141 



birth defects study isn't submitted, EPA would never know that the company was 

 not in compliance with TSCA. This ought not to be the case. 



The statute of limitations issue is also problematic. Recently, the U.S. Circuit 

 Court of Appeals for the District of Columbia held that the general statute of limita- 

 tions provision applies to TSCA administrative penalty actions. Suppose a company 

 discovers that it probably manufactured and distributed a chemical that did not ap- 

 pear on our TSCA Inventory. It can disclose this information to EPA, resulting in 

 a significant reduction from the penalties that would ordinarily be imposed. How- 

 ever, the company may decide not to inform EPA. According to the recent court deci- 

 sion, if more than five years have passed since the violation occurred, EPA cannot 

 take any type of enforcement action, even if the chemical poses health risks, and 

 even if EPA had no way of knowing about the violation. Under this decision, EPA 

 will be severely hampered in its enforcement efforts. 



Criminal penalty authorities under TSCA need to be strengthened. The need for 

 such additional authority is illustrated in the following example. Six individuals 

 were recently prosecuted for a conspiracy involving the illegal disposal of PCBs by 

 burial on a horse ranch and attempting to export some to Mexico. Criminal violation 

 of TSCA are misdemeanors, carrying a one-year maximum jail term; however, many 

 environmental statutes contain a felony provision for criminal violations, with a five 

 year maximum jail. We should be able to do more for such knowing violations of 

 the statute under TSCA. 



The potential for serious harm to human health or the environment is at least 

 as likely under TSCA as under such statutes as the Resource Conservation and Re- 

 covery Act (RCRA) and the Clean Water Act (CWA). Therefore, the sanctions under 

 TSCA should be raised at least to the levels under those statutes. For the same rea- 

 son, there should be a knowing endangerment provision added to TSCA as is in- 

 cluded in RCRA, CWA, and the Clean Air Act. 



These and other enforcement issues, including the lack of authority under TSCA 

 to obtain penalties in a civil judicial forum, should be considered in any reauthoriza- 

 tion of TSCA. 



CONCLUSION 



In conclusion, I would like to thank the Subcommittee for its continuing efforts 

 to move forward with reauthorizing TSCA, and especially for your interest in the 

 existing chemicals program. We look forward to providing technical assistance to the 

 Subcommittee as it drafts legislation. 



FoLLOwup Questions for Lynn Goldman from Senator Reid 



1. When you were here before you talked about the need to set priorities. With 

 the large number of chemicals we have in commerce, this is crucial. Would it be ad- 

 visable for us to identify in the statute certain categories or criteria for prioritizing 

 the testing of chemicals, and if so, what categories or criteria would you rec- 

 ommend? 



(a) How might this work with the Master Testing List? 



2. The ITC was intended to provide EPA with priorities for testing. However, 

 GAO and others have criticized ITC's ability to fill this role, since the process of 

 designating chemicals for EPA to test is cumbersome and does not allow EPA to set 

 its own agenda. Do you think that there is another mechanism that could provide 

 clefiu-er direction for testing priorities? 



(a) Should developing such a list be left to EPA? 



(b) Covild there be a way other than through the ITC for federal agencies to 

 advise EPA on the chemicals that should be on a testing list? 



3. Several witnesses at our first hearing emphasized that a major difficulty in de- 

 termining the need for testing and issuing testing rules is the lack of exposure data. 

 Do you agree that this is a problem and, if so, what can we do to remedy this? 



(a) Why isn't section 8 sufficient for EPA to get this type of information from 

 manufacturers and processors? 



