EWG President Ken Cook testifies to the House Subcommittee on Commerce, Trade and Consumer Protection about the major shortcomings in the Toxic Substances Control Act.
Testimony as delivered
Before the Subcommittee on Commerce, Trade and Consumer Protection Committee on Energy and Commerce
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When it comes to protecting the public from toxic industrial chemicals, the Toxic Substances Control Act has been so ineffective, for so long, that many people forgot it was even on the books.
It was the one environmental law industry loved — because unlike the Clean Air Act or Clean Water Act or other statutes, TSCA didn’t interfere with its business much at all.
And when the EPA did try to use the Toxic Substances Control Act under the first President Bush to ban a notorious killer — asbestos — the law itself defeated the agency.
Now the law is defeating the chemical industry.
Because TSCA leaves the government so stunningly powerless to deal with the soup of toxic chemicals in the environment and, indeed, in the blood of all of us, the American people have lost confidence, has lost trust, that the products they are using, the chemicals they are being exposed to, are safe.
Now the chemical industry wants a strong law behind it, not a feeble law under foot.
Within the environmental community, TSCA was the crazy aunt the family didn’t talk about and tried to forget—with the exception of the Environmental Defense Fund, which to its great credit maintained a strong focus on a statute that most everyone else ignored.
Mr. Chairman, along with Chairman Waxman you have changed all of that with the introduction of this bill, which, when enacted, will be provide the strongest public health standards of any environmental law in the world.
And I know you introduce it with the support of many colleagues in the House, and arm-in-arm with colleagues in the Senate, under the leadership of Sen. Frank Lautenberg.
There is not a person in this room — not a one; not a person in this country -- not a one -- who does not now have in their blood, dozens if not hundreds of TSCA-regulated chemicals that are known to cause cancer in laboratory studies or in people.
How many carcinogens? We don’t know. Nearly a century into the chemical revolution, no one has bothered to look.
As the President’s Cancer Panel reported earlier this year, we are largely left to speculate if those chemicals, alone or in combination, are causing cancer. What that landmark panel’s report did say is that we have “grossly underestimated” the role these chemicals have played in the scourge of cancer.
Here is what is not speculation, Mr. Chairman: half of all men in this country, one third of all women, will one day hear a doctor tell them they have cancer. It has gripped my family, my loved ones, as it has the families and loved ones of everyone here today.
What could be worse?
Here’s what’s worse, Mr. Chairman: every baby born in this country, today and for decades past, comes into the world “pre-polluted:”
- pre-polluted with a load of toxic chemical carcinogens,
- pre-polluted with a load of chemicals that threaten the intricate wiring of their delicate, rapidly growing brains,
- pre-polluted with a mix of chemicals that upset their exquisitely sensitive hormone systems that will regulate their bodies for life.
And many more chemicals circulate through the umbilical cord to the baby that can affect virtually every organ system in their little bodies.
Pollution from the industrial chemicals you seek to regulate with this bill begins in the womb.
We know because my colleagues were the first to document it in pioneering surveys of toxic industrial chemicals in umbilical cord blood. EPA Administrator Lisa Jackson refers to our studies; the President’s Cancer Panel refers to them; and so do many other leading authorities in environmental health.
Prepared Testimony
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Mr. Chairman and distinguished members of the subcommittee: My name is Kenneth A. Cook. I am the President and Co-Founder of Environmental Working Group (EWG), a nonprofit research and advocacy organization based in Washington, DC, with offices in Ames, Iowa, and Oakland, California. Thank you for holding this important hearing and for offering me the opportunity to testify.
I want to thank you, Chairmen Rush and Waxman, for your leadership in initiating this long overdue policy debate over how to reform the Toxic Substances Control Act of 1976 (TSCA). Your bill, H.R. 5820, the Toxic Chemicals Safety Act of 2010, is essential to fixing our broken toxic chemicals policy. We applaud you and your staff for conducting an extensive stakeholder process with numerous groups, including our colleagues in the environmental community, organized labor, health-affected groups, healthcare providers, the chemical industry, the consumer products industry and other interested parties. The strong foundation you have laid will build broad, deep support for this landmark legislation. EWG staff have met with every office represented on this committee to discuss the urgent need to reform TSCA.
Modern science has transformed the debate over toxic chemicals policy and underscored the need for H.R. 5820. In 2005, a biomonitoring study commissioned by EWG found more than 200 synthetic industrial chemicals in the umbilical cord blood of 10 newborn infants (EWG 2005a). We discovered that even before they were born, these 10 children had been exposed to a long list of dangerous chemicals, including dioxins and furans, flame retardants, and active ingredients in stain removers and carpet protectors. We also found lead, polychlorinated biphenyls (PCBs) and pesticides banned more than 30 years ago. Last year, in tests of cord blood samples from 10 more newborns, we found comparable unsettling results, including bisphenol A (BPA), a synthetic estrogen that disrupts the endocrine system, and perchlorate, a rocket fuel component and thyroid toxin that can alter brain development (EWG 2009a). The second group of children we tested happened to be of African American, Asian-Pacific and Latino heritage, but their body burdens were very much like the first group, whose ethnic and racial identities are unknown. What this means is that all of us are united by an inescapable and profoundly disturbing reality: toxic chemical pollution begins in the womb.
EWG and Centers for Disease Control and Prevention surveys of the scientific literature have found very few tests of umbilical cord blood for industrial chemicals. The few studies that exist have found up to 358 chemicals in cord blood from American newborns (Attachment A). More comprehensive testing would very likely find many more chemicals polluting the bodies of Americans, young and old. Since 1976, when President Ford signed the Toxic Substances Control Act into law, chemical manufacturers have registered for use more than 80,000 chemicals. More than 15,000 chemicals have been manufactured or imported in medium-to-high amounts over the past 25 years. Biomonitoring tests of all Americans have involved less than one percent of those compounds. Over the past 15 years, EWG has tested more than 200 people for 540 chemicals and found up to 482 of them. The more chemicals we test for, the more we find. Meanwhile research on chemicals that are biologically active in extremely small amounts has exploded (Attachment B). The substantial public health costs associated with toxic exposures, ranging in the tens of billions of dollars, continue to rise (Attachment C).
In April 2010, the President’s Cancer Panel concluded that “to a disturbing extent, babies are being born pre-polluted.” It declared that the number of cancers caused by toxic chemicals is “grossly underestimated” and warned that Americans face “grievous harm” from largely unregulated chemicals that contaminate air, water and food (President’s Cancer Panel 2010).
As modern science has demonstrated, we must reform federal law through H.R. 5820 to ensure that new chemicals are safe for kids, our most vulnerable population, before they are allowed to go on the market. Each day brings another jarring headline as new research documents the health dangers of toxic chemicals. The need for H.R. 5820 has never been more urgent.
Voices from across the political spectrum are calling on Congress to reform, modernize or overhaul this failed law. The American Chemistry Council’s principles to modernize TSCA and the Safer Chemicals, Healthy Families Coalition’s principles of reform provide excellent frameworks for engagement, debate and consensus building. EWG’s principles for reform are embodied in the Kid-Safe Chemicals Acts of the previous two Congresses, many elements of which remain in H.R. 5820. We have strongly supported those principles since “Kid-Safe” was first introduced five years ago.
Reasonable Certainty of No Harm. We applaud H.R. 5820’s risk-based approach to regulation, and we support expedited risk assessments and actions on persistent, bioaccumulative toxins as set forth in Section 32. (EWG Testimony 2010). We strongly support Section 6’s explicit language that would squarely place the burden of proof on industry to show that its products are safe for public health and vulnerable populations. We believe that the “reasonable certainty of no harm” safety standard in Section 6 of H.R. 5820, language similar to that of the well-regarded Food Quality Protection Act of 1996, should replace TSCA’s futile “unreasonable risk of significant injury to health or the environment” regime. A “reasonable certainty of no harm” standard would require the Environmental Protection Agency (EPA) to consider aggregate exposures and all exposure routes, again, a principle usefully borrowed from FQPA. H.R. 5820 requires that both existing and new chemicals must meet this safety standard, a needed clarification from the discussion draft. We applaud the requirement to make public safety determinations.
Minimum Data Set. Section 4 outlines key data sets that manufacturers would be required to give the EPA, including chemical identity, substance characteristics, biological and environmental fate and transport; toxicological properties; volume manufactured, processed, or imported intended uses, and exposures from all stages of the chemical substance or mixture’s lifecycle that are known or reasonably foreseeable. We support the language that provides for tiered testing and data sharing to reduce costs and minimize animal testing. It is essential to an effective toxics policy that EPA have clear authority to require additional testing and ask for any study needed to better understand the risks of any chemical. We would like to see clear requirements that industry disclose chemical dossiers prepared for: the European toxics regulatory framework Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH); EPA’s voluntary High Production Volume challenge program; internal uses; data from other government agencies, such as the Food and Drug Administration; the National Children’s Study; EPA’s TOXCAST and other high-throughput screening batteries. Lack of data must never again be an obstacle to protecting public health. Section 4 of H.R. 5820 puts us on the track to accomplishing that goal.
Prioritization & Biomonitoring. Detection of a chemical in umbilical cord blood does not prove that it will cause harm. As researchers have mapped more and more of what we have dubbed the “human toxome,” however, scientists, public health experts and policymakers have embraced biomonitoring as the logical foundation for regulation of industrial chemicals. The Kid-Safe Chemicals Act, H.R. 6100, as introduced in the 110th Congress, would have prioritized safety assessments by focusing first on the chemicals that show up in people. The measure would have required phasing out production and use of chemicals found in human umbilical cord blood unless rigorous testing showed these substances to be safe.
EWG’s nearly one million supporters, the vast majority of whom are parents, and the more than 111,000 citizens who signed our Kid Safe Chemicals petition will be disappointed that H.R.5820 will not ensure that the government has determined what industrial toxic chemicals pollute babies in the womb, or that the government will not ensure the safety of chemicals that are “pre-polluting” babies. The text of our petition reads as follows:
Babies are born pre-polluted with 100′s of toxic chemicals. our broken toxics law is failing them. we need your help to change that. EWG tested the umbilical cord blood of 10 newborn babies and found nearly 300 chemicals, including BPA, fire retardants, lead, polychlorinated biphenyls (PCBs) and pesticides that were banned more than 30 years ago. Speak up for change. Our kids deserve it. Bills to overhaul federal toxic chemicals policies are now moving through Congress. They would require that all chemicals be proven safe for children before they can be sold. Lawmakers in Washington need to know that you want strong reforms for our broken toxics law. Please sign this petition to demand that Congress take action to make chemicals in consumer products kid-safe.
We believe that much of the tremendous momentum for public support of toxic chemicals policy reform is driven by concern for children’s health.
H.R. 5820’s vague language that a chemical’s presence “in biological media” would be one of many factors considered when EPA moved to put a chemical on the priority list. Left unmodified, this approach appears to give equal weight to chemicals found in snails, fish or people. It is our view that industrial chemicals that cross the placenta to contaminate a developing child should be placed at the top of EPA’s to-do list. Few factors translate to greater risk to health. Therefore, we will work with the committee to try to strengthen the priority criteria so that we can assure parents that the reform effort will truly protect children from toxic exposures in the womb.
Section 33, on Children’s Environmental Health, allows for biomonitoring research of infants and pregnant women if EPA deems the presence of the chemical in “biological media” to be "above that normally found" in pre-polluted babies – in other words, more than “normal” contamination. Fact is, Americans do not and should not accept any contamination of infants in the womb as “normal.” We would like to see this language strengthened. We strongly support this section’s public disclosure requirements of biomonitoring data.
We commend the committee for placing the 19 chemicals listed in Section 6 on the priority list. Over the last 15 years, EWG, along with our colleagues in the environmental community, has conducted research on many of these priority chemicals. In 2007, for example, a landmark study by EWG found BPA in 57 percent of canned food samples tested. Last year, for the first time in U.S. infants, EWG detected BPA in 9 of 10 umbilical cord blood samples. This month, EWG reported finding high levels of BPA in 40 percent of receipts from major U.S. businesses and services. In 2001 and 2003, EWG issued reports on perchlorate contamination of tap water and groundwater in California and other states and on high levels of this thyroid toxin in lettuce samples and cow’s milk. EWG’s analysis has found millions of American women of childbearing age at risk of abnormal thyroid hormone levels during pregnancy. In 2008, EWG reported detecting phthalates in adolescent girls. In March 2009, laboratory tests by EWG and the Campaign for Safe Cosmetics found that 23 out of 28 children’s personal care products were contaminated with formaldehyde, a probable carcinogen (Attachment D). Given the weight of scientific evidence on the health effects of these 19 chemicals, we agree they should be on the priority list.
We were surprised that asbestos was omitted from the priority list. Given the longstanding scientific evidence of the dangers of asbestos and the Bush EPA’s unsuccessful efforts to ban it in the 1980s, this legislation must expedite a rapid phase out of this dangerous substance.
Reporting Requirements. We support Section 8’s requirements to provide EPA with critical data on chemical use, manufacturer, potential worker exposures and facilities, and relevant health and safety data studies. The public inventory and online database requirements promote transparency and accountability. Most Americans would probably be shocked that these data requirements have not long been in place.
“Hot Spots” and Fenceline Communities. We are pleased to see that this legislation tackles the myriad issues facing communities disproportionately affected by industrial pollution. EWG’s 2009 report, “Pollution in 5 Extraordinary Women: The Body Burden of Environmental Justice Leaders,” documented up to 48 chemicals in the blood of five prominent women environmental justice leaders. The women, from New Orleans, Corpus Christi, Oakland and Green Bay are working to rid their communities of pollution from local manufacturing plants, hazardous waste dumps and oil refineries. Every woman was contaminated with flame retardants, Teflon chemicals, synthetic fragrances, BPA and perchlorate (EWG 2009e). This legislation’s “hot spot” list and action plan would help EPA focus resources on the many communities that suffer disproportionate exposure to chemicals. We would like to see this provision toughened to ensure that emissions from “TSCA-regulated” chemicals are explicitly pegged for virtual elimination in the action plans. The bill should also spell out penalties if EPA, a state, or a locality does not fully implement an action plan or fails to meet the reduction targets. We thank the committee for acknowledging the need to focus on these communities. We look forward to working with you to ensure that the section will fully address the issue of disproportionate exposure.
Confidential Business Information (CBI). Section 14 of H.R. 5820 reflects a major step forward in creating more transparency and curbing industry abuses of CBI. The Government Accountability Office has testified that about 95 percent of new chemical applications contain confidentiality claims. (GAO 2009). EWG has found that industry has made CBI claims for the identities of 13,596 chemicals produced since 1976 – nearly two-thirds of the 20,403 chemicals added to commerce in the past 34 years. A significant number of these secret chemicals are used in everyday consumer products, including artists’ supplies, plastic products, fabrics and apparel, furniture and children’s items. EPA data show that at least 10 of the 151 high volume confidential chemicals produced or imported in amounts greater than 300,000 pounds a year are used in products specifically intended for children (EWG 2010a). Last fall, EPA released the chemical identity of 530 high production volume chemicals because that information was already publicly available.
The overbroad secrecy provisions in current law threaten public health. Under section 8(e) of TSCA, companies must turn over all data showing that a chemical may present a substantial risk of injury to health or the environment. By definition, these are the chemicals of the greatest health concern. In the first eight months of 2009, industry concealed the identity of the chemicals in more than half the studies submitted under 8(e). Independent researchers and the public simply do not know how many of those chemicals are present in our bodies and in newborns.
H.R. 5820 proposes a crucial improvement by prohibiting the secrecy of chemical identity in health and safety study submissions. It would ensure that chemical identity and health and safety data would be publicly available and that the EPA could share important information with other federal agencies and state and local governments. The legislation would require that manufacturers justify confidentiality. EPA could deny that claim. These provisions would end the spurious confidentiality claims that have plagued TSCA but would permit some information to remain confidential. We are pleased to see that there is a sunset of 5 years on confidential information. Even the Central Intelligence Agency (CIA) and the National Security Administration (NSA) release confidential information every few years – why not EPA?
Safer Alternatives & Green Chemistry. We generally support the “safer alternatives” language outlined in section 35 of H.R. 5820, especially the requirement that they pass the “reasonable certainty of no harm” safety standard and submit a minimum data set for these alternatives. All too often consumers find that a bad actor chemical is replaced with an alternative, the identity and safety of which are uncertain
Exemption for Intrinsic Properties of Chemicals. Section 39 provides EPA broad discretion to exempt certain chemical substances or mixtures from the minimum data set, the safety standard and reporting processes. While we understand the need for chemicals to go to the market and a smart prioritization process, the “intrinsic properties” language of this provision could be abused. We look forward to working with the committee on options for dealing with this concern.
EPA Oversight Authority. We applaud Section 11, which would expand the authority for EPA to conduct inspections and issue subpoenas to chemical facilities. Consumers have lost confidence in many products as a result of EPA’s terribly weak oversight authority. This section would help restore the public’s confidence in our regulatory framework. Sections 16 and 17 would provide EPA with needed authority to impose penalties for violations, criminal penalties for knowing endangerment, and would clarify that EPA has the authority to authorize compliance with any rule or order issued under the Act. Section 40 would ensure that the bill applies to federal agencies that manufacture or produce chemical substances or mixtures. These sections are critical measures to ensure a vibrant regulatory toxics policy.
RECOMMENDATIONS
In conclusion, we commend the committee for its commitment to TSCA reform. We support H.R. 5820 and the steps Chairmen Rush and Waxman have taken to ensure a strong safety standard, mandate stronger EPA authority to put the burden on industry to show a chemical is safe before it goes on the market promote prioritization, require a minimum data set and address abuses of confidential business information claims. To protect our children’s health, however, the federal government must place a greater emphasis on biomonitoring of cord blood. EWG applauds the committee for its dedicated work on toxic chemicals policy reform. We look forward to working with you to urge Congress to take quick action to establish a national policy on chemicals based on the newest and best science. Thank you for your time. I welcome the opportunity to answer any questions you may have.
