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E-M:/ Bad persistent pollutant bill still making its way through Congre ss

The following is Congressman Dingell's most recent statement on the POP's legislation.

Statement of Congressman John D. Dingell, Ranking Member
Committee on Energy and Commerce



May 18, 2006

Five years ago, the United States signed the Stockholm Convention on Persistent Organic Pollutants (POPs), subject to ratification. The task before the Congress now is to provide the Environmental Protection Agency (EPA) with the rulemaking authority and a regulatory standard that allows it to properly implement the control measures recommended by the Conference of Parties for a new chemical after a science-based international process.

Unfortunately, although the bill, H.R. 4591, purports to implement a treaty, it unnecessarily creates a novel, controversial cost-benefit regulatory standard for the EPA, applies a restrictive State-preemption regime, and uses a "substantial evidence" judicial review standard rather than the normal "arbitrary and capricious" standard that applies to most EPA rulemakings. At best, the bill will create lengthy delays in implementing a listing decision of the Stockholm Convention for Chemical Persistent Organic Pollutants (POPs) and a likely litigation bonanza for lawyers. It also has a number of other flaws.

States Attorneys General, numerous environmental and health groups, tribal governments, and labor organizations have expressed strong opposition to H.R. 4591. The bill before us is an unbalanced piece of legislation, apparently designed to roll back important environmental law principles.

Perhaps the biggest flaws relate to the rulemaking standard contained in H.R. 4591, a standard which appears nowhere in the POPs Treaty or in existing United States law. Expert testimony informs us that the standard may not properly account for public health benefits and could place costs over protection of human health.

Further, H.R. 4591 creates a dichotomy where States would be free to adopt more stringent State regulations for POPs chemicals that are pesticides, but would have very limited ability to adopt more stringent State regulations for POPs chemicals that are not pesticides. H.R. 4591 is more preemptive of State law than Congressional enactments in the Solid Waste Disposal Act, Clean Water Act, and Safe Drinking Water Act.

The Democratic alternative to be offered by the Ranking member of the Subcommittee, Representative Solis, provides the EPA with a health-based standard consistent with risk-based decisionmaking under existing U.S. law. Moreover, the Democratic alternative also permits the States to enact more stringent requirements for POPs chemicals to protect the health of their citizens, similar to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for POPs chemicals that are pesticides and consistent with the Solid Waste Disposal Act, Clean Water Act, and Safe Drinking Water Act. The Democratic alternative also fully maintains citizens rights and uses the normal Administrative Procedure Act "arbitrary and capricious" standard for judicial review of EPA rulemaking.

The Democratic substitute also fully protects U.S. sovereignty. Under the Democratic substitute the EPA retains full discretion with regard to the regulation of any new POP. The EPA cannot regulate if it decides the chemical substance is not likely to lead to significant human health or environmental effects. In addition, no EPA rule can take effect unless the President of the United States has affirmatively consented to be bound by the listing of a new chemical. Further, the State Department has informed the Subcommittee in writing that it agrees "H.R. 4800, would not require automatic adoption of decisions of the COP" (Conference of the Parties) and it agrees that H.R. 4800 (the Democratic substitute) does not delegate regulatory powers to the United Nations.

Let us keep in mind that the new chemicals recommended for listing under the Convention by consensus of the world community, after a science-based international process, represent the very worst chemicals on the planet - chemicals that are persistent and can be transported long distances. In the words of the chief U.S. negotiator, these POPs "can wreak havoc in human and animal tissue, causing nervous system damage, diseases of the immune system, reproductive and developmental disorders, and cancers." The lead Environmental Protection Agency negotiator for the Treaty testified that "control of POPs therefore is about protecting our food supply, protecting the fetus and protecting the safety of breast milk for infants." A health-based regulatory standard for EPA, therefore, is fundamental to protecting the health of our citizens.

Mr. Chairman, this Committee has a history of approaching successful environmental legislation in a bipartisan fashion. Unfortunately, from the time two years ago when the Democrats were not included in the Majority discussions with Administration officials until today that has not been the case with this legislation. The Subcommittee leadership has clearly rejected the suggestion of the Minority for a consensus-building effort to include stakeholders from industry, the environmental community, States, and tribes with a direct interest in implementing legislation. That is unfortunate.

I urge all Members to support the Solis substitute and oppose H.R. 4591.



Katie Murtha

Office of Representative John D. Dingell