25, 2004). It
appears that the Department was under the impression that merely
seeking out the views of the public, while international proceedings on
whether to add pollutants to the list of POPs were ongoing, would
interfere with the Executive's treaty-making powers. The letter is
exceedingly thin on legal authority, and even thinner on common sense:
it provides no sensible reason to think that merely requiring notice
and an opportunity for comment, without any obligation to change one's
international negotiating position, interferes with the Executive's
prerogatives. The letter is of a piece with the Administration's other
recent, extravagant claims of Executive prerogatives, offered in
contexts ranging from its refusal to make public information concerning
Vice-President Cheney's Energy Task Force, to its arguments concerning
the treatment of detainees in Cuba, to its alarming claims, in
memoranda on the treatment of prisoners in the ongoing ``war on
terror,'' regarding the Executive's immunity from the requirements of
the Geneva Convention. A detailed and persuasive refutation of the
Department's analysis is attached to CIEL senior attorney Glenn Wiser's
written testimony for today's hearing. Although the Discussion Draft
does indeed provide an opportunity for public notice and comment, the
rebuttal to the Department of Justice's constitutional arguments is
important to keep in mind if future implementing bills do not require
notice and comment early in the international process.
A second constitutional argument that has attended discussions of
POPs implementing legislation has to do with what is sometimes known as
the ``international nondelegation doctrine.'' The idea is that if
Congress obligates the Executive branch to act in response to the
decision of an international body, that is an unconstitutional
delegation of legislative authority.
To understand this claim, it is helpful to understand the exact
context in which it might arise. Under the POPs treaty, new POPs may be
added only by consensus of the parties or, failing consensus, by a
three-quarters majority of the parties. Stockholm Convention, arts.
22(4), 21(1-3). Parties may, in individual cases, decide not to accept
a new POPs listing. Id., arts. 22(3)(b), 22(4). Or, in the alternative,
parties may, at the time of ratifying the treaty itself, select the
``opt-in'' alternative, which means that they will not be bound by any
new pollutant listing unless they affirmatively indicate their
intention to be bound. Id., art. 25(4).
Thus, with respect to deciding whether to accept new pollutant
listings under the POPs treaty, the U.S. has three options: (1) it can
accept a decision of the Conference of the Parties to regulate a new
pollutant; (2) it can, on a case-by-case basis, decide not to accept
the new listing; or (3) it can, in ratifying the treaty, elect the opt-
in provision, thus requiring affirmative action to regulate a new
pollutant in every case of a new listing.
If the Executive chooses not to take the last route--that is, it
does not select the opt-in option--then there would seem to no
meritorious constitutional complaint about being bound by international
decisions on new POPs. The Executive's assent to such decisions would
be embedded in the original treaty itself. Likewise, if Congress
embodied this assent in implementing legislation which required EPA to
take action to control newly listed chemicals, there would be no
constitutional problem. Indeed, many laws implementing international
obligations take this general form. The Montreal Protocol on ozone-
depleting substances, for example, provides that the original standards
of the Protocol may be strengthened by a majority vote of the parties,
and that vote is binding on the parties. The Clean Air Act implements
this agreement by requiring EPA to take the actions required by the
stricter standards. 42 U.S.C. 7671e(a)(3). Similarly, the Convention
on International Trade in Endangered Species of Wild Fauna and Flora
(``CITES'') provides for international decisions adding endangered
species to the list of protected species, and the Endangered Species
Act prohibits trade in internationally listed species. 16 U.S.C.
1538(c). Other examples may be found in the memorandum attached to
Glenn Wiser's written testimony for this hearing.
I am aware of no case law disputing the proposition that agencies
may be obligated to act in response to decisions of international
bodies where a treaty and statute require them to do so. Indeed, the
case law I am aware of supports this proposition. In George E. Warren
Corp. v. EPA, 159 F.3d 616 (D.C. Cir. 1998), the D.C. Circuit held that
EPA was, in setting new rules for reformulated gasoline, justified in
taking into account a WTO ruling against EPA's previous rule. Although
the Clean Air Act did not specifically give EPA the authority to take
this ruling into account in establishing its rule, the court expressed
a desire to avoid any confrontation with U.S. treaty obligations, and
upheld EPA's consideration of the WTO ruling. The case would have been
even easier for EPA had the statute explicitly allowed consideration of
the international body's decision in setting domestic regulatory
policy.
Thus, it appears that the U.S. could, without any constitutional
problem, choose the ``opt-out'' option of the POPs treaty, meaning that
it would be required to regulate any newly listed pollutants unless it
affirmatively indicated its desire not to accept the listing of such
pollutants.
The other context in which the constitutional arguments that have
floated about these issues might arise is if the U.S. selected the
``opt-in'' option under the POPs treaty. In that case, an affirmative
act by the U.S. would be required for any new POPs to be regulated
here. This is the situation in which we find ourselves today, as the
Administration has indicated that this is the option it will choose
when the treaty is ratified.
In this situation, the question becomes whether Congress could, in
the legislation implementing the POPs treaty, require EPA to act in
response to a new listing decision by the Conference of the Parties.
Suppose, for example, that the legislation simply required EPA to make
a decision as to whether to regulate a newly listed POP. The
international decision to list the POP would be the trigger for
requiring EPA to come to a decision about whether to regulate the new
POP. This kind of regime would pose no constitutional problem. Congress
often requires agencies to act when certain conditions are met. Indeed,
the more precise the conditions that trigger agency action, the less
Congress's actions even come close to running afoul of the
constitutional prohibition reflected in the nondelegation doctrine
(which, it must be noted, has not been found by the Supreme Court to
have been violated in almost 70 years). Whether the trigger for agency
consideration of a problem is an agency factual finding, a state
decision, or an international decision, the conclusion remains the
same: Congress is entitled to require agency action based on
satisfaction of a condition precedent identified by Congress.
Mr. Gillmor. Thank you very much.
We will go to Glenn Wiser, who is Senior Attorney, Center
for International and Environmental Law.
STATEMENT OF GLENN M. WISER
Mr. Wiser. Thank you, Mr. Chairman.
My organization, CIEL, has played a leading role in the
efforts of environmental and health organizations in the United
States who are working for effective U.S. implementing
legislation for the POPs convention. The views I will express
today have been endorsed by a number of these organizations.
Their names are listed in my written testimony.
My colleagues have asked me to provide you with a summary
of the environmental and health community's views on the June
17 discussion draft. My comments will focus on those aspects of
the draft that deal with the Stockholm POPs Convention.
My colleagues have asked me to clearly convey this message:
U.S. environmental and health organizations believe the
approach in the discussion draft is fundamentally flawed and we
will work very hard to ensure that the approach is never
enacted into law.
My colleagues have also asked me to suggest legislative
alternatives that we believe would more faithfully reflect the
requirements of the Stockholm Convention.
I would like to make one important point before I speak
specifically about the discussion draft. We believe that the
key to U.S. POPs legislation is that it must give EPA
sufficient legal authority to implement quickly and effectively
a Stockholm Convention decision to add a POP to the treaty.
That said, we recognize that the terms of this treaty can never
force the United States to regulate an additional chemical
against its will. That is a very important point, we believe.
It is the job of Congress through this legislation to tell EPA
how to respond to a Stockholm new listing decision. No
international body will have the power to make domestic U.S.
law. Our groups understand this important distinction and we
hope everyone else who is involved in this legislation
understands it, too.
Now, to the discussion draft. While the purpose of this
legislation is to implement the POPs Convention, the draft
seems to have a unifying theme that would do exactly the
opposite. It seems to be intended to divorce any relationship
between the international listing process and the domestic
regulatory process, and to ensure that future administrations
will never be able to implement Stockholm amendments to control
additional POPs. There are many reasons why we conclude this,
but we are going to focus on three right now.
First, the discussion draft contains no requirement that
EPA do anything after an international decision to add a POP to
the convention even when the United States fully supports the
international decision. There is no time line within which EPA
must act or declare its intention not to act. There is no
requirement for EPA to publish a statement of reasons for its
inaction. And there is no provision such as a citizens petition
process that would prod EPA to act if it fails to do so. We
believe that a better approach would be for Congress to require
EPA to decide within a fixed time after an international
listing decision is made whether EPA will regulate the POP or
not.
Two: The proposed regulatory standard for considering
additional POPs is not acceptable because it would result in
EPA never being able to regulate an additional POP. If EPA
decided under it's complete discretion to regulate, it could do
so only ``to the extent necessary to protect human health and
the environment in a manner that achieves a reasonable balance
of social, environmental and economic costs and benefits.
That's a mouthful.
As Professor Heinzerling and others have demonstrated this
kind of cost benefit balancing nearly always results in an over
valuation of the cost of regulation and a dramatic under
valuation of the benefits, most of which cannot be
realistically or fully valued in monetary terms. This applies
especially to the kinds of problems that POPs cause.
Cost benefit balancing rigs the system against protective
regulation. And this standard that is in the discussion draft
would all but insure that future administrations could never
implement Stockholm amendments because EPA's regulatory
authority would be too weak to do so.
We believe that a better approach would be to use the
regulatory standard that is already in the Convention. The law
should require EPA to implement the control measures specified
in the convention in a manner that protects against significant
adverse human health or environmental effects. But if EPA
concluded that despite the international decision to list a
POP, the chemical was not likely to lead to significant adverse
human health or environmental effects, then EPA would be
required to issue a decision not to regulate.
The third and final point I would like to make. The draft
would require EPA to undergo unnecessary and duplicative
analyses if it chose to regulate. As a party to the Stockholm
Convention the United States will have already participated in
a thorough scientific investigation of additional POPs before
they are added to the convention. Yet the discussion draft
would all but ignore the results of this international
investigation and would instead require EPA to undertake
additional duplicative, time consuming assessments before it
could issue a rule in response to a new listing decision. We
believe that a better approach would be for Congress not to
require EPA to reinvent the wheel when conducting a rulemaking
on an additional POP in light of the extensive scientific risk
assessment and socio-economic analyses that were mentioned by
my colleague Mike Walls and that are already required under the
convention. We believe that implementing legislation should not
shackle EPA's authority by itemizing additional criteria it
must consider during the rulemaking.
In closing, the environmental and health community
enthusiastically supports the Stockholm Convention and hopes
that the United States will soon be a party. However, we do
not, and I repeat we do not wish to see U.S. ratification of
this important treaty serve as a mean to introduce a radical
regressive reshaping of that law. We believe that the approach
taken in the June 17 discussion draft would do just that, and
we respectfully call on this subcommittee to reject it in favor
of an approach that will faithfully reflect the spirit and
letter of the convention.
Thanks, and I will be happy to answer any questions you
might have.
[The prepared statement of Glenn M. Wiser follows:]
Prepared Statement of Glenn M. Wiser, Senior Attorney, The Center for
International Environmental Law on Behalf of National Environmental
Trust, Oceana, Pesticide Action Network North America, Physicians for
Social Responsibility, Sierra Club, and U.S. Public Interest Research
Group
i. introduction
Mr. Chairman and Members of the Subcommittee: Thank you for the
opportunity to testify on behalf of my organization, the Center for
International Environmental Law (CIEL), and on behalf of our partners,
including National Environmental Trust, Oceana, Pesticide Action
Network North America, Physicians for Social Responsibility, Sierra
Club, and U.S. Public Interest Research Group, on draft legislation to
implement the Stockholm Convention on Persistent Organic Pollutants
(POPs). CIEL is a public interest, not-for-profit environmental law
firm founded in 1989 to strengthen international and comparative
environmental law and policy around the world.
Much of my work at CIEL has focused on the development and
implementation of multilateral treaties such as the Climate Convention,
the Framework Convention on Tobacco Control, and the Stockholm POPs
Convention. Since May, 2001, I have worked closely with numerous
environmental and health organizations to help develop legally sound,
environmentally responsible legislation that will permit the United
States to ratify and participate fully and effectively in the Stockholm
Convention. My organization also coordinates a network of grassroots
and activist organizations located throughout the country who work on
issues related to chemicals management and safety, and who strongly
support the Stockholm Convention.
A core group of public interest organizations, including CIEL,
National Environmental Trust, Oceana, Physicians for Social
Responsibility, the U.S. Public Interest Research Group, and the World
Wildlife Fund, has worked with Congress over the last two years to help
develop the implementing legislation for the Stockholm Convention. At
the request of the Senate Environment and Public Works Committee (EPW),
this group consulted extensively with industry representatives and EPW
staff on amendments to the Toxic Substances Control Act (TSCA), which
were eventually approved by EPW in July 2003 as the POPs, LRTAP POPs,
and PIC Implementation Act of 2003, S. 1486. We have also participated
in lengthy consultations with members of the Senate Committee on
Agriculture, Nutrition, and Forestry and the House Committee on
Agriculture to educate and assist them in the development of POPs
implementing bills that would amend the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA).
While our core group does not have a formal leadership structure,
we consistently speak with a unified voice. I have frequently been the
group's spokesman and adviser. In that capacity I have led the majority
of our discussions(and served as our main contact(with several key
congressional staff and representatives of the Bush Administration. I
have also led in the preparation of our analyses and responses to the
various draft bills that have been proposed, in the research for and
formulation of our core group's positions and strategies, and in the
coordination of the broader environmental and health community's
responses to the pending legislation. For example, in April of this
year, I coordinated the preparation of a letter to members of the
Senate from CEOs of 18 of America's most prominent environmental
organizations, which expressed our deep concern about POPs implementing
amendments that had been proposed for FIFRA. [Please see attached CEO
letter to Senators Cochran, Harkin, Goodlatte, and Stenholm dated April
19, 2004.]
In short, I have been heavily involved in all aspects of the public
interest campaign for U.S. ratification of the Stockholm Convention,
and my organization has been privileged to enjoy the confidence of our
partners that has allowed us to work on their behalf.
Today, I would like to provide you with a summary of the
environmental and health community's views on draft legislation that
would amend TSCA to implement the Stockholm POPs Convention, the LRTAP
POPs Protocol, and the Rotterdam PIC Convention. But first, I would
like to very briefly describe persistent organic pollutants, the
Stockholm POPs Convention, and one of its most important provisions:
the ``adding mechanism'' for evaluating and adding other POPs to the
treaty.
Second, I will comment specifically on the Discussion Draft that
the Majority circulated among members of this Subcommittee on June 17,
2004. I will concentrate on those aspects of the Draft that deal with
the Stockholm Convention. However, many of my comments will also be
relevant to the Draft's LRTAP POPs Protocol sections, which generally
are similar to the Stockholm sections. I will also suggest alternative
legislative approaches that the environmental and health community
believe would more faithfully reflect the requirements of the Stockholm
Convention than the June 17 Draft does.
Finally, I will discuss claims by the Bush Administration that the
U.S. Constitution should be interpreted to prohibit Congress from
implementing the Convention in certain ways.
ii. persistent organic pollutants and the stockholm convention
1. Persistent Organic Pollutants (POPs). POPs are exceedingly toxic
chemicals that take years or decades to break down in the environment,
travel long distances on wind and water currents, and concentrate up
the food chain to accumulate in our bodies. They include chemicals and
pesticides like dioxin, PCBs, and DDT. They can cause cancer,
neurological and learning disabilities, and subtle changes to human
reproductive and immune systems. POPs used in the United States can
harm people and wildlife thousands of miles away; similarly, POPs used
in foreign countries can hurt Americans here at home. All of us have
some or many of these chemicals in our bodies. We get them primarily
through our food. Babies get them before birth through the placenta and
later, from their mother's breast milk.
2. The Stockholm POPs Convention. The Stockholm Convention bans or
severely restricts 12 of the most hazardous POPs, and establishes an
international, science-based process for adding other POPs to the
treaty. The Convention entered into force on May 17, 2004. The
Convention's first ``Conference of the Parties'' will meet in May, 2005
to adopt rules of procedure and guidelines for many of the treaty
processes and institutions, including the committee that will make
recommendations on additional POPs. The United States can attend the
first Conference of the Parties as an official party only if it
ratifies the treaty no later than early February 2005 (90 days before
the Conference). Nevertheless, it can attend that meeting as an
observer, and may join as a full party if it ratifies at a later date.
3. The Stockholm ``adding mechanism.'' Because the United States
has already banned all of the intentionally produced ``dirty dozen,''
the most important part of the treaty to protect public health in our
country is the part dealing with identifying and adding other POPs. At
the insistence of U.S. negotiators, the treaty contains a rigorous,
science-based process under which governments may nominate suspected
POPs. An international committee of government-appointed scientists
will decide whether the required criteria of persistence, bio-
accumulation, potential for long-range transport, and adverse effects
to human health or the environment are met. If the committee decides
they are, it may recommend that the Conference of the Parties consider
adding the chemical to the treaty. Assuming the United States takes the
election provided in the Stockholm Convention's Article 25.4, an
amendment to add a chemical to the Convention can only apply to the
United States if we decide to ``opt in'' to it. We can never be bound
by a new listing decision against our will. The environmental and
health community believes that the key to U.S. POPs legislation is that
it give EPA sufficient legal authority to implement a Stockholm new
listing decision quickly and effectively.
iii. the june 17, 2004 discussion draft
U.S. environmental and health organizations enthusiastically
support the Stockholm POPs Convention. We are proud of the important
role we believe our groups played in the development of this treaty,
and we look forward to the day when America joins the 70 other
countries that have already ratified it.1 We are convinced
that U.S. participation and leadership in the Convention will be
essential for achieving our vision of elimination of persistent organic
pollutants and other persistent toxic substances from the world's
environment.
---------------------------------------------------------------------------
\1\ Number of ratifications and accessions as of July 9, 2004. See
Stockholm Convention secretariat's website at http://www.pops.int/
documents/signature/signstatus.htm.
---------------------------------------------------------------------------
Yet our organizations are also devoted to preserving and improving
the integrity of U.S. environmental and health law, and we do not wish
to see U.S. ratification of this groundbreaking treaty serve as a means
to introduce a radical, regressive reshaping of that law. Regrettably,
we have concluded that the June 17 Discussion Draft would do just that.
We believe that the approach in the Draft is fatally flawed and should
be rejected, even if that means a delay in our country's ratification
of the POPs Convention.
The problems identified below stand out among the Draft's many
faults.
1. The Discussion Draft appears to go out of its way to decouple
the international process and the domestic regulatory process. Over the
last three years, aggressive unilateralism in U.S. international
relations has seriously undermined the reputation of our country
abroad. Congress should define implementation of the Stockholm
Convention in a manner that helps return the United States to a
responsible path of international leadership and cooperation, not in a
way that institutionalizes the appearance of U.S. unilateralism.
A. The Discussion Draft contains no requirement that EPA do anything
after an international decision to add a POP to the Convention,
even when the United States supports the international
decision.
There is no timeline within which EPA must act (or declare its
intention not to act).
There is no requirement(similar to what is already found in TSCA
5(for EPA to publish a statement of reasons for its inaction.
There is no citizens petition process(similar to what is already
found in TSCA 21(to challenge EPA to act if it fails to do
so.
A Better Approach: Congress should require EPA to decide, within a
fixed time after an international listing decision is made, whether it
will regulate the POP or not. Because such a duty would be non-
discretionary, the citizens' civil actions provisions of TSCA 20
could apply, providing a safeguard in case EPA failed to act within the
prescribed time.
B. The Draft would require EPA to undergo unnecessary and duplicative
analysis in the event it chooses to regulate.
As a party to the Stockholm Convention, the United States will
participate in a thorough scientific investigation of
additional POPs before they are added to the Convention.
Yet the Discussion Draft would all but ignore the results of this
international investigation, and would instead require EPA to
undertake additional, duplicative, time-consuming assessments
before it could issue a rule in response to a new-listing
decision.
A Better Approach: Congress should avoid trying to micro-manage the
information that EPA may or may not consider when conducting a
rulemaking on an additional POP. If EPA's statutory authority is overly
complicated, it will likely prove unworkable. Considering the extensive
scientific, risk assessment, and socio-economic analyses that are
already required under the Convention (and which are there
significantly due to U.S. insistence), we believe the implementing
legislation should not itemize the criteria that EPA must consider
during the rulemaking.
C. The Discussion Draft oversteps by attempting to constrain the
President's constitutional power to conduct international
negotiations.
Despite multiple safeguards that ensure U.S. decision-making
autonomy, the Discussion Draft would require the United States
to take the Stockholm Convention ``opt in'' election, which
provides that an additional chemical amendment will only bind
the United States if it affirmatively ``opts in'' to it. Yet it
is not within the scope of this Subcommittee's powers to
condition the President's international negotiating powers in
this way.
A Better Approach: Of the 70 countries that have ratified the
Stockholm Convention to date, 64 have chosen the traditional ``opt-
out'' approach to additional POPs listings, while only six have taken
the ``opt-in'' election. We acknowledge that the United States will
likely take the opt-in election. But we reject the Discussion Draft's
provisions that would purport to make that decision. Language requiring
the opt-in should be excluded from the bill, and the decision should be
left to the President, contingent on the advice and consent of the
Senate.
2. The Discussion Draft would favor short-term corporate interests
at the expense of public health and the environment.
A. The proposed regulatory standard for considering additional POPs is
not acceptable.
Under the Discussion Draft, EPA would have complete discretion to
decide whether or not it should prohibit or restrict an
additional POP. But if it decided to regulate, it could do so
only ``to the extent necessary to protect human health and the
environment in a manner that achieves a reasonable balance of
social, environmental, and economic costs and benefits.''
By contrast, under the Stockholm Convention, governments (including
the United States) must decide upon additional POPs ``in a
precautionary manner.'' 2 Yet the Discussion Draft
would prohibit EPA from regulating with anything remotely
resembling a precautionary manner. Instead of acting to guard
human health, EPA would have to strike a ``reasonable balance''
between the costs of the regulation to chemical companies, and
the benefits of protecting Americans from the world's most
dangerous chemicals.
---------------------------------------------------------------------------
\2\ Stockholm Convention, art. 8, 9.
---------------------------------------------------------------------------
As recent studies have demonstrated, the strict application of cost-
benefit balancing nearly always results in an overvaluation of
the costs of regulation and a dramatic under-valuation of the
benefits, most of which (e.g., good health, children whose
development is not impaired by toxic chemicals, etc.) cannot be
realistically or fully valued in monetary terms.3
---------------------------------------------------------------------------
\3\ See, e.g., Frank Ackerman and Lisa Heinzerling, Priceless: On
Knowing the Price of Everything and the Value of Nothing (New York: The
New Press, 2004).
---------------------------------------------------------------------------
The main beneficiary of the Discussion Draft's cost benefit standard
would be the regulated industry, which would receive a potent
litigation tool. The standard would all but ensure that future
administrations could never implement Stockholm amendments
because EPA's regulatory authority would be too weak.
A Better Approach: Congress should avoid a complex, de novo
regulatory standard, and it should wholly reject a cost-benefit
standard that may have the effect of making it impossible for the
United States to concur with international decisions to address
additional POPs. The most sensible standard to use in the legislation
would be based upon the Convention, and would require EPA to implement
the control measures specified in the Convention in a manner that
protects against ``significant adverse human health or environmental
effects.'' If, despite the international decision to list a POP, EPA
concluded that the chemical was not likely to lead to significant
adverse human health or environmental effects, then EPA could issue a
decision not to regulate.
B. In weighing scientific information, EPA would have to apply new,
onerous ``sound science'' requirements that will provide grist
for litigation rather than improve the quality of EPA's
decision making.
The environmental and health community believes that high quality,
objective scientific research and analysis should provide the
foundation for the evaluation and management of POPs and other
persistent toxic substances.
The modern regulatory catch phrase of ``sound science'' was developed
by the tobacco companies as a way to confuse the public, thwart
attempts at regulation, and obfuscate the fact that their
products are among the most harmful products legally sold. The
concept has been described as ``an effort to inject . . .
politics into the world of science and to use the uncertainty
that inevitably surrounds science as an excuse to delay new
rules . . .'' 4 It has been roundly criticized in a
recent letter to the Bush Administration from 18 Nobel
laureates, National Medal of Science Recipients, and other
leading researchers.5
---------------------------------------------------------------------------
\4\ Rick Weiss, ``Peer Review Plan Draws Criticism: Under Bush
Proposal, OMB Would Evaluate Science Before New Rules Take Effect,''
Wash. Post, Jan. 15, 2004, at A19.
\5\ See ``Preeminent Scientists Protest Bush Administration's
Misuse of Science: Nobel Laureates, National Medal of Science
Recipients, and Other Leading Researchers Call for End to Scientific
Abuses,'' available at http://www.ucsusa.org/news/press--
release.cfm?newsID=381.
---------------------------------------------------------------------------
Under the Discussion Draft, the sound science requirement would help
give chemical companies one of big tobacco's most effective
anti-health, anti-regulatory tools, while doing little, if
anything, to improve the quality of scientific analysis in a
POPs rulemaking.
A Better Approach: In briefings on the POPs legislation, EPA has
assured us that they already have rigorous, well-established practices
for evaluating the quality of scientific information. In light of that,
and the likelihood that ``sound science'' requirements in the
Discussion Draft could be used to establish a politically motivated
``scientific certainty'' test in a POPs rulemaking, we urge Congress to
omit references to sound science or the quality of scientific
information from this legislation.
C. While the Discussion Draft would make it very difficult or
impossible for EPA to implement a Stockholm Convention new
listing decision, the Draft would simultaneously establish a
regulatory ceiling by prohibiting EPA from regulating more
strictly than minimum Convention standards.
Even if EPA decided to regulate an additional POP, the Discussion
Draft would prohibit it from regulating any production or use
of the substance if an exemption were available under the
Convention. The idea of these exemptions is that developing
countries that need flexibility can phase out a prohibited
chemical over time. For our law to require us to take these
exemptions would represent a perverse abdication of U.S.
leadership in international chemicals management.
A Better Approach: Language that would have the effect of requiring
the United States to take an exemption should not be included in the
legislation. Instead, there should be a clear statement that ``nothing
in this title shall be construed to require the United States to
register for any specific exemption or acceptable purpose available to
the United States under Annex A or B to the POPs Convention.''
iv. bush administration arguments against implementation of the pops
convention
During the course of our environmental and health groups' work on
POPs implementing legislation, the Bush Administration has repeatedly
raised objections, based on constitutional grounds, to some of the
options that have been proposed. These include objections based on the
separation of powers doctrine and on a putative ``international non-
delegation doctrine.'' I would like to respond to these assertions, for
the record, so that Congress will not be misled on this matter now or
in subsequent development of the POPs legislation.
1. The separation of powers argument. In a letter dated March 25,
2004 from William Moschella, Assistant Attorney General, to Senator Tom
Harkin, the Department of Justice claimed that mandatory notice and
comment provisions tied to the international listing process of the
Stockholm Convention would unconstitutionally infringe upon the
President's treaty making powers. Independent analyses of that letter
by the Congressional Research Service and by my organization, CIEL,
demonstrated that the Administration's legal theory had no foundation
in U.S. law and was without merit. [Please see attached CIEL Memorandum
dated April 5, 2004.]
We note now that the Majority's June 17 Discussion Draft contains
mandatory notice and comment provisions, despite DOJ's
opinion.6 Thus, we conclude either that the Bush
Administration has withdrawn this objection, or the Subcommittee
Majority does not accept it. While there are numerous aspects of the
Discussion Draft's notice and comment provisions to which we strongly
object, we support the fact that most of those provisions would be
mandatory, not discretionary.
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\6\ See, e.g., June 17 Discussion Draft at page 9, line 16 (stating
``Not later than 60 days after a decision [by the POPs Review
Committee] is made . . . the Administrator shall . . . publish in the
Federal Register a notice of the decision . . . (emphasis added)).
---------------------------------------------------------------------------
2. The nondelegation doctrine applied to international relations.
Early in the discussions between industry representatives,
environmental and health NGOs, and Senate Environment and Public Works
Committee staff regarding the Senate POPs amendments, we learned that
the Bush Administration objected to the notion that Congress could
require EPA to regulate a newly-listed POP on the grounds that such a
requirement would impermissibly delegate lawmaking powers to
international bodies and thus violate an ``international nondelegation
doctrine.'' President Bush referred to such a doctrine in his signing
statement for the Clean Diamonds Trade Act, H.R. 1584, Pub. L. No. 108-
19 (2003), when he said, ``If section 15 [of the Act] imposed a
mandatory duty on the President to certify to the Congress whether
either of the two specified events has occurred and whether either
remains in effect, a serious question would exist as to whether section
15 unconstitutionally delegated legislative power to international
bodies.'' (emphasis added).7
---------------------------------------------------------------------------
\7\ President's Statement on Signing the Clean Diamond Trade Act,
39 Weekly Comp. Pres. Doc. 491 (April 25, 2003).
---------------------------------------------------------------------------
This theory is premised on the assumption that when Congress
delegates responsibilities to the Executive Branch and makes the
exercise of those responsibilities contingent on the occurrence of an
international event, then Congress has unconstitutionally given
lawmaking powers to whatever international institution is responsible
for the event. But the theory is fatally flawed because it confuses who
is exercising legislative power when the United States implements
treaties in this fashion. While decisions by the international body may
trigger the Executive Branch's responsibility to implement the law,
that is so only because Congress decided that the law would be
contingent on such a decision. Congress alone has established what the
law will be, and it has delegated the responsibility to implement the
law to the Executive Branch. The international body has no role in
either of these functions.
U.S. courts have long held that such contingent delegations by
Congress are constitutionally acceptable, so long as Congress provides
an ``intelligible principle'' that ``sufficiently marks the field
within which the Administrator is to act so that it may be known
whether he has kept within it in compliance with the legislative
will.'' 8
---------------------------------------------------------------------------
\8\ Yakus v. United States, 321 U.S. 414, 425 (1944); see also J.W.
Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928) (applying
``intelligible principle'' test to sustain contingent delegation under
the Tariff Act of 1922), Congressional Research Service, The
Constitution of the United States of America: Analysis and
Interpretation 85-86 (Johnny H. Killian & George A. Costello eds.,
1996) (discussing constitutional basis of contingent delegations).
---------------------------------------------------------------------------
We are aware of no instance in which a U.S. court has overturned
any U.S. law on the basis of an international nondelegation doctrine.
In fact, the U.S. Code contains numerous examples in which Congress
requires the Executive Branch to act in response to the decision or
action of an international body. These include, inter alia:
Clean Air Act, 42 U.S.C. 7671e, implementing the Montreal Protocol
on Substances that Deplete the Ozone Layer (providing that in
the event ``the Montreal Protocol is modified to . . . control
or reduce . . . any substance more rapidly [than otherwise
provided by law],'' the Administrator shall promulgate
regulations to establish a more stringent phase-out schedule).
Tariff Act, 19 U.S.C. 1516(a)(g)(4)(A), implementing Chapter 19 of
the North American Free Trade Agreement (NAFTA) (providing that
when a Chapter 19 arbitration panel decides to refer a
challenged matter on anti-dumping or countervailing duties back
to the International Trade Commission, the ITC is bound by
statute to ``take action not inconsistent with the decision''
of the panel).
Chemical Weapons Convention Implementation Act, 22 U.S.C. 6725,
implementing the Chemical Weapons Convention (requiring the
United States Government (through the State Department acting
as the U.S. National Authority) to seek the issuance of a
search warrant in response to a demand from the Organization
for the Prohibition of Chemical Weapons (OPCW) to engage in a
challenge inspection of a public or private facility).
Comprehensive Drug Abuse Prevention and Control Act of 1970, 21
U.S.C. 811(d), implementing the Convention on Psychotropic
Substances (providing that whenever the Secretary of State
receives notification from the World Health Organization that a
listing schedule will change, Secretary of Health, Education,
and Welfare (now Health and Human Services) must publish the
notice in the Federal Register, invite comment, and prepare
medical and scientific evaluations).
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 346a(b)(4)
(providing that the Administrator, in establishing a tolerance
for a pesticide chemical residue in or on a food, shall
determine whether a maximum residue level for the pesticide
chemical has been established by the Codex Alimentarius
Commission; if a Codex maximum residue level has been
established for the pesticide chemical and the Administrator
does not propose to adopt the Codex level, the Administrator
shall publish for public comment a notice explaining the
reasons for departing from the Codex level).
Based on our evaluation of relevant case law and the U.S. Code, we
conclude that nothing in the domestic laws of the United States
prevents the United States Congress from using treaty text as a basis
for explaining to an administrative agency what Congress's policies and
goals are, from requiring administrative agencies to implement
international standards in a U.S. regulatory context, or from using a
treaty obligation as the basis for a domestic regulation.
The Majority's Discussion Draft would give EPA discretionary (and
exceedingly limited) authority to regulate a POP in response to a
listing decision by the Stockholm Convention. Hence, the Draft does not
raise the question of an ``international delegation.'' However, as I
stated earlier, we believe that implementing legislation should contain
a mandatory duty for EPA to decide, within a specific time after a
Stockholm listing decision, whether to take action or not. Because we
anticipate that our proposal may raise objections from the Bush
Administration based on its international non-delegation theory, I have
included this section of my remarks to demonstrate that such objections
would be without merit as a matter of law.
v. conclusion
In closing, I would like to reiterate the environmental and health
community's enthusiastic support for the Stockholm POPs Convention, and
our hope that the United States will soon be a party to it. Yet our
organizations are also devoted to preserving and improving the
integrity of U.S. environmental and health law, and we do not wish to
see U.S. ratification of this groundbreaking treaty serve as a means to
introduce a radical, regressive reshaping of that law. We believe the
approach taken in the June 17 Discussion Draft would do just that, and
we respectfully call on this Subcommittee to reject it in favor of an
approach that will faithfully reflect the spirit and letter of the
Convention.
Mr. Gillmor. Thank you.
Scott Slesinger, Vice President Government Affairs
Environmental Technology Council.
STATEMENT OF SCOTT SLESINGER
Mr. Slesinger. Thank you, Mr. Chairman, Congresswoman
Solis.
Our council represents the environmental service companies
that dispose, destroy and recycle hazardous waste.
The draft bill before the committee implements a treaty for
all but one of the chemicals listed in Annex A, PCBs. We ask
the committee to amend the draft bill to follow the treaty
language and intent and allow imports of PCBs for safe
destruction as it allows for the other POPs chemicals. Allowing
such PCB destruction will improve the environment in North
American and elsewhere, help American business and assist
developing countries to destroy their dangerous U.S. made PCBs.
There are two ways that PCBs enter the United States. Today
they enter through air deposition generally from the tropics.
PCBs are semi-volatile that makes them rise into the atmosphere
in the warm air and drop down in cooler clims. That is why
despite a 28 year PCB ban in Canada and the U.S., the Great
Lakes continue to increases their PCB load. EPA reports that up
to 89 percent of the current PCB loadings for Lake Superior
occurs through air deposition, most of it from thousands of
miles away.
The other way they could enter the U.S. is by shipment for
proper disposal.
Any waste: nuclear, biological or chemical can be imported
into the United States for proper disposal except for PCBs.
Section 60 of the TSCA requires a full rulemaking before PCBs
can be imported for manufacture or use. In 1996 the Clinton
Administration issued a final rule to allow PCBs into the U.S.
for proper disposal without going through this burdensome
process. EPA found that the safe disposal of PCBs in approved
U.S. facilities poses less risk of injury to health or the
environment in the U.S. than their continued presence of these
PCBs in other countries. However, the Ninth Circuit vacated the
rule when it interpreted the term in the statute
``manufacture'' to include import for disposal.
Therefore, before PCBs can be brought into the country for
use or disposal requires a full rulemaking. Such a process
takes at least 3 years, even if it could get on EPA's
regulatory agenda. The volume of PCBs that could enter the
country and any possible profit would be overshadowed by the
costs and risks of going through this administrative procedure.
No company has ever been approved for importing PCBs, although
the Department of Defense was allowed to bring in PCBs for
disposal in January 2003. The current regulatory process is
clearly an insurmountable trade barrier.
The U.S. has permitted facilities under TSCA to destroy or
dispose of PCBs consistent with the world standard required by
the treaty. The PCBs are under 12,000 parts per million, they
are chemically changed so they are no longer toxic. In a higher
concentration, EPA requires incineration that is 99.99999
percent effective, and those standards were just accepted in
the conference for the parties to the POPs treaty.
Those that suggest that we could export our technology
ignore several facts. First, most countries, such as Mexico, do
not have the volume of PCBs to justify the very expensive
investment required to properly destroy PCBs. If a developing
country tried to build such a facility, local critics and NGO's
would be frightened that such facility would lead to that
country being a dumping ground for first world waste. Approval
for such facility is all but impossible.
Mobile technologies can handle only small volumes, but are
also similarly difficult to site.
Mr. Chairman, most of the PCBs in the world are
manufactured in the United States, put it products and
exported. Now we consider these PCBs foreign and banned in
importation. Not exactly an example of product stewardship.
Under the current system our exported PCBs on developing
countries, particularly in Latin America with no realistic hope
of proper disposal unless these PCBs are shipped back to our
country. As the treaty states, these chemicals are persistent
and organic. Putting chemicals and annex and banning their
manufacturer or use does not stop the environmental threat.
These chemicals including PCBs must be irreversibly changed or
destroyed or they will continue to adversely effect public
health and the environment.
Mr. Chairman, PCBs are coming to the United States. They
will poison our food supply in the Great Lakes with air
deposition unless the PCB waste can be brought back into the
United States for proper destruction or disposal. The decision
is in Congress' hands.
Thank you. And I look forward to answering any questions
you may have.
[The prepared statement of Scott Slesinger follows:]
Prepared Statement of Scott Slesinger, Vice President for Governmental
Affairs, The Environmental Technology Council
My name is Scott Slesinger. I am Vice-President for Governmental
Affairs of the Environmental Technology Council. Our council represents
environmental service companies that dispose, destroy and recycle
hazardous waste. The legislation before the Committee implements the
Stockholm Persistent Organic Pollutant Treaty for 12 of the 13
chemicals listed in Annex A of the Treaty. The implementing language
does not implement all the requirements of the treaty concerning one of
the listed chemicals, PCBs. We ask the Committee to implement the
entire treaty for all the Annex A chemicals. Such a change in the
legislation will improve the environment, help American business and
assist developing countries destroy their dangerous U.S.-made PCB
wastes.
Our trade association represents several companies that have Toxic
Substances Control Act (TSCA) permits for destruction and disposal of
PCBs. Many of our companies hold Resource Conservation and Recovery Act
(RCRA) permits for proper destruction and disposal of the other POPs
Annex A chemicals.
summary
There are two ways that PCBs enter the United States. The first
way, the way they enter the United States today, is through air
deposition, generally from the tropics. PCBs are semi volatile that
makes them rise into the atmosphere in the temperate zone and drop down
in cooler climes. That is why despite a 28-year PCB ban in Canada and
the United States, the Great Lakes continue to increase their PCB
loads. EPA reports that up to 89% of the current PCB loading for Lake
Superior occurs through air deposition, much of it from sources
thousands of miles away. The second and preferable way PCBs should
enter the United States is shipped on a regulated common carrier for
disposal and destruction consistent with the world-class standards in
the treaty and federal law. Congress has an opportunity to support the
status quo or modify TSCA to allow U.S exported PCBs back into the
United States for proper disposal consistent with the language and
intent of the Stockholm agreement.
We ask you to support the latter alternative.
the intent of the treaty
The treaty is concerned with the environmental threat of organic
persistent organic pollutants. As the Treaty notes, ending the
manufacturing and use of these chemicals does not solve the problem.
The chemicals must be chemically or molecularly changed so they no
longer have the dangerous characteristics, particularly of persistence
and toxicity. Because the technology to properly dispose and destroy is
expensive, complex and dangerous in unskilled hands, few countries have
the volume of these chemicals to justify the costs to construct
facilities to meet the Treaty's standards for proper disposal. In
recognition of this, the treaty bans imports and exports except for
proper disposal.
domestic law
Any waste, nuclear, biological or chemical, can be imported into
the United States for proper disposal except for PCBs. Section 6(e) of
TSCA, requires a full rulemaking on a per shipment basis before PCBs
can be manufactured or used in the United States. In 1996, EPA
Administrator Carol Browner issued a final rule to allow PCBs into the
United States for disposal without going through this rulemaking
process. The preamble to that rule stated:
. . . EPA believes that the safe disposal of PCBs in approved
U.S. facilities poses less risk of injury to health or the
environment in the United States than the continued presence of
PCBs in other countries, since proper disposal in this country
provides protection against possible hazards from improper
disposal elsewhere.'' 61 Federal Register 11099 (March 18,
1996)
However, the Ninth Circuit vacated the rule when it interpreted the
term in the statute ``manufacture'' to include ``import for disposal.''
Private entities have tried unsuccessfully to import PCBs for disposal
but have found the legal costs of going through a multi-year rulemaking
process far outweighs the financial revenue such import would
justify.1
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\1\ In 28 years, EPA has approved only one 6(e) exemption. That was
in January of last year for the only entity with the resources and
volume of PCBs to justify going through the process--The Department of
Defense. No environmental group or individual commented against the
proposal. 68 Federal Register 4934 (January 31, 2003) In 2003, EPA
allowed the Maritime Administration to export PCBs in ships being
disposed overseas by writing an ``enforcement discretion letter''
saying it would not prosecute MARAD under Section 6(e) if it exported
the ships. Sierra Club won a temporary restraining order against the
export of most of the ships. Our companies have the expertise and
facilities to handle this ships domestically.
---------------------------------------------------------------------------
where do pcbs come from?
Ironically, most the PCBs that are banned for importation for
disposal were manufactured in the United States. The vast majority of
PCBs in the world, 700,000 tons, were manufactured in the United States
between 1927 and 197.2 Before the risks of PCBs were known,
American companies exported equipment that used PCBs as an insulator.
Despite PCBs' special legislative treatment, they are not the most
dangerous chemical in the world. In fact, EPA lists PCBs as only a
``suspected carcinogen'' rather than a carcinogen, although it is one
of the most studied toxic chemicals in the world. Because of 6(e) of
TSCA, those American-made PCBs, even those owned by American companies,
are now considered ``foreign'' and cannot be imported back into the
United States for destruction. Imagine if the French manufactured a
product that was shipped to the United States, later found out to be
toxic, and then France banned its export back into France.
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\2\ ``Status of PCB Management in the United States, Ross and
Associates, Prepared for the Commission for Environmental Cooperation,
Montreal, Canada, August 24, 1995. The volume eventually exported is
estimated by Ross to be 75,000 tons
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proper treatment and disposal
The United States, through both TSCA and the Resource Conservation
and Recovery Act (RCRA) have world class standards for PCB disposal and
destruction that meets the Treaty's requirements for proper disposal.
Chemical dechlorination is an effective non-thermal technology for PCBs
at lower concentrations. Chemical dechlorination separates the chlorine
molecule from the PCBs to form salts. This chemical treatment is 100%
effective in destroying PCBs that are in concentrations below 12,000
parts per million but it is not appropriate at higher concentrations.
Most of the PCBs, including all 1,500 tons that are now being imported
by the Department of Defense are in concentrations of less that 12,000
parts per million. Incineration is the necessary treatment with higher
concentrations. Under TSCA, incinerators are required to have an
efficiency of PCB destruction of 99.9999%. Liquid PCBs at any level or
banned from land disposal, although solid PCBs in soils may be disposed
in some RCRA Subtitle C landfills that also have TSCA permits. These
are consistent with world-class requirements in Article 6 of the
Treaty.
Those who oppose the importation of PCBs argue that dioxin
emissions will increase from hazardous waste incinerators. Under the
Clean Air Act, incinerators that burn PCBs must meet the most
protective emission standards of any industrial source in the U.S. that
include specific technologies to control dioxin. As the EPA data in
Appendix A shows, hazardous waste combustors are a very minor emitter
of dioxin compared to wood burning stoves, municipal incinerators and
most sources of dioxin in the United States. Because of more recent air
pollution standards, newer data would drop hazardous waste incinerators
even lower on the list.
Critics of our position believe that exporting technology is the
answer to destruction of foreign-based PCBs. However, such exports are
a chimera. Those who suggest that we could export our technology ignore
several facts. First most developing countries do not have the volume
to justify the costs of the technology. If a developing country tried
to build such facilities, local critics and NGOs would be frightened
that such facility would lead to the country being a dumping ground for
first world waste. Hence, any attempt to export technologies to destroy
U.S.-made PCBs is seen in that light. Clearly, exporting such
technology is not politically practical.
In addition, we must remember that the technology to properly
dispose of these chemicals is highly capital intensive. EPA noted in
court documents that ``Mexico does not have disposal facilities for
PCBs and based on the volume in the country, there is no economic
justification to build a facility to properly handle the PCBs in the
country.'' (Letter to EPA from the National Institute of Ecology cited
in Brief of Respondent Sierra Club v. Environmental Protection Agency
(9th Circuit) July 17, 1996 at page 5.) And Mexico has more PCBs than
any Latin American country.
As President Bush stated at the Treaty signing:
``. . . This treaty takes into account understandable concerns
of less-developed nations. When these chemicals are used, they
pose a health and environmental threat, no matter where in the
world they are allowed to spread. But some nations with fewer
resources have a harder time addressing these threats, and this
treaty promises to lend them a hand.''
If we do not allow imports for proper disposal, unused equipment,
contaminated with PCBs will continue to be improperly disposed or
stored indefinitely until they leak and enter the environment. These
conditions pose a continuing threat to health and the environment in
those countries and in the United States.
what does the treaty require?
Article 3 Section 2.(a) states ``Each Party shall take measures to
ensure that a chemical listed in Annex A is imported only for the
purpose of environmentally sound disposal as set forth in paragraph
1(d) of Article 6
Some argue that a three-year rulemaking process before allowing a
shipment of PCBs into the United States is consistent with the Treaty.
We believe such a trade barrier is not only inconsistent with this
treaty but with virtually all our trading agreements such as NAFTA. As
I noted, most countries do not have the volumes of PCBs to justify the
sophisticated technology to properly dispose or destroy their domestic
supplies of PCBs. Keeping the present regulatory barrier at the border
is clearly contrary to the Treaty's preamble to ``protect human health
and the environment through measures which will reduce and/or eliminate
emissions and discharges of persistent organic pollutants.''
Mr. Chairman, PCBs are coming to the United States. They will
poison our land and Great Lakes through air deposition unless the PCB
waste can be brought back to the U.S. for proper destruction or
disposal. The decision is in your hands.
Thank you and I look forward to answering any questions you may
have.
Appendix A
Inventory of Sources of Dixoin-Like Compounds in the United States-1987
and 1995
------------------------------------------------------------------------
1987 1995
Emissions(g Emissions(g Percent
Source TEQdf-WHO98/ TEQdf-WHO98/ Reduction
yr) yr) 1987-1995
------------------------------------------------------------------------
Municipal Solid Waste 8877 1250 86%
Incineration, air................
Backyard Refuse Barrel Burning, 604 628 -4%
air..............................
Medical Waste Incineration, air... 2590 488 81%
Secondary Copper Smelting, air.... 983 271 72%
Cement Kilns (hazardous waste 117.8 156.1 -33%
burning), air....................
Sewage Sludge/land applied, land.. 76.6 76.6 0%
Residential Wood Burning, air..... 89.6 62.8 30%
Coal-fired Utilities, air......... 50.8 60.1 -18%
Diesel Trucks, air................ 27.8 35.5 -28%
Secondary Aluminum Smelting, air.. 16.3 29.1 -79%
2,4-D, land....................... 33.4 28.9 13%
Iron Ore Sintering, air........... 32.7 28 14%
Industrial Wood Burning, air...... 26.4 27.6 -5%
Bleached Pulp and Paper Mills, 356 19.5 95%
water............................
Cement Kilns (non-hazardous waste 13.7 17.8 -30%
burning).........................
Sewage Sludge Incineration, air... 6.1 14.8 -143%
EDC/Vinyl chloride, air........... NA 11.2 NA
Oil-fired Utilities, air.......... 17.8 10.7 40%
Crematoria, air................... 5.5 9.1 -65%
Unleaded Gasoline, air............ 3.6 5.6 -56%
Hazardous Waste Incineration, air. 5 5.8 -16%
Lightweight ag kilns, haz waste, 2.4 3.3 -38%
air..............................
Commercially Marketed Sewage 2.6 2.6 0%
Sludge, land.....................
Kraft Black Liquor Boilers, air... 2 2.3 -15%
Petrol Refine Catalyst Reg., air.. 2.24 2.21 1%
Leaded Gasoline, air.............. 37.5 2 95%
Secondary Lead Smelting, air...... 1.29 1.72 -33%
Paper Mill Sludge, land........... 14.1 1.4 90%
Cigarette Smoke, air.............. 1 0.8 20%
EDC/Vinyl chloride, land.......... NA 0.73 NA
Primary Copper, air............... 0.5 0.5 0%
EDC/Vinyl chloride, water......... NA 0.43 NA
Boiler/industrial furnaces........ 0.78 0.39 50%
Tire Combustion, air.............. 0.11 0.11 0%
Drum Reclamation, air............. 0.1 0.1 0%
Carbon Reactivation Furnace, air.. 0.08 0.06 25%
TOTALS.......................... 13,998 3,255 77%
Percent Reduction from 1987 to 77%
1995.............................
------------------------------------------------------------------------
NA=Not Available; (+)=reduction from 1987 to 1995; (-)=increase from
1987 to 1995; (0)=no change from 1987 to 1995.
Citation for Chart. Inventory of Sources of Dioxin-Like Compounds in the
United States. Version 3.0 for the Reference Year 1987 and 1995
National Center for Environmental Assessment, EPA. http://
cfpub.epa.gov/ncea/cfm/dioxindb.cfm?actType+default
Mr. Gillmor. Thank you very much.
And we will go to Jim Roewer, Executive Director of the
Utility Solid Wastes Activities Group. And I hope I pronounced
that right.
STATEMENT OF JAMES R. ROEWER
Mr. Roewer. Thank you, Mr. Chairman, Ms. Solis. I am
pleased to present this statement on behalf of the Edison
Electric Institute or EEI and the Utility Solid Wastes
Activities Group or USWA regarding implementation of the
Stockholm POPs Convention.
The utility industry has a substantial interest in the
development of POPs legislation because, among other reasons,
polychlorinated biphenyls or PCBs are one of the 12 POPs
identified in the convention. As this subcommittee is aware,
and other previous speakers have noted, PCBs are singled out
for comprehensive regulation under section 6(e) of the Toxic
Substance Control Act and authorized for limited use in
specified equipment such as transforms and capacitors in
accordance with exacting requirements insuring that their use
will not pose an unreasonable risk of injury to health or the
environment. The United States PCB regulatory program, which
has been in place for over a quarter of a century, is among the
most comprehensive and effective in the world and is the
product of considerable regulatory scrutiny. In fact, our PCB
problem is the standard against which the PCB programs of other
countries are measured.
With that being said, we share the view of others in this
room that it is important for the United States to continue to
play a leading role regarding the implementation and future
strategic decisions involving the convention. We must be
careful, however, that the final implementing legislation
incorporates the proper statutory framework for the United
States to meet its convention obligations. The Stockholm
Convention is a commitment between nations to take certain
actions and does not, in and of itself, directly regulate
individuals within those nations. Therefore, a key goal is
ensuring that the legislation not supersede U.S. law already
regulating POPs or cede decisionmaking authority to an
international body. Rather the purpose of the implementing
legislation should be allow Congress to exercise its authority
to establish how the United States through existing domestic
laws will meet its convention obligations. This will ensure
that decisions regarding how the United States implements its
convention obligations remain within the sovereign jurisdiction
of the United States.
The committee's discussion draft does this. The model for
POPs legislation should involve nothing more than identifying
the United States commitments under the convention and then
determining whether existing U.S. laws allow the United States
to meet those commitments. To the extent there are any gaps,
implementing legislation should fill those gaps through
targeted amendments to TSCA and/or FIFRA. This is also the
appropriate framework to use in evaluating whether and how to
regulate new POPs chemicals that could be added to the
convention in the future.
This framework is fully consistent with the messages of
both President Bush in his letter transmitting the POPs to the
Senate for ratification and of Secretary of State Powell in his
letter transmitting the convention to the President. The
President's transmittal letter observes that the convention
obligates parties to take significant steps similar to those
already taken by the United States to address POPs. Implicit in
this message is the fact that the United States is one of the
world's leaders in regulating POPs, and that a key fundamental
purpose of the convention is for other countries to upgrade
their POPs regulations to the level already achieved by the
United States.
Of particular relevance to this hearing is the Secretary's
comprehensive analysis of the convention obligations and how
existing U.S. laws match up to those obligations. This analysis
is a road map for how the United States should develop
implementing legislation to meet its convention obligations
with respect to the 12 POPs chemicals including PCBs.
The Secretary concluded that the United States could
implement nearly all convention obligations under existing
authorities. And with regard to PCBs, noted explicitly that the
United States has already taken strict measures to regulate
PCBs and that existing statutory authority allows the United
States to implement its convention obligations under existing
PCB regulations. The only exception where the Secretary notes
that additional regulation with respect to PCBs may be
necessary concerns meeting the convention's prohibition on PCB
exports. Thus, neither the President nor the Secretary of State
contemplated whole changes to the existing laws regulating POPs
in this country. Rather, they envisioned a deliberate and
thoughtful analysis regarding whether existing U.S. laws will
allow the United States to meet its convention obligations and
to the extent such laws are deficient, enacting targeted
legislative amendments to fill such gaps.
The draft appropriately directs that for purposes of
complying with the POPs convention, EPA may issue or amend
rules applicable to PCBs if the Administrator of the EPA
concludes through notice and comment rulemaking and with the
concurrence of the Secretary of States that such additional
rules or amendments are necessary to comply with the
convention. This approach leaves open the means for EPA to
shore up such gaps if and when any are identified, while
preserving the integrity and stability of existing U.S. law.
This is an imminently reasonable and thoughtful framework for
implementing the United States convention obligations.
I would like to thank the subcommittee for this opportunity
to present our views of implementing the Stockholm Convention.
We are looking forward to working with you the subcommittee
staff on POPs legislation. And I would be happy to answer any
questions that you may have.
[The prepared statement of James R. Roewer follows:]
Prepared Statement of James R. Roewer for the Utility Solid Waste
Activities Group and Edison Electric Institute
Good afternoon. My name is James R. Roewer. I am the Executive
Director of the Utility Solid Waste Activities Group (or ``USWAG'') and
I am pleased to present this statement on behalf of the Edison Electric
Institute (``EEI'') and USWAG regarding the important issue of the
development of draft legislation to implement the United States'
obligations as a party to the Stockholm POPs Convention, LRTAP POPs
Protocol, and Rotterdam PIC Convention (which I refer to collectively
as the ``Stockholm'' or ``POPs'' Convention).
EEI is an association of U.S. shareholder-owned electric companies,
international affiliates, and industry associates worldwide. EEI's U.S.
members serve roughly 90 percent of the ultimate customers in the
shareholder-owned segment of the industry, nearly 70 percent of all
electric utility ultimate customers in the nation, and generate nearly
70 percent of the electricity produced in the United States.
USWAG is a consortium of EEI, the American Public Power Association
(``APPA''), the National Rural Electric Cooperative Association
(``NRECA''), the American Gas Association (``AGA''), and approximately
80 electric utility operating companies located throughout the country.
APPA is the national association of publicly-owned electric utilities.
NRECA is the national association of rural electric cooperatives, many
of which are small businesses. AGA is the national association of
natural gas utilities. Together, USWAG members represent more than 85
percent of the total electric generating capacity of the United States
and service more than 95 percent of the nation's consumers of
electricity and over 93% of the nation's consumers of natural gas.
The utility industry has a substantial interest in the development
of the POPs implementing legislation because, among other reasons,
polychlorinated biphenyls or PCBs are one of the twelve POPs identified
in the Convention. As this Subcommittee is aware, PCBs are singled out
for comprehensive regulation under section 6(e) of the Toxic Substances
Control Act (``TSCA'') and are authorized for limited use in specified
equipment, such as transformers and capacitors, in accordance with
exacting requirements ensuring that their use will not pose an
unreasonable risk of injury to health or the environment. The United
States' PCB regulatory program, which has been in place for over a
quarter of a century, is among the most comprehensive and effective in
the world and is the product of considerable regulatory scrutiny and
development. I feel confident in saying that our PCB program is the
standard against which the PCB programs of other countries are
measured.
With that being said, let me commend the Subcommittee for holding
this hearing. EEI and USWAG recognize and support the leading role that
the United States has played in helping to forge the Stockholm
Convention, and we share the view of others in this room that it is
extremely important for the United States to continue to play a leading
role regarding the implementation and future strategic decisions
involving the Convention. For that to happen, it is essential for the
United States to both ratify the Convention and enact implementing
legislation.
At the same time, we must be careful that the final implementing
legislation incorporates the proper statutory framework under which the
United States can assess and meet its Convention obligations. As we all
know, Treaties are commitments between nations to take certain actions
and do not, in and of themselves, directly regulate individuals within
those nations. Therefore, we believe a key goal to keep in mind during
this process is ensuring that the legislation not supercede U.S. law
already regulating POP chemicals or cede to one of the many
international committees established under the Convention direct
decision-making authority regarding the domestic regulation of POP
chemicals. Rather, the purpose of the implementing legislation should
be to allow Congress to exercise its authority to establish how the
United States, through our existing domestic laws, will meet the
international obligations of the United States as a Party to the
Convention. This will ensure that decisions regarding how the United
States implements its Convention obligations remain with the sovereign
jurisdiction of the United States and are determined by the Congress
and the Executive Branch.
With these objectives in mind, we are concerned that the POPs
legislation pending in the Senate--S. 1486--could be construed as
replacing U.S. law with the text of the POPs Convention and result in
the decisions of international bodies with respect to the regulation of
POP chemicals being directly binding on U.S. entities. We do not think
this would be in keeping with the structure or purpose of the
Convention or the intent of the United States in becoming a party to
the Convention.
It is for that reason that we believe that the Committee's
Discussion Draft of June 17, 2004, establishes the appropriate
statutory framework for implementing the United States' Convention
obligations. In fact, we respectfully suggest that the model for
developing implementing legislation for the POP chemicals should
involve nothing more than a relatively straightforward two-step
process. The first step involves identifying the United States'
commitments under the Convention and then determining whether existing
U.S. laws applicable to POPs chemicals allow for the United States to
meet those commitments. To the extent that there are any ``gaps'' in
existing U.S. laws, the implementing legislation should fill those gaps
through targeted and focused amendments to TSCA and/or FIFRA. This
approach would enable the United States to fulfill its Convention
obligations with respect to the twelve POPs currently subject to the
Convention while, at the same time, preserving the sovereign role of
the United States in enacting domestic laws applicable to its citizens.
We also believe this is the appropriate framework to use in evaluating
whether and how to regulate new POP chemicals added to the Convention
in the future.
This ``framework'' should not come as a surprise to anyone, as it
is fully consistent with the messages of both President Bush in his
letter transmitting the POPs Convention to the Senate for ratification,
and of Secretary of State Powell in his letter transmitting the
Convention to the President. See Message from the President of the
United States Transmitting Stockholm Convention on Persistent Organic
Pollutants, With Annexes, Done at Stockholm, May 22-23, 2001, Treaty
Doc. 107-5, 107th Congress, 2d Session (Attached). In fact, the
President's transmittal letter observes that the Convention obligates
parties to the Convention to take ``significant steps, similar to those
already taken by the United States,'' to address POPs. Id. at III
(emphasis added). Implicit in the President's message is the fact that
the United States is one of the world's leaders in regulating POP
chemicals and that a key fundamental purpose of the Convention is for
other participating countries to ``upgrade'' their POP regulations to
the level already achieved by the United States.
The Secretary of State's transmittal letter also observes that the
Convention will commit other countries to take actions similar to those
already taken by the United States to eliminate or restrict the
production, use and release of POP chemicals. Id. at V. Of particular
relevance to this hearing, however, is the Secretary's comprehensive
section-by-section analysis of the obligations set forth in the
Convention and how existing U.S. laws regulating POP chemicals match up
to those obligations. Id. at VI-XXII. I respectfully suggest that the
Secretary's analysis is a road map for how the United States should
develop implementing legislation to meet its Convention obligations
with respect to the 12 POP chemicals, including PCBs.
Given that the United States already is one of the world's leaders
in this area, it is not remarkable that the Secretary concludes that
``the United States could implement nearly all Convention obligations
under existing [U.S.] authorities'' with the exception of certain gaps
that can be addressed by targeted legislative amendments to TSCA and
FIFRA. Id. at XXII (emphasis added). Of special relevance to USWAG and
EEI is the Secretary's findings with respect to the Convention's
obligations regarding PCBs, where he concludes that ``[t]he United
States has already taken strict measures to regulate PCBs'' and that
``[e]xisting statutory authority allows the United States to implement
each of these obligations [applicable to PCBs], nearly all of which are
currently addressed under existing PCB regulations.'' Id. at XX. The
only exception where the Secretary notes that additional regulation
with respect to PCB may be necessary concerns meeting the Convention's
prohibition on PCB exports.
Thus, neither the President nor the Secretary of State contemplated
whole changes to the existing laws regulating POP chemicals in this
country. Rather, they envisioned a deliberate and thoughtful analysis
regarding whether existing U.S. laws allow the United States to meet
its Convention obligations and, to the extent that such laws are
deficient in any particular area, implementing legislation consisting
of targeted amendments to fill such gaps.
Again, in our view, this is the approach reflected in the House
Discussion Draft of June 17, 2004, and is reflected in the Draft's
treatment of PCBs. For those subject areas where the drafters
identified statutory gaps in existing law that did not provide EPA with
adequate statutory authority to fulfill a Convention commitment with
respect to PCBs--such as authority under TSCA to prohibit PCB exports--
the Draft legislation specifically fills that gap. See Section 3 of the
Discussion Draft amending TSCA Section 6(e) to prohibit PCB exports
except for environmentally sound disposal (pp. 40-41 of Draft). The
Draft also fills a perceived statutory gap with respect to PCBs by
amending TSCA to require PCB variances to conform to the variance
provisions in the Convention. Id.
With respect to all other aspects of the U.S. PCB regulatory
program, the Draft appropriately assumes, consistent with Secretary of
State's findings, that there are no other identifiable shortfalls
between what the POPs Convention contemplates with respect to PCBs and
what already is provided for under existing U.S. law. The Draft,
therefore, appropriately directs that, for purposes of complying with
the POPs Convention, EPA may only issue or amend rules applicable to
PCBs if the Administrator of EPA concludes, through notice and comment
rulemaking and with the concurrence of the Secretary of State, that
such additional rules or amendments are necessary to comply with the
Convention. This approach leaves open the means for EPA to shore up
such gaps if and when any are identified, while preserving the
integrity and stability of existing U.S. law. This is an eminently
reasonable and thoughtful framework for implementing the United States'
Convention obligations.
As a final note on this subject, I would like to point out that,
contrary to certain reports in the trade press, the House Draft does
not in any way preclude EPA from imposing additional regulatory
controls on PCBs under TSCA section 6(e) or any other applicable
federal law for any reasons unrelated to the POPs Convention. The
conditions set forth in the House Draft for issuing or amending rules
applicable to PCBs are applicable only in the context of EPA taking
action for purposes of complying with the POPs Convention. This is a
narrow and discrete provision and in no way alters EPA's existing
authority under TSCA section 6(e) to regulate PCBs.
I would like to thank the Subcommittee for the opportunity to
present the views of EEI and USWAG on draft legislation for
implementing the Stockholm Convention. I would be glad to answer any
questions you have concerning my testimony.
Mr. Gillmor. Thank you, Mr. Roewer.
We will now go to a round of questions. Let me begin with
Mr. Walls. Talking about the opt-in procedure that is part of
Article 25 section 4 of the POPs convention. Why was this
feature an important safeguard for the treaty? And according to
your testimony, a major objective of U.S. negotiators?
Mr. Walls. Well, Mr. Chairman, I would be happy to answer
that question from the perspective of the chemical industry.
Mr. Yeager may have a perspective based on his role as the
former negotiator.
Mr. Gillmor. Yes.
Mr. Walls. But in our view Article 25(4) confirms the need
or recognizes the opportunity for countries to make an
independent judgment about domestic implementation of the
decisions taken at the international level.
Mr. Gillmor. Mr. Yeager, you were negotiating basically for
the Clinton Administration. Would you agree with that
assessment that that feature was a major objective of U.S.
negotiators?
Mr. Yeager. It was certainly an objective to make sure that
the United States retained the right in the case of any new
addition to seek the advice and consent of Congress or to
approve through an executive mechanism the addition.
I just would point out that there are actually two ways to
do that in the convention. One is to recognizing the right of
any country to opt-out of a newly added chemical. But the
second was introduced, actually, at the U.S. request which was
a process from the decertification which allowed any country to
declare that it would opt-out unless it opted-in to a new
chemical, essentially.
Mr. Gillmor. Run that one by me again.
Mr. Yeager. Well, a little complex. But there are two ways
a country can respond to a newly added chemical under the
convention. It can wait until the chemical has been added by
the convention and then within a period of time say that it
opts-out of that addition and will not join the convention for
that purpose. Or, it can declare upon its ratification that it
will opt-out of all new additions until and unless it says it
opts-in.
Mr. Gillmor. Okay. Thank you.
Let me go to Mr. Wiser. And you testified that we ought not
use a de novo regulatory standard, instead use a controlled
measures specified in the convention. Could you be some more
specific as to what those controlled measures are in the
convention and what you mean by the term ``de novo regulatory
standard''?
Mr. Wiser. When I referred to de novo regulatory standard,
I was referring to the standard that is in the discussion
draft. I am not aware of that balancing standard appearing in
any other environmental or health laws that we have. So, I do
believe that that's a de novo standard.
Now the control measure that would be specified in the
Convention. Under the Convention currently the control measures
are either banning a chemical or severely restricting it, and
then these bans and severe restrictions are subject, in most
cases, to specific exemptions the countries may register for if
they desire.
Now, we do not know precisely what the control measures on
a given chemical will be that has not been added yet, because
presumably that will be the product of negotiations by all the
governments. But if we look at the provisions that exist in the
convention at this time, the control measures will generally be
banning the chemical outright or in some cases restricting its
use or production subject to specific exemptions that are time
bound and may be obtained by countries if they request them.
Mr. Gillmor. Let me ask you, Mr. Walls or Mr. Roewer or Mr.
Goldberg want to comment on that subject matter?
Mr. Walls. Thank you, Mr. Chairman, yes. A number of
comments. One, we believe that the standard, the balancing
standard contained in your draft legislation reflects exactly
what's going on under the convention. The convention says in
effect that the parties should balance the risks, costs and
benefits of regulation and achieving a decision in a
precautionary manner. What does a precautionary manner in this
case? The convention specifically cites to the Rio Declaration
on environment and development. And that says simply where
there is threats of serious and irreversible damage, the lack
of scientific certainty shall not be used a reason for
postponing cost effective measures to prevent environmental or
health degradation in this case.
Now, that to me sounds a lot like a balancing standard. To
suggest otherwise means that we are somehow reading all that
information in the treaty out of the convention, that we
suddenly will not take account of Annex D, Annex E and Annex F;
the very information on which the parties are to base their
decision.
Mr. Goldberg. If I may, Mr. Chairman.
Mr. Gillmor. Dr. Goldberg.
Mr. Goldberg. If I could also add that, of course, from our
standpoint we are concerned with the implementation of this
convention and FIFRA. And FIFRA is, in fact, that very type of
statute that looks like risks, that looks at benefits, the use
of pesticide chemicals, the subsequent impact on farmers and
the ability to create a safe and abundant food supply. So, in
fact, there is a statutory scheme and one that will need to be
amended to implement this convention that has those concepts
built in.
Mr. Gillmor. Thank you.
My time has--well, Mr. Yeager, did you have any comment on
that?
My time has expired. Let me turn to Ms. Solis for
questions.
Ms. Solis. Thank you, Mr. Chairman.
Mr. Walls, you made an interesting comment there. It sounds
to me as though you gave a little bit more information than the
previous speaker representing EPA regarding what actually would
be restricted or would be looked at, what that balance would
be.
And my question is actually to Ms. Goldman as a former EPA
officer there, how do you view this interpretation?
Ms. Goldman. Well----
Ms. Solis. In the bill, the bill that is currently being
discussed here.
Ms. Goldman. In the bill what I see is a lot of language
that has never appeared before in U.S. environmental statutes.
And having been responsible for both TSCA and FIFRA during the
time I served as Assistant Administrator at EPA, I would tell
you that these provisions would have to be interpreted by the
executive branch and by the courts.
And unfortunately sometimes there is a considerable amount
of litigation before people understand what it is that Congress
intended.
And so, one of the problems with a legal standard that has
never been in an environmental statute before is that nobody's
going to know what it really means. Why do that when there is
very clear language that was negotiated within the convention
and which, as Mr. Wall said, is language that the industry is
comfortable with? I was there and can tell you that a lot of
time and attention went to consulting with industry groups,
environmental groups, and stakeholders about what the process
should look like. So why invent new language and new sets of
processes that can be litigated? That is a recipe for gridlock
and, at the end of the day, none of the decisions of the
convention being implementable in the United States.
Ms. Solis. So in other words it would actually take us a
step further away from achieving the intent of the treaties?
Ms. Goldman. I believe that it is worse than current law. I
think that it actually would make for more delay and more
difficulty than what we have today with TSCA and FIFRA.
Ms. Solis. You said something in your statement earlier
about the burden should be placed with EPA. Can you go into
further detail about that?
Ms. Goldman. What I think would be workable, from my
experience and the years that I was at EPA, is that if the
convention lists a chemical for action, that EPA will move that
forward with that action unless they can make a regulatory
finding that action is not required in the United States either
because they do not agree with the scientific bases for the
listing; or because we have other ways of controlling the
chemical. But you should expect from them within date certain
that they either will take action or that they will give a
regulatory finding for why not. That is what I believe would be
the way to assure effective action from EPA.
Ms. Solis. Thank you.
My question next to Ms. Heinzerling. Sorry if I
mispronounce that.
Ms. Heinzerling. That is all right.
Ms. Solis. Can you go into a little bit more detail about
the cost benefit, human benefit as opposed to financial in
terms of how we go about applying the methodology that is
included in this bill in terms of adverse effects that that
might have and, you know, talk a little bit about that?
Ms. Heinzerling. Yes. Cost benefit analysis has proved a
very effective way of shutting down regulation. And so if you
want a bill that does not do much to protect the environment,
one of the good ways to do it is to enact a cost benefit
requirement. And the reason for that result is that in many
cases cost benefit analysis really favors numerical results,
numbers, quantified estimates of costs and benefits. And, as I
said, many of the benefits of environmental policy cannot even
be quantified, much less translated into dollar terms.
And so in many cases we know that a chemical causes
particular harms, but it is very hard to figure out exactly how
many people will get sick, how many people will die, how many
ecosystems will be threatened and so forth. And so we do not
even have a number to attach to those effects.
And the second problem is then we have to try to figure out
what those are worth in dollars, and that becomes really
tricky. The reigning method, and Representative Allen referred
to this before in his opening statement, for figuring out how
much increased risk is worth is to look at what people in
workplaces are willing to take in extra wages for extra work.
Those data come mainly from the 1970's. They are almost
exclusively for male workers, exclusively from immediate risks,
not risks of cancer. And so there are lots of problems even in
getting to that $6.4 million figure that you mentioned,
Representative Allen. There are a lot of problems getting to
that number. And as we speak, the Office of Management and
Budget is busily trying to reduce that number. So, they have
been hard at work on it for a number of years. Now we are down
to the lower part of the range, as low as a million dollars in
recent OMB reports.
And so it is difficult to quantify, it is difficult to
monetize. And then at the end of the day cost benefit analysis
also often requires discounting future benefits. And in the
case of persistent pollutants that is a disaster. Because what
we are talking about, as I said, is we are protecting for the
long term, we are trying to protect against cases or diseases
like cancer that take a long time to manifest themselves. And
so cost benefit analyses can be paralyzing.
Ms. Solis. Thank you.
Just one quick question for Mr. Yeager. Having your
previous experience on this issue, what is your opinion of the
current Senate legislation, that is if you have one?
Mr. Yeager. Well, I actually testified on that, and I would
be glad to give you the testimony that we provided and any
further comments that WWF has made with regard to that
legislation.
Ms. Solis. I am assuming you supported the legislation?
Mr. Yeager. Well, we were supportive of aspects of it. We
were concerned about other aspects, I think I would have to
say.
Ms. Solis. Okay. Thank you. Thank you very much.
Thank you, Mr. Chairman.
Mr. Gillmor. The gentleman from Michigan, Mr. Rogers?
Mr. Rogers. Thank you, Mr. Chairman.
It is certainly difficult and it seems complicated to get
to the root of this.
Dr. Goldman, if I may, I am from Michigan. PCBs are
obviously a huge problem in Michigan. And when we look at Lake
Superior, 89 percent of the current PCB loading occurs from air
deposition. So it is actually coming external to the
continental United States into the United States and being
dropped in the water. And I know at one time when you were
serving with the EPA you were looking to import PCBs into the
United States. And I want to understand that. Is that a bad
thing? Is that a good thing? Obviously that is something beyond
our control if it is coming in external to the United States by
air.
Ms. Goldman. Let me tell you what was going on at that
time. We had recently signed the NAFTA agreement, and under
that was an environmental side agreement between Mexico, the
U.S. and Canada. And under that we developed a PCB action plan
for attempting to deal with the problem that you are talking
about, which is the movement between countries of PCBs in the
air, which as you correctly note, can then wind up in places
like the Great Lakes or in the Arctic and places far away from
where they are generated.
And Mexico did an inventory where they found a lot of PCBs
that were still in use that needed to be destroyed but they did
not have adequate destruction technology.
And so we did make an effort to say that those PCBs could
be destroyed through agreements in the United States. And we
utterly failed.
And I think I learned a lesson from that as well. And that
is, one: Even though this is something that may have seemed
like a correct thing to do, politically it was absolutely a
nonstarter. There is not a community in this country with an
incinerator that can destroy PCBs or a PCB disposal facility
that wants to receive PCBs from other countries into their
facility. So it is a complete nonstarter from that standpoint.
And second, that fortunately in terms of the Mexican
situation there are other countries were there is the ability
to do this. And so, for example, they have been able to find
they can take those PCB wastes to Canada and destroy them.
Believe it or not, they can take them to Holland and destroy
them. And so basically our efforts were stopped by the court.
We decided to not go down that route anymore. And there were
members of Congress as well who did not want to see that
happen, members who have those facilities in their districts.
So that is pretty much where it ended in terms of our
efforts.
Mr. Rogers. Mr. Yeager, obviously it seems to me that at
least from my understanding and my reading that PCBs, at least
the production of them, is happening in primarily Third World
countries at this point. It is either there in large quantity
or not being dealt with. I mean, is there--what is your
organization doing to try to address those source points of
PCBs?
Mr. Yeager. We actually have not taken specific action as
World Wildlife Fund that I am aware of with regard to PCB
residues. We actually have taken a large interest in obsolete
residues of pesticides that are all over Africa. And your
earlier witness mentioned the African stockpiles program, which
is an effort that we actually initiated that has been joined by
the FAO and the GEF, and a number of other facilities including
UNEP to address obsolete stockpiles of pesticides in Africa.
My impression, which is not based on a lot of current
knowledge of the PCB situation, is that most PCBs were actually
produced in the United States, as Mr. Slesinger indicated, and
exported often in electrical equipment. And that there are
serious residue problems and remedial action needs, not mostly
in developing countries although there may be some, but
including in countries like Russia. And I am not aware of the
EPA, what current programs they have in that regard.
Ms. Goldman. I should add that Russia produced them, too.
They were the last to stop production.
Mr. Roewer. If I may, Mr. Rogers?
Mr. Rogers. Yes, please.
Mr. Roewer. There was a substantial piece of the production
capability in the Soviet Union. And I do know that the U.S. EPA
has engaged in quite a bit of capacity building with countries
around the world, countries working for UNEP and GEF are
attempting to assist countries in their management of all POPs
including PCBs. UNEP really has an ongoing program to try to
assist--continue with the leadership that this country has
shown in environmental protection to assist those countries
manage their PCB and POPs issues.
Mr. Rogers. I think we can all agree that they are
something we ought to deal with. I mean, obviously, those are
the same residue effects that are obviously getting in the air
and coming to the United States. So it may not be politically
tenable but we need to find some solutions on that source
pollution of PCB that has been either sent overseas and coming
back to get us in another way; we all agree it is dangerous,
bad, awful, ugly stuff and we need to do something. Huge
problem in Michigan.
Mr. Yeager, just quickly, I am a little confused at your
position in opposition to the bill. I mean, the 12 chemicals
that we have listed that we all agree are bad, the 90 plus
signatories that have agreed bad stuff, but your opposition is
gee, if there is something that happens in the future of which
a chemical we do not understand today or we have no knowledge
of today, we are going to be in opposition in the sense that we
do not believe that we ought to have some at least due process
here for regulatory relief and cost benefit analysis and other
things. Do I understand this correctly?
Mr. Yeager. I do not think you have quite characterized my
position the way I would characterize it. But that is, but that
is your freedom as a member.
Mr. Rogers. Well, that is why I wanted to mention it.
Mr. Yeager. No. I do not think that is our position. Our
position is that we very much are supportive of the treaty and
of the obligations of the treaty. We recognize that for the
first 12 chemicals for the most part, and I think almost
universally, the United States has ceased production and use of
those chemicals. But we think it is very important from the
U.S. national interest to have production and use of those
chemicals also eliminated to the extent that the treaty
requires it in all other countries, including in developing
countries for the reason that you mentioned. That even if some
of these chemicals like chlordane are being used in Africa or
in China, they travel through the atmosphere and appear in
bloodstream of people in Arctic and people who fish in the
Great Lakes.
So we think that the fundamental purpose of the treaty is
very important to see accomplished.
Mr. Rogers. I know I see my time is running out here. I
just want to follow up on that point.
So your argument is not necessarily the United States and
the fact that we have been pretty good stewards, we have
identified it and said opps this is bad stuff, we need to do
something about it. Our regulatory practices are a part of
those considerations. Do you not think it is important that we
keep that sovereignty versus your worrying about Third World
nations who we know are violating in some cases, in almost all
the cases, those chemicals that are listed there today?
Mr. Yeager. I appreciate the point, but I do not think the
treaty in any way infringes on U.S. sovereignty, as the point
of my testimony was to point out the many protections that we
negotiated into the treaty so that the U.S. interest would be
in fact protected and the U.S. discretion with regard to its
own way of regulating would be protected.
Our concern is that with the legislation that has been
proposed so far and in particular with the draft on which we
are testifying today, that the standards under which the U.S.
would regulate are new, and give rise to potentially a lot of
litigation, make it very hard to actually regulate for a
chemical that is added to the treaty list, even when
scientifically the United States agrees that the chemical
should be added to the list and should be acted on as a
chemical of global concern.
And so I think those problems could be solved, but I think
the way that the current draft is written it makes it very
difficult to imagine that we would, in fact, act on a future
chemical.
Mr. Walls. Mr. Rogers, may I quickly weigh in here?
Mr. Rogers. Sure.
Mr. Walls. With respect to the standard established in the
draft legislation, as I have tried to state that standard
tracks very closely the very same decisionmaking approach taken
under the convention.
More important, in our view the draft recognizes that this
subset of chemicals is special. They pose special risks, pose
special global risks that warrant a different approach. This
draft does not say take the existing TSCA section 6 process, in
fact it does not require EPA to establish that a substances
poses an unreasonable risk. It does not require EPA to
establish that its preferred risk management approach is the
least burdensome regulatory alternative. And it in fact, it
imposes none of the procedural barriers that have contributed,
I think, wrongly to the perception that section 6 does not
work. So the draft in our view sets out a system that should
enable EPA to act quickly and expeditiously to implement an
international decision.
Mr. Rogers. Interesting.
I see my time is long past due, Mr. Chairman. I relinquish
the microphone.
Thank you, sir.
Mr. Gillmor. Thank you, Mr. Rogers.
The gentleman from Maine.
Mr. Allen. Thank you, Mr. Chairman.
Mr. Goldberg, in a June 3, 2004 press release CropLife
International noted that the industry is working ``to ensure
that national and international interpretation is consistent
with the articles of the convention including risk management
procedures in determining future POPs.''
So my question is does CropLife support the international
process to regulate that is established in the convention in
Article 8?
Mr. Goldberg. Yes. If I may add one point consistent with
the comments from my colleague and friends, Mr. Walls. We
believe that those standards are consistent with the standards
that are expressed from the chemical side in the discussion
draft and from the pesticide side in the statutory provisions
of FIFRA and the Food Quality Protection Act.
Mr. Allen. Let me address then to both of you, because Mr.
Walls said earlier--had said a couple of times, that the
convention says--it says we should balance risk, cost and
benefits in a precautionary matters. You know, all these words
have different interpretations.
My sense is from that particularly in Europe the
precautionary principle is seen as a way of not having to prove
to the last comma that there is harm, but it reflects an
understanding that the world is better off to try to prevent
pollution degradation before it occurs, even if the science is
not complete. And particularly with respect to climate change,
it is a principle that is evoked all the time because the
science may get to 95 percent, but it will not get to 100
percent.
Ms. Heinzerling said, and I would tend to agree, that often
in this country cost benefit analysis, formal cost benefit
analysis has been an obstacle to regulation. Are you saying in
your opinion that would not be the case here? Do you understand
the statement she is making, the risk that some of us see in
getting into numbers and trying to quantify things that may be
ultimately not qualifiable?
Mr. Walls. Well, Mr. Allen, I will try and respond this
way. I mean, you are absolutely right. We are talking about an
international agreement and we are talking about a lexicon that
has developed around this negotiation with words like
precaution. And we are trying to grapple with what that means
in a regulatory context. But what we are talking about here is
fundamentally the implementation of an international obligation
of the United States. And the struggle here to give effect to
the very provisions of the treaty in a way that makes sense.
Now, with all due respect to Ms. Heinzerling, I have to say
I do not believe that any negotiator of the Stockholm POPs
convention contemplated that we would be engaged in a series of
long quantitative analyses of the cost benefit analyses in
making decisions here. The treaty is very clear. Cost and
benefit considerations are to be taken into account. There may
be analyses out there with respect to any particular chemical
that is relevant and must be taken into account. So we see the
draft as taking the convention language and implementing it in
a way that makes sense.
Mr. Goldberg. Very quickly. Remember with respect to a
number of these chemicals that are on the list, they are
pesticides. Pesticides have important public health uses. And
the process of balancing those risks of losing chemicals that
have important public health uses is always compared to the
risk of the products themselves.
Mr. Allen. The question is how it is done.
I want to turn to Mr. Yeager, because when you negotiated
the treaty, when you were negotiating the treaty how did you
expect the domestic regulatory process would work after an
international decision by the conference of parties to list a
new chemical? Did you have something in mind when you were
negotiating, and more specifically did you think there would be
new language, this reasonable balance language that would be
offered?
Mr. Yeager. That is a difficult question, Representative
Allen.
We consulted with EPA about every aspect of the treaty, and
knowing that EPA was the primary regulator in the United
States. We attempted to negotiate terms of reference in the
treaty that were as close as possible to the U.S. regulatory
system. And, in fact, that was a fundamental negotiating
objective.
I think our objective was to ensure that we would not
require wholly new standards in U.S. regulation in order to
implement the treaty. And, in fact, that to some extent I
suspect we were hopeful that we would be able to rely on the
thresholds established in the treaty when interpreting the U.S.
regulatory context.
I think that the difficulty that we have, with due respect
to my colleagues, is that the treaty does require some
consideration of socio-economic considerations and therefore of
costs. But it assumes that once a chemical has been given--has
passed the risk profile and the Annex D criteria, if it is
assumed to be a POPs, it will be regulated. And in fact it will
be regulated strenuously because that is the whole purpose of
the treaty. That is how precaution is embedded in the treaty.
So here we have a proposal that says well once that
decision has been made and the U.S. has participated in it,
formed the scientific review, and in fact probably formed part
of the scientific committee, that then we will have a new
process in the United States to decide whether or not to
regulate it. There is no presumption that we will regulate.
Mr. Allen. And if I may, Mr. Chairman, just one last.
I take, Mr. Yeager, that that is your response to Mr.
Walls' suggestion that reasonable balance in the implementing
legislation reflects the language of the convention itself? I
mean, I think I hear both of you, your arguments clearly. I
just want to make sure that they're----
Mr. Yeager. Yes. I do see a difference. If you look at the
structure of the treaty where and when socio-economic
considerations to be brought in, you will find that once a
chemical has passed the scientific thresholds and the
conference of the party lists it, it is expected that it will
be regulated. The question is how.
Mr. Allen. I thank you.
Thank you, Mr. Chairman.
Mr. Gillmor. Let us go to one more round of questions. And
let me start directing this to Ms Goldman and Mr. Walls.
I want to give a statement of a principle and ask you to
respond whether you agree with it or not. And the
administration principles state in determining whether the
domestic regulatory measures are necessary and adequate, the
United States should compare the international decision to
measures that are more and less stringent, thereby facilitating
a risk management decision as to which measure provide the most
reasonable balance of benefits, risks and costs for specific
uses. Could you both comment on that principle?
Ms. Goldman. I would not have stated it quite that way, but
I do think that it well could be that a chemical might be
listed in the convention with a set of risk management options
that are put forward and that the U.S. may decide to do it
differently, to either be more stringent or less stringent.
For example, take DDT which under the POPs convention
continues to be used for public health use in developing
countries for malaria, whereas we have not required it for that
use for more than 20 years. And so we may look at an exemption
that has been put forth or a risk management option that has
been put forth and decide that in our situation it does not
make sense because, say, we do not have malaria here.
So, that is one of the reasons why I think it was important
that the convention preserve the sovereignty of nations to go
their own way in terms of having flexibility about how these
things would be managed.
Mr. Walls. We agree with the principle.
Mr. Gillmor. Let me state another administration
principles. In weighing benefits, risks and costs the United
States should consider domestic production, export and use of
the chemical and any national and international consequences
that are likely to arise as a result of domestic regulatory
action including consequences that cannot be quantified and
including consideration of the possible consequences of using
likely substitute chemicals.
Could you comment on that?
Ms. Goldman. I could go first on that one. That principle
is actually 2 or 3 different things embedded together. I find
that to be a very complicated statement coming from the
administration.
Mr. Gillmor. I thought it was a little complicated myself.
Ms. Goldman. Yes.
Mr. Gillmor. But you are the expert, so I wanted to ask
you.
Ms. Goldman. Well, I am going to do that but I will
apologize if I have not teased it apart completely.
But No. 1, I do think that the fundamental principle of the
convention, which is that whether the chemicals meet certain
criteria about persistence in toxicity, and if they do they
should be managed, that that needs to be adhered to by the
United States regardless of the economic benefits. This is
because we know that once these persistent toxics are in the
environment, we cannot get them out again. We are still
cleaning up DDT and PCBs from decades ago.
So that piece of it, which I think is implied in the first
part, I would not agree with.
I do think that we need to put into the mix at the outset
gathering of information about production, import, usage. That
is information our negotiators need to have the first time they
go to the table to talk about a chemical. And, in fact, I said
in my written testimony that I felt that Congress should
require that EPA collect that information, including the usage
information, so that our negotiators are there with a full deck
of cards right at the beginning.
With due respect to my colleagues who have suggested to you
that there is plenty of authority in TSCA, the information
collection provisions of TSCA do not give EPA the authority to
collect that information in a timely fashion. You need to give
them that authority, because if the information comes in after
the negotiation has been accomplished, they will not be able to
really represent the U.S. situation well.
Mr. Walls. Mr. Chairman, we not only agree with the
principle, but also believe that the draft legislation
incorporates that principle.
We also agree with Ms. Goldman that U.S. negotiators and
the review committee should play with a full deck.
Mr. Gillmor. Thank you.
Let me direct my question to Mr. Wiser. Your testimony
states that implementing legislation should require a clear
statement that the United States should not register for any
specific exemptions under the POPs treaty. Now the POPs treaty
does call for countries to do that, but by doing so would you
not in effect be opposing research on those chemicals and
inject manufacturing regulatory possibilities for trace
contaminants.
Mr. Wiser. In all due respect, Mr. Chairman, I do not
recall putting it exactly that way. In my testimony my
recollection is that what I objected to was the provision in
the discussion draft that would appear to prohibit EPA from
regulating if an exemption were available to the United States
under the convention. And the point that I hoped to make, and I
apologize if I did not make it clearly, was that in our view
the legislation should not require EPA to try to take an
exemption. In other words, the legislation should not prohibit
EPA to regulate if an exemption is available. Instead, it
should be up to EPA to decide, well, when looking at all these
various factors, is it appropriate for us to request an
exemption? And that would be something that would have to be
done with the Executive.
But we do not believe that the legislation should prohibit
EPA from regulating if an exemption is available, because as
Dr. Goldman pointed out, in most cases the United States will
not want to take one of the exemptions. Most of these
exemptions are intended, at least in terms of the dirty dozen,
the 12 chemicals that are already regulated in the convention,
most of these exemptions are intended for developing countries
that for one reason or another need a transition time. And we
do not believe that that kind of situation should be forced on
EPA. Instead, we should be able to evaluate the situation,
determine is it appropriate for us to take an exemption. We
should not prohibit EPA from regulating if an exemption is
available.
Mr. Gillmor. My time has expired.
Ms. Solis?
Ms. Solis. Mr. Wiser, thank you for being here.
You mentioned in your testimony that there were other
organizations that you represented that were also not in
support of the current discussion draft legislation. Can you
name any of those groups?
Mr. Wiser. Yes, I can. As I did mention, the views that I
expressed in my testimony have been endorsed by a number of
organizations, and they are listed in my written testimony.
They include the National Environmental Trust, Physicians for
Social Responsibility, Oceania, United States Public Interest
Research Group, the Sierra Club and Pesticide Action Network
North America. I would also add that World Wildlife Fund is one
of the organizations that we have worked very, very closely
with. WWF has been absolutely essential in our efforts. We did
not think it was appropriate to try to have them endorse my
testimony considering Mr. Yeager is giving his own testimony.
But these organizations have been among the core of groups
that have been working very actively on this legislation. And
we have uniformly and consistently shared our views. We have
the same view, we have the same objection to this legislation.
And then the other thing I would like to add is that we are
also working very closely with organizations, particularly
grassroots organizations throughout the country. So it is not
just beltway groups or Washington, DC groups. We are in close
contact with a number of different organizations. And I think I
can say with confidence that these organizations are uniform in
their objection to this approach that is in the discussion
draft.
Ms. Solis. So you have a position on the current Senate
legislation?
Mr. Wiser. Well, as Mr. Yeager sort of--I think I will say
he fudged a little bit. I may fudge a little bit myself. But I
will try to be as direct as I can to you.
We were involved very heavily in the development of that
legislation. We were invited by then-Senator Smith to work with
industry and to work with staff of the Environment and Public
Works Committee on it, and we did that. We worked very hard.
In the end I think we can say that there were some aspects
of Senate 1486 that we liked and there are some aspects that we
do not like. And in fairness to Senator Chafee who was key in
developing this, he said he was going to try to split the
difference between many of the different interest groups and
the administration. And the result was he upset a lot of people
in doing that. But it is a mixed bag, quite frankly.
Ms. Solis. Do you think there is an urgency to move forward
as quickly as this proposed legislation might have us move?
Mr. Wiser. I think it would be very good for the United
States to be an active participant in the Stockholm Convention.
As we have heard from many of our witnesses, the United States
provides very important leadership in this issue. We have
technical abilities that are simply unparalleled. It is
important for us to be a party to the convention. And it is
important for us to join in a multilateral process, important
for us to give guidance to others and to demonstrate that we
can do things, we can address these kinds of chemicals
together, not just unilaterally but together.
That said, I think that it is essential, and I also speak
on behalf of my colleagues in this respect, that it is
absolutely essential for us to get it right here. Let us not
rush if the result is severely flawed legislation that we will
be stuck with for years and years and years. And we believe
that the approach in the discussion draft is that kind of
severely flawed approach.
Ms. Solis. Thank you.
Mr. Yeager I had a question for you as a former EPA
representative. I am sorry, Dr. Goldman. Excuse me. Dr.
Goldman, regarding California, the State that I come from, we
have some of the more stringent environmental laws in the
country. If the draft legislation were to be implemented, what
are some of the things that might happen with a State like mine
where we do have much more rigorous review of chemicals and
their use?
Ms. Goldman. Well, first and foremost, I believe that the
draft legislation would preempt efforts by the State of
California to set its own regulations. And I think that that is
very important.
I used to work for the State of California as an official
for the California Department of Health Services. And we often
needed to take action in advance of the Federal Government
because of the unique environment of California and the need to
protect that. And I think that there should not be preemption
of State action in this bill.
Ms. Solis. Thank you.
Mr. Gillmor. The gentleman from Michigan.
Mr. Rogers. Thank you, Mr. Chairman.
I am still trying to understand this, the best I know how.
But Mr. Walls, is it my understanding that the convention
does call for a cost benefit analysis?
Mr. Walls. That is correct, Congressman. Once the review
committee reviews the sufficiency of the nomination vis-a-vis
the criteria in the convention itself, and once they have
reviewed a risk profile and determine that some action is
warranted, there is a process to consider the costs and
benefits of regulation.
Mr. Rogers. So the bill as drafted does not add anything
new to the convention in that regard? They already recognize
the cost benefit analysis model?
Mr. Walls. That is our position, Congressman. Yes.
Mr. Rogers. I see a shaking of the head, a stick up finger
and a nod, all down the row there. So why do we not just work
our way down.
Ms. Goldman. Well, I will just tell you my view, which is
that I believe and the way I would view it as a regulator, and
that is that the convention requires consideration of a number
of cost issues and social issues, many, many considerations I
think you would take into account in managing risks. But it
does not involve a formal cost benefit analysis as an exercise.
By saying balance the draft bill does lead you down that path
of doing a quantitative modeling effort. And I think that that
is the difference.
Mr. Rogers. But in fact the convention does state that. As
a matter of fact, I think Mr. Yeager used the ``socio-
economic.''
Ms. Goldman. It says that those considerations should be
assessed and evaluated, but it does not have language that says
quantified, weighing it and doing the kind of formal, formal
cost benefit analysis. That is my opinion.
Mr. Yeager. I guess if I could just try to clarify my own
view with regard to the convention and maybe the difference.
It appears to me at least, and I think to us on reading the
draft, that the cost benefit balancing that is required in the
draft which would, as Ms. Goldman stated, require a cost
benefit analysis that has the flaws that Ms. Heinzerling points
out, is linked to the decision of whether or not to regulate a
chemical after it has been listed by the convention.
The convention actually presupposes a process that I try to
describe in my testimony, but starts with a screening for the
chemical, determines whether the chemical fits a series of
science characteristic that make it a POP, then has a risk
profile for the chemical that--again no economics so far--that
determines whether the chemical presents a risk that warrants
global concern, that's Annex E. So you have gone through Annex
D and E. Only then at that point does Annex F consider what
kinds of control measures should be taken. And in that
consideration there is not, as Ms. Goldman states, a cost
benefit analysis as such but it does require a look at the
efficacy and efficiency of possible control measures. And then
under alternatives a look at technical feasibility and costs
including an environmental and health costs.
But those are not part of an equation in which you
determine whether or not to regulate at that point. They're
part of a consideration of how you should regulate.
Mr. Walls. Mr. Rogers, I would perhaps add a clarification
from our perspective.
The decision taken under the convention with respect to
costs and benefits is a decision taken at the international
level. That decision may ignore for all practical purposes the
relevant costs and benefit consideration that apply to
regulation in the United States. The draft legislation provides
a process to insure that those costs and benefits are
articulated as the agency considers to regulate the chemical.
Mr. Rogers. Sure. And obviously the signatories believes it
was important enough to mention it, just like as we mention
paragraphs in a bill that need further clarification when it
gets to rulemaking.
We are really nothing more than the rulemaking body of the
convention as it relates to the United States verses the other
signatories of the convention. I guess I am confused why we are
arguing about the point.
Ms. Heinzerling. May I just add. It would be easy enough to
say that if that is all you meant was to duplicate what went on
at the international level and that is all that Mr. Walls
believes this legislation does. It would be easy to simply
replicate that standard in this legislation. That is not what
is happening. The legislation adds whole new language that is
not even present in the international context.
Mr. Rogers. You mean clarifying language like we do in
rulemaking? That is exactly what we do when we make rules; we
clarify the language. The intent was they obviously believe it
was important for a cost benefit analysis to some degree, and
it is up to us to determine what that is, is that not right?
Ms. Heinzerling. I do not see that that is the case. And in
fact----
Mr. Rogers. I mean, you are saying we do not want any. And
we are saying you probably ought to have some.
Ms. Heinzerling. I think that Mr. Yeager's point is
fundamental, which is that the international context takes it
as a given that once you go through the science-based process
there will be regulation. The question is what form it will
take. Whereas, under cost benefit analysis such as the
reasonable balance standard in the discussion draft, the
question is will there be regulation at all.
Mr. Rogers. Well, you are saying that only because there is
a presumption, I think. You are nervous that there is only a
presumption that there would be regulation?
Ms. Heinzerling. Well, there is also the addition of the
language that is quite cryptic in the current draft having to
do with sound scientific evidence, peer reviewed studies and so
forth that is added and is not present in the treaty language.
And so that there is a lot of language that if it merely is
intended to duplicate what the treaty does, then is very
confusing.
Mr. Rogers. You oppose peer reviewed science?
Ms. Heinzerling. Nothing I have said suggests that.
Mr. Rogers. Well----
Ms. Heinzerling. No, I do not.
Mr. Rogers. Okay. Just for clarification. So you do not
oppose those on the face of getting the good science? I mean, I
think we are arguing semantics here.
Ms. Heinzerling. Well, usually when your legislation, the
legislation you pass here goes to courts, courts assume that
you meant something new when you add new language. They are
just funny that way. They take the language and they assume
that if you add language, then you must have meant something.
And so you must mean something different from the
Administrative Procedure Act's requirements against arbitrary
action for example. And so if you only mean that, if you only
mean what the agencies are already doing, which is often
relying on peer reviewed science, then you do not need to say
anything.
And so courts will become confused when they see new
language and they think what do they have in mind, because they
try to take you seriously when you say something.
Mr. Rogers. Really? That is new.
Mr. Yeager, did you have a point to that?
Well, I see I am over my time again.
Mr. Chairman, I hope we can get something going. I think
you are absolutely on the right track, and I think the
semantics arguing about may keep us from doing something pretty
powerful for something that we all agree on. And I think
everyone in the panel agrees on are some pretty bad actors out
there. And I would encourage your leadership on this so that we
do in fact become a part of that success story on getting this
stuff out of there.
Sometimes I think we argue for the sheer sake of justifying
our organization, and that is unfortunate when you are talking
about the threat that I think these chemicals and other things
may pose to the future health of America.
Thank you, Mr. Chairman.
Mr. Gillmor. Thank you, Mr. Rogers.
One of the purposes of a discussion draft is to stimulate
discussion, and we were imminently successful in doing that.
Let me also ask if the members of the panel would be
willing to respond to written questions from members, if they
would want to submit them later and all the members have
indicated that they would.
And I want to thank all of you for coming and testifying
for what has been a fairly long afternoon. But we appreciate
it.
Meeting adjourned.
[Whereupon, the subcommittee was adjourned at 5:03 p.m.]
[Additional material submitted for the record:]
Response of Brooks Yeager, Vice President, Global Threats, WWF-US, for
the Record
1. Discretion to Regulate: A key question which I would like to
address first is whether or not the treaty includes any standard for
POPs regulation. A strong argument can be made that there is, in the
Stockholm Convention, an implicit set of standards for the regulation
of POP chemicals by parties.
In contrast to instruments of broad application, such as a number
of U.S. chemical regulatory statutes, which are intended to provide for
the regulation of broad classes of chemicals (such as all ``hazardous
chemicals''), with a wide latitude as to the type of management
appropriate, the POPs treaty is intended to affect a rather narrow
class of chemicals, which are assessed to have properties of toxicity,
bio-accumulative potential, transportability, and persistence such that
they must be controlled, and if possible eliminated, at the global
level. For this group of chemicals, the treaty assumes a very stringent
level of regulation, and sets implicit standards for such regulation in
the language of the regulatory goals for each of the annexes in which
new chemicals could be listed. The discrimination among the basic
regulatory standards is not based primarily on a balancing of health,
environment, and other benefits, but rather on the type of chemical
being regulated, and in particular on whether it is produced
intentionally (Annex A) or unintentionally (Annex C). The only
exception among the existing 12 chemicals is DDT, which is placed in
its own annex (Annex B), in which the control strategies explicitly
recognize the importance of maintaining, in the absence of substitutes,
its critical public health uses.
For example, if a newly listed POP is an unintentional byproduct,
such as dioxin, it would be listed in Annex C, and parties would be
obligated to take regulatory measures consistent with the guidance
outlined in the annex, including general prevention measures and ``best
available techniques,'' to meet the regulatory goal of ``continuing
minimization, and, where feasible, ultimate elimination,'' as stated in
Article 5. If a newly listed chemical is an intentionally-produced
product, and unless it serves critical public health functions as does
DDT, it would be listed in Annex A, and parties would be obligated to
``prohibit and/or take the legal and administrative measures necessary
to eliminate'' its production and use, import and export. These basic
goals are, of course, modified by any country-specific exceptions
registered, but they act as a fundamental regulatory standard
nonetheless.
The question of how the considerations of Annex F play into all
this is an interesting one, but a careful reading provides little
support for any suggestion that Annex F invites a cost-benefit
consideration of whether to regulate. Instead, it comprises a set of
factors to be used by the POPs Review Committee in the preparation of
``a risk management evaluation,'' that would include ``an analysis of
possible control measures for the chemical.'' This information would be
provide to parties, and might assist some parties in devising control
strategies necessary to meet the implicit standards for each type of
chemical.
2. Legislation w/o Adding Mechanism: WWF strongly disagrees with
the observation that it would be acceptable to enact legislation that
focuses solely on ``the provisions of the discussion draft to fill the
gaps for U.S. compliance with treaty obligations for currently listed
chemicals,'' i.e., to leave out ``a statutory process for U.S.
consideration of additional chemicals or even new rulemaking
authority.'' Adding new chemicals to the POPs treaty is one of the most
critical elements of the treaty, and legislative authority would be
incomplete and unacceptable without such matters addressed. Moreover,
existing domestic authority for chemicals, especially under TSCA and
FIFRA, is rarely amended, and it would be very difficult to do so on a
chemical-by-chemical basis as new chemicals are added. In addition,
ratification without the benefit of legislative guidance in relation to
the ``adding mechanism'' would result in the U.S participation in COPs
with inadequate guidance with respect to such matters as terms of
reference for the POP Review Committee, and consideration of new
chemicals, among other matters.
3. State Preemption: While we agree that states should not be
allowed to regulate less stringently than Federal government standards,
WWF's preference would be to amend TSCA 18(b) to allow states to
regulate chemicals more stringently than federal law, without the EPA
Administrator's oversight or approval.
4. PCBs: The intent of WWF's testimony is to support the enactment
legislation that is needed to effectively implement the Stockholm POPs
Convention, and in that context there is no need to change EPA's
current practice of disallowing the import of PCBs into the US.
5. Requiring the U.S. to ``opt in'': As per WWF's testimony (bottom
of page 10/top of page 11), the discussion draft oversteps by
attempting to constrain the President's constitutional power to conduct
international negotiations by requiring the US to declare the ``opt
in'' election. It is inappropriate for the Congress to legislate a
requirement as to which option the President may choose with regard to
treaty adherence
6. Costs and Benefits: Regarding the ``all witnesses'' question ,
top of page 7, WWF agrees with the view that the treaty relies on
countries to choose the appropriate means of implementation. However,
we also believe that the POPs treaty provides excellent compliance-
related guidance under Article 8(7)(a) with its threshold for advancing
a new chemical proposal based on whether or not ``the chemical is
likely as a result of its long-range environmental transport to lead to
significant adverse human health and/or environmental effects such that
global action is warranted.'' With regard to the follow-on ``all other
witnesses'' question a few lines later, see the response in section 1,
above, especially the concluding paragraph. (The same response is
appropriate in relation to your ``Protection Standards'' comments at
bottom of page 9/top of page 10.) Relationship between new and existing
authority (page 8): See WWF's testimony (numbered items 3, 4 and 5 on
page 10).
7. Exemptions: WWF's testimony (also at page 10) regarding
exemptions is focused on chemical and country specific exemptions for
which a Register has been established pursuant to Article 4 of the
Stockholm Convention.
8. Sound Science: See WWF's testimony (bottom half of page 9).
The above responses address those points where WWF was specifically
asked to do so--either specifically or as a general request to all
witnesses--as well as stating views on some other commentary points.
Our silence as to other commentary should not be treated as reflecting
agreement or disagreement therewith. Thanks for the opportunity to
respond to the additional questions posed on behalf of the Committee's
Majority Members.
______
American Chemical Council
September 10, 2004
The Honorable Paul E. Gillmor
Chairman
House Subcommittee on Environment And Hazardous Materials
2125 Rayburn House Office Building
United States House of Representatives
Washington, D.C. 20515-6115
Dear Mr. Chairman: Thank you for your letter of August 31, 2004
concerning the Committee's further commentary and questions regarding
the Stockholm Convention on Persistent Organic Pollutants and the
Rotterdam Convention on Prior Informed Consent.
I have attached the further responses of the American Chemistry
Council for the Committee's information.
ACC very much appreciates the opportunity to testify on the
Subcommittee's discussion draft of the necessary implementing
legislation, and we look forward to continue working with you and your
staff on this important issue.
If we can provide any additional information regarding ACC's
positions, please let me know.
Sincerely,
Michael P. Walls
Managing Director, Health, Products and Science Policy
Attachment
Response of the American Chemistry Council to Supplemental Questions on
Legislation to Implement the Stockholm (POPs) and Rotterdam (PIC)
Conventions
September 10, 2004
1. Draft Provisions to Fill the Gaps for U.S. Compliance with Treaty
Obligations for Currently Listed Chemicals
ACC agrees with the statement that if Mr. Gillmor's draft
legislation was enacted, and the Senate provided advice and consent to
ratification of the Stockholm POPs and Rotterdam PIC Conventions, ``the
U.S. could sit at the upcoming meetings [of the Parties] as full
partners.'' The statement correctly notes that nothing in the treaties
compels the Congress to establish a statutory program to consider
chemicals added to the treaties by subsequent decision of the Parties.
ACC's preference for an implementation package that addressed additions
is based on our interest in legislative economy and our interest in
addressing uncertainties about the process, standard, and impacts of
the additions process set forth in the LRTAP POPs Protocol and the
Stockholm Convention under U.S. law. If the Subcommittee were to enact
legislation addressing only the currently listed POPs and the PIC
provisions, ACC would support that effort as the next best step to
assuring the United States can participate as a full Party to the
agreements.
2. Federal-State Provision
ACC agrees that the Subcommittee's draft does not affect State
authority under Section 18(a)(2) of the Toxic Substances Control Act.
The draft retains the ability of a State government to regulate a
chemical substance more stringently than the federal government,
subject to the existing petition procedures in Section 18(b) of TSCA.
As the Subcommittee is no doubt aware, EPA can regulate POPs substances
under existing TSCA authority, which could affect certain State laws
pursuant to Section 18(a)(2). The Subcommittee's draft legislation
would make no change from current law.
3. The Relationship of PCB Provision to Existing TSCA Section 6(e)
ACC agrees with the Subcommittee's interpretation of the effect of
the draft legislation on EPA's authority under Section 6(e) of TSCA.
4. Compliance with the Prior Informed Consent (PIC) Procedure for
Certain Hazardous Chemicals and Pesticides in International
Trade
ACC believes the provisions of the Subcommittee's draft provide for
full implementation of the Rotterdam PIC Convention in U.S. law. Under
the Rotterdam Convention, governments retain the discretion to respond
to a PIC notice. Pursuant to Article 10 of the Rotterdam Convention,
Parties are to ``implement appropriate legislative or administrative
measures to ensure timely decisions with respect to the import'' of PIC
chemicals. Nothing in the draft legislation further restricts the
ability of the United States to: 1) notify importers that it is
restricting the entry of any particular substance; or 2) participate as
a full Party to the Convention. ACC notes that the United States has
been participating in the voluntary PIC procedure (the voluntary
government to government process that mirrors the Rotterdam Convention
procedure), with the full support of the chemical industry, since its
inception in 1989, suggesting that the United States has had
appropriate ``administrative measures'' with respects to imports.
5. Provisions Concerning the United States Process for Opting into the
Treaty for Additional Chemicals
ACC agrees with the Subcommittee's interpretation of the draft
provisions regarding additions to the list of POPs substances. In fact,
ACC's strong support for the Subcommittee's version was based in large
part on a similar reading of the draft.
The Stockholm Convention requires only that Parties ``take the
necessary legal and administrative measures'' to prohibit or restrict
the production, use, export or import of POPs chemicals. See Stockholm
Convention, Article 3. No provision of the treaty delineates the
specific ``necessary legal and administrative measures,'' to be taken
and no provision of the treaty requires implementation by any specific
branch or agency of a national government.
The Rotterdam Convention similarly requires Parties to implement
``appropriate legislative and administrative measures'' with respect to
imports and exports of PIC chemicals, but does not identify any
specific legal or procedural means by which those measures are to be
accomplished.
ACC believes the draft legislation has no practical or legal effect
on the Executive Branch's ability to ``opt-in'' on new chemicals. If
the U.S. exercises its preference to ``opt-in'' for chemical additions,
current practice suggests that the only prerequisite would be that the
U.S. government have adequate legal authorities to discharge any U.S.
obligations with respect to the newly added POP. At a minimum, the
notice-and-comment process outlined in the draft for chemicals under
consideration as additions under the treaty should help inform the opt-
in decision.
6. Requirements on the Executive Branch Related to Opting-In
This issue raises a significant number of complex legal and
political issues. In general, ACC is of the view that the Executive
Branch has the constitutional power to ``make treaties,'' and that the
power to agree to amendments to treaties remains wholly within the
Executive Branch. ACC is aware of no legal precedent in which a United
States Court has compelled the Executive Branch to make a treaty (or
make an amendment to a treaty).
The issue of compelling a regulatory decision with a time certain
is another matter, however. Once the decision to opt-in to a new
chemical addition has been made, it may be reasonable to require the
Executive Branch to provide appropriate notice to the public on its
subsequent plans to implement the decision.
7. Listing Decisions versus U.S. Determination of Protective Measures
The Stockholm Convention does not specify a rulemaking standard to
be adopted by Parties in their national legal or administrative
implementing measures. ACC is very concerned that the interpretation of
several other witnesses at the hearing, notably Mr. Wiser and Dr.
Goldman, would rewrite a very carefully negotiated text for a purpose
not contemplated by the negotiating governments.
That the Stockholm Convention specifies no specific risk management
measures and no specific standard for national implementing measures is
no accident. Annex F of the Convention acknowledges that ``the full
range'' of risk management measures should be available to the Parties
in deciding whether to restrict the use or production of a chemical
under the Convention. The Convention also carefully balanced the desire
for collective national action on a listed POP with a Party's ability
to: 1) seek appropriate exemptions; or 2) decide not to ``opt-in'' to a
listing. The negotiating governments recognized the need for
flexibility on chemicals for which ``global action'' is warranted, and
simply declined to complicate the process by mandating that Parties
adopt a particular decision standard as a matter of domestic law.
The lack of a clear decision standard in the Convention makes it
all the more important that the U.S. implementing legislation contains
a reasonable, defensible standard for domestic regulatory decisions to
address new chemicals listings under the treaty. In our view, the
Subcommittee's draft adopts a risk-based standard that is entirely
appropriate--a standard that has ample precedent under TSCA and that
complements EPA's existing TSCA authorities.
8. Costs and Benefits under the Treaties
It is abundantly clear that the Stockholm and Rotterdam Conventions
do not directly regulate persons, both as a matter of U.S. and
international law, and based on the plain language of the treaty.
Both treaties speak only to the obligations of Parties--national
governments--to take the necessary control measures. Those domestic
implementing measures, in turn, are expected to bind the actions of
legal persons.
In ACC's view, the Administration properly established principles
for domestic implementation of the treaties that rely on risk and cost/
benefit considerations. The entire statutory framework for chemical
control in the United States is based on those considerations, and it
would have been highly unusual for the Administration to depart from
that approach in suggesting implementing approaches. Risk and cost/
benefit considerations are not prohibited by the treaties, but in fact
are inherent in the approach adopted by the negotiating governments.
Together, Annexes D, E and F of the Stockholm Convention develop the
very hazard, risk and cost/benefit information necessary to take
decisions consistent with the Administration principles. Notably,
Article 8 of the Convention requires the Parties to take that
information into account in deciding whether to list a chemical as a
POP. The Subcommittee's draft, which incorporates risk and cost/benefit
considerations in the domestic regulatory process following a decision
to list a chemical, is similarly consistent with the Administration's
principles. The process outlined in the discussion draft is not
duplicative of the treaty process, but appropriately leverages the
treaty process for the purposes of domestic decision-making.
9. Discretion to Regulate
In ACC's view, it is essential that the United States retain a
certain degree of flexibility in implementing the treaty obligations.
We do not support the idea that rulemaking authority should be
mandatory based solely on a decision by the Parties to list a chemical
under one of the agreements at the international level. It is also
important to clarify that while an internal Executive Branch decision
to ``opt-in'' may trigger a domestic rulemaking process, the final
manifestation of an opt-in decision by the U.S. is the deposit of an
appropriate instrument indicating that the U.S. agrees to be bound to
the amendment (i.e., addition) as a matter of international law. To
this end, the effective date of any regulation should be linked to the
effective date of any new U.S. obligations that arise from U.S.
acceptance of a new listing. As a historical matter, the United States
was often the first to regulate the current 12 POPs substances, an
indication that existing law has provided ample authority for the
government to act against a particular substance. Moreover, there may
well be instances where U.S. regulation under another authority--the
Clean Air Act's Hazardous Air Pollutants (HAPs) authority, for
example--may prove sufficient to address any U.S. obligations with
respect to a listed chemical. Further, in those instances where a
treaty exemption applies to the United States, there must be regulatory
authority that recognizes that different risk management measures may
be applied to meet the treaties' obligations.
10. Alleged Duplication of International Body Decision
ACC is at a loss to explain how some witnesses believe that the
Subcommittee draft ignores the international investigation into a
proposed chemical listing or duplicates the international process. The
draft legislation makes clear that EPA is to develop a domestic
rulemaking record that includes all the information developed in the
international listing process. As the treaties do not dictate the
rulemaking standard to be applied in the domestic regulatory process,
the suggestion that the legislation ``should not itemize the criteria
that EPA must consider during the rulemaking'' is tantamount to
abdicating U.S. responsibility for a decision to an international body.
ACC agrees with the Subcommittee's assessment that listing
decisions under the Stockholm Convention will not address country-
specific circumstances, legal systems and procedures, health or
economic impacts. Those are considerations the Convention leaves
entirely to individual Parties, and for which the Subcommittee's draft
provides a reasonable and transparent process.
11. Relationship of Proposed New Regulatory Authority to Existing
Regulatory Authority
ACC believes the Subcommittee draft has been carefully crafted to
avoid creating ``unnecessary regulatory baggage'' or inconsistencies
with current authority. Indeed, ACC is perplexed that other witnesses
characterized the draft language as ``worse than current law,'' even
while they acknowledge that current law has already provided sufficient
authority to implement U.S. obligations under the treaties for the
currently-listed substances. It is clear that the Subcommittee's draft
legislation does not interfere with the operation of TSCA Section 6,
does not require compliance with TSCA Section 6(a), and only in the
wildest stretch of the imagination could it have any effect on existing
regulatory authority under TSCA or any other statute.
12. Protection Standards versus Means and Measures
ACC believes there is no merit in the contention of some other
witnesses that the Subcommittee's draft legislation allows the
protection of human health to be simply traded off for other
considerations. ACC believes that EPA has established a long record of
making decisions under numerous statutes that protect human health and
the environment while balancing risks, costs and benefits. There is
simply no basis for arguing that EPA has no ability (or prior
experience) in finding a ``reasonable balance'' of costs and benefits.
Moreover, this balancing process tracks the Convention listing process,
and provides an important mechanism for determining not only whether
but how the U.S. government can best address a newly-listed substance.
13. Exemptions
ACC believes that a statement clarifying the availability of
exemptions for the United States is not necessary. The Subcommittee's
draft is clear that the United States is not forced to take advantage
of every available exemption. ACC's primary concern in this area is the
availability of country-specific exemptions, not the broader exemptions
provided in the treaties. ACC believes that any future issues will
likely arise in the context of proposals for new chemical listings.The
nature of those issues will be largely fact-specific. There may be
instances when there are significant market impacts from a proposed
listing that may require significant government consideration of the
available treaty exemptions, or there may be critical public health and
other uses that warrant an exemption. For example, it is not out of the
realm of possibility that a listing nomination could be made simply to
provide a significant market advantage to an alternative product.
Indeed, the availability of exemptions under the treaty reinforces the
need for a robust domestic process and decision criteria that supports
those decisions.
14. Sound and Objective Science
ACC was particularly pleased to hear of the strong support of the
environmental and health community for high-quality scientific
information and analysis as the foundation for decisions on the
evaluation and management of POPs risks. It is abundantly clear that
the Stockholm POPs Convention relies on such scientific information to
reach decisions on whether to list a new chemical. In ACC's view, it is
entirely appropriate that the same high standard of quality and
objectivity should apply to domestic decisions on how to regulate a
POPs substance. The environmental and health community certainly cannot
be supporting a lower standard of quality and objectivity, or no
standard at all. ACC is aware of no circumstance in which a standard
for quality and objectivity for scientific information operated as a
barrier to EPA action. Perhaps most importantly, high quality
scientific information will help reinforce an Executive Branch decision
to ``opt-in'' to a new chemical listing.
______
United States Environmental Protection Agency
Office of Prevention, Pesticides and Toxic Substances
September 10, 2004
The Honorable John D. Dingell
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
Dear Congressman Dingell: Thank you for your letter of August 12,
2004, requesting responses to two additional questions as followup to
the July 13, 2004, 4eariiig. I am responding on behalf of myself and
Claudia McMurray, Deputy Assistant Secretary of State for Oceans,
International Environmental and Scientific Affairs. We appreciate the
opportunity to offer further clarification on the Stockholm Convention
for Persistent Organic Pollutants (POPs), and the legislation necessary
for the United States to become a party to that agreement, as well as
to the Protocol on Persistent Organic Pollutants to the 1979 Convention
on Long-Range Transboundary Air Pollution (LRTAP) and the Rotterdam
Convention on the Prior Informed Consent (PIC) Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade.
Enclosed are responses to your two questions, which we hope you
will find helpful. We would like to take this opportunity to reiterate
that enacting legislation this year is an important priority for the
Administration, as we are fully committed to ratifying the global POPs
Convention, the PIC Convention, and the LRTAP POPs Protocol. It is
important that the United States continue to have an active and
influential role in multilateral negotiations related to POPS, PIC, and
LRTAP. In order to enable the United States to be effective at the
first meeting of the Conference of the Parties to the POPs Convention,
and at the next meeting of the LRTAP POPs Protocol in December of 2004,
the United States needs to be able to function fully as a Party to both
agreements.
Again, thank you for your letter. We look forward to working with
you and other members of Congress in the weeks ahead hi a united effort
to enable the United States to join these important agreements. If you
have any further questions, please contact me or your staff may contact
Betsy Henry in EPA's Office of Congressional Relations at (202) 564-
7222, or Teresa Hobgood in State's Bureau of Oceans and International
Environmental and Scientific Affairs at (202) 647-3550.
Sincerely,
Susan B. Hazen
Acting Assistant Administrator
______
United States Environmental Protection Agency
Office of Prevention, Pesticides and Toxic Substances
September 10, 2004
The Honorable Hilda Solis
Ranking Member
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
Dear Congresswoman Solis: Thank you for your letter of August 12,
2004, requesting responses to two additional questions as followup to
the July 13, 2004, hearing. I am responding on behalf of myself and
Claudia McMurray, Deputy Assistant Secretary of State for Oceans,
International Environmental and Scientific Affairs. We appreciate the
opportunity to offer further clarification on the Stockholm Convention
for Persistent Organic Pollutants (POPs), and the legislation necessary
for the United States to become a party to that agreement, as well as
to the Protocol on Persistent Organic Pollutants to the 1979 Convention
on Long-Range Transboundary Air Pollution (LRTAP) and the Rotterdam
Convention on the Prior Informed Consent (PIC) Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade.
Enclosed are responses to your two questions, which we hope you
will find helpful. We would like to take this opportunity to reiterate
that enacting legislation this year is an important priority for the
Administration, as we are firmly committed to ratifying the global POPs
Convention, the PIC Convention, and the LRTAP POPs Protocol. It is
important that the United States continue to have an active and
influential role in multilateral negotiations related to POPS, PIC, and
LRTAP. In order to enable the United States to be effective at the
first meeting of the Conference of the Parties to the POPs Convention,
and at the next meeting of the LRTAP POPs Protocol in December of 2004,
the United States needs to be able to function fully as a Party to both
agreements.
Again, thank you for your letter. We look forward to working with
you and other Members of Congress in the weeks ahead in a united effort
to enable the United States to join these important agreements. If you
have any further questions, please contact me or your staff may contact
Betsy Henry in EPA's Office of Congressional Relations at (202) 564-
7222, or Teresa Hobgood in State's Bureau of Oceans and International
Environmental and Scientific Affairs at (202) 647-3550.
Sincerely,
Susan B. Hazen
Acting Assistant Administrator
ENCLOSURE
U.S. Environmental Protection Agency and U.S. Department of State
Responses to Questions from the Honorable John D. Dingell and the
Honorable Hilda L. Solis regarding the July 13, 2004, Subcommittee on
Environment and Hazardous Materials Hearing ``POPs, PIC, LRTAP: The
Role of the United States and Draft Legislation to Implement These
International Conventions''
Question 1: As you are aware, legislation designed to implement the
Stockholm Convention for Persistent Organic Pollutants (POPs) has been
reported from the Senate Environment and Public Works Committee (S.
1486). In the House of Representatives, Subcommittee Chairman Gillmor
has released a ``discussion draft,'' which was the subject of the
hearing held on July 13, 2004. Both S.1486 and the Gillmor discussion
draft state that no person may ``manufacture, process, distribute in
commerce for export, use or dispose of'' any listed POPs chemical
substance or mixture. (S. 1486, section 502(a); Gillmor discussion
draft, section 502(a)).
Similar language, designed to prohibit ``distribution in commerce
for export'' and implement the general prohibition is found throughout
both bills. In a previous Administration bill, however, introduced upon
request by Chairman Gillmor in the 107th Congress (H.R. 4935), the same
prohibition applied to the ``distribution in commerce'' of POPs
substances or mixtures, as opposed to the ``distribution in commerce
for export'' of such substances.
With regard to this difference, please indicate whether there is
any ``distribution in commerce'' of such substances (except
distribution in commerce for export) that is currently either allowed
or taking place that would not be prohibited under the prohibition
applicable to ``manufacturing, processing, use or disposal.'' Please
indicate whether there is, to the agency's knowledge, any such
``distribution in commerce'' of POPs substances taking place. For any
and all examples of such activities, please indicate the particular
circumstances of such distribution in commerce and the specific
chemicals and specific amounts.
Response: The Stockholm Convention does not address domestic
distribution in commerce of listed substances. In other words, it does
not require parties to prohibit or restrict domestic distribution in
commerce 1 of any listed substance. Likewise, the POPs
Protocol to the Convention on Long- Range Transboundary Air Pollution
(the LRTAP POPs Protocol) does not restrict or prohibit domestic
distribution of substances that it covers. The POPs Convention does,
however, restrict, and in certain circumstances prohibit, export of
listed substances. A prohibition applicable to ``manufacturing,
processing, use, or disposal'' would not prohibit distribution in
commerce, including distribution in commerce for export.
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\1\ TSCA defines ``distribute in commerce'' and ``distribution in
commerce'' when used to describe an action taken with respect to a
chemical substance or mixture or article containing a substance or
mixture to ``mean to sell, or the sale of, the substance, mixture, or
article in commerce; to introduce or deliver for introduction into
commerce, or the introduction or delivery for introduction into
commerce of, the substance, mixture, or article; or to hold, or the
holding of, the substance, mixture, or article after its introduction
into commerce.
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With regard to PCBs, TSCA generally prohibits their distribution in
commerce, with certain exceptions. For example, TSCA and EPA
regulations allow for the distribution in commerce of PCBs in a totally
enclosed manner where the PCBs were ``sold for purposes other than
resale before two and one half years after October 11, 1976.'' In
addition, TSCA allows EPA to authorize the distribution in commerce of
PCBs where, among other things, EPA finds that the distribution will
not pose an unreasonable risk of injury to health or the environment.
Given these types of circumstances, certain use and distribution in
commerce of PCBs continues to be legal in the United States and PCBs
are currently distributed in commerce for disposal and for other
reasons such as those described above.
Aldrin, Chlordane, Dieldrin, Endrin, Heptachlor, and Toxaphene have
never been listed on the TSCA Inventory; nor has EPA ever otherwise
authorized their manufacture as chemical substances. Thus, based on all
available information, the Administration is not aware of situations
where any of these substances are being distributed in commerce in the
United States as chemical substances or mixtures. The Administration,
however, can't say categorically that these substances are not
manufactured and distributed in commerce in the United States as TSCA
section 5 allows certain manufacture of chemical substances without
notification to EPA.
Hexachlorobenzene (HCB) and DDT are listed in the TSCA Inventory
and can legally be manufactured in and imported into the United States.
The Administration, however, has no knowledge of any distribution in
commerce of DDT for domestic use. Regarding HCB, during negotiation of
the Stockholm Convention, one company informed the U.S. negotiators
that it imported the substance into the United States for use as a
chemical intermediate. The Administration, however, does not know
whether the company already has stopped such import in anticipation of
U.S. ratification of the Convention. If not, there may be current
distribution in commerce (after its import) of HCB in the United
States.
Mirex is not listed on the TSCA Inventory, but in 1993, EPA granted
a low volume exemption (LVE) pursuant to regulations at 40 C.F.R.
section 723.50, that authorized a company to manufacture the substance.
EPA has been unable to contact the company and, based on available
information, believes that it is no longer in business and that Mirex
is not manufactured or distributed in commerce in the United States at
this time.
In addition, all of the substances listed on Annex A and B of the
POPs Convention have been registered pesticides in the United States.
Thus, in the past, they have been distributed or sold as pesticides.
(None are now registered in the United States.) As pesticides,
stockpiles of or articles containing these substances may continue to
be distributed for disposal or other purposes.
Question 2: Section 12 of the Toxic Substances Control Act (TSCA)
applies to the export of chemical substances or mixtures. EPA has
promulgated rules implementing this section for PCBs at 40 C.F.R. Part
761 (including 761.20). Has EPA reviewed these rules with regard to
their consistency with the Stockholm Convention and the LRTAP POPs
Protocol? In particular, are these regulations in compliance with the
provisions of the Convention and the Protocol that prohibit export of
PCBs except for the purpose of environmentally sound disposal? If not,
please indicate any specific provisions or aspects of these regulations
that would need to be amended in order for such regulations to be fully
consistent with the treaty.
Response: EPA has reviewed the rules promulgated at 40 C.F.R Part
761 with regard to their consistency with the Stockholm Convention and
LRTAP POPs Protocol. (EPA notes that 40 C.F.R. Part 761 was promulgated
principally under the authority of section 6 of TSCA, not section 12.)
In particular, EPA has reviewed these regulations to determine whether
they are consistent with the provision of the Stockholm Convention that
prohibits the export of PCBs except for the purpose of environmentally
sound disposal. The LRTAP POPs Protocol does not contain a similar
prohibition. EPA has determined that these regulations would allow
distributions in commerce that are not in compliance with this
provision of the Stockholm Convention. Indeed, as explained in the
response to question 1, because TSCA does not prohibit all distribution
in commerce (which includes export) of PCBs, the Administration has
determined that, in this respect, TSCA allows distributions in commerce
that are not in compliance with these provisions of the Convention.
In particular, 40 C.F.R 761.20 and 761.20(c) allow distribution in
commerce (including export) of certain PCBs and PCBs items. For
example, 40 C.F.R. 761.20(c)(1) allows PCBs and PCB items that were
sold before July 1, 1979 for purposes other than resale to be
distributed in commerce in a totally enclosed manner. Such PCBs or PCB
items could include, for example, intact, non-leaking electrical
equipment such as transformers and capacitors. (See 40 C.F.R. 761.20).
There are also regulations at 40 C.F.R. 707.60(c) requiring notice of
export of PCB articles exported for purposes other than disposal. Thus,
before the United States ratifies the Convention, the Administration
believes that this gap in authority, which could prevent the United
States from meeting the obligation in the Convention to prohibit export
of PCBs except for environmentally sound disposal, must be closed.
Indeed, toward this end, the Administration worked with majority staff
of the House Energy and Commerce Committee to develop language to close
this gap. This language is included in Representative Gillmor's
discussion draft at section 3, which amends section 6(e)(3) of TSCA.
(See page 40, line 23 through page 41, line 6 of the July 17, 2004
draft).
______
Center for International Environmental Law
September 13, 2004
Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Washington, DC 20515-6115
Re: Notes and Questions from July 13, 2004 Hearing on POPs, PIC, and
LRTAP: The Role of the U.S. and Draft Legislation to Implement
These International Conventions
Dear Chairman Gillmor: Thank you for your request for responses to
your additional notes and questions stemming from my testimony at the
July 13 Subcommittee hearing on POPs. All of my responses below are
provided within the context of the Stockholm Convention on Persistent
Organic Pollutants (POPs).
Throughout the Notes and Questions, there are many conclusions and
opinions that are expressed as being those of the ``Subcommittee.'' I
found this confusing, because many of those conclusions and opinions
run counter to views that minority members of the Subcommittee
expressed at the hearing. Moreover, I am not aware of any vote or
agreement having taken place that has resulted in a consolidated view
on this subject among the Subcommittee members. For clarity's sake,
therefore, I have taken the liberty of referring to the Notes and
Questions as the work of the Chair, rather than the Subcommittee.
With the exception of my response to Question 12, my responses are
limited to those questions to which you specifically asked me to reply.
My silence on other parts of your Notes and Questions should not be
construed as approval or disapproval of their contents.
Sincerely,
Glenn Wiser
Question 3 (Wiser): What if the Executive Branch responded that
they are not ready to support opting in at this time but might within 6
months? Would this be an impermissible answer under your proposal? If
not permissible, what is the sanction that would apply and how would it
be enforced? If permissible, is there much of a difference between your
proposal and simple deference to the executive branch?
Response: Page 3 of the Chair's Notes and Questions correctly
states that ``The decision to opt-in and the manner in which the U.S.
chooses to regulate are two different occurrences.'' Despite the
clarity in that sentence, the Chair's Question 3 and the comments
preceding it confuse these two things, and thus erroneously suggest
that mandatory rulemaking authority for EPA would somehow be synonymous
with a congressional requirement that the Executive Branch ``opt in''
to a Stockholm new-listing amendment.
The Executive Branch's authority to decide whether or not to opt in
to an additional treaty requirement stems from its foreign affairs/
treaty making powers. It is not dependent on a delegation from
Congress. Unlike the Chair's June 17 Discussion Draft, which
impermissibly attempts to constrain Executive Branch prerogatives by
requiring the President to make an Article 25.4 opt-in declaration, we
believe the question of whether and when the Executive Branch consents
to be bound by a Convention amendment is not one that should be
addressed by this bill, because the Constitution does not give the
Congress a role in that decision. (We do not voice an opinion here
about the separate question of the Senate's role under its advice and
consent powers.) Similarly, it would be inappropriate for the Congress
to attempt to empower the courts to force the Executive Branch to
exercise its foreign affairs/treaty making powers in this context.
The question this legislation needs to address is whether and how
Congress will authorize EPA to regulate a POP when the Stockholm
Conference of the Parties (COP) adds one to the Convention. Congress'
constitutional power to do this is not contingent on whether or when
the United States decides to opt in to a new-listing amendment or, for
that matter, whether the amendment has entered into force for the
United States. Yet Congress can effectively prevent the Executive
Branch from exercising its treaty making powers by failing to give EPA
adequate authority to ban or restrict the newly listed POP. Because of
the constitutional separation of powers, the Executive Branch
traditionally does not bind the United States to a treaty until it is
confident that we will be able to comply with it. In the POPs context,
that will require passage by the Congress of adequate implementing
authority, unless such authority already exists. It would undercut the
negotiating posture of the United States if, during a Stockholm new-
listing discussion, the Executive Branch could not confidently predict
whether it would obtain the implementing authority needed to allow the
United States to regulate the chemical and thus opt-in to the new-
listing amendment. Hence, the POPs implementing legislation must
provide adequate implementing authority for future, additional POPs
listings.
The most straightforward and reliable way to accomplish that would
be for Congress to require EPA to regulate, or decide not to, within a
specific time after the Conference listing decision. The statutory
language pertaining to a decision not to regulate could be drafted in
such a way as to respond to some of the questions raised in this Notes
and Questions. For example, a decision not to regulate under Title V
could be made because EPA had concluded that the chemical is not a POP
as defined under the Convention or because EPA already had exercised
sufficient regulatory authority under a different statute.
Question 5 (Wiser): Doesn't paragraph 7a within Article 8's
reference to considerations in Annex F apply to international guidance
for control measures under the treaty, and therefore is part of the
relevant guidance in the treaty for parties? In your proposed
rulemaking standard, why did you ignore the proposed rulemaking
standards in Annex F? Are you stating that any guidance from the
international body should be mandatory as US regulations?
Response: Stockholm Article 8.7(a) does articulate a standard by
which the Convention's Persistent Organic Pollutants Review Committee
(POPRC) shall determine whether a chemical is a POP and thus, global
action is warranted; and the Convention does not specifically define a
methodology by which parties will determine the control measures for a
new POPs listing. Annex F provides a non-exclusive list of items that
the POPRC should consider when preparing its analysis of possible
control measures for an additional POP. Neither Annex F nor the body of
the Convention, however, specifically define how the items must be
considered. Rather, Article 3 establishes the fundamental standard for
POPs that are listed in the Convention: National control measures must
be whatever ``legal and administrative measures [are] necessary to
eliminate'' production, use, import, and export of the chemical.
The Convention does not establish a fixed methodology for
determining control measures. The negotiating parties recognized that,
given the tremendous disparity of implications different POPs may have
for health, environment, and global, national, and local economies
(e.g., compare the respective uses and control measures for DDT with
those for PCBs), it would not be realistic or desirable to try to
devise a single, fixed methodology for determining what the control
measures will be for every POP that may be added to the Convention,
because a ``one size fits all'' methodology could very well prove
inappropriate or unworkable for a future POP listing. Instead, the
parties agreed to the broad guidance contained in Art. 8.9: ``The
Conference of the Parties, taking due account of the recommendations of
the [POPs Review] Committee, including any scientific uncertainty,
shall decide, in a precautionary manner, whether to list the chemical,
and specify its related control measures . . .''
A Conference listing decision will establish requirements, not mere
``guidance,'' for control measures. The guidance to the Conference of
the Parties (COP) contained in Article 8.9 pertains to how the COP will
render its decision on an additional POP. It should not be construed
(as Question 5 erroneously does) to suggest that the COP decision will
provide mere ``guidance from the international body'' on how a party
may or may not control a listed POP. While the United States will have
the option of deciding whether or not it will be bound by an amendment
to add a POP to the Convention, it will not have the option (if it
accepts a new-listing amendment) to devise control measures that are
less stringent than those required under the treaty, because doing so
would put the United States in violation of its treaty commitments.
This misunderstanding--that a new-listing amendment will contain only
guidance about control measures, rather than the control measures
themselves--may be why the June 17 Discussion Draft proposes a
regulatory standard that would likely not provide EPA with sufficient
authority to ensure that the United States could comply with a new
listing decision under the Stockholm Convention if it decided to ``opt
in'' with respect to one.
Annex F outlines informational considerations; it does not contain
a rulemaking standard. Confusion about the function of Annex F may be
why the Chair seems to suggest or accept the argument that cost-benefit
``balancing'' is required by the Convention, and why it believes that
statutory authority allowing EPA to regulate to an extent ``that
achieves a reasonable balance of social, environmental, and economic
costs and benefits' would permit the United States to comply with a
Stockholm new listing amendment. As we note in the first paragraph of
this response, Annex F provides a non-exclusive list of items that the
POPRC should consider when preparing its risk management evaluation of
a chemical that may be added to the Convention. As such, it is
basically a vehicle for the POPRC to gather and provide information to
the parties regarding the comparative efficacy of various control
strategies.
Annex F contains no guidance whatsoever on how the POPRC will
recommend, or the parties will decide, what the control measures will
be. Thus, Question 5 errs when it suggests that Annex F contains
``proposed rulemaking standards.'' Moreover, nowhere does Annex F or
the Convention body text contain an implicit or explicit suggestion
that Convention parties must ``balance'' these items against each other
when determining what the control measures for a POP should be. Indeed,
a requirement to achieve a ``balance'' between these considerations
could arguably conflict with the Art. 8.9 requirement that the
Conference of the Parties must decide upon a proposed POP in ``a
precautionary manner.''
The fundamental Convention standard for control measures is
elimination. The core treaty terms of Article 3 establish the
fundamental Convention standard for control measures. If a chemical is
added to Annex A, the control measures must be whatever ``legal and
administrative measures [are] necessary to eliminate'' production, use,
import, and export of the chemical. Thus, for all of the intentionally
produced POPs currently listed in the Convention (with the exception of
DDT), the required control measure is elimination, which is to be
accomplished by means available within each party's respective legal
and administrative systems. We believe that a regulatory standard
requiring cost-benefit balancing would be incapable of ensuring U.S.
compliance with Stockholm Annex A amendments to which the United States
desires to bind itself. Instead, when the United States agrees with the
Conference decision that a chemical is a POP, the United States should
take the ``legal and administrative measures necessary to eliminate''
production, use, import, and export of the chemical.
In very limited situations, the required control measure could be
restriction. DDT is the only POP listed in Annex B, and thus the only
intentionally produced POP that is subject to restriction, rather than
elimination, under the Stockholm Convention. DDT is the sole exception
to the elimination rule because of its unique public health role in
malaria vector control, especially in Sub-Saharan Africa. We do not
believe that the specific conditions leading to the treatment of DDT in
Annex B are especially relevant to the domestic regulatory situation in
the United States; moreover, we do not anticipate that many, if indeed
any, intentionally produced POPs will be added to Annex B in the
future.
However, if an intentionally produced POP were added to Annex B,
then we are confident that the United States would fully protect its
interests during the international negotiations on the listing
decision, so that the control measures contained in that decision would
adequately reflect the public health needs of the United States. Given
U.S. technical expertise and the advanced state--compared to most other
countries in the world--of our health care, research and development,
administrative, and other relevant capacities, we do not believe there
is any realistic possibility that the global community would bind
itself with Annex B control measures that were too strict for the
United States to implement. Rather, the far more realistic scenario is
that the United States will have to push many other countries to accept
control measures that are stricter than they might otherwise prefer.
In conclusion, for new listing amendments to Stockholm Annexes A or
B, we believe Congress should require EPA, within a fixed time, to
initiate a rulemaking implementing the control measures required in the
amendment, unless EPA concludes that the chemical is not a POP. We do
not agree that EPA should be required to engage in de novo cost-benefit
``balancing,'' because such balancing is not contained in the
Convention and, due to the inherent shortcomings of cost-benefit
balancing, it could prevent EPA from promulgating control measures that
were strong enough to allow the United States to comply with the new-
listing amendment.
Question 7(a) (All witnesses): Please state whether the treaties
directly regulate persons or rather rely on individual countries to
choose the appropriate means of compliance. Please state whether any of
the treaties have a specific regulatory standard for individual nations
to follow.
Response: The Stockholm Convention, like other multilateral
environmental agreements of global scope, is an agreement among
nations. It does not directly regulate persons.
The Convention--again like most other multilateral environmental
agreements--leaves the decision of how best to implement specific
treaty obligations up to individual parties. However, as noted in my
response to Question 5, Stockholm Article 3 requires every party to
``Prohibit and/or take the legal and administrative measures necessary
to eliminate'' its production, use, import, and export of POPs listed
in Annex A; and to ``Restrict its production and use of the chemicals
listed in Annex B in accordance with the provisions of that Annex.''
Thus, if the purpose for enacting TSCA POPs amendments includes
facilitating U.S. acceptance and compliance with a Stockholm new-
listing amendment, then any regulatory standard in the bill must give
EPA sufficient statutory authority to promulgate regulations that will
ensure that the United States can comply with these requirements. A de
novo cost-benefit balancing standard will not accomplish that.
Question 7(c) (All witnesses): Do you believe the above
Administration principles are prohibited by or consistent with the
treaties? If you believe them to be prohibited, please point to
specific language prohibiting such consideration.
Response: Because the second quoted ``Administration principle'' is
simply an elaboration of part of the first principle, this comment will
refer only to the first quoted principle.
The Administration's principle states, in part, ``the United States
should compare the international decision to measures that are more and
less stringent, thereby facilitating a risk-management decision as to
which measure(s) provide(s) the most reasonable balance of benefits,
risks and costs for specific uses.''
This principle is neither prohibited nor consistent with the
Stockholm Convention. One cannot say it is consistent, because the
Convention contains no requirement (or even suggestion) that the POPRC
or Conference will base their decisions on cost-benefit balancing. The
principle simply adds an idea that is not present in the Convention.
Yet one cannot say that the Convention prohibits the principle,
because the principle relates to domestic regulatory decisions about
adding chemicals to the Convention. The principle necessarily
contemplates making it impossible for the United States to comply with,
and thus adopt, a new-listing amendment, because it would require EPA
to consider regulatory measures that would be less stringent than those
permitted under the amendment, and to chose the less stringent measures
if they could be shown to provide a more ``reasonable'' result under
the principle's cost-benefit balancing. However, because the Convention
does not require parties to adopt new-listing amendments, a principle
that could have the effect of preventing the United States from opting
in to such an amendment would not contravene any legally binding
obligation under the Convention.
By comparison, the principle would be prohibited under the
Convention if it were applied to any of the chemicals presently listed
in Annexes A or B, because all parties must agree to abide by the
control measures contained in those annexes. Implementing control
measures that were less strict--as envisioned under the principle--
would violate that core treaty requirement.
Question 9 (all witnesses): Would it not be useful to use a current
regulatory authority if it would provide for more cohesive U.S. law?
Also are there not circumstances where existing law may be sufficient
and no new regulation required?
Response: We agree that it would make sense for EPA to use current
regulatory authority or existing law to deal with an additional POP
under the Stockholm Convention whenever such authority or law were
sufficient to ensure U.S. compliance with the new-listing amendment.
That may well be the case for a POP added to Annex C, especially when
unintentional production of the POP is caused by combustion and the
release is to the air, and the Clean Air Act thus applies. The same may
be said for measures related to releases of POPs listed in Annexes A,
B, or C from stockpiles and wastes (where RCRA and CERCLA might apply).
For POPs pesticides, EPA would presumably regulate under authority
derived from amendments to FIFRA, which should be a discrete part of
any POPs implementation bill that Congress adopts.
However, for industrial chemicals that have been added to Annex A
(and whose production, use, import, and export have thus been
prohibited), the only relevant statutory authority that is presently
available to EPA is TSCA 6(a). After EPA's proposed asbestos rule was
overturned in the Corrosion Proof Fittings case, 947 F.2d 1201 (5th
Cir. 1991), commentators generally concluded that the ``least
burdensome means'' balancing test in 6(a) does not give EPA effective
authority to ban the production and use of industrial
chemicals.1
---------------------------------------------------------------------------
\1\ See, e.g., Testimony of Lisa Heinzerling, POPs, PIC, and LRTAP:
The Role of the U.S. in Draft Legislation to Implement These
International Conventions: Hearing Before the Subcomm. on Environment
and Hazardous Materials of the House Comm. on Energy and Commerce,
108th Cong., at 2-11 (July 23, 2004).
---------------------------------------------------------------------------
Indeed, EPA has never finalized regulations for any other chemical
under 6(a) since Corrosion Proof Fittings. Thus, it would be
unreasonable to presume that EPA could successfully implement a
Stockholm Annex A amendment for an industrial chemical through its
6(a) authority.
Question 11 (All witnesses): Are there concerns over any
anticipated use of all of these treaty exemptions, including the
broader exceptions? . . . Is the concern limited to the country-
specific exemptions?
Response: The concern expressed in my testimony referred to the
country-specific exemptions.
Question 12 (EPA): Do you have examples where the provisions of the
Safe Drinking Water Act risk language or the science provisions of
Executive Order 12866 adversely and inappropriately paralyzed the
rulemaking procedure? If so, please provide specific examples.
Response: The introductory comments to Question 12 assert that the
``sound science'' language in the June 17 Discussion Draft is justified
because the Safe Drinking Water Act Amendments of 1996 ``were passed
with broad bipartisan support and have worked very well,'' and because
Executive Order 12866 is still in effect.
The environmental and health community objects to the presence of
the ``sound science'' language in the Draft because it is superfluous
and because it will provide entities that have a vested interest in
continued production and use of POPs with an inappropriate litigation
tool, which they may use to intimidate EPA in the rulemaking process.
The language is unnecessary because, as the comment notes,
Executive Order 12866 already requires EPA to base its decisions on the
best reasonably obtainable scientific information. Thus, it is not
apparent how the additional ``sound science'' language in the
Discussion Draft could improve the quality of EPA's decision-making.
A key difference between Executive Order 12866 and the Discussion
Draft's language, however, is that private entities cannot base a
judicial cause of action on an executive order. Under either the
Administrative Procedure Act's arbitrary and capricious standard or
TSCA's substantial evidence standard, agency rules that are not
grounded in careful scientific analysis may be struck down by the
courts. Thus, regulated entities will be fully protected under the TSCA
POPs amendments from any potential misuse of science by EPA--without
the Discussion Draft's ``sound science'' language.
Because the language is unnecessary, we conclude that its
underlying purpose is to provide producers and users of POPs
chemicals--or anyone else who wants to delay instituting a covered
regulation protecting human health and the environment(with an
additional opportunity to sue EPA, or to create a ``chilling effect''
that will lessen EPA's desire to initiate a POPs-related rulemaking. As
we noted in our answer to Question 3 above, Congress can effectively
prevent the Executive Branch from exercising its treaty making powers
by failing to give EPA adequate authority to ban or restrict a newly
listed POP. Congress can also accomplish that by expanding the
opportunity for individuals to sue EPA over its implementing
regulations. Because we do not believe that U.S. participation in the
Stockholm Convention should so easily be held hostage to the interests
of private entities that produce or use POPs, we believe it is
inappropriate for superfluous and potentially pernicious ``sound
science'' provisions to be included in this bill.
As to whether the sound science provisions of the 1996 Safe
Drinking Water Act Amendments have stifled rulemaking or ``worked very
well,'' we point out that the only substance EPA has regulated under
the Amendments is arsenic, which it was specifically required to do.
______
Bloomberg School of Public Health,
Johns Hopkins University
September 14, 2004
Paul E. Gillmor, Chairman
Subcommittee on Environment and Hazardous Materials
Washington, DC 20515-6115
Re: Notes and Questions, July 13, 2004 Hearing on POPs, PIC, and LRTAP:
The Role of the U.S. and Draft Legislation to Implement These
International Conventions
Dear Chairman Gillmor: Thank you for your letter of August 31, 2004
requesting my responses to your notes and questions arising from the
testimony that was given at the July 13 Subcommittee hearing on POPs,
PIC and LRTAP. I am pleased to provide my views on these issues. I have
addressed the issues raised in each section of the letter as well as
your questions, many of which were not specifically directed to me.
Draft Provisions to Fill the Gaps for U.S. Compliance with Treaty
Obligations for Currently Listed Chemicals
The ability to consider additional chemicals is a critical part of
the POPs treaty. It would be a mistake to think that the United States
will truly ``sit at the upcoming meetings as full partner'' based on
implementing legislation that does not include a mechanism for adding
future POPs. The international community will be looking for evidence
that the United States intends to comply with the entire treaty, not
just the control measures for the initial twelve POPs, which we have
largely undertaken already. If the U.S. is to have credibility as a
Party to the Stockholm Convention, Congress should enact enabling
legislation that contains an adding mechanism.
Federal-State Provision
If it is the intention of the Committee to maintain the existing
Federal-state relationship with respect to currently listed chemicals
under TSCA, then this needs to be clarified as suggested in the Notes.
I, too, was concerned that the language was ambiguous and could be
interpreted to limit the ability of states to regulate substances more
stringently than the federal government. Ultimately, it is my opinion
that TSCA needs to be reformed to allow more state involvement and to
grant states broad authority (without prior EPA approval) to regulate
chemicals more stringently than the federal government.
The Relationship of PCB Provision to Existing TSCA 6(e)
Evidently it was not the intention of the draft legislation to
alter TSCA 6(e). I concur that if that is the case, it should be
clarified in the draft legislation.
Compliance with the Prior Informed Consent (PIC) Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade
If the U.S. EPA and State Department indicate in their responses to
Question 1 that there is already a procedure under which the U.S.
government may notify the international authority that the U.S. does
not wish a particular PIC listed chemical to be imported into the U.S.,
then the Subcommittee may wish to ask them to clarify under which
authority the U.S. would take this action.
Provisions Concerning the United States Process for Opting into the
Treaty for Additional Chemicals
Question 2: Please comment on this point. Does the draft restrict
the U.S. ability to opt-in based on the rulemaking standard in 502(e)?
Throughout this letter there is reference to the fact that ``the
decision to opt-in and the manner in which the U.S. chooses to regulate
are two different occurrences.'' I would agree. However, in the case of
rule-making, the language in 502(e) would nearly assure that no
regulatory action is taken even when the U.S. decides to opt-in (or
declines to opt-out).
Requirements on the Executive Branch Related to Opting-In
Question 3: What if the Executive Branch responded that they are
not ready to support opting in at this time but might within 6 months?
Would this be an impermissible answer under your proposal? If not
permissible, what is the sanction that would apply and how would it be
enforced? If permissible, is there much of a difference between your
proposal and simple deference to the executive branch?
Question 4: Do you believe a court should be able to compel the
Executive Branch to opt in on behalf of the United States for any given
chemical through enforcement of a statutory standard? If so, what
should the standard be?
Although these questions were not directed to me, I would like to
address one point, with regards to the issue of a deadline for action.
As the notes correctly indicate, the decision to opt-in (or to opt-out)
and subsequent risk management decisions are two different issues.
However, in my testimony, and I believe in some of the other
testimony that you heard, the suggestion for a deadline had to do with
the subsequent risk management action for the POPs. The risk management
provisions of TSCA are at this point in time an exercise in futility
and will not serve the nation well in assuring protection from POPs.
However, ratification of the POPs convention is an opportunity to
establish a clear set of expectations that the EPA will take action to
manage risks for chemicals that have been added to the POPs convention.
Little to no risk management occurs under TSCA Section 6. One tool that
Congress can use to establish clear expectations of action by the EPA
is a statutory deadline. As you imply in your notes, statutory
deadlines are indeed enforced by the Courts. That is what provides the
incentive for EPA to take an action. From my experience at the EPA,
while the Executive Branch dislikes (and usually opposes) statutory
deadlines, it has a great deal of respect for them because they very
clearly convey the intention of Congress. What is the alternative? One
could undertake a more thorough-going reform of TSCA, to ``fix'' TSCA
Section 6 which has not proven effective at all, for the reasons that I
already laid out in my testimony. I think that such a major overhaul of
TSCA is long overdue, however, I suspect that the Subcommittee would
prefer to make only the corrections that are necessary to assure that
the U.S. can be in compliance with the treaties.
Listing Decisions versus U.S. Determination of Protective Measures
Question 5: Doesn't paragraph 7a within Article 8's reference to
considerations in Annex F apply to international guidance for control
measures under the treaty, and therefore is part of the relevant
guidance in the treaty for parties? In your proposed rulemaking
standard, why did you ignore the proposed rulemaking standards in Annex
F? Are you stating that any guidance from the international body should
be mandatory as US regulations?
Question 6: Does Annex F apply to international guidance for
control measures under the treaty? Do you believe that any guidance
from the international body should be mandatory as US regulation?
It is my sense that the POPs convention contains provisions related
both to risk assessment and risk management for POPs. As stated in
Article 8.9: ``The Conference of the Parties, taking due account of the
recommendations of the Committee, including any scientific uncertainty,
shall decide, in a precautionary manner, whether to list the chemical,
and specify its related control measures . . .'' In terms of risk
assessment, the language in Article 8.7(a) does clearly articulate a
standard by which the Convention's Persistent Organic Pollutants Review
Committee (POPRC) shall determine whether a chemical is a POP and thus,
global action is warranted. It is important to note that this decision
to list is solely based on attributes of the substance related to its
persistence and toxicity and does not include any considerations of
economics and so forth. Were the U.S. government to adopt a different
standard for such a determination (as I believe is proposed in the
Draft Legislation) then the U.S. would not be in compliance with the
treaty.
In terms of risk management, the Convention also provides a list of
issues (Annex F) that are to be considered by the Parties in
determining the control measures to be specified for a newly listed
POP. While the goal of the Convention is the elimination of POPs, the
Convention recognizes that this is not always immediately achievable.
For the initial 12 listed POPs, the Convention provides a public health
exception for DDT use in malaria control and a reduction (rather than
an elimination) strategy for certain POPs (dioxins and furans) that are
produced inadvertently. In this way, Annex F allows the Parties to
consider economic and other factors in making risk management decision.
However, it is important to note that while Annex F lists a number of
factors that should be considered, it does not require formal cost
benefit analysis, or any other specific risk analysis tool be employed
in that process.
In terms of your question 6, as agreed to in negotiations, nations
will employ any ``legal and administrative measures [are] necessary to
eliminate'' production, use, import, and export of the chemical. This
means that the treaty would indeed bind the U.S. to take specific
regulatory action to be in compliance with the decisions by the
Conference of Parties for the initial set of POPs. However, the U.S.
would do so under its own laws, utilizing the measures that are most
appropriate in the U.S. The convention does not dictate these measures.
In no way is the list in Annex F, or any other provision of the POPs
accord, intended to create any ``rulemaking standards'' for the Parties
to the Convention.
Costs and Benefits under the Treaties
Question 7: Please state whether the treaties directly regulate
persons or rather rely on individual countries to choose the
appropriate means of compliance. Please state whether any of the
treaties have a specific regulatory standard for individual nations to
follow.
Please explain how the two principles cited above are consistent
with, or allowed under the treaties.
Do you believe the above Administration principles are prohibited
by or consistent with the treaties? If you believe them to be
prohibited, please point to specific language prohibiting such
consideration.
It is my understanding that the treaties rely on individual Parties
(countries) to choose the appropriate means of compliance. The
Stockholm Convention does include very specific actions that nations
must take to be in compliance with the agreement, such as, elimination
of production, use, import, and export of certain chemicals. Should the
U.S. opt-in (or decline to opt-out) to amendments adding future POPs,
EPA will need regulatory authority to take action with regard to these
chemicals. This is why I urge you to bring forward a bill that would
give EPA sufficient statutory authority to promulgate regulations that
will ensure that the United States can comply with these requirements.
A de novo cost-benefit balancing standard will not accomplish that.
The Administration states that, ``the United States should compare
the international decision to measures that are more and less
stringent, thereby facilitating a risk-management decision as to which
measure(s) provide(s) the most reasonable balance of benefits, risks
and costs for specific uses.'' It goes on to state that ``In weighing
benefits, risks and costs, the United States should consider domestic
production, export and use of the chemical, and any national and
international consequences that are likely to arise as a result of
domestic regulatory action, including consequences that cannot be
quantified and including consideration of the possible consequences of
using substitute chemicals.''
The Administration's principles are not consistent with the
Stockholm Convention because of the clear implication that the United
States will go its own way, regardless of international decisions in
which the U.S. has participated, and based on a risk/benefit balancing
process that is not included in the Convention. These principles also
would require the EPA, in each case, to consider regulatory measures
that would be less stringent than those specified in the Convention
amendment, including no control measures at all. While these procedures
would not be prohibited for new listings, they certainly are not
consistent and would weaken the U.S. participation in the Convention.
Discretion to Regulate
Question 8: Missing
Question 9: Would it not be useful to use a current regulatory
authority if it would provide for more cohesive U.S. law? Also are
there not circumstances where existing law may be sufficient and no new
regulation required?
I agree that it makes sense for EPA to use current regulatory
authority or existing law to deal with an additional POPs under the
Stockholm Convention whenever such authorities would be sufficient. As
you state, there may be cases where the authority under the Resource
Conservation and Recovery Act or the Federal Insecticide Fungicide and
Rodenticide Act may be more appropriate. Certainly FIFRA may in many
cases provide adequate authority for the regulation of POPs pesticides
and RCRA for POPs in waste disposal. TSCA is the weakest link in the
chain and may need to be invoked in a number of circumstances. The most
obvious is for industrial chemicals added to Annex A. Another example
is POPs that are formed inadvertently in the production of other
chemicals, e.g., the incidental production of dioxins and furans in the
manufacture of other chemicals. In these cases the only statute that
provides EPA with regulatory authority is TSCA 6(a). Ever since the
1991 asbestos decision by the 5th Circuit Court (Corrosion Proof
Fittings) EPA has had to meet the ``least burdensome means'' test,
which has in turn led to no new risk management decisions under TSCA.
This is the area in which existing law is completely insufficient.
While a broader reform of TSCA is what is really needed, Congress
should now act to grant EPA the authority to regulate new chemicals
that are added to the Stockholm Convention over time, and to create an
expectation that EPA will do so in most cases.
Alleged Duplication of International Body Decision
I would agree that ``the decision to list a chemical or even to set
out guidance on control measures is not the same as the promulgation of
a U.S. regulation.'' However, I cannot support legislation that uses
this idea as a justification for creating an elaborate process that
would not add value and instead would make it more difficult for the
EPA to take action to protect the public health and environment from
POPs chemicals.
Relationship of Proposed New Regulatory Authority to Existing
Regulatory Authority
Question 10: Do you read the Gillmor draft as requiring compliance
with the provisions of TSCA section 6(a)? If not, please outline the
items of TSCA section 6 that you would not need to address under the
Gillmor draft regulatory authority under the proposed section 503(e).
Please also compare this language to FIFRA section 2, Definition (bb)
and Section 6 (b) (2).
In my view, the Subcommittee isn't asking the right questions. More
relevant questions are: Would the proposed section 503(e) provide EPA
with the tools that it needs to protect the U.S. as well as the global
environment and public health from POPs chemicals under the POPs
convention? Or, rather, will the language promote regulatory paralysis,
litigation, and delay, thus depriving U.S. citizens of protection from
POPs and undermining U.S. participation in this important global public
health treaty?
Protection Standards versus Means and Measures
I would agree that there is a clear distinction between a legal
standard for protection of human health and the environment and the
means for achieving such a standard. Given that POPs are persistent,
many of their effects on health and the environment are difficult if
not impossible to reverse for years and years, and thus require very
stringent risk management procedures. POPs are a special class of
chemicals that deserve a health-based, precautionary approach to risk
management. Indeed, this is the reason that nations negotiated a treaty
to phase out the manufacture, use, import, and export of this entire
class of chemicals. The problem with language such as ``means of
protection that reasonably balance costs and benefits'' is that the
calculation of such costs and benefits is likely to be driven by short-
term, easily quantifiable considerations, thus leaving future
generations with the burdens of disease, environmental devastation, and
clean-up that are likely to result from such ``balancing''.
Exemptions
Question 11: Are there concerns over any anticipated use of all of
these treaty exemptions, including the broader exceptions? Do you
envision the US overriding the broader exemptions for use in
laboratory-scale research; for small quantities in the possession of an
end-user, and for quantities occurring as unintentional trace
contaminants in products? If so under what situations? Or the concern
limited to the country-specific exemptions?
In my testimony, I was referring to country-specific exemptions. I
believe that this is another area in which the draft legislation needs
clarification, because I still do read it to state that the United
States must take advantage of each country-specific exemption available
to every single country, and not just those which the U.S. reasonably
needs, requests, and receives. This is inappropriate and would
undermine U.S. leadership in this area. If it is not the intent of the
draft legislation then it needs to be modified.
In terms of the general exemptions, in my opinion the U.S. would
need exemptions in areas such as for laboratory-scale research (for
example, research to quantify the amounts of POPs in the environment
and toxicology research). The other cases you give (possession of small
amounts of the material and trace quantities in products) are difficult
to address as a general matter since the circumstances could involve
varying levels of risk. The US should be able to make decisions in
these areas based on providing an adequate level of protection to
health and the environment; Congress should not require that every
general exception would be adopted by the U.S. government.
Sound and Objective Science
Question 12: Do you have examples where the provisions of the Safe
Drinking Water Act risk language or the science provisions of Executive
Order 12866 adversely and inappropriately paralyzed the rulemaking
procedure? If so, please provide specific examples.
You have justified the use of the term ``sound and objective
scientific practices'' by pointing to similar language in the Safe
Drinking Water Act and language elsewhere that is not similar. It is
not correct that the language in EO 12866 and in the President's
Commission on Risk Assessment and Risk Management Report embraces the
ridiculous dichotomy between ``sound'' and ``unsound'' science. Only
the Safe Drinking Water Act includes this term. In considering whether
this language has been useful in SDWA, you might want to ask the EPA to
list every public health protective action it has taken under the SDWA
using this language over the last eight years. For example, when will
the EPA adopt a Maximum Contaminant Level (MCL) for MTBE or for
perchlorate? I would argue that to date, this provision of the SDWA has
not been particularly effective, and therefore does not stand as a
model for future legislation, especially for chemicals as dangerous as
POPs.
What is broken, that the Draft Legislation is trying to fix?
Indeed, what is wrong with the very workable language in EO 12866 that
already requires ``best reasonably obtainable scientific, technical, or
other information''? Legislative language with regards to ``sound
science'' will not add value to the regulatory process, but it is
likely to add to costs of transaction time, litigation, and delay. It
should be opposed, even it is well-intentioned. However, generally the
support for such provisions is from members of the regulated industry
(and their expert consultants), who would be the sole beneficiaries of
additional opportunities for litigation and delay.
In closing, I would hope that you have seriously considered the
points that I have raised in response to your letter. Phasing out
emissions of POPs to the environment is an important public health and
environmental goal. The United States has an opportunity to play a key
role in this process as a Party to the Stockholm Convention. I hope
that, at the end of the day, Congress enacts legislation that will
allow the U.S. to fully participate in all aspects of the Convention,
including the ability to regulate newly added POPs chemicals.
Very truly yours,
Lynn R. Goldman, M.D., M.P.H.
Professor, Environmental Health Sciences
______
Georgetown University Law Center
September 14, 2004
Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
Washington, DC 20515-6115
Re: ``Notes and Questions from July 13, 2004 Hearing on POPs, PIC, and
LRTAP: The Role of the U.S. and Draft Legislation to Implement
These International Conventions''
Dear Chairman Gillmor: I am happy to respond to your additional
questions relating to my testimony at the July 13 Subcommittee hearing
on POPs. In addition to answering the specific questions directed at me
(these are the questions you have addressed to ``all witnesses''), I
wish to note that I hold general views consistent with those expressed
in the letters from Lynn Goldman, Glenn Wiser, and Brooks Yeager.
1. Question 7:
Please state whether the treaties directly regulate persons or
rather rely on individual countries to choose the appropriate means of
compliance. Please state whether any of the treaties have a specific
regulatory standard for nations to follow.
I did not testify on matters related to these questions, but I will
say that I agree with the views expressed in the letters from Lynn
Goldman, Glenn Wiser, and Brooks Yeager.Do you believe the
Administration principles are prohibited by or consistent with the
treaties? If you believe them to be prohibited, please point to
specific language prohibiting such considerations.
Again, I did not testify on matters related to this question, but I
will note again that I am in agreement with the responses submitted by
the witnesses I have just mentioned.
2. Question 9:
Would it not be useful to use a current regulatory authority if it
would provide for more cohesive U.S. law? Also are there not
circumstances where existing law may be sufficient and no new
regulation required?
It would be useful to use a current regulatory authority if it
would provide for more cohesive and adequate U.S. law on POPs. As I
testified at the hearing in July, however, certain aspects of current
U.S. law--in particular, section 6(a) of the Toxic Substances Control
Act--have proved inadequate for regulating POPs, and therefore it would
not be advisable to rely on the kind of regulatory framework embodied
in this statute for regulating POPs.
3. Question 11:
Are there concerns over any anticipated use of all of these treaty
exemptions, including the broader exceptions? Do you envision the US
overriding the broader exemptions for use in laboratory-scale research;
for small quantities in the possession of an end-user; and for
quantities occurring as unintentional trace contaminants in products?
If so under what situations? Or is the concern limited to country-
specific exemptions?
I did not testify on this issue, and thus I cannot attest to the
nature of the concerns noted in this question.
Thank you for the opportunity to address these questions.
Sincerely,
Lisa Heinzerling
Professor of Law
______
Utility Solid Waste Activities Group
September 10, 2004
Honorable Paul E. Gillmor
Chairman
Subcommittee on Environment and Hazardous Materials
U.S. House of Representatives
Committee on Energy and Commerce
Washington, DC 20515-6115
Re: Response To Follow-Up Commentary and Questions from July 13, 2004
Subcommittee Hearing on Implementing Legislation for POPS, PIC,
and LRTAP Treaties
Dear Representative Gillmor: The Utility Solid Waste Activities
Group and the Edison Electric Institute (collectively ``USWAG'') are
pleased to respond to the Subcommittee's additional commentary and
questions regarding implementation of the POPs, PIC and LRTAP treaties
(collectively ``Treaties''). As an initial matter, USWAG would like to
reiterate its support for the House Discussion Draft (dated June 17,
2004), as it represents a sound statutory framework for the United
States to promptly implement its obligations under the above Treaties.
It is important for the United States to enact implementing legislation
as soon as possible to enable the United States to continue to play a
leading role regarding the strategic implementation of the Treaties and
to participate as a member of the Conference of the Parties (``COP'')
at the upcoming May 2005 COP-1.
1. Federal-State Provision
USWAG agrees with the Subcommittee's explanation of the Discussion
Draft's provision regarding the relationship of federal-state laws
regulating POP chemicals. It is important that implementing legislation
provide a uniform and level-playing field across the country with
respect to the regulation of POP chemicals, while preserving the
ability of individual states to regulate POP chemicals more stringently
in certain circumstances. The House Discussion Draft establishes this
statutory framework, while preserving the ability of individual states
to seek approval from EPA to regulate POP chemicals more stringently on
a case-by-case basis pursuant to the procedures set forth in section
18(b) of TSCA.
2. The Relationship of PCB Provision to Existing TSCA 6(e)
USWAG agrees with the Subcommittee that nothing in the Discussion
Draft precludes or in anyway alters EPA's existing statutory
authorities to regulate POP chemicals, including PCBs. The conditions
set forth in the Discussion Draft for issuing or amending rules
applicable to PCBs are applicable only in the context of EPA taking
action for purposes of complying with the POPs Convention. This is a
narrow and discrete provision and in no way alters EPA's existing
authority under TSCA section 6(e) to regulate PCBs or to otherwise
amend the existing PCB regulations promulgated under TSCA section 6(e).
3. Provisions Concerning the United States Process for Opting into the
Treaty for Additional Chemicals
USWAG agrees with the Subcommittee's interpretation that the
Treaties themselves do not articulate or mandate any legal process or
procedural mechanism to which the Parties must adhere for purposes of
implementing their respective treaty obligations. Indeed, Article 7 of
the POPs treaty directs the Parties to develop a plan for the
implementation of the Party's respective treaty obligations. This makes
clear that the POPs treaty contemplates individual Parties devising and
implementing their own procedures for fulfilling their respective
treaty obligations. Whether and how any particular country will respond
to the listing of a new chemical or otherwise implement its Treaties
obligations must remain within the sovereign jurisdiction of the
participating country.
USWAG also agrees that nothing in the Discussion Draft ties the
decision to ``opt-in'' to a decision to establish domestic regulations
for a newly listed POP. As the Subcommittee correctly points out, the
United States may determine to opt-in with respect to a newly listed
POP and then determine that there is no need to develop additional
regulatory controls because existing, domestic regulations already
allow the United States to meet its Treaty obligations with respect to
the POP.
4. Requirements on the Executive Branch Related to Opting-In
USWAG agrees that the decision of the United States whether or not
to ``Opt-In'' should lie exclusively with the Executive Branch and
should not be judicially reviewable. As a practical matter, the
decision whether or not to agree to be bound by a decision of the COP
is effectively a decision by the United States to agree to a new
international treaty. Such decisions have historically resided within
the domain of the Executive Branch and nothing in the Treaties warrants
a departure from this precedent or warrants allowing the judicial
branch to reverse the Executive Branch decision-making process with
respect to whether to become a party to an international treaty.
USWAG also is extremely wary of legislation establishing a
statutory timeframe by which the Executive Branch must decide whether
to agree to a listing decision. Whether to opt-in with respect to any
new listing decision will necessarily involve a host of unique factors
for the Executive Branch to consider--some of which will require more
evaluation, deliberation and study than others. Therefore, USWAG
believes it is unwise to prejudge--through imposition of a statutory
deadline--the length of time that the Executive Branch will need to
evaluate and render a decision regarding whether to opt-in with respect
to any future POP chemical. Such arbitrary deadlines can be the source
of mischievous ``statutory deadline'' lawsuits that often produce
results wholly unrelated to the underlying statutory deadline.
5. Whether the Treaties Address Individual Persons or Countries
As USWAG made clear in its testimony, there is little debate that
the Treaties constitute commitments between nations to take certain
actions and do not, in and of themselves, directly regulate individuals
with those nations. The Treaties contemplate the individual
participating countries selecting the appropriate means, through their
respective implementing legislation, to set forth (as necessary)
regulations to ensure that the participating country can meet its
Treaty obligations. In the case of the United States, the purpose of
the enabling legislation is to allow Congress to exercise its authority
to establish how the U.S., though its domestic laws, will meet the
international obligations of the U.S. as a Party to the Treaties.
Citizens then comply with U.S. law established by Congress, as
implemented by the Executive Branch and interpreted by the Judiciary.
USWAG does not believe that the Treaties, in and of themselves, set
forth ``specific regulatory standard[s] for individual nations to
follow,'' but rather set forth objectives that participating countries
must ensure compliance with through their own implementing legislation.
6. Whether the Administration's Principles Are Prohibited by or
Consistent With the Treaties
The Subcommittee points to certain of the Administration's
principles set forth in its written testimony for implementing the
Treaties--including risk-management and risk/cost issues--and asks
whether these principles are inconsistent with or prohibited by the
Treaties. These principles are neither prohibited by nor inconsistent
with the Treaties. There is nothing in the Treaties that speak to what
mechanism and/or procedures a Party should adhere to in deciding
whether and how to control a POP. Put simply, the Parties are free to
opt-in using their own internal criteria. Therefore, the
Administration's principles, as outlined in its written testimony, are
neither prohibited nor inconsistent with the Treaties.
7. Discretion to Regulate
As noted above, there is no mandatory requirement for EPA (or any
other federal agency) to promulgate new regulations following a
decision by the United States to opt-in with respect to a newly listed
POP. As the Subcommittee correctly points out, the United States may
already have in place adequate regulatory controls to fulfill its
Treaty obligations with respect to the newly listed chemical. Indeed,
this is the case with many of the existing POPs, such as PCBs, where
EPA is effectively agreeing to opt-in with respect to these chemicals
(i.e., by becoming a Party to the Treaty), but at the same time
recognizing that existing domestic regulations already fulfill most of
the United State's Treaty obligations with respect to these chemicals.
The bottom line is that EPA should only be promulgating additional
regulations to fill regulatory gaps--i.e., differences between existing
domestic regulations and our obligations under the Treaties. The Agency
must be afforded the discretion to make these decisions, as opposed to
being required to promulgate new regulations simply as a result of an
opt-in decision.
8. Exemptions
USWAG agrees with the Committee that there is nothing in the
Discussion Draft compelling the United States to avail itself of any/or
all exemptions. Therefore, there is no need for any further
clarification on this point.
USWAG appreciates the opportunity to respond to the Subcommittee's
follow-up commentary and looks forward to continuing to working with
the Subcommittee to enact implementing legislation as soon as possible.
Very truly yours,
James R. Roewer
______
Response for the Record by Steven Goldberg on Behalf of Croplife
America
As the national trade association representing the developers,
manufacturers, formulators and distributors of plant science solutions
for agriculture and pest management in the United States, CropLife
America appreciated the opportunity to testify before the Subcommittee
on Environment and Hazardous Materials on draft legislation to
implement the Stockholm (POPs), Long-range Transboundary Air Pollution
(LRTAP POPs) and Rotterdam (PIC) Conventions. We support these
Conventions, and strongly encourage Congress and the Administration to
implement and ratify these important agreements as quickly as possible.
The United States has the strongest and most emulated pesticide
regulatory system in the world. Congress saw the need for a separate
statute regulating pesticides in order to provide for extensive health
and safety testing when it passed the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) in 1947. Through four subsequent major
revisions to FIFRA and the passage of the Food Quality and Protection
Act (1996), Congress has provided for an increasingly comprehensive
pesticide regulatory system as the basis for EPA pesticide decisions.
Given Congress' specific and recurrent decisions on pesticide law
over the years, we believe FIFRA provides the necessary statutory
framework to implement the conventions without adding pesticide
provisions to the Toxic Substances Control Act. We understand that it
is this Subcommittee's intent to maintain the existing jurisdictional
split between FIFRA and TSCA, and we look forward to working with the
Committee to ensure this separation continues.
We applaud Chairman Gillmor's leadership in drafting strong
implementing legislation, holding a hearing with participation from a
wide array of interested stakeholders, and continuing to work with all
interested parties to fine tune this bill. We appreciate that our
continued involvement in these efforts has been solicited through the
Committee's Supplemental Questions and hope that our responses are
constructive towards the swift passage of this legislation.
QUESTION 7
All witnesses: Please state whether the treaties directly regulate
persons or rather rely on individual countries to choose the
appropriate means of compliance. Please state whether any of the
treaties have a specific regulatory standard for individual nations to
follow.
The treaties are clearly binding to ``Parties,'' meaning governing
bodies, and not persons. The treaties on their faces indicate that
measures to reduce or eliminate POPs chemical releases are to be
determined and undertaken by said Parties. National governments are
responsible for implementing control measures--consistent with each
country's sovereign right to execute domestic environmental policies--
to meet their obligations under the Conventions.
It is not our belief that the treaties establish a specific
regulatory standard for individual nations to follow. The Treaties
merely require that Parties be bound to implement bans or restrictions
on the production or use of listed chemicals imposed by the
Conventions. It is up to each of the country's specific regulatory
scheme to accomplish those objectives.
However, in the context of U.S. laws and regulations, risk-cost/
benefit standards are solidly established measures governing pesticide
production and use. Specifically under FIFRA, the EPA is required to
conduct a cost-benefit analysis when determining whether or not to
register a pesticide. The treaties do not prohibit this approach; in
fact, it is entirely consistent with the approach of the Stockholm
Convention. Under the Convention, cost/benefit information must be
taken into account in all decisions to list new POPs chemicals. The
Administration has embraced these principles as sound measures for all
chemical regulation. Risk and cost benefit considerations are
consistent with the spirit of the treaties, and Chairman Gillmor's
draft legislation supports this approach.
QUESTION 9
Would it not be useful to use a current regulatory authority if it
would provide for more cohesive U.S. law? Also, are there not
circumstances where existing law may be sufficient and no new
regulation required?
From a pesticide policy perspective, the existing statutory
authority and regulatory framework under FIFRA is the most useful and
effective means for regulating all current pesticides, as well as
pesticides potentially identified as POPs in the future. Any laws or
regulations intended to affect pesticide use/production in the U.S.
outside the FIFRA framework will threaten the cohesiveness of U.S.
pesticide laws and regulations, causing confusion to registrants and
users alike. Considering that nine of the twelve chemicals under the
Stockholm Convention are pesticides which have already been banned
under FIFRA, this statute as it stands is clearly sufficient for the
domestic regulation of pesticides, consistent with POPs international
agreements.
QUESTION 11
Are there any concerns over any anticipated use of all of these
treaty exemptions, including the broader exceptions? Do you envision
the U.S. overriding the broader exemptions for use in laboratory scale
research; for small quantities in the possession of an end user; and
for quantities occurring as unintentional trace contaminants in
products? If so, under what situations? Or is the concern limited to
the country-specific exemptions?
The exemptions provided in the Treaties are clear and sound. Any
anticipated use of such exemptions should be the result of thorough
consideration, analysis and vetting through each country's domestic
regulatory process and decision-making at the international level.
______
U.S. Environmental Protection Agency and U.S. Department of State
Responses to Questions from the Honorable Paul E. Gillmor, Chairman
Provisions to Fill the Gaps for U.S. Compliance with Treaty Obligations
for Currently Listed Chemicals
One can divide the proposed implementing draft into discrete
functions. The first function is implementation of the treaties'
various obligations. The Gillmor draft seeks to fulfill U.S. compliance
obligations with respect to the Aarhus Protocol, and the Rotterdam and
Stockholm Conventions regarding the currently listed, banned or
severely restricted chemicals. U.S. law already assures a great deal of
compliance with existing Convention and Protocol requirements.
Accordingly, the Gillmor draft fills any remaining gaps in current law
without requiring EPA to take additional regulatory steps. These
provisions, along with ratification of the POPs and PIC treaties, would
allow the United States to sit as full partners at the next set of
international meetings.
At the Subcommittee hearing on July 13, 2004, the State Department
and the Environmental Protection Agency's testimony stated that the
Gillmor draft accomplishes the objective of meeting our treaty
obligations with respect to existing chemicals. The EPA stated: ``We
believe that this draft bill would enable the United States to comply
with the obligations in the POPs treaties to prohibit or restrict the
production, use, import, export, or release of the substances covered
by TSCA'' (Toxic Substances Control Act). The State Department also
testified that, ``We believe that this proposal would accomplish this
objective to provide the legal authority necessary for the United
States to implement fully all of the Toxic Substances Control Act-
related obligations of the three agreements.'' Mike Walls, on behalf of
the American Chemistry Council, stated: ``Mr. Gillmor's draft
implementing legislation addresses all of the necessary changes to TSCA
required to ensure that the United States can meet its obligations
under the treaties.'' Also, Jim Rower, with the Utility Solid Waste
Activities Group, stated the subcommittee discussion draft
``establishes the appropriate statutory framework for implementing the
United States Convention obligations.''
The Subcommittee believes all other witnesses did not state any
general disagreement on this point with respect to obligations for
currently listed chemicals. Three potential exceptions are discussed
below, concerning: (1) the federal-state provision, (2) the
relationship of the Polychlorinated Biphenyls (PCB) provision, and (3)
compliance with the PIC treaty. Therefore, as a general matter, based
on the written testimony and witness discussion at the hearing, it
appears we could have a broad agreement to pursue only the provisions
of the discussion draft to fill the gaps for U.S. compliance with
treaty obligations for currently listed chemicals, with minor
modifications. This is significant because nothing in the treaties
compel us to go further legislatively at this time. While many parties
have previously expressed interest in an adding mechanism, nothing in
the treaties compel the Subcommittee to set out a statutory process for
U.S. consideration of additional chemicals or even new rulemaking
authority. If the Subcommittee was to simply enact the provisions
relating to current chemicals, and the Senate to ratify the POPs and
PIC, the U.S. could sit at the upcoming meetings as full partners.
Federal-State Provision
At the hearing, Representative Capps raised a concern over a
provision setting out the relationship of language in the bill and
state law. She has sought the Administration's interpretation. The
provision contains modifications to section 18(a)(2) of TSCA and is
located in the ``conforming amendments'' section of the draft.
The Committee does not wish to alter the existing Federal-state
relationship with respect to currently listed chemicals under TSCA. We
note that while the discussion draft would amend TSCA Section 18(a)(2)
to ensure that Federal and State laws are harmonized with our
obligations under POPs and LRTAP POPs, the discussion draft does not
amend TSCA section 18(b)--which provides the EPA Administrator with
authority, in certain circumstances, to allow states (or political
subdivisions) to regulate chemical substance or mixtures more
stringently than the federal government. Therefore, under the
discussion draft, a state maintains its ability to petition the EPA to
regulate a POPs chemical substance or mixture more stringently than the
federal government. In addition, the Gillmor discussion draft would
preclude a state from acting less stringently than the Federal
government.
The Relationship of PCB provision to existing TSCA 6(e)
Mr. Yeager's testimony states:
``EPA could be prohibited from using its existing authority
under TSCA 6(e) to strengthen the regulation of PCBs, because
the Discussion Draft would allow EPA to do so only as
``necessary for the United States to comply with its
obligations under the POPs Convention.''
The Subcommittee believes Mr. Yeager's statement reflects a
misunderstanding of the language of section 502(c). First, the
provision does not apply at all where the rulemaking is for purposes
other than compliance with provisions of the treaties. However, where
the claim is that a change is necessary for compliance with the
treaties for PCBs, such claim must be based on a finding that is in
concurrence with the Secretary of State. This is the discussion draft's
intent and can be clarified further by language or legislative history,
if necessary.
Compliance with the Prior Informed Consent Procedure for Certain
Hazardous Chemicals (PIC) and Pesticides in International Trade
Dr. Goldman stated in her written testimony:
``The U.S. ratification should follow the enactment of
domestic implementing legislation which should give EPA clear
authority to carry out all the provisions of PIC in a prompt
and expeditious manner, including notifying the international
authority that the U.S. does not wish a particular PIC listed
chemical to be imported into the U.S. As obvious as this should
seem, at this point there seem to be no plans by the U.S.
government to put such a process in place.''
The Subcommittee worked closely with the Administration to try to
ensure the bill would fulfill obligations under PIC and believe the
Administration's earlier statements concerning ``full compliance''
would apply to PIC as well. There is a discrepancy between witnesses on
this point.
Question 1. EPA and State Department: Please respond to Dr.
Goldman's point. Does the draft need to be modified to bring U.S. law
into compliance with the PIC treaty?
EPA/State Response: The Administration believes that the Gillmor
discussion draft gives us the authorities we need to meet the
obligations of the PIC treaty. With respect to the particular provision
Dr. Goldman points to, ``including notifying the international
authority that the United States does not wish a particular PIC listed
chemical to be imported into the United States,'' TSCA and FIFRA do not
place any restrictions or requirements on the United States with
respect to providing information related to our domestic laws to an
international body. We do not envision the need for additional
authorities to respond to the notification provision referred to by Dr.
Goldman for PIC listed chemicals or pesticides.
Provisions Concerning the United States Process for Opting into the
Treaty for Additional Chemicals
The second function of the discussion draft seeks to address the
process by which the United States would add new chemical substances or
mixtures to the lists of banned or severely restricted chemicals. At
the hearing, many of the witnesses' interpretations on the procedures
for newly listed chemicals in the discussion draft were varied. The
following commentary and questions are meant to further elaborate and
explore the procedures used in the discussion draft for both opting-in
and the regulatory process for additional chemical substances or
mixtures.
The Subcommittee's interpretation is that the agreements themselves
do not articulate the legal or procedural mechanisms by which each
country takes steps to comply with the treaties. For example, nothing
in the treaties require that any country spell out its process for
considering whether it will opt-in for purposes of new chemicals under
the Stockholm Convention. Nothing in the treaties requires that there
be any rulemaking authority given to an Executive Branch agency.
Nothing in the treaties require that there be a single rulemaking or
other legal authority to address compliance with the treaty.
Dr. Goldman, in her testimony, argues that the discussion draft
would impose a new standard under which EPA would decide to ``opt-in''
for new chemicals. She appears to argue that, under the draft, such a
decision could only be done ``to the extent necessary to protect human
health and the environment in a manner that achieves a reasonable
balance of social, environmental, and economic costs and benefits.''
The Committee's reading is that the draft does not require this. The
decision to opt-in and the manner in which the U.S. chooses to regulate
are two different occurrences. Section 502(e) is new rulemaking
authority. It does not set standards for the decision to opt-in or not.
It may, in fact, be that the U.S. already has rules in place and need
not pursue any rulemaking following a decision to opt-in.
Question 2. EPA and State Department: Please comment on this point.
Does the draft restrict the U.S. ability to opt-in based on the
rulemaking standard in 502(e)?
EPA/State Response: We do not believe the draft explicitly
restricts the ability of the United States to opt-in to an amendment.
We agree with the Committee that the decision to opt-in and the process
for regulation are two separate issues, and that the draft only
addresses the latter issue. The outcome of a rulemaking, however, could
play an important role in the Secretary of State's determination of
whether to opt-in on an amendment because it could impact whether the
United States would be capable of fulfilling its obligations under that
amendment. Thus, to the extent that the draft impacts the outcome of
future rulemakings, it could be relevant to the determination of
whether the United States will opt-in to an amendment.
The Committee is also correct to note that there may be chemicals
added to the Convention which do not involve any TSCA-related
rulemaking whatsoever, for example in the case of an unintentional
byproduct regulated under the Clean Air Act.
Requirements on the Executive Branch Related to Opting-In
Ms. Heinzerling's testimony discussed what is constitutionally
permissible through legislative action in the context of binding a
future U.S. position on the addition of new chemicals. Others made
statements on this as well. The specific proposals involve restricting
the actions of the Executive Branch or subjecting the Executive Branch
to judicial scrutiny with respect to whether the United States would
opt-in for purposes of additional chemicals. As a matter of policy, the
Subcommittee believes the Executive Branch should be the initiator when
it comes to further U.S. obligations for the addition of chemicals or
other amendments to the treaties. The Subcommittee finds it troublesome
to set up a system where someone can access and empower federal courts
to countermand the decisions of the Executive Branch in this regard. If
the Executive Branch does not want to bind the United States to further
treaty obligations, we think the sole recourse of policy opponents
should be at the ballot box. The notion of courts setting out orders to
the Executive Branch for amendments to treaty discussions or decisions
does not seem like a prudent one from the Subcommittee's perspective.
Related to this issue, Mr. Wiser also stated that implementing
legislation should contain a mandatory timeframe and duty for EPA to
decide, within a specific time after a Stockholm listing decision,
whether to take action or not. The discussion draft does contain a
mandatory process for public comment. It is true there is no specific
deadline for a determination. It would seem reasonable that the
Executive Branch would make a decision within a time that is related to
international discussions and the mandatory public process. However,
this issue raises further questions. What if the Executive Branch
failed to meet the deadline? It is fair to assume a court would then
compel a determination within a certain time.
Question 3. Mr. Wiser: What if the Executive Branch responded that
they are not ready to support opting in at this time but might within 6
months? Would this be an impermissible answer under your proposal? If
not permissible, what is the sanction that would apply and how would it
be enforced? If permissible, is there much of a difference between your
proposal and simple deference to the executive branch?
Question 4. EPA and State Department: Do you believe a court should
be able to compel the Executive Branch to opt in on behalf of the
United States for any given chemical through the enforcement of a
statutory standard? If so, what standard should it be?
EPA/State Response: The statutory standard in question pertains to
EPA's domestic regulatory authority, and judicial review, if
appropriate, should relate to this authority. Moreover, the Executive
is best-suited to determine the time-frame and appropriateness of
opting into an amendment. The Constitution vests the President with the
authority to make treaties (with the advice and consent of the Senate),
and the courts have recognized that that the initiation of foreign
policy is primarily the ``province and responsibility'' of the
President. It would therefore be inappropriate to assign courts the
purported ability to command the President to opt into a new amendment.
Listing Decisions versus U.S. Determination of Protective Measures
Dr. Goldman states, ``. . . The decision standard in the discussion
draft is not in alignment with the standard that we agreed to in the
POPs Convention.'' She further states, ``[i]t is also important that
the standard be consistent with the language negotiated in the POPs
conventions, that is, to protect against significant adverse human
health and environmental effects associated with the chemical substance
or mixture.'' This also seems to be similar to a claim from Mr. Wiser.
He states:
``The most sensible standard to use in the legislation would
be based upon the Convention, and would require EPA to
implement the control measures specified in the Convention in a
manner that protects against `significant adverse human health
or environmental effects.' ''
The Subcommittee, however, wishes to further evaluate these
statements. The Stockholm Convention, in Article 8, uses the terms
``significant adverse human health or environmental effects'' as part
of a decision whether to list the chemical and whether ``global action
is warranted.'' This language does not address what that action should
be. Indeed, the very paragraph within Article 8--7(a)--that mentions
these terms specifically refers to considerations specified in Annex F
with respect to the analysis of possible control measures. Annex F of
the Stockholm Convention includes considerations of risk, cost, and
benefits. Nowhere does the POPs treaty use the combined terms ``protect
against significant adverse human health and environmental effects'' as
a standard for control measures, let alone the sole standard. Yet both
Dr. Goldman and Mr. Wiser's points rely on the language of Annex F,
while also treating the standard for listing as if it were the language
applicable to the selection of control measures. Nothing the
Subcommittee has observed in the Secretary of State's transmittal
document of the Stockholm Convention dated August 1, 2001, stated to
ignore Annex F. The Executive Branch ``agreed'' to the ``significant
adverse human health or environmental effects language'' precisely for
its intended purpose--to determine whether to list a chemical.
The Subcommittee is having trouble identifying the actual language
in the Stockholm Convention that specifies a rulemaking standard. In
addition, we cannot find a single, clear mandate in the agreements as
to what U.S. rulemaking standards must be. Finally, we really do not
know what types of guidance we could expect from the international
conference of the parties (COP) regarding a future control measure of a
later chemical listing since, at this time with respect to control
measures, the COP is not passing laws or regulations.
Question 5. Mr. Wiser: Doesn't paragraph 7a within Article 8's
reference to considerations in Annex F apply to international guidance
for control measures under the treaty, and therefore is part of the
relevant guidance in the treaty for parties? In your proposed
rulemaking standard, why did you ignore the proposed rulemaking
standards in Annex F? Are you stating that any guidance from the
international body should be mandatory as US regulations?
Question 6. EPA and State Department: Does Annex F apply to
international guidance for control measures under the treaty? Do you
believe that any guidance from the international body should be
mandatory as U.S. regulations?
EPA/State Response: Annex F applies to the international process
that will consider control measures under the Convention. The
preambular language in Annex F of the Stockholm Convention makes that
clear in stating ``An evaluation should be undertaken regarding
possible control measures under consideration for inclusion in this
Convention . . . For this purpose, relevant information should be
provided relating to socio-economic considerations associated with
possible control measures to enable a decision to be taken by the
Conference of the Parties.''
We believe that decisions taken by the Stockholm Convention's
Conference of the Parties (COP) to add a chemical, and the information
that serves as a basis for such a decision, should be given appropriate
consideration in EPA's rulemaking. We do not believe, however, that the
guidance from the COP or from the POPs Review Committee should be
mandatory as U.S. regulations. First, it is possible that the COP could
take a decision with which the United States does not agree, and it may
not be appropriate to mandate domestic implementation in such a case.
Second, we believe that legislation should set out an appropriate
process for decision-making that would allow the United States to
consider the appropriate scope of regulations for a listed chemical.
Costs and Benefits under the Treaties
Mr. Wiser's written testimony says we should wholly reject a cost-
benefit standard that he believes may have the effect of making it
impossible for the United States to concur with international decisions
to address additional POPs. Dr. Goldman and Ms. Heinzerling appear to
state similar points.
Mr. Walls' testimony, on behalf of the American Chemistry Council,
states that the Stockholm Convention adopts a risk/benefit approach in
implementing appropriate regulatory controls on listed chemicals, and
in considering chemicals nominated as potential POPs.
Mr. Goldberg, on behalf of CropLife America urges that the
implementing legislation recognize existing risk-benefit standards of
FIFRA. He further applauds the ``. . . science-based, risk benefit
assessment process . . .'' of the POPs agreement.
The Subcommittee does not read the international agreements the
Gillmor draft contemplates as ignoring costs or benefits. Annex C, Part
V (B) of the POPS protocol specifically mentions costs and benefits.
Annex F mentions costs, risks, and economic aspects as appropriate
considerations regarding possible control measures. Annex V, Part 3,
Paragraph 12 of the LRTAP POPs Protocol, states, in part:
``POP emission reduction costs should also be considered
within the framework of the overall process economics, e.g. the
impact of control measures and costs of production.''
Following that statement, all of the tables in Annex V outline
costs and benefits of options. In addition, Article 8 of the LRTAP Pops
Protocol asks parties to look for ``methodologies permitting
consideration of socio-economic factors in the evaluation of
alternative control strategies.''
In addition, the Administration's own principles, outlined in their
written testimony, state among other items:
``In determining whether the domestic regulatory measures are
necessary and adequate, the United States should compare the
international decision to measures that are more and less
stringent, thereby facilitating a risk-management decision as
to which measure(s) provide(s) the most reasonable balance of
benefits, risks and costs for specific uses.''
The principles also state:
``In weighing benefits, risks and costs, the United States
should consider domestic production, export and use of the
chemical, and any national and international consequences that
are likely to arise as a result of domestic regulatory action,
including consequences that cannot be quantified and including
consideration of the possible consequences of using likely
substitute chemicals.''
Question 7. All witnesses: Please state whether the treaties
directly regulate persons or rather relies on individual countries to
choose the appropriate means of compliance. Please state whether any of
the treaties have a specific regulatory standard for individual nations
to follow. Finally, for the EPA and State Department witnesses, please
explain how the two principles cited above are consistent with, or
allowed under the treaties. For all other witnesses: Do you believe the
above Administration principles are prohibited by or consistent with
the treaties? If you believe it to be prohibited, please point to
specific language prohibiting such considerations.
EPA/State Response: The treaties do not directly regulate persons.
Rather, it is countries that ratify the agreements and thereby
affirmatively take on the obligations contained in the treaties. It is
the responsibility of ratifying countries to implement their
obligations under the treaties in a manner that is consistent with the
language of the treaties. The treaties do not set out a specific
regulatory standard that a country must follow with respect to their
domestic regulations. Therefore, countries may undertake their
obligations in a manner deemed by them to be most appropriate in their
own circumstances and domestic regulatory context.
The principles cited in this question were designed as a framework
of Administration views on the appropriate manner to implement the
treaties. As we just noted, the treaties are not prescriptive in
mandating the manner in which a Party implements its treaty
obligations. Because the treaties do not mandate a particular domestic
standard for the addition of new chemicals, and because the principles
above speak to the Administration's views on the most appropriate
manner in which the United States should set out its domestic
regulatory measures, the principles are fully consistent with the
treaties.
Discretion to Regulate
Several witnesses believed that the new rulemaking authority should
be mandatory after a listing by the international body or after a U.S.
decision to opt-in. The Subcommittee has further questions about this
issue. What if the new rulemaking authority is not necessary or is not
the best vehicle for that particular new addition? We already know that
regulation of the current list of chemicals, sufficient to comply with
treaty obligations, is already largely in place. It may be reasonable
to assume the same might very well be true for a future chemical. It
might also be that other rulemaking authorities such as those under the
Resource Conservation and Recovery Act or the Federal Insecticide
Fungicide and Rodenticide Act may be more appropriate authorities for a
given circumstance. In these cases it would seem reasonable not to
mandate a new rulemaking authority. Moreover, there may well be a
phase-in of control measures. If there is a mandate to do a rulemaking,
can we be sure what the appropriate time line is? The fact is, we can't
predict what future amendments to the treaty would involve in this
regard. Therefore, to remain in compliance, the Executive Branch has
every reason to maintain its treaty obligations.
Question 9. All witnesses: Would it not be useful to use a current
regulatory authority if it would provide for more cohesive U.S. law?
Also are there not circumstances where existing law may be sufficient
and no new regulation required?
EPA/State Response: The Administration believes that if there were
regulatory authorities in current TSCA and FIFRA that allow the United
States to meet the obligations of the treaties in question for
substances listed on Annexes A or B of the POPs Convention or Annexes I
or II of the LRTAP POPs Protocol, it would be useful to use such
authorities when regulating these substances. For example, we think
that the Clean Air Act currently provides the necessary authorities to
address treaty obligations related to substances listed in Annex C of
the POPs Convention and Annex III of the LRTAP POPs Protocol, and we
have therefore not requested additional authorities to address those
substances. With respect to whether there might be circumstances where
existing law may provide sufficient authority for the United States to
ratify adding new substances to the existing Annexes of the agreements
in question, we are of the view that such a circumstance is only likely
to occur with respect to amendments adding by-products (POPs Annex C or
LRTAP Annex III substances).
Alleged Duplication of International Body Decision
Mr. Wiser states that the discussion draft ``would all but ignore
the results of this international investigation, and would instead
require EPA to undertake additional, duplicative, time-consuming
assessments before it could issue a rule in response to a new-listing
decision.'' He further states, ``Considering the extensive scientific,
risk assessment, and socio-economic analyses that are already required
under the Convention (and which are there significantly due to U.S.
insistence), we believe the implementing legislation should not itemize
the criteria that EPA must consider during the rulemaking.''
The Subcommittee is concerned that the international decision to
list a chemical or even set out guidance on control measures is not the
same as the promulgation of a U.S. regulation. There is no duplication
at all. Though they may look at the factors in Annex F of the Stockholm
Convention, they are not looking specifically at the circumstances in
the U.S. They will not evaluate what laws are already on the books in
the U.S. They will not do a specific evaluation of U.S. businesses.
They will not do a specific evaluation of the risks to health in the
context of the U.S. Moreover, we cannot support deferring to the
international body on its findings when it comes to U.S. regulations.
Relationship of Proposed New Regulatory Authority to Existing
Regulatory Authority
As noted by Mr. Walls:
``Notably, Mr. Gillmor's draft does not prevent EPA from
regulating POPs substances under its existing statutory
authority, including TSCA. The United States regulated the
existing POPs long before the international agreements were
drafted, employing a regulatory process that considered
scientific evidence, risks to health and the environment, and
socio-economic consequences.
Colin Powell, in his letter of transmittal for the Stockholm
Convention dated August 1, 2001, stated that Annexes D, E, and F are
consistent with the approach taken in existing U.S. pesticide and
chemical regulations. The Subcommittee notes that considerations for
taking action under FIFRA and TSCA include risk, costs, benefits and
other societal factors.
However, some of the witnesses stated that the Gillmor draft adds
``regulatory baggage,'' including cost-benefit and sound science
requirements to a piece of domestic environmental legislation that is
ineffectual. In effect, they seem to argue we are adding new hurdles to
TSCA section 6. However, this is not the Committee's reading of the
draft. We don't see where in the new rulemaking language it says EPA
has to satisfy the conditions of TSCA section 6(a). Rather under
section 503(e) one would not have to comply with the unreasonable risk
standard of TSCA section 6, nor the requirement to choose the least
burdensome alternative, nor the requirement for a hearing and cross-
examinations, nor numerous other requirements under TSCA section 6.
Several witnesses were also concerned with the proposed additional
regulatory authority. However, this is an authority that is clearly
easier for EPA to use than existing authority under TSCA section 6.
Moreover, the draft does not circumscribe any existing regulatory
authority, nor does the draft add any requirement from the new
regulatory authority to TSCA section 6 or vice versa. However, several
of these points were misunderstood during the hearing.
Dr. Goldman stated, ``It is worse than current law.'' She further
states:
``The burden should be placed on the EPA to show why a listed
chemical should not be controlled by the U.S., rather than the
reverse. The language in this regard is worse than current law
and again would render EPA ineffective.''
Ms. Heinzerling stated:
``Merely duplicating the already-ineffective requirements of
TSCA as prerequisites for regulating new POPs would be bad
enough; the Discussion Draft goes even further and offers whole
new obstacles to meaningful toxic substance control. Better, in
truth, to have no mechanism at all for adding new substances to
the list--the route originally preferred by the current
Administration--than to offer this charade in place of a
meaningful listing process.''
Mr. Yeager stated:
``I believe the Bush Administration's repeated efforts to use
proposed implementing legislation for the treaty as a vehicle
to advance its overall effort to weaken domestic environmental,
health, and safety protections.''
The Subcommittee wishes to re-emphasize that nothing in this draft
circumscribes existing regulatory authority unrelated to implementation
of the treaty. There is no weakening of domestic environmental, health
and safety protections. Allusions to the contrary are incorrect.
Providing additional regulatory authority, while maintaining existing
regulatory authority, cannot result in something worse than current law
from the perspective of those who want greater regulatory power for
EPA. It can result in something worse than current law for those who
oppose expansion of bureaucratic authority. However, some of the
testimony continued to confuse rulemaking authority and additions;
erroneously suggesting that new rulemaking authority would make
exercising existing authority more difficult.
Ms. Heinzerling accurately states the following:
``Although the Draft does provide a laundry list of factors
EPA is to consider in coming to a decision, 502(e)(2)(A-E),
it does not give EPA guidance as to how to figure out what a
``reasonable balance'' of costs and benefits is. Here, too,
therefore, the Discussion Draft affords EPA a huge amount of
discretion in making decisions on newly listed POPs.''
We believe, in this case, such discretion is appropriate and is the
same type of discretion afforded those providing guidance under Annex F
of the Stockholm Convention. Where Congress does not further specify,
courts must defer to agency interpretations of what is reasonable.
Thus, we believe the discussion draft has a more deferential regulatory
standard than the current ``least burdensome'' and other provisions of
TSCA 6.
Question 10. EPA and State Department: Do you read the Gillmor
draft as requiring compliance with the provisions of TSCA section 6(a)?
If not, please outline the items of TSCA section 6 that you would not
need to address under the Gillmor draft regulatory authority under
proposed section 503(e). Please also compare this language to FIFRA
section 2, Definition (bb) and Section 6 (b) (2).
EPA/State Response: No, the Administration does not read the
Gillmor draft as requiring compliance with the provisions of TSCA
section 6(a) when regulating additional chemical substances or mixtures
listed on Annex A or B of the POPs Convention or I or II of the LRTAP
POPs Protocol. Because the draft does not require compliance with TSCA
section 6, none of TSCA section 6 would apply when regulating such
chemical substances or mixtures. Thus, as the Committee points out,
when regulating these chemical substances or mixtures, EPA would not be
required to, inter alia, (1) apply the TSCA section 6 unreasonable risk
standard, (2) choose the least burdensome regulatory alternative, or
(3) hold hearings that allow for cross examination.
Gillmor draft section 503(e) provides the EPA Administrator with
authority to ``issue rules to prohibit or restrict the manufacture,
processing, distribution in commerce for export, use or disposal of the
additional chemical substances or mixture to the extent necessary to
protect human health and the environment in a manner that achieves a
reasonable balance of social, environmental, and economic costs and
benefits.'' FIFRA section 2(bb) defines ``unreasonable adverse effects
on the environment'' to mean, inter alia, ``any unreasonable risk to
man or the environment, taking into account the economic, social, and
environmental costs and benefits of use of any pesticide.'' FIFRA
Section 6(b) provides the EPA Administrator with authority, under
certain circumstances, to cancel a pesticide registration if, inter
alia, it appears to the Administrator that a pesticide when used in
accordance with widespread and commonly recognized practice, generally
causes unreasonable adverse effects on the environment. (Section
6(b)(2) provides authority for the Administrator, if it appears to the
Administrator that a pesticide, when used in accordance with widespread
and commonly recognized practice, generally causes an adverse effect on
the environment, to issue a notice of intent ``to hold a hearing to
determine whether or not its registration should be canceled or its
classification changed.) Both the standard in Gillmor draft section
503(e) and the FIFRA unreasonable adverse effects standard (as applied
to non-food use pesticides) are cost/benefit standards.
Protection Standards versus Means and Measures
The Subcommittee believes there is a distinction between the basic
goal of the Stockholm Convention--protection of human health and the
environment--and the assessment of appropriate means or measures to
address this goal. As discussed above, this seems clear based on Annex
F and other items in the treaty.
The discussion draft tries to carry a similar approach by setting
the legal standard at the protection of human health and the
environment, but choosing means of such protection that reasonably
balance costs and benefits. Several allegations have been made about
this proposed standard. On its face, the language does not trade
protection of human health under a cost/benefit standard. The standard
provides rulemaking authority ``to the extent necessary to protect
human health and the environment.'' The standard asks the Administrator
to choose a manner of protecting human health and the environment that
``achieves a reasonable balance of social, environmental, and economic
costs and benefits.'' Therefore, the Committee finds some of the
witnesses' arguments that protection of human health can be ``traded''
as simply inconsistent with the clear language.
Exemptions
Dr. Goldman states that the bill:
``Ties the hands of the EPA when it comes to taking action
more stringent or in advance of action taken under the
Conventions. It specifies that the U.S. will take advantage of
every single exemption that is available to every single
country in the world.''
The Subcommittee is trying to interpret this statement. We
recognize there are different types of exemptions in the treaties. Some
exemptions are chemical-and country-specific. There are also broader
exceptions for use in laboratory-scale research; for small quantities
in the possession of an end-user; and for quantities occurring as
unintentional trace contaminants in products. Notification procedures
and other conditions apply to exemptions for POPs as constituents of
manufactured articles and for certain closed-system site-limited
intermediates. The treaty contains numerous exemptions and we would
like to know under what circumstances the witnesses are advocating
regulating in these areas when the treaties provide for clear
exemptions.
We have read Mr. Wiser's suggestion of a clarifying statement:
``nothing in this title shall be construed to require the United States
to register for any specific exemption or acceptable purpose available
to the United States under Annex A or B to the POPs Convention.''
We don't believe any language in the bill directs the U.S. to seek
any exemptions. The exemption provision simply states that the
prohibitions shall not apply to a production or use specific exemption
available to the United States, not mandating that they must take
advantage of each one and for every single country. However, we do not
have a problem with the policy of the clarification. But if the U.S. is
pursuing an exemption or has received such exemption, it does not make
sense for this particular rulemaking authority to override that
exemption.
Question 11. All witnesses except EPA and State Department: Are the
concerns over any anticipated use of all of these treaty exemptions,
including the broader exceptions? Do you envision the United States
overriding the broader exemptions for use in laboratory-scale research;
for small quantities in the possession of an end-user; and for
quantities occurring as unintentional trace contaminants in products?
If so, under what situations? Or is the concern limited to the country-
specific exemptions?
Sound and Objective Science
Mr. Wiser states:
``The environmental and health community believes that high
quality, objective scientific research and analysis should
provide the foundation for the evaluation and management of
POPs and other persistent toxic substances.''
Mr. Yeager states:
``For the United States, it was critical that this process be
scientifically-driven and not subject to political whim . . .
the final agreement offers the United States the safeguards of
rigorous science, a careful review procedure . . .''
Yet they, along with Dr. Goldman and Ms Heinzerling are highly
critical of language in the draft that requires the EPA Administrator
to use sound objective scientific practices when evaluating risk
information. These are really a set of arguments that go back a long
time. The same ones were used in 1996 prior to the use of similar
language in the 1996 Safe Drinking Water Act Amendments.
The Safe Drinking Water Act Amendments of 1996 state that the ``. .
. the Administrator shall use--(1) the best available, peer-reviewed
science and supporting studies conducted in accordance with sound and
objective scientific practices'' It follows with a number of
requirements for sound science. Some made claims that this language
would stifle rulemaking. But these Amendments were passed with broad
bipartisan support and have worked very well.
In addition, The Clinton Administration issued Executive Order
12866 and is still in effect. It states:
``Each agency shall base its decision on the best reasonably
obtainable scientific, technical, economic, and other
information concerning the need for and consequences of the
intended regulations.''
Finally, The President's Commission on Risk Assessment and Risk
Management stated in their 1997 report:
``A good risk management decision . . .''
``Is based on a careful analysis of the weight of scientific
evidence that supports conclusions about a problem's potential
risks to human health and the environment.'' [and]
``Reduce or eliminate risks in ways that . . . [a]re based on
the best available scientific, economic, and other technical
information.''
``[T]he Commission's Risk Management Framework is intended
to: . . . [e]nsure that decisions about the use of risk
assessment and economic analysis rely on the best scientific
evidence and are made in the context of risk management
alternatives.''.
``Making judgements about risk on the basis of scientific
information is called `evaluating the weight of the evidence.'
. . . It is important that risk assessors respect the objective
scientific basis of risk and procedures for making inferences
in the absence of adequate data.''
Despite these precedents several witnesses suggested that similar
language is inappropriate. The same claims were made with respect to
these types of provisions. There is no evidence the SDWA language or EO
12866 have done anything described by these witnesses.
Question 12. EPA: Do you have examples where the provisions of the
Safe Drinking Water Act risk language or the science provisions of
Executive Order 12866 adversely and inappropriately paralyzed the
rulemaking procedure? If so, please provide specific examples.
EPA Response: Keeping in mind that the provisions of the Safe
Drinking Water Act were not designed to be and have not, to date, been
applied in the development of regulations under TSCA or FIFRA, and that
the Agency is not opining at this time on the appropriateness of doing
so, EPA has found that the work undertaken either to comply with the
provisions of the Safe Drinking Water Act or to develop balanced
science-based public health standards that meet the requirements of
E.O. 12866 has not been adversely or inappropriately paralyzed by the
rulemaking procedure.