[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
S. 742 AND DRAFT LEGISLATION TO BAN ASBESTOS IN PRODUCTS
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HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 28, 2008
__________
Serial No. 110-96
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
U.S. GOVERNMENT PRINTING OFFICE
45-680 PDF WASHINGTON : 2008
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free(866) 512-1800; DC
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Washington, DC 20402-0001
COMMITTEE ON ENERGY AND COMMERCE
JOHN D. DINGELL, Michigan, Chairman
HENRY A. WAXMAN, California JOE BARTON, Texas
EDWARD J. MARKEY, Massachusetts Ranking Member
RICK BOUCHER, Virginia RALPH M. HALL, Texas
EDOLPHUS TOWNS, New York FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey CLIFF STEARNS, Florida
BART GORDON, Tennessee NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois ED WHITFIELD, Kentucky
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,
DIANA DeGETTE, Colorado Mississippi
Vice Chairman VITO FOSSELLA, New York
LOIS CAPPS, California ROY BLUNT, Missouri
MIKE DOYLE, Pennsylvania STEVE BUYER, Indiana
JANE HARMAN, California GEORGE RADANOVICH, California
TOM ALLEN, Maine JOSEPH R. PITTS, Pennsylvania
JAN SCHAKOWSKY, Illinois MARY BONO, California
HILDA L. SOLIS, California GREG WALDEN, Oregon
CHARLES A. GONZALEZ, Texas LEE TERRY, Nebraska
JAY INSLEE, Washington MIKE FERGUSON, New Jersey
TAMMY BALDWIN, Wisconsin MIKE ROGERS, Michigan
MIKE ROSS, Arkansas SUE WILKINS MYRICK, North Carolina
DARLENE HOOLEY, Oregon JOHN SULLIVAN, Oklahoma
ANTHONY D. WEINER, New York TIM MURPHY, Pennsylvania
JIM MATHESON, Utah MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina MARSHA BLACKBURN, Tennessee
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
______
Professional Staff
Dennis B. Fitzgibbons, Chief of Staff
Gregg A. Rothschild, Chief Counsel
Sharon E. Davis, Chief Clerk
David Cavicke, Minority Staff Director
(ii)
Subcommittee on Environment and Hazardous Materials
ALBERT R. WYNN, Maryland, Chairman
FRANK PALLONE, Jr., New Jersey JOHN B. SHADEGG, Arizona
BART STUPAK, Michigan Ranking Member
LOIS CAPPS, California CLIFF STEARNS, Florida
TOM ALLEN, Maine NATHAN DEAL, Georgia
HILDA L. SOLIS, California JOHN SHIMKUS, Illinois
Vice Chairman HEATHER WILSON, New Mexico
TAMMY BALDWIN, Wisconsin VITO FOSELLA, New York
G.K. BUTTERFIELD, North Carolina GEORGE RADANOVICH, California
JOHN BARROW, Georgia JOSEPH R. PITTS, Pennsylvania
BARON P. HILL, Indiana LEE TERRY, Nebraska
DIANA DeGETTE, Colorado MIKE ROGERS, Michigan
ANTHONY D. WEINER, New York JOHN SULLIVAN, Oklahoma
HENRY A. WAXMAN, California TIM MURPHY, Pennsylvania
GENE GREEN, Texas JOE BARTON, Texas (ex officio)
JAN SCHAKOWSKY, Illinois
JOHN D. DINGELL, Michigan (ex
officio)
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Professional Staff
Richard Frandsen, Chief Counsel
Ann Strickland, Brookings Fellow
Karen Torrent, Counsel
Caroline Ahearn, Counsel
Rachel Bleshman, Clerk
Jerry Couri, Minority Counsel
C O N T E N T S
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Page
Hon. Albert R. Wynn, a Representative in Congress from the State
of Maryland, opening statement................................. 1
Hon. John B. Shadegg, a Representative in Congress from the State
of Arizona, opening statement.................................. 3
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 5
Hon. Lois Capps, a Representative in Congress from the State of
California, opening statement.................................. 6
Hon. Hilda L. Solis, a Representative in Congress from the State
of California, opening statement............................... 7
Hon. Tammy Baldwin, a Representative in Congress from the State
of Wisconsin, opening statement................................ 8
Hon. Frank Pallone Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 9
Hon. Betty McCollum, a Representative in Congress from the State
of Minnesota, opening statement................................ 10
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, prepared statement................................ 11
Witnesses
James B. Gulliford, Assistant Administrator, Office of
Prevention, Pesticides, and Toxic Substances, Environmental
Protection Agency, Washington, DC.............................. 32
Prepared statement........................................... 283
Answers to submitted questions............................... 179
Gregory P. Meeker, Geologist, U.S. Geological Survey, Denver
Microbeam Laboratory, MS-973, Denver, CO....................... 37
Prepared statement........................................... 39
Answers to submitted questions............................... 223
Linda Reinstein, executive director and co-founder, Asbestos
Disease Awareness Organization, Redondo Beach, CA.............. 52
Prepared statement........................................... 54
Answers to submitted questions............................... 255
Margaret Seminario, director, safety and health, American
Federation Labor and Congress of Industrial Organizations,
Washington, DC................................................. 60
Prepared statement........................................... 62
Answers to submitted questions............................... 247
Roger O. McClellan, advisor, toxicology and human health risk
analysis....................................................... 71
Prepared statement........................................... 73
Answers to submitted questions............................... 234
Robert P. Nolan, International Environmental Research Foundation,
New York, NY................................................... 82
Prepared statement........................................... 84
Answers to submitted questions............................... 241
Richard A. Lemen, private consultant, occupational safety and
health epidemiology, and public health, Canton, GA............. 109
Prepared statement........................................... 111
Submitted questions \1\...................................... 279
James R. Millette, executive director, MVA Scientific
Consultants, Duluth, GA........................................ 130
Prepared statement........................................... 132
Answers to submitted questions............................... 216
Submitted Material
Arizona Rock Products Association, letter of February 27, 2008,
submitted by Mr. Shadegg....................................... 141
Business Association letter of February 27, 2008, submitted by
Mr. Shadegg.................................................... 145
Center for Occupational & Environmental Medicine, P.C., letter of
February 27, 2008, submitted by Mr. Wynn....................... 148
EPA Technical Assistance on S. 742, submitted by Mr. Wynn........ 150
Ernest E. McConnell, D.V.M., letter of February 25, 2008,
submitted by Mr. Shadegg....................................... 152
Petition by Physicians, Scientists and Occupational/Environmental
Professionals Opposed to the Present Version of the Ban
Asbestos Act, submitted by Mr. Wynn............................ 155
Hon. Patty Murray, a Senator from the State of Washington, et al.
submitted statement, submitted by Mr. Wynn..................... 161
Ann G. Wylie, Department of Geology, University of Maryland,
submitted statement, submitted by Mr. Shadegg.................. 164
John Gamble, Somerset, NJ, letter of February 25, 2008, submitted
by Mr. Shadegg................................................. 177
Christopher Weis, Senior Toxicologist, U.S. Environmental
Protection Agency, NEIC, Denver, CO, answers to submitted
questions...................................................... 206
Aubrey Miller, Senior Medical Officer & Toxicologist, U.S.
Environmental Protection Agency, Region 8, Denver, CO, answers
to submitted questions......................................... 262
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\1\ Mr. Lemen did not answer submitted questions for the record
in time for printing.
S. 742 AND DRAFT LEGISLATION TO BAN ASBESTOS IN PRODUCTS
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THURSDAY, FEBRUARY 28, 2008
House of Representatives,
Subcommittee on Environment
and Hazardous Materials,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 12:36 p.m., in
room 2322 of the Rayburn House Office Building, Hon. Albert
Wynn (chairman) presiding.
Members present: Representatives Pallone, Capps, Solis,
Baldwin, Barrow, Green, and Shadegg.
Also present: Representative McCollum.
Staff present: Dick Frandsen, Caroline Ahearn, Karen
Torrent, Rachel Bleshman, Lauren Bloomberg, Ann Strickland,
Jerry Couri, David McCarthy, and Garrett Golding.
OPENING STATEMENT OF HON. ALBERT WYNN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Wynn. Good afternoon, everyone. I would like to call
the meeting to order. Today we have a hearing on S. 742, the
Ban Asbestos in America Act of 2007, and draft legislation
referred to as the committee print to Ban Asbestos in Products.
For purposes of making opening statements, the chairs and
ranking members of the subcommittee and the full committee will
each be recognized for 5 minutes. All other members of the
subcommittee will be recognized for 3 minutes. Those members
may waive the right to make an opening statement, and when
first recognized to question witnesses, instead, add those 3
minutes to their time for questions. Without objection, all
members will have 5 legislative days to submit opening
statements for the record. The chair would now recognize
himself for an opening statement.
Today's legislative hearing is, as I indicated, on S. 742,
the Ban Asbestos in America Act of 2007, and our draft
legislation called the committee print to Ban Asbestos in
Products. The Senate bill and the committee print would amend
the Toxic Substances Control Act. We will not focus today on
the research and study provisions in S. 742, involving certain
Federal health agencies, since they are primarily within the
jurisdiction of the Subcommittee on Health. Rather, we will
focus on the provisions of S. 742 that amend TSCA.
Each year, an estimated 10,000 Americans die as a result of
asbestos exposure. According to an Environmental Working Group
study, more than 43,000 Americans have died from asbestos-
related diseases since 1979. Asbestos is classified as a known
human carcinogen, according to the World Health Organization,
EPA, and other public-safety organizations. No safe level or
threshold level of exposure to asbestos has been established.
The primary human exposure pathway from asbestos is through
breathing particles that are released into the air. Asbestos
fibers can be released into the air as a dust when used in
manufacture, processing, use, demolition, or disposal of
asbestos-containing products. Medical studies show that people
who are exposed to airborne asbestos have an increased risk of
developing respiratory diseases such as asbestosis, a
progressive, long-term disease of the lungs, which leads to
scarring of lung tissue; mesothelioma, a rare form of lung
cancer that is almost always fatal; and lung cancer, a
malignant tumor that invades and obstructs the lungs' air
passages.
In a 1989 final rule, the EPA sought to phase-out and ban
most of the asbestos-containing products manufactured in the
United States. Unfortunately, EPA's rule was overturned in 1991
by the Fifth Circuit Court of Appeals. As a result of the
Court's decision, only six asbestos-containing products
remained banned, flooring felt, roll board, corrugated
commercial and specialty paper, and in new uses of asbestos in
products that have not historically contained asbestos.
According to the World Health Organization, with some
exceptions relating to certain uses, more than 40 countries
have banned asbestos, including all members of the European
Union. Today, I am pleased to say that we are making progress
towards a broad ban on asbestos in this country.
Last October, the Senate unanimously passed S. 742
introduced by Senator Patty Murray. The committee print
contains many of these same provisions that amend ToSCA with
certain changes and classifications. One of the most important
changes in terms of protecting public health is that the ban on
asbestos pertains to asbestos containing products. Based on
technical comments provided by the EPA to our subcommittee,
asbestos-containing products are defined as ``any product,
including any part, in which asbestos is deliberately added or
used, or which asbestos is otherwise present in any
concentration.'' We have heard many concerns from Government
officials and scientists and public health doctors and victims
groups and labor groups that the one-percent threshold in S.
742 is not protective of human health. It is not a health-based
or risk-based standard. The 1-percent standard was adopted more
than 30 years ago, and was related to the limit of detection
for the analytical methods available at that time.
As we read S. 742, it provides no authority for EPA to
adjust the standards to conform to the advances in science and
testing methodologies. In a 2004 memorandum, the EPA's Office
of Solid Waste and Emergency Response stated that the use of a
1 percent threshold as a trigger for cleanup of asbestos at
Superfund sites may not be protective of human health. The
memorandum also states that recent data from the Libby Montana
Superfund site and other sites provide evidence that soil and
debris containing significantly less than 1 percent asbestos
can release unacceptable air concentrations of all types of
asbestos fibers. At Libby, asbestos contamination from a nearby
vermiculite mine has led to almost 200 deaths and 1,200 being
diagnosed with lung abnormalities. Cleanup at Libby began in
1999, and more than $180 million has been spent, to date, with
more to be done.
I understand that some have raised concerns about the
possibility of asbestos in ambient air in the context of
asbestos-containing products. As the legislation moves forward,
we intend to work with all parties to address their concerns
while maintaining public health protection.
I look forward to hearing the views of our witnesses today
on S. 742 and the committee print. I want to mention that we
added a witness to the third panel for today at the request of
the ranking member of the subcommittee, less than 48 hours
before the hearing. While I don't intend this practice to
become a precedent, I think in the spirit of cooperation, we
wanted to certainly accommodate this request.
At this time, I would like to enter in a statement. Senator
Patty Murray, who introduced this bill, the Ban Asbestos in
America Act of 2007, and Senator Johnny Isakson and Senator
Barbara Boxer, cosponsors of the bill, have asked to submit a
joint statement for the record, to present the merits of their
legislation. Without objection, their joint statement will be
included in the hearing.
At this point, it gives me pleasure to recognize the
ranking member of the Subcommittee on Environment and Hazardous
Materials. I believe this is your first formal hearing, so I am
pleased to recognize the gentleman from Arizona, Mr. Shadegg.
OPENING STATEMENT OF HON. JOHN B. SHADEGG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Shadegg. Thank you, Mr. Chairman, and I do want to
acknowledge that this is my first hearing in the role of
ranking member. I was able to secure that position upon the
retirement of former Speaker Denny Hastert, and I am pleased to
be here. As you know, you and I have worked together on many
issues in the past and have had a cordial relationship, and I
look forward to having that here on this subcommittee.
I do want to thank you for holding this hearing on this
very important legislation. I think it is a critically
important piece of legislation. I have the greatest sympathy
for the victims of mesothelioma-I have some training in how to
say it-the victims and families. This disease and other
asbestos-related illness are serious illnesses that cause
chest, lung and gastrointestinal cancers. They are horrible and
debilitating diseases that no one wants to see perpetuated or
go on.
In my State of Arizona, we do some asbestos mining, and in
fact, we mine a unique form of asbestos called chrysotile. And
years ago, when I was in the Arizona Attorney General's Office,
we were shutting down a chrysotile asbestos site, and I went
there and visited the workers, talked to the people on the
site, and actually spent some time visiting with the life
insurance salesmen who live in the area, who taught me a little
bit about the difference between chrysotile asbestos and other
forms of asbestos. So I think it is important that we shine
light on this issue, that we study it, and that we consider it
carefully.
I would be remiss if I didn't note that I am somewhat
regretful that this hearing is occurring late in the day, late
in the week, such there are not as many members present as I
think either one of us would like. It would be much preferable
that the hearing on this important topic were occurring when we
had a better opportunity for attendance.
That being said, I am anxious to hear the testimony of our
witnesses and to proceed. I believe that it is important to
note that S. 742 did pass under unanimous consent with 100-
percent support and no dissent in the Senate. I understand that
is the other body, and we should act in our own fashion, but I
think we should do so carefully and deliberately.
I must say, as an opening comment, that I am concerned
about some aspects of the committee print. I am particularly
concerned, and I will try to focus on this to the best I can in
my questioning, with some of the definitions in the committee
print. In the committee print, a new term ``asbestos-containing
product'' appears. And Mr. Chairman, you just read this term,
which defines products, and it says that the term covers any
product, including any part of that product, to which asbestos
is deliberately added, used in, or and you read these words,
``is otherwise present in any concentration.'' I must say I
have some concern with the language of ``otherwise present in
any concentration'' because that is a vastly broader definition
than is in S. 742, and I believe it raises issue of us pulling
into this debate issues we do not intend to.
You just noted that asbestos can be airborne in the dust.
At least it has been my understanding that when you set a
standard that says we are regulating every product which has
asbestos in any concentration, it is my understanding that that
can mean, for example, scotch tape, where, as it is being
manufactured, an ambient particle of asbestos got onto the
scotch tape. Suddenly, it becomes an asbestos-containing
product, and falls under the entire rubric of regulation, for
example, which would cover asbestos insulation, or asbestos
intentionally put into a product such as a break line. So I
think that definition is one that gives me some very severe
concern.
A second issue which I have in looking at the Senate past
bill, 742, is issue of use by the Defense Department in
defending this Nation and protecting our sons and daughters who
are in uniform, and the different treatment of the two bills.
It is my understanding of the wording of the committee print
that under the committee print, the strictures on Defense
Department are much more severe, much more problematic, and
would open the Defense Department to citizen suits. I have
concerns about citizen suits, certainly citizen suits against
our Defense Department, at a time when they should be
allocating all available resources to defending the Nation. So
that is a second concern I have.
The last concern that I want to articulate in my opening
statement is that as I understand the committee print, it
essentially provides that sand and gravel operations or
aggregate operations are brought into the coverage of the bill,
in a way that S. 742 does not do, and could be phenomenally
expensive in that that would require the testing, essentially,
of every single load of rock or gravel which is mined, because
of the potential for asbestos, simply in the soil, which is
scooped up by a sand and gravel operator and dumped into a dump
truck, and as I understand the committee print, it would cause
the seller of that aggregate, as he puts it into a dump truck,
if that dump truck is going to sell it to me to put as my lawn
as gravel, where we have gravel lawns to save water, to test
every single load. I believe that that we need to be cautious
here. Certainly, we want to take the steps necessary to protect
human health, but I don't think we want to overreach in the
drafting of that legislation or be overly broad, thus causing
the legislation to be impractical.
With that, I yield back the balance of my time.
Mr. Wynn. I thank the gentleman for his opening statement.
At this time, I am pleased to recognize the gentleman from
Texas, Mr. Green.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Thank you, Mr. Chairman, for holding the
hearing. This is an important issue to the health and safety of
American consumers and workers. Today, men and women and
children across the Nation are unknowingly exposed to asbestos
through their work, home, or everyday consumer products. Widely
used in commerce for its strength, flexibility and resistance
to heat and corrosion, asbestos is found in over 3,000
products, including common items such as insulation, fabric,
cement, and tiles. I represent the Port of Houston, and I have
just dozens of seamen over the last 20 years who have been
affected by asbestos exposure, and I have been to funerals
where they have ultimately passed away from the process of
inhaling that asbestos, the seamen who are working around the
ships, and that is why I am glad this bill is before us.
The EPA estimates that 27 million Americans were exposed to
occupational asbestos exposure that can lead to health effects
between 1940 and 1980. Today, approximately 1.3 billion
construction and general industry employees face considerable
asbestos exposure at the workplace. Exposure to asbestos can
cause a variety of illnesses, including mesothelioma, lung
cancer, and fibrosis of the lungs. The long latency period for
the diseases means it can take decades before symptoms surface,
even as long as 40 years, and again, I could almost sign
affidavits to show that affect. Protective standards have been
adopted and tightened over the years, but human health risks
remain. That is why I am pleased the subcommittee is
considering a legislation that attempts to reduce the risk of
asbestos exposure.
As said before, S. 742 had passed the Senate. The
legislation has drawn bipartisan support and set a marker. The
committee print adheres to the Senate bill with certain
changes, including the scope of the prohibition, exempting
certain caustics in aggregate products, and increasing criminal
penalties for bill violations. This draft has potential to be
an effective weapon in combating future asbestos exposure and
health effects, and I look forward to the testimony, and I look
forward, Mr. Chairman, for us moving the bill as expeditiously
as possible. And I yield back my time.
Mr. Wynn. I thank the gentleman. At this time, the chair
would recognize Mrs. Capps, the gentle lady from California.
OPENING STATEMENT OF HON. LOIS CAPPS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Capps. Thank you, Mr. Chairman. Thank you so much for
holding this hearing. I am very much looking forward to hearing
from our esteemed witnesses today.
This legislation is so critical, and it is so important
that we move forward on it right now. We cannot afford to wait.
We cannot, in good conscience, continue to sit idly by while
countless numbers of unsuspecting men, women and children are
exposed to this toxin, in their homes, in their workplaces, and
in their schools. The potential consequences of these exposures
are so severe.
Mesothelioma and other asbestos-related diseases continue
to take a very serious toll on patients and their families. The
latency period, as my colleague Mr. Green mentioned, for these
diseases ensures that, unfortunately, we are going to continue
to face many new cases in the years and decades to come, even
should we completely ban asbestos. So we have to pass
legislation that gives hope to those already suffering and
exposed to asbestos, suffering from mesothelioma and these
other dreaded asbestos-related diseases, while at the same
time, we need to take aggressive steps to ban asbestos in order
to protect future generations from exposure.
I am so pleased that you mentioned the area, Mr. Chairman,
where a situation did occur, Libby, Montana. I grew up a few
miles from there, and I know, personally, of the devastation
that operation, located in the most pristine and beautiful
wilderness area, what has happened there to all of the
unsuspecting workers who went to work every day in that
operation, and how for their families, it is a like plague that
has visited generation after generation of those families. That
place, alone, is worth of all of our efforts. Unfortunately, it
isn't the only place that we are talking about.
And I am also very proud that the Mesothelioma Applied
Research Foundation is headquartered in Santa Barbara, in my
congressional district, in California. And I know, today, that
we have several foundation board members with us, and in
particular, I want to recognize Sue Vento, who is in the
audience today. I am extremely grateful to have the opportunity
to support legislation that honors Sue's husband, and our
former colleague Bruce Vento. And I am pleased that we are
joined by the person that has succeeded him in his
congressional district, Betty McCollum, another esteemed
colleague. Thank you, Sue, for all that you and the foundation
have done and are continuing to do to help patients and their
families and to raise the awareness to the public. So many
people have no idea what we are even talking about.
And unfortunately, there is no cure for this terrible
disease. Better diagnostic and treatment options for those who
are afflicted will only be possible with enhanced Federal
commitment to better research, and we need that as well. Over
the past several years, the foundation has used private
donations to fund research and to identify better treatments
for mesothelioma. It is high time that the Federal Government
do its part in expanding research on this deadly cancer.
I am committed to working with Chairman Wynn and Chairman
Pallone to enact legislation this year that will ban asbestos
and expand Federal research into mesothelioma and other
asbestos-related diseases. I cannot emphasize enough how
important it is to move quickly on this issue. We must make
sure that that this is not the end of the road, today, for this
crucial legislation, so I strongly urge this committee to pass
legislation that steadfastly protects public health, while
addressing the needs of current and future patients who are
stricken and will be stricken--we know they will--with cancer
and other conditions, because of previous and current exposure
to asbestos.
Thank you, Mr. Chairman. I yield back
Mr. Wynn. I thank the gentle lady. At this time, the chair
would recognize the distinguished vice chairwoman of the
committee, the gentle lady, Ms. Solis from California.
OPENING STATEMENT OF HON. HILDA L. SOLIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Solis. Thank you, Mr. Chairman, for having this
hearing. It is a very important hearing today. I appreciate the
testimony that we are going to hear from the witnesses, also.
The issue of asbestos and related asbestos diseases is a
very important issue for all of us to address. Asbestos, as you
know, causes significant health risks. Each year, about 10,000
people die as a result of occupational exposure, and tens of
thousands of others suffer from lung conditions which make
breathing so difficult, they can't even fully enjoy daily life.
This is further complicated because symptoms may not show up
for many years, until after. And I am concerned about the risk
posed by workers, including the 1.3 million employees in the
construction and general industries who face significant
exposure on the job, and their families, who may be exposed to
materials that are brought home, unintentionally.
In 1989, the EPA attempted to ban all uses of asbestos, for
which there were readily available substitutes. The ban was
supported by 10 years of hearings and over 100,000 cases of
records, including several hundred scientific studies, but the
Fifth Circuit Court struck down the ruling, citing concerns
with provision in the Toxic Substances Control Act. In the
109th Congress, I authorized several amendments to fix the
Toxic Substances Control Act, with regard to substances
regulated through the Stockholm Convention. I recognize that if
the EPA failed to regulate asbestos, then public health would
continue to be at risk, but from asbestos and other known
carcinogens. Unfortunately, these amendments were not fully
considered, and asbestos and other known carcinogens are still
threatening our workers and our families.
The committee print before us today is a necessary step
towards achieving needed protections for our community, and I
am pleased that it recognizes the risk of asbestos to public
health by prohibiting the importation, the manufacture,
processing or disturbing in commerce of asbestos products at a
level protective to our public health. I am interested in the
views of our witnesses today regarding the exemptions,
exemptions including both Senate bill 742 and the committee
print before us, and I am also interested in ensuring that any
legislation we consider in this body is fully protective of the
health of our workers and our families. I recognize the work
done by our colleagues in the Senate to move Senate bill 742
forward and look forward to working with them to resolve any of
the differences before we send a bill to the President's desk.
As a member of the Health Subcommittee, I also hope that we
can work together to develop Federal research assistance for
asbestos and recognize the Senate efforts to include these
provisions.
Again, Mr. Chairman, I thank you for having this very
important hearing, and I look forward to hearing the testimony
of our witnesses. I yield back the balance of my time.
Mr. Wynn. I thank the gentle lady for her statement. At
this time, the chair would recognize the gentle lady from
Wisconsin, Ms. Baldwin.
Ms. Baldwin. Thank you, Mr. Chairman.
OPENING STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WISCONSIN
It is so important that we are shining a light on the
harmful effects that asbestos-containing products can have on
each and every one of our lives, and this hearing comes at a
very critical time for millions of Americans who have been and
are being exposed to asbestos in places where they live, work,
or play, and many don't even know it. Thousands of people,
every year, die from asbestos-related diseases-absolutely
devastating those affected, including their families and their
communities.
We are long overdue in our action to ban asbestos. Decades
have passed since the EPA first issued its final rule
prohibiting certain asbestos-containing products. Yet court
orders, red tape, and agency inaction seems to have stalled any
real progress in terms of banning the products that are making
people sick. And once again, our Nation finds itself behind the
pack in terms of addressing this issue. More than 40 countries,
including all members of the European Union have banned the use
of asbestos.
One of the real dangers with asbestos still being so
prevalent today is that those people who have been or are being
exposed may not show any signs of an illness until well into
the future, and long after any prevention would have been
helpful. And if we continue on this path without a
comprehensive ban on the importation, manufacture, processing
and distribution of asbestos, we are looking at decades,
perhaps even generations more, of suffering from this
devastating illness.
Finally, let me add that as we move forward on this issue
and this bill, it is important that we take into consideration
all aspects of controlling asbestos exposure, through
awareness, education, prevention, and research. I recognize
that the resource component, similar to that in the Senate
bill, is not included in the committee print before us today;
however, knowing that the research and treatment for asbestos-
related diseases has been limited, I believe that we must
consider authorizing Federal funding for research, and I would
look forward to delving more deeply in this issue in the Health
Subcommittee, on which I also sit, and also as this bill
reaches the full Energy and Commerce Committee.
Again, thank you, Mr. Chairman, for holding this hearing
today, and I look forward to hearing from our witness panels.
Mr. Wynn. Thank you for your opening statement. At this
time, the chair would recognize the gentleman from Georgia, Mr.
Barrow.
Mr. Barrow. I thank the chairman, and waive opening
statement.
Mr. Wynn. The Chair would recognize the gentleman from New
Jersey, Mr. Pallone.
OPENING STATEMENT OF HON. FRANK PALLONE JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman, and I will be brief,
but I just wanted to thank you for holding these critically
important hearing, and I understand that the research component
of this legislation is in the Health Subcommittee, so I just
wanted to commit to you that we will work to enact Ms.
McCollum's legislation in both subcommittee and that the bill
that bans asbestos and protects people from harmful effects
from asbestos exposure is obviously so important because we
want to prevent future generations from being exposed to
asbestos.
As we all know, the inhalation of asbestos fibers can cause
serious illness. It is disturbing to me to think that there
have been an estimated 27.5 million workers exposed to asbestos
while on the job between 1940 and 1979. In 1989, the EPA issued
a rule banning asbestos in any products that asbestos is
deliberately added or which contains more than 1 percent by
weight, but unfortunately, as you know, in 1991, an issue
challenged the rule, and the EPA's ban was severely watered
down. That is why I am glad that we are here to discuss this
draft legislation that would ban asbestos in any product to
which asbestos is deliberately added or used. It represents an
incredibly strong standard and is an important step in
protecting workers and everyday citizens from the ill effects
of asbestos.
Since the World Health Organization, the EPA, and other
health and safety organizations have not established a safe
level for asbestos exposure, it is imperative that we have the
strongest possible ban, and I believe this legislation is the
vehicle that will provide that ban.
So I just want to thank you again, and I want to
acknowledge the presence of Sue Vento in the hearing today. I,
of course, had the privilege of serving with Congressman Bruce
Vento before his untimely death in 2000, and in fact that she
is carrying on with this, such an important bill, and a subject
that impacted him. I really thank her for that. And thank you,
Mr. Chairman.
Mr. Wynn. Thank you. I look forward to working with you,
and I want to recognize the outstanding work you have done on a
host of health issues, and I think we are going to be able to
move this measure forward rapidly.
At this time, I would like to recognize one of our esteemed
colleagues. She has been referenced earlier, Congresswoman
Betty McCollum. She is not a member of the subcommittee, but
with your indulgence, she is one of the distinguished sponsors
of the House legislation to ban asbestos H.R. 3339, the Bruce
Vento Ban Asbestos and Prevent Mesothelioma Act of 2007. I want
to applaud her leadership on this issue and her hard work, and
certainly, we would like to hear comments that she might choose
to make at this time.
OPENING STATEMENT OF HON. BETTY MCCOLLUM, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MINNESOTA
Ms. McCollum. Thank you, Mr. Chairman. I thank you so much
for holding this hearing. Thank you, Ranking Member Shadegg,
for your work on this important piece of legislation, and Mr.
Pallone, for your commitment to hear the related issues in your
committee.
I really thank everyone for being here to take the time to
learn about this current situation, explore ideas and to come
forward with solutions. I am proud to have introduced the Bruce
Vento Ban Asbestos and Prevent Mesothelioma Act, H.R. 3339, the
companion bill to Senate 742.
Congressman Vento was my predecessor and my dear friend,
and I wish he was the one sitting here today. I want to thank
Sue for her help and her support, and all of those who are here
with her today, and those who can't be with her today, who have
worked on this issue. They have been tireless advocates, and
they have really represented well the families who live with
this disease.
As it has been said, millions of Americans are exposed to
asbestos every year, and it is long past time that we join the
40 other countries that have banned asbestos. The Senate has
been working hard on this bill for years. It was finally able
to pass it unanimously at the end of the year. Senator Murray
and Senator Isakson deserve a great deal of thanks for all of
their hard work and dedication on this issue. It is my sincere
hope the House will also have the opportunity to pass a bill to
ban asbestos.
Once again, I thank the chairman, the committee staff, and
the full committee for taking up this important issue and
allowing me a few minutes here today. I thank you, and I look
forward to hearing how this is discharged later.
Mr. Wynn. Well, thank you very much. I also want to
recognize Ms. Vento. I also, along with many people, served
with your husband. He was a great man and a real credit to this
House, and I think it is great that Ms. McCollum is recognizing
his memory through this effort.
This will conclude the opening statements by members.
Other statements for the record as well as the text of the
committee print will be placed in the record at this time.
[The prepared statement of Mr. Dingell and the committee
print follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Wynn. At this time, we will turn to our first witness
panel. It is a single witness. I am very pleased to welcome Mr.
James Gulliford, Assistant Administrator at the Office of
Prevention Pesticides and Toxic Substances with the U.S.
Environmental Protection Agency. We will have a 5-minute
opening statement from Mr. Gulliford, the prepared testimony
submitted in advance of the hearing will also be made part of
the hearing record.
Mr. Gulliford?
STATEMENT OF JAMES B. GULLIFORD, ASSISTANT ADMINISTRATOR,
OFFICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Gulliford. Thank you. Good afternoon, Chairman Wynn,
Ranking Member Shadegg, and member of the subcommittee. Thank
you for the opportunity to talk with you today, and I ask that
my entire written testimony be included as part of the record.
I am here today to discuss EPA's efforts of asbestos
control under the Toxic Substances Control Act and to share
information on legislation that is pending with the
subcommittee to ban asbestos. EPA believes a legislative
approach to address this issue may be an effective away of
further reducing the risks from asbestos, providing it is
carefully crafted and effectively focuses on risk reduction.
And as demonstrated through previous meetings with your
committee staff prior to this hearing, we stand ready to
continue to work with your committee.
We all agree that exposure to asbestos remains a public
health concern due to its continued use and presence in
building and products. While the disease rate may slow over
time as use declines, given the severity and negative outcomes
associated with asbestos-related diseases, actions to address
the remaining uses are important to further reduce disease. For
decades, a number of Federal agencies have regulated asbestos-
containing products, wastes and releases, and this work has
reduced exposures. In 1989, as has been pointed out, EPA
promulgated final regulations under section 6 of TSCA to ban
and phase out asbestos in most products. However, in 1991, the
U.S. Court of Appeals for the Fifth Circuit overturned portions
of the asbestos-product ban.
Following the court decision, only a few asbestos uses
remained banned, along with new uses of asbestos. Nonetheless,
EPA continued its work to reduce asbestos exposure and risks in
other priority areas. For example, in building asbestos removal
is not usually necessary, unless the material is damaged or
disturbed through demolition or renovation activities. So our
focus is on preventing exposure by teaching people to recognize
asbestos-containing materials, to monitor them, and effectively
manage them in place. EPA also regulates the release of
asbestos from factories and during building demolition or
renovation under the Clean Air Act.
In a number of sites across the country where environmental
releases or threatened releases can harm public health or the
environment, EPA also performs asbestos cleanups under the
Superfund program. As has been pointed out, one of the largest
asbestos-remediation efforts is the asbestos-contamination
problem at the Libby, Montana Superfund site. EPA has been
working closely with the community in Libby to clean up
contamination and reduce risks to human health.
On science, many questions remain about asbestos, including
areas such as toxicology, epidemiology and exposure assessment.
EPA has a number of ongoing activities to address these various
uncertainties, including research to address data gaps on
health effects as well as assessing risks from exposure to
asbestos and related materials.
After preliminary review, we do have concerns with some of
the provisions in the draft bill, such as the provision to
regulate aggregate and the compliance-testing requirement, and
we may have additional concerns as the administration completes
its review. However, EPA believes that asbestos does not belong
in products and safer and equally efficacious and cost-
effective substitutes exists. And EPA appreciates the
opportunity to continue to provide technical assistance to the
committee, and we will also continue to review the draft bill.
So thank you for invitation to appear today before the
subcommittee, and I will be pleased to answer any questions.
Mr. Wynn. Thank you very much for your testimony. Let me
recognize myself for questions at this time, and indicate that
I appreciate the technical assistance that you and the EPA
staff have provided to our subcommittee.
The first question I want to ask you, though, is do you
agree that the 1 percent threshold or cut-off level for
regulation in the Toxic Substances Control Act that was used by
the Senate as the standard for the prohibition in S. 742 was
established on the basis of analytical capability in 1973 and
does not reflect current science?
Mr. Gulliford. Thank you, Congressman Wynn. The 1 percent
standard was established in the AHERA statute, and it is, as
you said, established at the time primarily on the basis of our
analytical ability to detect asbestos and asbestos fibers. The
1 percent standard is not a risk-based health standard, so I
would agree exactly with what you said.
Mr. Wynn. Thank you. That is a very important point that it
is not risk based or health based.
The second question I wanted to ask is that almost all of
the EPA technical assistance suggested changes to S. 742, were
incorporated in the committee print. I would like highlight a
couple of EPA suggestions. Would you agree that to protect
public health and the environment from asbestos hazards and to
improve the effectiveness of the legislation, the ban should
target any products in which asbestos is intentionally added or
present as a contaminate?
Mr. Gulliford. Yes, we do agree with that. That was part of
our technical assistance and our discussions with committee
staff because we know for a fact, and particularly we learned
it in the Libby situation, that soil and debris that does
contain less than 1 percent of asbestos can release
unacceptable air concentrations of these types of asbestos. So
it is important, and we have no standard, we have no threshold
under which we believe that there is no threat or danger from
an asbestos exposure.
Mr. Wynn. Thank you. At this time, I would like to ask
unanimous consent that EPA's technical assistance comments on
S. 742, dated November 2, 2007, be put into the record. Without
objection, so ordered.
The next question I wanted to ask you is whether it is
true that EPA is not aware of any commercial uses of asbestos
other than diaphragms for existing chlor-alkali electrolysis
installations which do not have non-asbestos alternatives?
Mr. Gulliford. We think that the opportunity that the bill
allows for exemptions to be established is an important one
because there may be uses for asbestos that are appropriate.
There may be ways, for example, as you mentioned in the chol-
ralkali facilities where the exposure in the use of asbestos
can be mitigated and protected in such a way that there is
virtually little risk to human health or the environment. So we
do agree with the process to examine exemptions, but we do
believe that it should be a very tight exception and that
clearly, we should proceed, again, with respect to a ban, to
those questions where are there are alternative for use, they
are equally efficacious, they are cost effective, and again,
are more protective of human health and the environment.
Mr. Wynn. I think what I am trying to get at is are you
aware of any situations other than chloroalkali electrolyses
installations where there are not non-asbestos alternatives?
And obviously, that could change, but based on what you know
today?
Mr. Gulliford. We know that, clearly, there are uses in
effect that we would not ask that they be removed, for example,
asbestos in place in cars and in homes, so the fact that we
have restricted those from the requirements that they be banned
will allow continued commerce in that if a person has a home
with asbestos products in it, that homes can continue to be
sold without removing those, again, if they are safe it the
situation that they are used.
Mr. Wynn. But what I am trying to get, and I don't want to
belabor this, but the existence of alternatives is fairly
widespread. Are you aware of any situations where there are not
alternatives, other than the one that I referenced at the
beginning of my question?
Mr. Gulliford. I agree that for most uses, we believe that
there alternative that are commercially available, and I,
myself, am not aware off the top of my head of other existing
uses for which there are no alternative, but as you indicated,
I will not rule that out.
Mr. Wynn. OK, thank you very much for your testimony and
answering the questions I just raise. At this time, I would
defer to my colleague, Mr. Shadegg.
Mr. Shadegg. Thank you, Mr. Chairman, and thank you, Mr.
Gulliford. I appreciate your work on this issue.
You indicated that a portion of the standard, which is
written in the committee mark, which talks about asbestos which
is deliberately added, and as I understand it, you testified
that the 1 percent standard is not a risk-based standard. It
was based on ability to detect at the time. Is that correct?
Mr. Gulliford. Yes, it is.
Mr. Shadegg. You heard my opening statement in which I
expressed concern that the former definition of asbestos-
containing products in the committee mark, which says
``otherwise present in any concentration'' sets a zero
standard, does it not?
Mr. Gulliford. It could be interpreted that way, yes.
Mr. Shadegg. Is there a grant of authority to EPA to adopt
any standard other than a zero standard under that language,
``any concentration?''
Mr. Gulliford. Yes, virtually all of our standards are
based on risk, so zero-based standards are not a necessary
standard for EPA to go to.
Mr. Shadegg. But there is no mention of risk in this
language.
Mr. Gulliford. As we provided input on that issue, we did
not mean for it, for example, as you indicated in your opening
remarks, to apply to a fiber that may fall on a piece of tape
in manufacture. But I think it is very important that we
recognize that we don't have a risk-based standard that says
that there is an acceptable level of asbestos.
Mr. Shadegg. So right now, if you set any standard above
zero, if you set a standard that would tolerate an ambient
piece of asbestos dropping on a piece of scotch tape, since it
says any, you could be sued for any standard other than zero,
correct? Or is there risk language that I don't see in the
bill?
Mr. Gulliford. I am not sure that I understand your
question. It is not our intent that this definition would apply
to the example that you gave.
Mr. Shadegg. It is very interesting in this hearing room,
but it is not going to be very interesting to a court. I mean
what I am concerned about is the court is going to say in in
any concentration means just exactly what it says in plain
English. Now, I know judges like not to read plain English, but
I read that as creating a huge issue.
Let me ask another question. You said that the 1 percent
standard was a statutory standard. It was set in the statute.
Mr. Gulliford. Right.
Mr. Shadegg. The committee mark sets a statutory standard.
It does not leave it to the discretion of the agency. Have you
not found over the years that it is better to give the agency
discretion to set the standard, for example, based on risk,
rather than have the Congress set the standard? I mean, isn't
that what you are telling us is the problem with the 1 percent
standard?
Mr. Gulliford. I think what I would try communicate in that
is in this case, asbestos, much like products like PCBs were in
the TSCA original legislation, there are products such as that
where a mandatory ban is a very effective way to deal with
products, again, that we don't believe there is an appropriate
place for, products that contain asbestos in the marketplace,
again, unless there is----
Mr. Shadegg. So is EPA saying it wants a zero-tolerance
standard? None? Zero?
Mr. Gulliford. I still stand by the definition that we
gave, but we did not offer that language, again, with the
intent that it be exclusively a----
Mr. Shadegg. So the any concentration is yours. You want it
to mean zero?
Mr. Gulliford. Again, the reason I am saying that, as I
stated before, is because we do not have a risk-based standard
with respect to asbestos to suggest at some certain level of
asbestos exposure it is safe.
Mr. Shadegg. OK, I need to move onto other issues for time
reasons. Have you looked at the exemption this legislation
provides for sand and gravel operations, and would you agree it
provides that? Sand and gravel operations or aggregate
operations can get an exemption if they certify that the load
tested is below 25 percent for each load and that they then
report that to the purchaser of the load?
Mr. Gulliford. We have concern for the way that this
language has appeared, again, in the committee print, and we
have not had an opportunity to discuss that with the sand and
gravel people, so we have----
Mr. Shadegg. So you are open to discussing those issues.
Are you also open to discussing my concern about the ``any
concentration'' language?
Mr. Gulliford. Yes, I am.
Mr. Shadegg. OK, great. Last issue: the words ``citizens''
do not appear in the bill, but they are otherwise in TSCA. Do
you agree with me that under the way the committee print is
written, a citizen suit may be brought against the Defense
Department under this legislation, is that correct?
Mr. Gulliford. I have not have an opportunity to discuss,
again, the committee print with the Department of Defense. We
do, absolutely, agree with that. There are defense-related
needs for asbestos and asbestos-containing products.
Mr. Shadegg. You wouldn't advocate citizen suits against
the Defense Department, would you?
Mr. Gulliford. I would not. And we, also, though would
defer to the Department of Defense, and NASA, for example, for
their space applications as well, their judgment in the
importance of those exemptions.
Mr. Shadegg. Do you know if the Defense Department has
taken a position on the committee mark?
Mr. Gulliford. I do not know.
Mr. Shadegg. Thank you. Thank you, Mr. Chairman.
Mr. Wynn. Thank you, and the gentleman from Georgia, Mr.
Barrow, for questions.
Mr. Barrow. Thank you, Mr. Chairman. I won't be long. I
just have a couple of questions.
Mr. Gulliford, in between the Senate version, which has a 1
percent by weight standard, and the House committee print,
which has issues which have been raised by Mr. Shadegg and
others, how does the standard vary in the 40-or-so countries
that have a ban? A ban can mean more than one thing, obviously,
and I read in the materials, for example, that Japan has a 0.1
of 1 percent standard. Do you have any ideas of how the bans
and the various degrees of bands tend to vary in terms of the
scope of the prohibition?
Mr. Gulliford. I do not know the answer to that. I don't
know the basis for any standard that has been set
internationally or by individual countries internationally, nor
do I know the basis for the actions that the EU took, for
example.
Mr. Barrow. I can see the commonsense of not trying to
eliminate from products that are in the air we breathe the
ground we walk on at the same time. I can see that you want to
avoid a loophole that is going to create an opportunity for any
exposure that is greater than necessary and that not have any
appreciable benefit to go along with the cost or risk to go
along with it. I am just wondering what other countries are
using as benchmarks in defining their band for this. I haven't
seen anything that looks quite like the committee print in
anything that has been referred to in other countries, but it
may be they have a similar comprehensive or far-reaching, but
more commonsense interpretation of how it applies. Can you
guide us in that? Can you give us any insight in to that?
Mr. Gulliford. We would be happy to look into that and
report back to the committee.
[The prepared statement of Mr. Gulliford appears at the
conclusion of the hearing.]
Mr. Barrow. I thank you, Mr. Chairman. That is all I have.
Mr. Wynn. I thank the gentleman for his questions. It was
certainly on point. I believe that concludes all of the
questions for this panel, and I want to thank you for your
testimony.
At this time, I would like to welcome our second panel.
Gentlemen, thank you very much for coming. Before us today, I
would like to introduce, first all of the panelists. We have
with us Dr. Aubrey Miller, Senior Medical Officer and
Toxicologist at the U.S. Environmental Protection Agency in
Region 8. Next, we have Christopher Weis, Senior Toxicologist,
U.S. Environmental Protection Agency, NEIC. And third, we have
Mr. Gregory Meeker, a geologist at U.S. Geological Survey. I
would like to clarify that only Mr. Meeker will be making an
opening statement. However, the other panelists will be
available to answer questions at the appropriate time. At this
point, I would like to recognize Mr. Meeker for his testimony.
Again, thank you for being here.
STATEMENT OF GREGORY P. MEEKER, GEOLOGIST, U.S. GEOLOGICAL
SURVEY, DENVER MICROBEAM LABORATORY, MS-973
Mr. Meeker. Thank you, Mr. Chairman, and members of the
subcommittee, thank you for the opportunity to present
testimony on the mineralogy and geology of asbestos. My name is
Greg Meeker, and I am a geologist at the U.S. Geological
Survey.
Asbestos is a term applied to a special group of minerals
that form as long, very thin fibers that usually occur in
bundles. When handled or crushed, the bundles readily separate
into individual fibers. This type of mineral growth is called
asbestiform. The definition for asbestos is based on the
proprieties that make it valuable as a commodity. Although
there are many asbestos minerals, some commercial and
regulatory definitions of asbestos focus of chrysotile and
several members of the amphibole mineral group, including the
asbestiform varieties of the minerals riebeckite, grunerite,
anthophyllite, actinole and tremolite. Other amphiboles are
known to occur in the fibrous and asbestiform habit, but have
not been utilized commercially. These include the minerals
winchite and richterite.
The academic mineralogy community has long classified
minerals by name. This mineral nomenclature has evolved
dramatically over the years and continues to evolve. The
current academic nomenclature for amphiboles is endorsed by the
International Mineralogical Association. The Libby, Montana
amphibole provides an excellent example of the difficulties
that have arisen from commingling of different amphibole
nomenclatures. During the years that the Libby mine was active,
geologist, miners and regulators called the Libby amphibole
tremolite, soda tremolite, sodium-rich tremolite and in one
case richterite. Beginning in 2000, mineralogists began to
reinvestigate the Libby amphibole and apply the current
academic nomenclature, identifying it as winchite, richterite
and tremolite. These findings have generated confusion in the
asbestos community regarding the identification of Libby
amphibole and whether or not the material is regulated.
However, there is no indication that the regulators intended
different treatment for what remained the same underlying
substance during this time period. In this example, the
International Mineralogical Association, inadvertently
redefined the regulated material for reasons totally unrelated
to asbestos regulation.
Historically, most commercial asbestos used in products has
been chrysotile. Chrysotile tends to have very thin fibers that
are often very long and flexible. Amphibole asbestos fibers,
however, can display a large range of shapes and vary from thin
to thick, relatively short, and brittle. Other particle types
are often referred to by mineralogists as fibrous, acicular,
and prismatic. There is currently considerable disagreement in
the asbestos community about how to distinguish these particle
types in a mixed sample and more importantly how these
different particle types relate to toxicity.
[Poster.]
Mr. Meeker. This poster illustrates the different particle
shapes that can be encountered in a single study area or
sample, showing the transition from asbestiform in letter D to
acicular in letter F to prismatic in letter I. Respirable
fibers are extremely small. As an example, a soil or aggregate
containing 0.25 percent respirable amphibole fibers could
contain more than 25 million fibers per cubic centimeter. The
degree to which respirable fibers can be liberated into the air
by disturbance and become an inhalation hazard depends on many
variables. Therefore, reliable determination of actual risk by
direct measurement of the amount of fibers in the soil or
aggregate would be extremely difficult.
Thank you for the opportunity to present this testimony. As
a non-regulatory natural science agency, the USGS works closely
with other Federal agencies and nonFederal stakeholders to help
answer many important questions regarding the nature of
asbestos-related minerals and to provide important information
about where asbestos minerals occur in the United States. I am
pleased to answer any questions that you might have.
[The prepared statement of Mr. Meeker follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Wynn. Thank you very much, Mr. Meeker. We certainly
appreciate your testimony. You are providing us with a very
good education. We will see if our questions bear that out.
I would like to recognize myself at this point for
questions for 5 minutes. You mentioned the 0.25 percent
standard. I would like to ask about allowing products with up
to 1 percent asbestos to be imported, manufactured, and sold in
the United States. How many fibers of asbestos would you expect
to find in a product that contains 1 percent asbestos?
Mr. Meeker. That is difficult to answer because every
material would be different, but it could be as high as 100
million fibers per cubic centimeter.
Mr. Wynn. Would you say that again please?
Mr. Meeker. It could be as high as 100 million fibers per
cubic centimeter.
Mr. Wynn. OK, Dr. Miller, can exposure to products and
materials containing less 1 percent cause disease?
Mr. Miller. Clearly, exposure to products containing less
than 1 percent can generate very high levels of exposure which
would definitely be responsible for causing disease in the
population, workers or others that may come into contact with
such products or disturb such products might have exposures
that would be consistent with what we have seen in populations
that have been studied across the country that have developed
disease commensurate with those exposures.
Mr. Wynn. What are some of the diseases that you have been
able to observe?
Mr. Miller. Well, the diseases that we see, regardless of
whether it was from a product that was less than 1 percent
asbestos or other materials containing higher concentrations of
asbestos is the same diseases that we see across the board with
asbestos exposures. Whether it is from chrysotile or amphibole
exposures, you will see mesothelioma, lung cancers and
fibrogenic lung disease consistently with respect to these
exposures.
Mr. Wynn. Let me go back to you, Mr. Meeker. Do all labs
determine the asbestos content of a product in the same way?
Mr. Meeker. The labs are supposed to follow methods that
have been validated; however, the methods are very subjective,
and so if you were to take the same sample from one lab to the
next, you might get a very different result from the same
sample.
Mr. Wynn. Dr. Weis, has the United States Government, to
your knowledge, or private parties for that matter conducted
research on asbestos exposure resulting from the manufacture or
use of products that contain small amounts of asbestos?
Mr. Weis. Yes, Chairman Wynn, there are a number of
studies, in fact, by our Government, by the Canadian
Government, by private individuals and industry scientists that
indicate concentrations far below 1 percent, as low as 0.001 of
a percent can generate airborne concentrations of concern for
exposure.
Mr. Wynn. Could you provide the subcommittee with those
studies please?
Mr. Weis. Yes, sir.
Mr. Wynn. That would be very helpful if you could do that.
Also, I would like to ask you, as a toxicologist at EPA you
study risk to human health. When you studied the amount of
asbestos people are being exposed to, why is it so important to
measure asbestos in the air?
Mr. Weis. Very important question. Asbestos is a problem
when it is breathed in. There are also some concerns for
ingestion, but those are of far less importance to us. And so
when we measure risk from exposure to asbestos, we always look
for airborne measurements. I think Mr. Gulliford made it clear
that measurements in bulk materials are not and never will be
risk based.
Mr. Wynn. I wanted to ask you one other question. What,
exactly, are cleavage fragments?
Mr. Weis. That question, actually, might be better answered
by Mr. Meeker, who is an expert in mineralogy.
Mr. Wynn. Mr. Meeker?
Mr. Meeker. Cleavage fragments are particles that are
defined because they are broken. They cleave along specific
directions in the crystal, and so by definition, cleavage
fragments have to be crushed or milled during some process.
Mr. Wynn. Thank you very much for your testimony,
gentlemen. Mr. Shadegg? I see this is going to a very
interesting experience. We are going to have fun here. The
chair recognizes Mr. Shadegg for questions.
Mr. Shadegg. Thank you, Mr. Chairman. Let me begin with a
question that I at least want to get very clear in my own mind.
We are talking about in the standards set here 1 percent by
weight in a given product, which is the standard used in S.
742. And when we talk about aggregation this bill, they are
talking about 0.025 percent, again by weight. Obviously, the
concentration of asbestos in a product is one issue. But the
length and intensity of exposure is another issue. The point
being, each of you said you could be exposed to dramatically
less than 1 percent and have it be dangerous and, indeed,
disease causing. And I believe, Mr. Meeker, you said, or maybe
you all said, that exposure to less than 0.25 percent could be
disease causing. I presume that if you were exposed to 0.25 for
a nanosecond, that would be one thing. If you were exposed to
it for 24 hours a day, 7 days a week for 15 years, that would
be a different level of exposure. So there are two factors, not
just the concentration in the product, which is measured as a
percent by weight, but also the length and intensity of the
exposure, correct? You would all agree to that, I assume? OK.
Second question, I want to talk a bit about chrysotile
asbestos because I am trying to learn about it. I thought I
learned about it a few years back. Dr. Miller, you indicated
that there are studies showing disease-you may not have said
all forms of asbestos, but you said chrysotile asbestos and
amphiboles. Have there been specific studies done on diseases
caused by exposure only to chrysotile asbestos?
Mr. Miller. Yes, there have.
Mr. Shadegg. Can you supply those to me?
Mr. Miller. Yes, we can.
Mr. Shadegg. Does that fall in the expertise of either of
the other gentlemen?
Mr. Weis. I would agree with Dr. Miller on that.
Mr. Shadegg. I would very much like to see the studies that
focus on exposure to chrysotile asbestos.
Let me ask another question on that point. Is there a
debate within kind of the asbestos industry or community over
the degree of disease linked to exposure to chrysotile as
opposed to amphibole asbestos?
Mr. Miller. Yes, there is, and the discussion really
focuses on the fact that we recognize that all of the asbestos
forms are toxic, but it appears that the amphiboles may be more
toxic with respect to the causation of mesothelioma than
chrysotile asbestos, and that is the focus of the discussion.
But with respect to lung cancer and fibrogenic lung disease, it
is clear that they all are toxic.
Mr. Shadegg. Thank you. That is what I thought. If you can
find relatively layman-eqsue studies that show, you know, that
chrysotile is less causative of mesothelioma but is causative
of that together, that would help me as well.
Mr. Meeker, I want to ask you, I understand the distinction
between chrysotile and amphibole to be that the fibers in
amphibole are brittle and break, and as I understood it when I
learned it, have a tendency to stick in the lung by essentially
like tiny little pins, and that the difference between
amphibole and chrysotile is that chrysotile is soft. It is more
like string and less like something brittle which can form a
sharp point and stick. Is that your understanding? I understand
that is a layman's explanation, but----
Mr. Meeker. The poster I have here, I don't have a picture
of crystatile up there, but in letter A, that would be similar
to what crystatile looks like. That is an amphibole, and
amphibole can show a wide range of shapes and sizes and
flexibility, and so the amphibole in letter A is from new
Caledonia, and it appears to be flexible and very thin. Letter
B is an amphibole from the NIST, National Institute of
Standards and Technology, certified reference material. It is a
tremolite amphibole standard, and I think you can see, there,
that that is what you were describing as more like pins, and
you can find examples that grade from one to the next, even in
the same sample, so it is not always one way or the other.
Mr. Shadegg. Sounds like I get to learn a lot more. Thank
you.
Mr. Wynn. At this time, the chair is pleased to recognize
the gentlelady from California, Ms. Capps, for questions.
Ms. Capps. Thank you, Mr. Chairman.
Dr. Miller, if I could ask you a question please. This
committee is considering banning asbestos down to 0.25 percent
by weight for byproducts of stone, sand and gravel. Is this an
acceptable threshold for human exposure by this industry?
Mr. Miller. Well, we find that continued disturbance of
products, even at that low-level of contamination will generate
airborne exposures that can be very, very hazardous. As a
matter of fact, it is easy to measure the exposures in the air.
And as Dr. Weis alluded to a moment ago, if you have materials
that may have 0.25 percent levels of asbestos contamination or
lower, if you disturb them, we can easily measure the exposures
in the air, and clearly, we know these exposures are associated
with disease and readily present an opportunity for exposure,
not only to workers, but to others across America.
Ms. Capps. No matter how minimal?
Mr. Miller. No matter how minimal.
Ms. Capps.
Mr. Miller. Again, it will vary with the material.
Ms. Capps. Dr. Weis, I have two questions for you if I
could please. I understand that EPA is currently working on a
test method that would be used to measure asbestos releases
from soils and other solids. I think that follows on with what
Dr. Miller just said because when it is disturbed, that is
where we need to really measure if we can. Can you tell me what
the status of that work is?
Mr. Weis. Yes, Congresswoman Capps. As has been mentioned
several times this morning, we are interested primarily in
exposure in air. And so the agency has been working hard over
the last several years, actually, in developing a rapid
technique for disturbing asbestos contaminated materials,
sending fibers into the air, and then measuring the air where
our measurements are far more precise than they are in the bulk
materials. That work is underway. I can't tell you exactly what
the schedule for that is. I can tell you that there is
tremendous interest in pushing that forward.
Ms. Capps. Are there any limits to your being able to do
it? Is there the technology to measure?
Mr. Weis. I believe the technology is there, yes,
absolutely.
Ms. Capps. So that is where any research dollars should
continue?
Mr. Weis. Yes, it is a matter of time and resources.
Ms. Capps. I hear you. You just have to follow the testing,
right? But the more resources we have, the faster you could
move, too.
Mr. Weis. I think that is true, yes.
Ms. Capps. Yes, let me ask you in anticipation of testimony
that is going to be given in the next panel, Dr. Nolan in his
written statement says that OSHA does not regulate these non-
asbestos fibers after having a rule-making to determine that
they do not present health hazards similar to asbestos. Will
you evaluate that statement for me?
Mr. Weis. What I can say, Congresswoman, is that OSHA says
in their regulations if you are in doubt, then the fibers
should be counted. I think Mr. Meeker has alluded to the fact,
quite clearly, that measurements are subjective, and they are
often to the opinion of the analyst, and OSHA says quite
clearly in their regulation if you are in doubt of what this
material is, then, it should be counted as a fiber.
Ms. Capps. Just a recognition of it as a fiber, you don't
have to measure it or anything else, the recognition is enough
of an acknowledgment?
Mr. Weis. The particle must have the same shape and form as
a regulated fiber, but if it does, regardless of its chemistry
or subtle morphology, if the analyst cannot determine using the
technology they have whether it is a fiber, it should be
counted. That is what OSHA says.
Ms. Capps. And that is sort of the standard now?
Mr. Weis. That has been the standard for a long time.
Ms. Capps. That is the end of my questions. Thank you very
much.
Mr. Wynn. Thank you very much.
Mr. Weis. Thank you.
Mr. Wynn. Gentlemen, again, thank you very much for your
testimony and answering our questions. You may be excused.
All right, I think we are ready to proceed with our third
panel. Again, I would like to welcome you and thank you for
your attendance here today. I would like to introduce Ms. Linda
Reinstein, who is Executive Director of Asbestos Disease
Awareness Organization; second, Ms. Margaret Seminario,
Director Safety and Health, American Federation of Labor and
Industrial Organizations; Dr. Roger McClellan, Advisor,
Inhalation Toxicology Human Health Risk Analysis; Dr. Robert
Nolan, Environmental Studies International; Dr. Richard Lehman,
Assistant Surgeon General, Retired, U.S. Public Health Service;
and Dr. James Millette, Executive Director of MVA Scientific
Consultants. We would like to have your 5-minute opening
statements. Of course, your full testimony has been included in
the record, and again, thank you for coming.
Ms. Reinstein.
STATEMENT OF LINDA REINSTEIN, EXECUTIVE DIRECTOR AND COFOUNDER,
ASBESTOS DISEASE AWARENESS ORGANIZATION
Ms. Reinstein. Mr. Chairman, and members of the
subcommittee, my name is Linda Reinstein. I am honored to
appear before you as the executive director and cofounder of
the Asbestos Disease Awareness Organization, ADAO, as an
independent, nonpartisan volunteer organization, whose goal is
to provide the most current education resources and support. I
am neither a lobbyist nor an attorney, only a volunteer, and
now a mesothelioma widow and a single mother.
Today, Doug Larkin, T.C. McNamara, U.S. Capitol Tunnel
Workers, and I represent victims and family who suffered the
traumatic effects of asbestos diseases due to occupational or
non-occupational exposure. In 2006, my husband Alan Reinstein,
lost this 3-year battle with mesothelioma, a cancer caused by
asbestos. When Alan died, my then 13-year-old daughter and I
joined thousands of Americans who are mourning the loss of
loved ones, losses which could have been prevented.
The use and importation of all asbestos-containing products
should be banned in the United States. As we discuss a complete
ban today, your final decision will determined if we will
continue to allow asbestos to killed Americans, or if Congress
will pass legacy legislation banning asbestos in any form, any
product, any use.
Scientists agree: asbestos is a carcinogen, and there is no
safe level.
[Slide.]
Ms. Reinstein. The penny slide on my left that you are
looking at compares the nearly invisible deadly fibers just
under President Lincoln's nose to grains of rice and human
hair. These virtually indestructible asbestos fibers can be 700
times smaller than human hair, and remain suspended in air from
seconds to days. Inhaling or swallowing asbestos fibers
permanently penetrate lung and other tissue and can cause
cancer or other respiratory diseases, exacerbated by a latency
period of 10 to 50 years, these diseases are routinely
underreported and misdiagnosed.
More than 10,000 lives will be lost this year. Imagine
struggling to breathe air through a pinched straw, every
breath, every minute, every day. As victim's oxygen levels
become critically low, they are tethered to supplemental oxygen
to extend their lives. Within 6 to 12 months of diagnosis, the
average mesothelioma patient dies. Each life lost leaves a
shattered family behind.
In hopes of a cure, many patients opt for radical
treatment, such as having their diseased lung or diaphragm
surgically removed. We call this death by 1,000 cuts. But
remember, there are 8,000 more patients dying from other
asbestos-caused cancers, asbestosis, or respiratory diseases.
Asbestos has not been banned in the United States. Most
Americans believe it was banned long ago, and they are shocked
to learn that asbestos is still a deadly threat. Even today,
the EPA states that there are 3,000 products containing
asbestos, yet there is no Federal testing program for consumer
products or children's toys.
ADAO commissioned three independent Government-certified
laboratories to test for asbestos in consumer products found on
retail shelves. On 11/27/07, we reported five contaminated
products and a toy. The CSI fingerprint on the table today has
tremolite in it, one of the deadliest forms of asbestos, in a
toy powder, intended to be made airborne by children. Our
resent results were immediately disclosed to the EPA and the
CPSC. To the best of our knowledge, neither agency initiated
action.
ADAO applauds the U.S. Senate for unanimously passing S.
742, a landmark bill to reduce asbestos exposure and fund
educational programs, research, registries, and treatment
centers. However, S. 742 does not completely ban asbestos use,
and perpetrates a false sense of security by only prohibiting
industrial materials, consumer products with greater than 1
percent by weight. This means that the contaminated products on
the table, such as the CSI kit would remain legal on store
shelves.
Scientific technology has made gigantic strides in asbestos
detection since the 1970's, and we don't have to compromise
public health by using antiquated analytical methodology. On
behalf of ADAO, asbestos victims' families, leading doctors,
and scientists, I implore you to ban this deadly toxin. We
believe an immediate ban on all asbestos-containing products is
fully justified, absolutely necessary and long overdue. One
life lost to asbestos disease is tragic. Hundreds of thousands
of lives lost is unconscionable. The United States Congress has
the opportunity and responsibility to protect Americans from
these preventable diseases.
Today, I also brought over 25,000 signatures in petition
form, asking Congress to please ban asbestos. Thank you.
[The prepared statement of Ms. Reinstein follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Wynn. Thank you very much for your testimony. I am very
sorry for your loss, but I applaud your commitment to engage in
this discussion and find proper solutions. Thank you very much
for coming today.
Ms. Seminario.
STATEMENT OF MARGARET SEMINARIO, DIRECTOR, SAFETY AND HEALTH,
AMERICAN FEDERATION LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Ms. Seminario. Chairman Wynn, Ranking Member Shadegg, I
appreciate the opportunity to testify today on behalf of the
AFL/CIO, on legislation to ban asbestos. The AFL/CIO strongly
supports Federal legislation to ban asbestos. We applaud the
efforts of Senator Murray to champion and guide the passage of
legislation in the Senate and the efforts of this committee to
initiate similar legislative activity in the House of
Representatives.
Without question, exposure to asbestos has resulted in the
greatest occupational health epidemic in the Nation's history,
in actually the world's history. Hundreds of thousands of
workers have died from asbestosis, lung cancer, mesothelioma,
and other cancers, and the mesothelioma cases are still
increasing. In 2004, there were over 2,600 mesothelioma deaths
reported.
For decades, the AFL/CIO and our affiliated unions have
fought to protect workers from the hazards of asbestos.
Immediately following the passage of the Occupational Safety
and Health Act, we petitioned for emergency action by OSHA, and
the first OSHA asbestos standard was issued, but it was not
protective, and so we continued, through petitions, through
litigation, through Congressional action, moving forward to
strengthen the standard, moving into a stronger standard in the
mid-1970s, 1980s, and finally in 1994 the issuance of the 0.1
fibers/cc standard by OSHA.
But these standards, actually, have not been sufficient to
protect workers. The early standard didn't address the asbestos
cancer risk that was posed, and even the existing standard,
according to OSHA and according to NIOSH, leave workers at
significant risk of harm. That standard, the 0.1 fibers/cc, was
again set based on the limits of detection. It was not set as a
level to protect workers.
But it is important to recognize, even though we had a
legally binding standard, that there are still many, many
workers exposed to asbestos because of the volume of asbestos
that is in palace. It is largely among construction workers,
maintenance workers and other who continue to be exposed. And
last year, in 2007, OHSA reported that there were 761
violations of its asbestos standard, and those were just the
violations that they saw and that they were able to document,
and we know the situation is much more far reaching.
I think most people don't know that in the mining industry,
for those workers, they are still legally allowed to be exposed
to 2 fibers per cubic centimeter. That is a level that was last
set by OSHA in 1986. And here, 22 years later, in the mining
industry, we still have workers legally exposed to those
levels. We are hoping that MSHA will move on that, and we
expect them to do so, but again, they are exposed to very, very
high levels of asbestos, and It is not only the workers who are
at risk. As we have heard, we have family members who are
exposed, the take-home exposures and the exposures among the
public from exposures in communities like Libby, Montana.
Our experience with this devastating epidemic, and the
difficulty of controlling exposures, even with the legal
standards, over the long life span of this product led us to
the conclusion many years ago that asbestos should be banned.
We simply must remove asbestos from the stream of commerce in
this country.
Let me turn, now, to S. 742 and the committee print. We
believe that the goal of asbestos-ban legislation should be to
stop the introduction of asbestos into the stream of commerce
as quickly as possible. And given the potential for serious
health affects at low levels of exposure and great difficulty
in controlling exposures over the lifecycle of this product, we
believe that the goal of the legislation should be to apply the
ban on asbestos as broadly as possible. And to this end, we do
have real concerns about the 1 percent threshold for the
application of the asbestos ban that is in the Senate bill. In
our view, and as we have heard from others, this threshold will
allow levels of asbestos contamination that have a real
potential to pose a significant health risk to workers and the
public.
And let me, just again, do a comparison. We heard from the
previous witness, from Mr. Meeker, that exposures with 1
percent could result in exposures to 100 million fibers. The
OSHA limit is 0.1 fibers per cubic centimeter. The exposure
limit, single exposure, is one fiber. One hundred million
fibers from 1 percent compared to a legal limit of one fiber:
that gives you some sense of the level of exposure that would
be allowed under 1 percent and how they compare to what is
legally required right now.
Let me just, also, say that with respect to the way the
bill is crafted, again, we think that the ban should be broad.
We think the 1 percent exclusion should be eliminated and to
the extent that we have to deal with particular area of concern
and feasibility issues that those should be dealt with through
narrowly-crafted exemptions. So we support the exemption-based
approach, crafted as narrowly as possible.
Let me also say that with respect to the implementation of
the ban, the Senate bill allows for 2 years. We think that if
this is done, statutorily, that we should be looking at doing
this in a much quicker fashion, 6 months or year.
And let me just conclude by saying that the Senate bill
mandate for the various health studies and for the treatment
centers that are provided for, we think are very, very
important, and we would encourage the full committee and the
health subcommittee to take up these provisions as well.
So let me just conclude and say that asbestos has been
responsible for the deaths of hundreds of thousands of
Americans. The terrible legacy continues, and we urge the
committee to move quickly and to adopt strong protective
asbestos-ban legislation. Thank you.
[The prepared statement of Ms. Seminario follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Wynn. Thank you for your testimony. Dr. McClellan.
STATEMENT OF ROGER O. MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN
HEALTH RISK ANALYSIS
Mr. McClellan. Good afternoon, Chairman Wynn and Ranking
Member Shadegg. Thank you for the invitation to present my
views on S. 742 and draft legislation to ban asbestos in
products. It is an honor and a privilege to again have the
opportunity to testify before this committee on the scientific
basis of important proposed legislation.
I request that my testimony be entered into the record as
though it was read in its entirely. My testimony today draws on
more than four decades of experience working in air-quality
issues. The testimony I offer today also draws on experience
serving on numerous scientific advisory committees for the U.S.
Environmental Protection Agency, including service as chair of
their Clean Air Scientific Advisory Committee. I have also
served on advisory committees to many of the other Government
agencies that have been concerned with air-quality issues, the
National Research Council, the Institute of Medicine, and
international agencies such as the World Health Organization
and the International Agency for Research on Cancer.
I am testifying today at the required of an ad hoc group of
associations who shared concern is the clarity of distinction
between asbestiform fibers and non-asbestiform fibers. However,
the opinions that I express today are those of my own personal
scientific views. My testimony is grounded in a conviction that
scientific information should inform legislation and agency
policy judgments that are required to protect public health.
As I begin my scientific comments, I want to emphasize that
I support the central theme of the proposed legislation, which
is to ban asbestos and protect public health. However, in
pursing that very appropriate and laudable goal, it is
important that we not cause unintended consequences via the
legislation that will impact on industries that are not
involved in terms of the use of asbestos.
So I have five keys points I would like to bring to you
today. Number one, a clear and accurate definition of asbestos
and asbestiform minerals, for example, as EPA defined them in
1993, and I have attached my testimony, the direct quote from
that EPA document. Two, the importance of the use of validated-
and I want to emphasize validated, reliable-test methods for
the collection of samples, and then sample preparation and
processing and analysis that specifically identified asbestos
and asbestiform minerals while also distinguishing them from
non-asbestiform materials in a mixed-dust environment as
generally found in mines and quarries.
Three, as a staring point, it is appropriate to maintain
the existing Toxic Substances Control Act threshold limit
related to asbestos with provisions for change in the threshold
limit when justified by new scientific findings indicative both
of need to define the threshold level as a risk-management tool
to protect public health, as well as an ability to put in place
lower limits that can be reliably used in practice.
Fourth, it is crucial that any legislation that is enacted
recognize the unique physical characteristics of asbestiform
materials that cause them to pose a health hazard as contrasted
with the physical characteristic of non-asbestiform materials
that may have a similar chemical composition but in a non-fiber
form do not pose a health hazard like that of asbestos. This
difference between asbestiform materials that are hazardous and
rocks that are not hazardous is apparent from consideration of
figure 1, which I have attached to my testimony.
Five, the potential impact of misclassifying ordinary rocks
as being asbestos-like is apparent from considering figure
three. As even a cursory view of this map will indicate, much
of this country is covered by these minerals. I can point to
where I was born in the State of Minnesota, point to my good
friend's neighboring state, Arizona, New Mexico, where I live
today, and you will see much of the Western U.S., areas in the
East that are covered with these minerals.
In avoidance of their health risk, it is also important
that those risk-management procedures not inappropriately
impact on the use of non-asbestiform minerals that do not pose
a health hazard like asbestos. Thank for your attention, and I
look forward to addressing your questions later.
[The prepared statement of Mr. McClellan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Wynn. Thank you for your testimony. Dr. Nolan.
STATEMENT OF ROBERT P. NOLAN, INTERNATIONAL ENVIRONMENTAL
RESEARCH FOUNDATION
Mr. Nolan. Thank you. I want to say I am very familiar with
the health effects associated with the inhalation of asbestos,
having been born in Paterson, New Jersey, where an asbestos
factory produced insulation for U.S. ships in the Second World
War. As I was growing up in the 1960s, sufficient time had
passed that several of my neighbors who had worked decades
earlier in this factory and developed asbestos-related disease.
More than twice as many people died from asbestos-related
disease in Paterson, New Jersey than in Libby, Montana upon the
occupationally exposed.
I took a serious interest in understanding how and why this
happened. I joined Dr. Irving Selikoff's group at Mount Sinai
School of Medicine in New York. At the time, he was a world
leader in asbestos research and a long-time resident of New
Jersey. I also shared his opinion that a ban of asbestos was
not necessary and it was an old idea that had been seriously
considered and rejected when it was found not to be supported
by the facts. I have a doctoral degree in chemistry, and I am a
member of the faculty of both chemistry and environmental
science in the City University of New York's graduate center. I
also want to put in a kind word for the Fifth Circuit Court of
Appeals. I think the decision had a lot more wisdom in it than
people might think. And I pick out their key phrases that the
EPA filed to muster substantial evidence, and I believe that
that standard still has not been met. There is not substantial
evidence for this.
I support much of what Dr. McClellan said. I think it is
very important that if you are going to ban asbestos that you
ban asbestos minerals, and you be very careful that you
mineralogically correctly define what you are doing. I was
criticized a little earlier by one of your colleagues
concerning OSHA. OSHA does not regulate non-asbestos fibers in
a rulemaking in 1991, and I will produce that rulemaking for
you and specific quotes that support the statement that was
read from my testimony.
And I also somewhat agree with the richterite, winchite,
and erionite idea. Erionite is a fibrous zeolite. It has never
been referred to as asbestos. It can occur with an asbestiform
morphology, and it is a group 1 carcinogen, according to IRAC,
but an erionite related mesothelioma has never been reported in
the United States.
Now, if you want to include winchite and erionite and
richterite in the ban, I would ask you to put asbestiform as a
modifier so that you specifically focus on that material.
Dr. McClellan covered some of the other points that I
wanted to make, but I want to make two very specific points.
You talked about the 1 percent limit of detection, whether it
is 1 percent asbestos. Now, you may not be aware of this, but
an asbestos ore that is beneficiated from mining is 2 to 4
percent asbestos. So a low-grade asbestos ore would be 1
percent asbestos. One percent asbestos is visible in the rock.
It was not an analytical method that determined the limit of
detection was 1 percent asbestos. Asbestos develops in the
cracks of dilated rock, and seams of asbestos at 1 percent are
visible in the rocks. There are very few rocks in the United
States that are 1 percent asbestos. There are very few
materials that are 1 percent asbestos. As Dr. McClellan brought
out, you really need to know how much fibers are liberated from
this. You need air monitoring. And contrary to what you heard
earlier, this is what the Inspector General complained about at
the World Trade Center in New York and at Libby, Montana, that
they did not have a health-based standard, and they are still
not doing that, and there are two Inspector General reports
that are referred to in my testimony.
Now, the other thing that I would ask the committee to do
is the number of asbestos-related diseases that occur in the
United States has been bantered around for decades. At one
time, NCI and NIH claimed 2 million Americans would die over 30
years. That would have ended in 2008. It is 66,000 deaths per
year. Several of your committee members mentioned 10,000
asbestos-related deaths per year this morning. I would
challenge that figure. That is not a Government figure, and if
you look at the number that NIOSH actually produced for the
hearing that they had in the Senate, the number of mesothelioma
deaths is about 2,500 per year, and they are claiming about
1,400 asbestosis deaths, and they didn't specify how many lung
cancer deaths.
The Environmental Working Group is not a Government agency,
and I try to rely on Government statistics for this, and I
would like the committee to request NIOSH or NCI to give them
what is an accurate estimate for asbestos-related disease in
the United States today.
And the one other thing that I want to make clear, one
American male in 600 will die of mesothelioma. That is 0.17
percent. There are 2002 deaths in the three large chrysotile
cohorts in the United States, Charlestown, South Carolina, the
cement workers in Louisiana, and friction-product workers in
Connecticut. In that group, there are three mesotheliomas.
Their percent of mesothelioma is 0.15 percent. It is lower than
the general population. Now, I am not saying that chrysotile
doesn't cause disease, but mesothelioma is not associated with
chrysotile exposures.
Thank you.
[The prepared statement of Mr. Nolan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Wynn. Thank you very much, Dr. Nolan. Dr. Lemen.
STATEMENT OF RICHARD A. LEMEN, PRIVATE CONSULTANT, OCCUPATIONAL
SAFETY AND HEALTH EPIDEMIOLOGY, AND PUBLIC HEALTH
Mr. Lemen. Yes, my name is Richard Lemen, and I am a
retired Assistant Surgeon General of the United States, and I
also spent most of my career with the National Institute for
Occupational Safety and Health and have been studying the
health effects of asbestos for the last 37 years.
It was 31 years ago that the institute that I spent so many
years with recommended a revised standard for asbestos, and in
that revised standard, it was the first time that I know of any
governmental agency saying that only a ban would prevent
asbestos-related diseases in the workplace.
I would like to thank Chairman Wynn and Mr. Shadegg and the
entire Committee on Environment and Hazardous Materials for the
honor of being able to testify before you today. I am here to
support the efforts of the both the United States House of
Representatives and the United States Senate to ban asbestos in
the United States. This ban will represent a monumental public-
health achievement for the United States and its citizens in
preventing asbestos-related diseases to workers and the public,
and I commend the efforts of the United States Congress for
their work in this endeavor.
I would disagree a little bit with my colleague Dr. Nolan
in that the 10,000 figure is an estimate that was adopted by
OSHA in a risk assessment done by another colleague of Dr.
Nolan's, Dr. Nicholson at Mount Sinai School of Medicine, so by
default, it is somewhat of a government figure because it is
mentioned in the hearings and in the testimony to OSHA for
their standard.
And also, I might say the only occupationally induced dust
disease of the lungs that continues to increase each year in
the United States is asbestosis. And this is also true for
mesothelioma, which is a signal tumor for exposure to asbestos.
I would also like to say that while this country has
experienced in asbestos-induced disease epidemic that continued
to grow worse, it is now shifting from the workplace to the
non-occupationally expose victims. I would like to provide some
data which would shed light on the reasons for keeping the
fiber definition that is in these bills. From my years at
NIOSH, I know research have found among miners and millers
mesothelioma from two counties in Northern New York and new
cases continue. We have also seen mesothelioma occurring in the
taconite miners in Minnesota, and we have already heard about
the experience in Libby, Montana.
Dr. Rohl and Dr. Langer at the Mount Sinai School of
Medicine support the idea that substances other than asbestos,
like talc, because of its composition, contain conditions of
formation and geological occurrence frequently contaminated
with asbestos fibers.
I am glad that this bill goes beyond regulatory fibers and
includes fibers less than 5 microns in length. I would like to
say that a study just published by NIOSH actually shows that
fibers shorter than 5 microns in length do cause statistically
significant excesses in asbestosis as well as lung cancer. I
would also like to say that pathological studies dating back to
1933 show that it is the short fibers that actually end up in
the areas outside of the lung where the mesothelioma is
occurring.
I also would like to say that we must continue to rely not
on the antiquated analytical methods, but on new and modern
methods, and we must take into consideration health
considerations and not just analytical consideration.
As far as exemptions, I think I agree very much Ms.
Seminario that they should be very limited and carefully
thought out, and that they should be based upon health
consideration as well as needed use.
I also would like to say that an exception for the chlorine
manufacturing industry must recognize the inherent dangers of
both the worker and the public from the continued use of
asbestos in this industry. New, non-asbestos-using processes
are available, and they operate at much less energy than the
other processes, by about 15 to 20 percent.
And finally, I have just a few suggestions for the bill. If
currently using asbestos in a product at the time of the ban's
effective date, it is my suggestion, then, that 6 months only
be used for the application and approval for the exemptions,
and obviously, as the bill states, nothing can be sold or used
during this time period. Second, the disposal requirement
doesn't go into place until many years after the ban. This
should be shorter. And I would also like to say that I would
like to see the bill include a provision for a national survey
of extraction activities to find out just how extensive this is
and also what are the potential health effects. And finally, I
would like to say that I support the EPA's testing. In addition
to testing the bulk samples for percentages, they need to test
in the under-use conditions and in under-disturbance
conditions.
So with that, I would like to conclude my testimony, and I
ask that my full comments be added to the record of this
hearing.
[The prepared statement of Mr. Lemen follows:]
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Mr. Wynn. Thank you, Dr. Lemen. Dr. Millette.
STATEMENT OF JAMES R. MILLETTE, EXECUTIVE DIRECTOR, MVA
SCIENTIFIC CONSULTANTS
Mr. Millette. Thank you for the opportunity to testify for
you today. My name is Jim Millette. I am an environment al
scientist. I have been involved with the analysis of asbestos
since 1974. I have a degree in physics and a masters in
environmental science and a PhD School of Engineering,
University of Cincinnati. My work history includes 11 years at
the U.S. Environmental Protection Agency, where I was working
on method-development for asbestos issues. I teach one of the
few courses in the United States on the analysis of asbestos
using the transmission electro-microscope. I am currently the
chair of the American Society for Testing and Materials. That
is ASTM International, Subcommittee D2207, that deal
specifically with the development of asbestos methods. And I
would like to recognize the gentleman that I took over for,
Mike Beard. He and I have worked many, many years, 10 years, on
this committee, developing methods using the consensus
approach, where we have members from industry, government,
individual laboratories, working on developing methods that we
agree upon.
My testimony today concerns the U.S. legislation that we
have been discussing concerning asbestos. I would like to make
five basic points in my testimony. The first is that
currently--that is today--laboratories across the United
States, commercial and government, are performing analysis for
clients using a variety of bulk asbestos methods and reporting
levels of less than 1 percent. In the last 35 years, since the
EPA initiated the 1 percent level for bulk materials,
analytical methods have developed to the point where we can
reliably measure less than 1 percent, and we can certainly
measure to 0.25 percent, which I feel we can do on a regular,
reliable basis.
But there are differing opinions as to the best procedure
in which to analyze for asbestos. Because some methods involve
different preparation procedures than others. Some involve
grinding the sample, and other involve sieving or using other
procedures. All of these can be used, but there are
differences, and so as you heard before from Mr. Meeker, if you
send a sample to two different laboratories, they may not come
out with exactly the same result.
However, there are procedures for measuring asbestos at the
1 percent level, where we now have reliable inter-laboratory
comparisons that show fairly consistent results, and so if we
decide to go to a less than 1 percent level, I am sure that can
be achieved.
I support the provision in the committee print that the
Administrator shall issue guidance in establishing the test
method for purposes of compliance with this paragraph. I think
it is important that the Administrator provide the guidance so
that those of us developing methods for the work that needs to
be done will all start with the same basic assumptions.
Apart from the questions of quantification of asbestos in
bulk samples, the characteristics of what is asbestos must be
addressed by the method and then universally accepted by the
laboratories analyzing the samples. As we discussed earlier,
the difference between asbestiform fibers and cleavage
fragments is something that is in dispute. There is a
difficulty not in looking at the obvious situation where you
have a rock versus an asbestos fiber, but those situations in
the middle where you may have a mixture of fiber sizes, and
they clearly overlap.
There are some proposed procedures that are in the
scientific literature to distinguish between asbestos fibers
and cleavage fragments, but these have not been validated. And
the research work that I am conducting in attempting to
validate some of these procedures, looking at one particular
procedure, we found that over 50 percent of the fibers, if we
use this procedure and look at a sample of NIST standard
reference materials would be rejected as non-asbestos. That is
essentially saying that here is a sample that NIST says is a
standard reference of tremolite asbestos, and if you apply this
particular proposed procedure to discriminate and eliminate the
cleavage fragments, you would essentially eliminate 50 percent
of the asbestos fibers in that sample, so work needs to be done
to fine-tune that particular area. It is my intention that the
committee will find an agreement on the definition of asbestos
and will continue to work on the best way to measure its
concentration.
I would like to add one further comment. In my review of
Dr. Nolan's written testimony, he talked about the best
procedure was using air monitoring, rather than bulk analysis.
I disagree. I think that bulk analyses are necessary to
determine the amount of asbestos in materials. If we don't have
something like that, a material such as the CSI box that you
see down at the end of the table, we would have no way of
determining that that did not meet the regulations.
[The prepared statement of Mr. Millette follows:]
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Mr. Wynn. Thank you for your testimony. I would like to
thank all of the witnesses. At this time, the chair would
recognize himself for 5 minutes for questions. The first
question is to Ms. Seminario, Dr. Lemen, and Dr. McClellan. Do
you agree that the 1 percent asbestos threshold is not a
health-based number?
Mr. Lemen. Yes, I do.
Ms. Seminario. Yes, 1 percent is not health based.
Mr. Wynn. Dr. McClellan?
Mr. McClellan. It is a screening value that is not health-
based. To be health-based, you have to have, ultimately, a
linkage to what is in the air and to risk.
Mr. Wynn. OK, thank you. Do you agree that the 1 percent is
not a risk based number?
Mr. Lemen. I agree with that.
Mr. McClellan. As I said, it is a screening level based on
analytical considerations and a policy judgment that was put in
place by legislation.
Mr. Wynn. Thank you, Ms. Seminario?
Ms. Seminario. It is not risk based.
Mr. Wynn. OK, it is stated that the 1 percent threshold
concept was related to the limit of detection for analytical
methods available at the time, 1973, and that analytical
methods have advanced and improved significantly in the past 35
years.
Mr. Lemen. I certainly agree that analytical methods have
advanced, and we can go much lower than that, and that was the
consideration at the time, but it is out of date and antiquated
today.
Mr. Wynn. Thank you. Anyone else care to comment? Ms.
Seminario?
Ms. Seminario. Yes, I agree that it is a limit that is out
of date.
Mr. Wynn. Doctor, I don't want to cut you off. You seem
anxious, but you have got to be short.
Mr. Nolan. Yes, I think that any graphometrical percentage
standard is not going to be risk based, whether it is 0.25,
0.01, 2, 1. It doesn't matter.
Mr. Wynn. OK.
Mr. Nolan. In 1973, it was very easy to determine that
something was 1 percent asbestos.
Mr. Wynn. Thank you.
Mr. McClellan. It is important to recognize that because we
have improved analytical techniques does not necessarily mean a
screening value--and that is all it can be when you are working
with a bulk sample--would be lower, necessarily. It could be
higher when it is risk based. That is a determination that
would have to be made on a policy basis.
Mr. Wynn. OK, I wanted to ask a couple of questions. Dr.
Nolan, you basically just said we shouldn't deal with banning
asbestos. Is that correct?
Mr. Nolan. I have been opposed to a ban of asbestos for a
long time.
Mr. Wynn. So that means you would find that that CSI
product is acceptable for children?
Mr. Nolan. I didn't say that. I said----
Mr. Wynn. Well, we are proposing to impose a ban on a
product like that. You say you are opposed to bans.
Mr. Nolan. I would not recommend what exactly happened,
that that should be referred to the Consumer Product Safety
Commission, and they should make a recommendation. They banned
asbestos from paper-mache, from certain kinds of other consumer
products. That is fine.
Mr. Wynn. OK, thank you.
Ms. Reinstein, I believe your testimony is that the CPSC
hasn't done anything on this issue. Is that correct?
Ms. Reinstein. You are absolutely right. Neither the EPA or
the CPSC has responded to our multiple faxes and comprehensive
packet with all the science. No response.
Mr. Wynn. Ms. Seminario, one of the things I believe you
talked about was the need for an expeditious approach to
banning asbestos. Comparing the committee print with the Senate
bill, do you believe the committee print offers a more
expeditious approach?
Ms. Seminario. The committee print would do it statutorily,
so you wouldn't have to go through a rulemaking process, so
once the Congress decides that is what they want to do, that
would be done. So if that is the case, then the question is why
wait 2 years? I mean both bills provide for a 2-year period,
and I would say just go ahead and do it sooner if you are doing
it statutorily.
Mr. Wynn. OK, thank you. Dr. McClellan, you seemed your
biggest concern was that we make sure we distinguish between
asbestos and non-asbestos particles. Is that an accurate----
Mr. McClellan. That is correct. I think that is very
important.
Mr. Wynn. OK, and Dr. Millette, is it your sense that we
have the capability to make that distinction? You seem to have
testified that we actually did that.
Mr. Millette. Well, there are several proposed procedures
for doing that type of thing. We have not standardized that,
and that is something that would have to be done for the
compliance method.
Mr. Wynn. Now, the bill provides for EPA guidance, so would
it be fair to say that you would advocate that kind of guidance
from EPA?
Mr. Millette. That is correct. That would be necessary.
Mr. Wynn. Thank you. I don't have any further questions. At
this time, I yield to the ranking member, Mr. Shadegg.
Mr. Shadegg. Thank you, Mr. Chairman, and I want to begin
by saying, Ms. Reinstein, my sympathies to you and your loss,
and I commend you for your work. This is an important thing you
are doing, and it is important that we try to do it right.
There are differences in these two bills, and we need to try to
get them right when they finally pass and become law.
To that point, both you and Ms. Seminario, and both the
AFL/CIO and Asbestos Disease and Awareness Organization
supported S. 742 when it passed. What you find is this is an
improvement upon that. Is that correct?
Ms. Reinstein. I testified at the EPW committee for a ban
of asbestos-containing product. What finally passed the Senate
was asbestos-containing material, which we did not support.
Mr. Shadegg. Well, I have a letter that says you are a
signatory group that supported the passage of that bill. Is
that letter not correct?
Ms. Reinstein. That letter is correct on that date. I was
not aware until October 23 that that language had been changed.
Mr. Shadegg. Fair enough. And Ms. Seminario?
Ms. Seminario. We have supported the legislative efforts in
the Senate. As Mrs. Reinstein said, unfortunately in the
legislative process, the bill was changed. It was significantly
changed to allow for the 1 percent exemption across the board,
which we don't think is warranted.
Mr. Shadegg. It is pretty clear that we have this 1
percent, and I think we have a zero standard. And the question
is should it be zero? I mean I have heard a lot of testimony
today it shouldn't be 1 percent, but I have also heard the
issue that 1 percent is a confusing standard because the 1
percent is 1 percent by weight, and I think there is a lot of
testimony that that is not the right way to establish the
standard. What the standard should be is not how much is in
this glass, but how much will damage me if I ingest it. And I
think some people say the answer is zero and the question is,
OK, well, then we have a standard of zero.
Let me just move on. Dr. McClellan, as I understand your
testimony, you think it is vitally important that we draw the
line, essentially between asbestiform materials and non-
asbestiform materials, and in the simple language of some of
the people in this room who are just trying to speak English,
you are talking about rock products that are not fibrous, do
not have asbestos form, and asbestos products that have the
asbestos form. They have the characteristics of that. Is that
correct?
Mr. McClellan. That is absolutely correct.
Mr. Shadegg. Now, here is my concern: this legislation says
we have got to test every single load that comes out of a sand
and gravel operation to see if it is under that 0.25 standard,
and yet I think I hear Dr. Millette--and I am going to let him
respond to this as well--tell us that, quite frankly, we don't
know how to test those, at least there is a huge debate. It is
pretty clear when you have a nice, hard rock, OK, that is not
asbestos, and then when you have asbestos, that is asbestos.
But it gets pretty difficult when you get down to what is in
between, and I guess my concern is, just from a practical
standpoint, if I am sand and gravel operator, and I go scoop up
a load and I go take it over and dump it in the dump truck, it
is airborne at that point, and it creates a risk to workers. In
Arizona, we have sand and gravel operations near homes, and
that might create a risk, but can we practically test every one
of those loads, and are we testing that is a serious threat,
because that dust is naturally occurring everywhere, or are we
imposing a standard that is not economically viable in any form
to achieve no health savings. And I will let you, Dr.
McClellan, respond to that, and then Dr. Millette and anyone
else that would like to.
Mr. McClellan. Well, I think you grasp the nuances of this
very, very well. It is my understanding that in terms of the
gravel-related industries, we got about 3 billions tons a year.
Now, perhaps a third of that, a billion tons a year, is in
those areas we outlined on the map where there might be some
element of concern. Obviously, you have to have validated
methods. You have got to have an approach that is realistic,
and is going to have a positive health outcome at the end of
the day. My colleagues have testified we do not have those
validated methods in place today.
Mr. Shadegg. In fairness, you need some time.
Mr. Millette. The methods that we do have that are standard
methods for analyzing for asbestos have been validated and use
a definition of asbestos which is very specific, but it
includes, or could include, some of these cleavage fragments in
it, and so in trying to validate a new method which would
distinguish between those two, that is the part that has not
been done.
Mr. Shadegg. Can a sand and gravel operator reasonably test
each dump load into each dump truck? Dr. Nolan, I take it your
answer to this question would be trying to reach that level of
certainty is not needed because the threat doesn't merit it.
Mr. Millette. Correct, and I think it would be similar to
the problem at looking at all of the drinking water. For
instance, there is an asbestos regulation in drinking water,
and there are trillions of gallons that are used through the
United States. Every one of those places has to be measured at
one point, but then you develop a procedure where you can do it
not every time.
Mr. Shadegg. Right, if the legislation says you are going
to do a sample a year, fine. If the legislation says every
single dump truck load, I think we are in trouble.
Mr. Wynn. First of all, thank you all for your testimony. I
think it has been very helpful today. I would like to ask
unanimous consent that the petition that Ms. Reinstein has
brought with her be entered into the record.
Also, I would like to ask unanimous consent that the letter
from the Center for Occupational and Environmental Medicine,
signed by seven medical doctors, urging Congress to swiftly
pass legislation be put into the record of this hearing.
Without objection, so ordered.
Mr. Shadegg. Without objection.
Mr. Wynn. Mr. Shadegg, did you have----
Mr. Shadegg. Yes, I have five citizen letters which have
been submitted and reviewed by your staff, which I would like
to ask unanimous consent be included in the record.
Mr. Wynn. Without objection so ordered.
Mr. Shadegg. And I would like to ask that additional
studies that are supplied by witnesses that we requested today,
which arrive within 5 working days be included in the record as
well. We have some earlier witnesses who are there----
Mr. Wynn. We would like to see them. If there are enough
days, I think we can try to accommodate that. Did you have any
further----
Mr. Shadegg. My last request would be that members who were
not able to be here be allowed the usual 5 days to submit their
own statements.
Mr. Wynn. Without objection, so ordered.
Mr. Shadegg. And if you are going to finish, let me just
conclude by thanking the witnesses myself. I appreciate your
testimony. It has been very helpful.
Mr. Wynn. Thank you all and we appreciate your presence.
Thank you.
[Whereupon, at 2:35 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
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