Anderson, Frederick R., president, Environmental Law Institute Ashford, Nicholas A., Ph. D., J. D., Center for Policy Alternatives, Massa- Gresser, Julian, professor of law, University of Hawaii School of Law Griffin, Hon. Robert P., a U.S. Senator from the State of Michigan ..... Jellinek, Hon. Steven D., Assistant Administrator for Toxic Substances, Riegle, Hon. Donald W., Jr., a U.S. Senator from the State of Michigan Ruppe, Hon. Philip E., a Representative in Congress from the State of 388 Schaumburg, Herbert, M.D., Albert Einstein College of Medicine, Depart- ment of Neurology Soble, Stephen M., statute editor, Harvard Journal on Legislation ...... Additional material submitted for the record by- Brodhead, Hon. William M., a Representative in Congress from the State of Michigan, article from the Harvard Journal of Legislation.... Environmental Protection Agency, attachments to Mr. Jellinek's prepared Implementing the Toxic Substances Control Act: Where we stand ....... TSCA Strategy-Discussion draft for TSCA advisory committee Letter dated May 3, 1978, from Mr. Jellinek to Chairman Eckhardt response to questions raised on implementation of the Toxic Substances Ford, Hon. William D., a Representative in Congress from the State of 257 Soble, Stephen M., statute editor, Harvard Journal on Legislation: Letter dated September 11, 1978, to Chairman Eckhardt re H.R. 9616. 277 302 Statement submitted for the record by State Department of Health, Common- wealth of Virginia, R. Leonard Vance, Ph. D., assistant attorney general Letter submitted for the record by United Action for Animals, Inc., Eleanor (III) TOXIC SUBSTANCES CONTROL ACT AMENDMENTS TUESDAY, MARCH 7, 1978 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CONSUMER PROTECTION AND FINANCE, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, Washington, D.C. The subcommittee met at 9:30 a.m. in room 2237, Rayburn House Office Building, Hon. Bob Eckhardt, chairman, presiding. Mr. ECKHARDT. The subcommittee will come to order. Today, the subcommittee begins oversight and authorization hearings on the Toxic Substances Control Act. Enacted into law in 1976, the act, Public Law 94-469, requires manufacturers and processors of potentially harmful chemical substances and mixtures to test the substances in accordance with rules issued by the Environmental Protection Agency. The act authorizes the EPA Administrator to take action against chemical substances which present an unreasonable risk of injury to health or the environment. It further authorizes restrictions on the manufacture of a potentially harmful new chemical substance if there is inadequate information to evaluate the health or environmental effects of the substance. The Senate-passed bill, S. 1531, significantly increases the authorization levels for the toxic substances program from $12.6 million to $50 million for fiscal year 1978, and from $16.2 million to $100 million for fiscal year 1979. In addition, the bill adds language to the act regarding rulemaking authority and provides for limited Federal grants to States. States which provide compensation to individuals harmed when Federal or State action is taken to condemn livestock or food contaminated by a chemical substance would be eligible for grants administered by the Environmental Protection Agency. Priority is given to actions involving polybrominated biphenyls and $50 million for each of 3 fiscal years is authorized for the State grant program. With these hearings, we will experiment with a different technique of conducting oversight hearings. In addition to the traditional manner of receiving congressional testimony, we will also engage in a roundtable discussion regarding issues related to implementation of the act. At a later date, witnesses from the Environmental Protection Agency, industry, labor, and environmental groups will join the subcommittee members in a roundtable discussion, on the record, of the problems facing the EPA in the administration of the Toxic Substances Act. Today, we will hear testimony regarding primarily the compensation provisions of the pending legislation. This discussion will (1) continue at a later date in the roundtable format. At that time, experts in a variety of fields-including medicine, law, and insurance-will discuss with the members of the subcommittee the difficult issues related to compensation. In addition to the Federal grant program outlined in S. 1531, the subcommittee has been asked to consider a proposal introduced by Congressman Brodhead, H.R. 9616. H.R. 9616 establishes a national system for compensation to persons who suffer ill health as a consequence of toxic substance pollution. A new administrative board would be established to determine claims by victims against those responsible for toxic pollution-including manufacturers, processors, and distributors. Compensation benefits, including medical benefits, rehabilitation services, wage losses, and, in cases of death or serious injury, compensation for pain and suffering, would be paid by the responsible polluter to the victim. Costs of administration of the program would be paid from a pollution tax levied on the basis of the risk level of the substance. The sponsors of these two proposals raise a very serious question for the Congress: What, is any, is the proper Federal response to severe economic harm caused by chemical contamination—harm resulting both because of loss of livelihood and medical costs-to innocent third parties? Until our patchwork system of regulatory controls, and the testing requirements of the Toxic Substances Control Act begin to have a measurable impact on the environment, we can expect more contamination events like those experienced in recent years. For example, Michigan farmers suffered an estimated $75 to $100 million in direct losses in sickened livestock and contaminated milk. The extent of medical harm to persons who unknowingly ate or drank food contaminated by PBB's is still unknown, and many legal claims are outstanding. A major commercial fishing industry in the James River was halted by contamination by the pesticide Kepone. Claims for damages to those fishing interests now total some $120 billion and it is feared that a number of employees at the Kepone plant may be permanently disabled and may require extensive medical care. Polychlorinated biphenyls have contaminated the Hudson River, destroying fishing operations in the river, and were also responsible for a halt in commercial fishing in Lake Michigan. Should we respond to such events on an event-by-event basis? If so, how do we decide which events justify such response, and which do not? Or, should we establish a national system before the fact so as to provide relief to individuals who are harmed? For what losses should victims be compensated? For losses of livestock and food? For loss of access to fishing grounds? For medical injuries? For wage losses? Who should pay? The polluter? The taxpayers? Both? Or should we make no provision for such victims, and continue to rely on existing systems of medical insurance; workers' compensation, and relief through the court system. The proper response to these and related questions is made difficult by the very complex nature of toxic substance pollution poisoning. It is frequently difficult to trace the toxic substance from its source to the victim, and to determine the medical impact once it is in the body. Long latency periods may mean 20 or 30 years pass before the effect of a substance is suspected. Because of the perva sive travel of a pollutant, claims for damages may run into millions and possibly billions of dollars. We do not expect these hearings to provide instant answers, however, we hope they will begin a serious discussion regarding how to fairly treat innocent third party victims of toxic substance poisonings. Without objection the text of H.R. 9616, S. 1531, and Agency report thereon will be printed at this point in the record. [Testimony resumes on p. 89.] [The text of the bills and report referred to follow:] |