<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28658.wais]
H.R. 2567, THE ANTIFREEZE
BITTERING ACT OF 2005
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND
HAZARDOUS MATERIALS
OF THE
COMMITTEE ON ENERGY AND
COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
MAY 23, 2006
Serial No. 109-89
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
U.S. GOVERNMENT PRINTING OFFICE
28-658 WASHINGTON : 2006
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COMMITTEE ON ENERGY AND COMMERCE
JOE BARTON, Texas, Chairman
RALPH M. HALL, Texas JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida Ranking Member
Vice Chairman HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia FRANK PALLONE, JR., New Jersey
ED WHITFIELD, Kentucky SHERROD BROWN, Ohio
CHARLIE NORWOOD, Georgia BART GORDON, Tennessee
BARBARA CUBIN, Wyoming BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
HEATHER WILSON, New Mexico BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona ELIOT L. ENGEL, New York
CHARLES W. "CHIP" PICKERING, Mississippi ALBERT R. WYNN, Maryland
Vice Chairman GENE GREEN, Texas
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DEGETTE, Colorado
STEVE BUYER, Indiana LOIS CAPPS, California
GEORGE RADANOVICH, California MIKE DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania JIM DAVIS, Florida
MARY BONO, California JAN SCHAKOWSKY, Illinois
GREG WALDEN, Oregon HILDA L. SOLIS, California
LEE TERRY, Nebraska CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey JAY INSLEE, Washington
MIKE ROGERS, Michigan TAMMY BALDWIN, Wisconsin
C.L. "BUTCH" OTTER, Idaho MIKE ROSS, Arkansas
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee
BUD ALBRIGHT, Staff Director
DAVID CAVICKE, General Counsel
REID P. F. STUNTZ, Minority Staff Director and Chief Counsel
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
PAUL GILLMOR, Ohio, Chairman
RALPH M. HALL, Texas HILDA L. SOLIS, California
NATHAN DEAL, Georgia Ranking Member
HEATHER WILSON, New Mexico FRANK PALLONE, JR., New Jersey
JOHN B. SHADEGG, Arizona BART STUPAK, Michigan
VITO FOSSELLA, New York ALBERT R. WYNN, Maryland
CHARLES F. BASS, New Hampshire LOIS CAPPS, California
JOSEPH R. PITTS, Pennsylvania MIKE DOYLE, Pennsylvania
MARY BONO, California TOM ALLEN, Maine
LEE TERRY, Nebraska JAN SCHAKOWSKY, Illinois
MIKE ROGERS, Michigan JAY INSLEE, Washington
C.L. "BUTCH" OTTER, Idaho GENE GREEN, Texas
SUE MYRICK, North Carolina CHARLES A. GONZALEZ, Texas
JOHN SULLIVAN, Oklahoma TAMMY BALDWIN, Wisconsin
TIM MURPHY, Pennsylvania JOHN D. DINGELL, Michigan
JOE BARTON, Texas (EX OFFICIO)
(EX OFFICIO)
CONTENTS
Page
Testimony of:
Ackerman, Hon. Gary L., Member, U.S. House of Representatives 23
Willis, Jim, Division Director, Chemical Control Division, Office
of Pollution Prevention and Toxic Substances, U.S.
Environmental Protection Agency 27
Bye, Jeffrey, Vice President, Prestone, Honeywell International,
Inc., on behalf of Consumer Specialty Products Association 75
Simms, Patrice L., Senior Project Attorney, Natural Resources
Defense Council 81
Eyrich, Dr. Melinda, Co-owner, Urgent Care Veterinarian Hospital 84
Bonacquisti, Tom, Director of Water Quality and Production,
Fairfax County Water Authority, on behalf of America Water
Works Association 87
Amundson, Sarah, Deputy and Legislative Director, Doris Day
Animal League 92
Additional material submitted for the record:
Eyrich, Dr. Melinda, Co-owner, Urgent Care Veterinarian Hospital,
response for the record 115
Amundson, Sarah, Deputy and Legislative Director, Doris Day
Animal League, response for the record 117
Simms, Patrice L., Senior Project Attorney, Natural Resources
Defense Council, response for the record 125
Bye, Jeffrey, Vice President, Prestone, Honeywell International,
Inc., on behalf of Consumer Specialty Products Association,
response for the record 127
Bonacquisti, Tom, Director of Water Quality and Production,
Fairfax County Water Authority, on behalf of America Water
Works Association, response for the record 140
Willis, Jim, Division Director, Chemical Control Division,
Office of Pollution Prevention and Toxic Substances, U.S.
Environmental Protection Agency, response for the record 146
H.R. 2567, THE ANTIFREEZE
BITTERING ACT OF 2005
TUESDAY, MAY 23, 2006
HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:30 p.m., in Room
2322 of the Rayburn House Office Building, Hon. Paul Gillmor
(chairman) presiding.
Members present: Representatives Wilson, Bass, Sullivan, Barton
(ex officio), Solis, Stupak, Capps, Doyle, Schakowsky, Inslee, Baldwin,
and Gillmor.
Staff present: David McCarthy, Chief Counsel for Energy and
Environment; Tom Hassenboehler, Counsel; Jerry Couri, Policy
Coordinator; Billy Harvard, Legislative Clerk; Dick Frandsen, Minority
Senior Counsel; Lorie Schmidt, Minority Counsel; and Alec Gerlach,
Minority Research Assistant.
MR. GILLMOR. The committee will come to order and before the
Chair recognizes himself, I ask unanimous consent that all Members
have five legislative days to submit opening statements for the record,
and hearing no objection, that is so ordered.
The Chair recognizes himself for the purpose of delivering an
opening statement. Normally, the hearings we have in this committee
deal with issues that directly effect human health and the environment.
Today's subject matter is geared more toward the questions involved in
safeguarding animal health and the environment, and whether it is
appropriate for the Federal government to create a national standard to
help ease the impacts to interstate commerce by doing so.
News reports of pets being poisoned by drinking antifreeze have
horrified many people and according to the Agency for Toxic Substances
and Disease Registry, one of the main constituents of antifreeze, ethylene
glycol, can significantly damage the kidneys, heart, and nervous system
of humans, potentially resulting in fatalities, if not immediately treated.
Concerns that pets or small children could be at such a risk to
accidentally drinking spilled antifreeze have spurred three States into
enacting legislation that requires a bittering agent be added to antifreeze
to discourage both human and pet ingestion.
In fact, 10 more States are considering requiring bittering agents.
The nexus between interstate distribution of antifreeze products and
multiple differing antifreeze recipe requirements in each State gives rise
to the question of whether Congress should act. The bill that our
subcommittee will consider today requires engine coolant, or antifreeze,
that contains more than 10 percent ethylene glycol to include a bittering
agent known as denatonium benzoate at a minimum, at a level that would
make the coolant or antifreeze unpalatable to pets or small children.
In addition, and of interest to our subcommittee, the bill provides
environmental liability protection for anyone who was not directly
responsible for producing the bittering agent and was not grossly
negligent concerning any environmental damage that may have been
caused by its release. Some people argue that it is unfair to hold them
liable for complying to law by adding a bittering agent that they did not
make. And while I am inclined to be sympathetic to the antifreeze
makers in this case, I also note that there is nothing in the bill that would
deflect any liability for the other constituents of antifreeze that may be
released into the environment and may of themselves cause
contamination.
So I look forward to hearing the testimony from our witnesses today,
and I want to thank them for their time and effort in being with us.
[The prepared statement of Hon. Paul Gillmor follows:]
PREPARED STATEMENT OF THE HON. PAUL GILLMOR, CHAIRMAN, SUBCOMMITTEE ON
ENVIRONMENT AND HAZARDOUS MATERIALS
The Subcommittee will come to order. Before the Chair recognizes
himself, the Chair would like to ask Unanimous Consent that all members have
5 legislative days to submit opening statements for the record. Hearing no
objection, it is so ordered.
In addition, the Chair would like to remind members that under the
Standard Practices of the Committee, opening statements for the Chairman and
Ranking Member will be five (5) minutes each and other members of the
committee who is seated and recognized will be given three (3) minutes. Any
member you wishes to waive their right to delivering an opening statement
will be granted another three (3) minutes during their allotted time to ask
questions.
The Chair now recognizes himself for 5 minutes for the purposes of
delivering an opening statement.
Normally, the hearings we have in this committee deal with issues
that directly affect human health and the environment, today's subject matter
is geared more towards the questions involved in safeguarding animal health
and the environment and whether it is appropriate for the Federal government
to create a national standard to help ease the impacts to interstate commerce
by doing so.
News reports of pets being poisoned by drinking antifreeze have
horrified many people. According to the Agency for Toxic Substances and
Disease Registry (ATSDR), one of the main constituents of antifreeze,
ethylene glycol, can significantly damage the kidneys, heart and, nervous
systems of humans; potentially resulting, if not immediately treated, in
fatalities.
Concern that either pets or small children could be at such a risk
to accidentally drinking spilled antifreeze has spurred three states into
enacting legislation requiring that a bittering agent be added to antifreeze
to discourage any human or pet ingestion. In fact, 10 states are considering
requiring bittering agents in the antifreeze marketed and sold in their
states. The nexus between interstate distribution of antifreeze products
and multiple, differing antifreeze recipe requirements in each state begs the
questions of whether Congress should act.
The bill that our committee will consider today requires engine
coolant or antifreeze that contains more than 10 percent ethylene glycol, to
include a bittering agent -- known as denatonium benzoate, at a minimum at a
level that would make the coolant or antifreeze unpalatable to pets or small
children. This requirement is closest to New Mexico's state law, but is
similar to others.
In addition, and of most interest to our subcommittee, the bill
provides environmental liability protection for anyone who was not directly
responsible for producing the bittering agent. Some people argue that it is
unfair to expose antifreeze makers to liability for complying.
Although I have not made up my mind fully about this bill, I am
inclined to be sympathetic to the antifreeze makers in this case. I note
that nothing in the bill would deflect any liability for other constituents
of antifreeze that may be released into the environment and, of themselves,
cause contamination. In addition, with the current liability scheme in most
environmental laws, I would be surprised if an environmental regulatory or
enforcement agent could not get a regulated release remediated and paid for
with the full panoply of authorities now available to Federal and state
officials. I am open, though, to being convinced otherwise.
I look forward to hearing the testimony from our witnesses today and
thank them for their time and effort to be with us. I now yield back the
balance of my time and recognize the Gentlelady from California and the
Ranking Member of the Subcommittee, Mrs. Solis. For 5 minutes for the
purposes of delivering an opening statement.
MR. GILLMOR. And I yield back the balance of my time and I
recognize the Ranking Member of the subcommittee, Mrs. Solis.
MS. SOLIS. The yanking member?
MR. GILLMOR. The yanking member.
MS. SOLIS. Thank you.
MR. GILLMOR. Not in California, right?
MS. SOLIS. No. Thank you, Mr. Chairman, and good afternoon to
you all and thank you, Congressman Ackerman, for being here, as well.
I would like to thank all the witnesses that are going to be joining us and
providing testimony. But before I address the legislation, I would like to
comment on a trend which concerns me regarding our subcommittee and
our committee; specifically, legislation considered in this subcommittee
over the last six months has consistently preempted the rights of our
States, particularly when large corporate interests find more protective
State laws inconvenient. The same legislation has often shielded actors
from liabilities for environmental contamination, much of which risks
public health and transfers the burden of cleanup onto our communities.
For example, on November 16, 2005, this subcommittee held a
hearing on concentrated animal feeding operations and superfund laws.
Legislation addressing this issue exempts large corporations like Tyson
Food from the superfund law. On March 2, 2006, the subcommittee held
a hearing on H.R. 4591, legislation to implement the Stockholm
Convention. Just last week the legislation included State preemption
passed this subcommittee on a party line vote. And today we are
discussing H.R. 2567, the Antifreeze Bittering Act of 2005 which both
preempts State law and provides liability shield to manufacturers of
antifreeze, such as Honeywell, from public health and environmental
damages.
I have been a staunch supporter of strong laws to protect our health
and the wellbeing of our public and animals, and I regularly support
efforts to achieve goals such as promoting animal welfare and believe the
intent behind the bill is good; that is why I find the legislative text even
more troublesome and I am concerned that the solution provided in the
legislation does not appropriately or adequately address the problem.
First, I question the ability of DB, that is the denatonium benzoate, to
protect animals. While I understand the California Integrated Waste
Management Board concluded that dogs have exhibited some symptoms
indicating a dislike for DB upon its ingestion, the Animal Poison Control
Center has reached other conclusions.
Back on March 30 of 2004, the Animal Poison Control Center
concluded that, and I quote, "We are not aware of any well-controlled,
published scientific research demonstrating that dogs can be consistently
protected from poisoning through the addition of taste adversive agents
such as DB." The Animal Poison Control Center went on to express
concern that pet owners will have a false sense of security if products
containing taste adversive substances were marketed as being safer. I
share their concern. The Consumer Product Safety Commission also
questions the effectiveness of the bittering agent and wrote that there is
no evidence that DB or any other possible adversive agent is actually
effective at limiting the ingestion of consumer products.
I believe we need to study the effectiveness of DB, the bittering
agent which is mandated by the bill. As the Consumer Product Safety
Commission wrote, "The use of adversives should not be considered for
regulation until the effectiveness of these substances are actually limiting
ingestion is demonstrated." Second, and I am concerned by conflicting
reports about the impact that this will also have on our environment.
While the California Integrated Waste Management Board has stated that
DB readily degrades, several other studies indicate that it is not
biodegradable. The Environmental Defense includes DB on its list of
suspected neuro-toxicants and the Congressional Research Service
concluded that data on toxicity and exposure are too sparse to provide
sound, scientific basis for assessing the environmental risk of DB.
Finally, the EPA included in its written testimony that it has not
conducted a full risk assessment nor is there an available extensive
database of toxicity or environmental information on this product. Yet,
even without this information, the bill includes a liability shield to
protect the manufacturers of antifreeze from cleanup costs, leaving again
our communities to hold the cost or the bag. Ultimately, I refuse to
believe that the only viable solution to the problem is one that preempts
our States, broadly undermines our environmental and public health
protections, establishes a false sense of security for pet owners, and
transfers a burden of possible cleanup onto our communities and water
providers. It is only prudent to have a thorough understanding of the
effectiveness of the product we will be mandating before requiring its
inclusion.
I encourage my colleagues to look for solutions beyond the
legislation and I am willing to work with you on that. I would also
request unanimous consent to submit for the record a letter by Governor
Bill Richardson of New Mexico wherein on May 22nd he states his
opposition to this bill. I yield back the balance of my time.
[The prepared statement of Hon. Hilda Solis follows:]
PREPARED STATEMENT OF THE HON. HILDA L. SOLIS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Good afternoon.
I would like to thank our witnesses for joining us today and
recognize our colleague, the Honorable Gary Ackerman, who will be joining us.
Before I address this legislation, I would like to comment on a trend
which concerns me.
Specifically, legislation considered in this Subcommittee over the
last six months has consistently preempted the rights of our states,
particularly when large corporate interests find more protective State laws
inconvenient.
The same legislation has often shielded actors from liability for
environmental contamination, much of which risks public health and transfers
the burden of cleanup onto our communities.
For example, on November 16, 2005, this Subcommittee held a hearing
on concentrated animal feeding operations and Superfund laws.
The legislation addressing this issue exempts large corporations
like Tysons Food from the Superfund law.
On March 2, 2006, this Subcommittee held a hearing on H.R. 4591,
legislation to implement the Stockholm Convention.
Just last week this legislation -- including state preemption --
passed this Subcommittee on a party line vote.
And today, we discussing H.R. 2567, the Antifreeze Bittering Act of
2005, which both preempts states laws AND provides a liability shield to
manufacturers of antifreeze -- such as Honeywell -- from public health and
environmental damages.
I have long been a staunch supporter of strong laws to protect the
health and well-being of people and animals.
I regularly support efforts to achieve goals such as promoting animal
welfare and believe the intent behind this bill is good.
That is why I find the legislative text even more troublesome.
I am concerned that the solution provided in this legislation does
not appropriately or adequately address the problem.
First, I question the ability of denatonium benzoate [DB] to protect
animals.
While I understand the California Integrate Waste Management Board
concluded that dogs have exhibited some symptoms indicating dislike of DB
upon its ingestion, the Animal Poison Control Center has reached other
conclusions.
On March 30, 2004, the Animal Poison Control Center concluded that
"we are not aware of any well-controlled published scientific research
demonstrating that dogs can be consistently protected from poisoning through
the addition of taste aversive agents including DB."
The Animal Poison Control Center went on to express concern that
"pet owners will have a false sense of security if products containing
taste aversive substances were marketed as 'safer'."
I share their concern.
The Consumer Product Safety Commission also questions the
effectiveness of this bittering agent and wrote that "there is no evidence
that denatonium benzoate or any other possible aversive agent is actually
effective at limiting ingestions of consumer products."
I believe we need a study the effectiveness of denatonium benzoate,
the bittering agent which is mandated by this bill.
As the Consumer Product Safety Commission wrote "the use of aversives
should not be considered for regulation until the effectiveness of these
substances to limit ingestion is demonstrated."
Second, I am concerned by conflicting reports about the impact of DB
on the environment.
While the California Integrate Waste Management Board has stated that
DB readily degrades, several other studies indicate that it does not
biodegrade like ethylene glycol.
Environmental Defense includes DB on its list of suspected
neurotoxicants and the Congressional Research Service concluded that data
on toxicity and exposure are too sparse to provide a sound scientific basis
for assessing the environment risk of DB.
Finally, the EPA included in its written testimony that it has "not
conducted a full risk assessment, nor is there available an extensive
database of toxicity or environmental fate information on DB."
Yet, even without this information, H.R. 2567 includes a liability
shield to protect the manufacturers of antifreeze from cleanup costs --
leaving our communities holding the bag.
Ultimately, I refuse to believe that the only viable solution to this
problem is one that preempts our states, broadly undermines our environmental
and public health protections, establishes a false sense of security for pet
owners, and transfers burden of possible cleanup to our communities and water
providers.
It is only prudent to have a thorough understanding of the
effectiveness of the product we would be mandating before requiring its
inclusion broadly.
I encourage my colleagues to look for solutions beyond this
legislation and am willing to work with them to achieve that.
Thank you again for being here.
I yield back the balance of my time.
MR. GILLMOR. Is there objection to including the letter from
Governor Richardson? The gentlelady from New Mexico.
MRS. WILSON. Mr. Chairman, reserving the right to object, I would
also like to include the Governor's letter of April 17th supporting this bill
in the record.
MR. GILLMOR. Did he support it before or after he opposed it?
MRS. WILSON. I think he opposed it after he supported it.
MR. GILLMOR. Oh.
MRS. WILSON. With the consent of the gentlewoman from
California, why don't we just put both letters into the record and let the
public decide what the Governor of New Mexico supports?
MS. SOLIS. That would be fine.
MR. GILLMOR. Without objection, hearing none, both letters from
the Governor from New Mexico will be included in the record.
[The information follows:]
<GRAPHICS NOT AVAILABLE IN TIFF FORMAT>
MR. GILLMOR. Are there further opening statements? The
gentlelady, Mrs. Wilson. Well, let me first go to--I didn't notice that our
Chairman of the full committee had come in. We will go to Mr. Barton
first.
CHAIRMAN BARTON. I am happy to defer to the sponsor of the bill, I
think. Well, thank you, Mr. Chairman, for holding this hearing. Thank
you, Mr. Ackerman, for being here. I am interested to see what you are
going to do with the props in front of you; which of those you are going
to drink and which you are not going to drink.
We are here to discuss H.R. 2567, the Antifreeze Bittering Act of
2005. This bill would amend the Federal Hazardous Substance Control
Act to require engine coolant and antifreeze to contain a bittering agent
to protect from the accidental poisoning of children and animals. I
understand that the Consumer Product Safety Commission believes that
adversive agents can help prevent accidental poisoning in the home. I
am also told that denatonium benzoate, or DB, the agent that is the
subject of this legislation, has been present in many household products
for years. Several States, including New Mexico, California, and Oregon
require it or something like it to be in antifreeze and engine coolants.
As we think about whether the Federal government should create a
national standard to ease the impact on interstate commerce and to mirror
the success that States have had in preventing poisoning, I am interested
in learning more about how these State programs really work to protect
children and animals. I hope our witnesses today can also shed some
light on the concerns of the others over the inclusion of limited liability
protection for the manufacturers and distributors of engine coolant and
antifreeze, who would be subject to this mandate. I want to thank the
subcommittee Chairman for holding this hearing and look forward to it.
Hopefully, we can get a consensus that would enable us to have a
markup and move the bill.
[The prepared statement of Hon. Joe Barton follows:]
PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY
AND COMMERCE
Thank you Mr. Chairman for holding this hearing on HR 2567, the
Antifreeze Bittering Act of 2005, a bill that amends the Federal Hazardous
Substances Control Act to require engine coolant and antifreeze to contain a
bittering agent to protect from the accidental poisoning of children and
animals.
I understand that the Consumer Product Safety Commission believes
that "aversive" agents can help prevent accidental poisoning in the home.
I am also told that denatonium benzoate, or DB, the agent that is the subject
of this legislation, has been present in many household products for years.
Several states, including New Mexico, California, and Oregon, require it, or
something like it, to be in antifreeze and engine coolants.
However, as we think about whether the Federal government should
create a national standard to ease the impact on interstate commerce and to
mirror the success states have had in preventing poisoning, I am interested
in learning more about how these state programs really work to protect
children and animals. I hope the witnesses today can also shed some light
on the concerns of others over the inclusion of limited liability protection
for the manufacturers and distributors of engine coolant and antifreeze who
would be subject to this mandate. I thank all the witnesses before the
Subcommittee today and return the balance of my time.
MR. GILLMOR. The gentleman from Michigan, Mr. Stupak; he is not
here. The gentlelady from California, Mrs. Capps.
MS. CAPPS. Thank you, Mr. Chairman. I appreciate this
subcommittee's effort to protect children and animals from the dangers
of ingesting antifreeze, a goal, I believe, we all support wholeheartedly
and I appreciate the honorable colleague of ours, Gary Ackerman, for
being here as our first panelist. I commend him and the bill supporters
for trying to find a solution to a tragic problem.
I now have three principal concerns with H.R. 2567 as it is currently
written. These have been stated in part already, so I will be brief, but I
believe first we need to learn more about the possible impact of
denatonium benzoate or DB on human health and the environment before
its widespread use is mandated. The scientific evidence on the effects of
DB is limited and what is known suggests that more study is warranted.
For example, some studies have shown DB persists in the environment
and can spread throughout the water and the Congressional Research
Service has reported, and I quote, "Few studies have been conducted to
assess the effectiveness of denatonium benzoate in discouraging tasting,
swallowing or otherwise repelling wildlife, pets or children." And the
Consumer Product Safety Commission has concluded, and I quote,
"There is no evidence that DB or any other possible adversive agent is
actually effective at limiting ingestion of consumer products."
Second, the bill provides, and this is the difficult one for my State,
which has its own provisions, this bill provides a provision that preempts
States from regulating antifreeze bitterants unless they are identical to
H.R. 2657. I don't think we should make it harder for States to protect
the health and safety of their residents. And finally, the bill waives all
forms of liability for companies making or handling DB, even if the use
of this chemical causes environmental damage, personal injury or even
death. This waiver would apply even if children or animals are injured
or killed by DB, jeopardizing the very people or pets the bill purports to
protect.
We shouldn't limit liability for any product that could cause health
or environmental harm, eliminate manufacturers' incentives to create safer
products, or shift cleanup costs away from responsible parties. Mr.
Chairman, the implications of the use of DB and the future effects of a
liability waiver must be the subject of many more hearings, in my
opinion, before this bill moves further. That doesn't mean it is not a
worthwhile goal, and I do look forward to working with you, to working
with Gary Ackerman, to working with the sponsors of the bill to make,
as well as the many supporters, to pass as strong a bill as we can that
makes antifreeze a safer product. I yield back.
MR. GILLMOR. The gentlelady from New Mexico.
MRS. WILSON. Thank you, Mr. Chairman, and thank you for
holding this hearing. I particularly wanted to thank Gary Ackerman from
New York for your leadership on this issue, along with Mr. Rohrabacher
from California. You have been real supporters and advocates for
changing some of the rules to take what is a very hazardous substance
and make it less attractive to both children and to animals. I also wanted
to thank and to introduce Dr. Melinda Eyrich, who is here from
Albuquerque. She is a veterinarian and has been a veterinarian for 15
years in practice in New Mexico and 7 years as an emergency
veterinarian and we thank you for being here, Dr. Eyrich.
This is a bipartisan bill and over the last 2 Congresses, 19 Democrats
have, at one time or another, sponsored this piece of legislation for a very
good reason. In the last year alone, 74 poisonings have happened in the
State of New Mexico of children from drinking antifreeze and thousands
of animals have been injured or killed from drinking antifreeze. The
State of New Mexico passed a law in March of 2005; it was enacted in
July of 2005 and this legislation is identical to the law that was passed in
New Mexico. So what is this bitterest substance known to man that this
legislation will require be put into antifreeze? It is a substance called
DB. I am not even going to try to correctly pronounce its chemical
name.
But it was approved by the FDA in 1963. We have 40 years of
experience with this particular compound being added to consumer
products to make them bitter, mostly so that children won't eat them; nail
polish, hair spray, crayons, bubble bath, shampoo, eye shadow, ink, hand
sanitizer, windshield wash, laundry detergent, fabric softener, perfume
all have DB in it so that children won't eat it because it is too bitter. That
is what we are asking this legislation to add to antifreeze.
The United Kingdom, Japan, Australia, and France all have similar
laws and it would cost three cents on the gallon. There is an unusually
broad group of supporters of this legislation; the Humane Society, the
antifreeze manufacturers, the American Academy of Pediatrics, the
American Veterinary Medical Association, and others, and for very good
reason. This is a product that is very attractive to children and to animals
and we need to require that enhanced safety be put in place.
I would all also note, with respect to safety, it took 17 years to be
able to scientifically prove that putting safety caps on medicines and
household chemicals helped keep children safe. We don't need to wait
17 years to see if this will work for antifreeze. We need to take safety
precautions so that children are less likely to drink antifreeze and animals
aren't, either. Thank you, Mr. Chairman.
[The prepared statement of Hon. Heather Wilson follows:]
PREPARED STATEMENT OF THE HON. HEATHER WILSON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Chairman, I would like to thank you for holding this hearing
today on the Antifreeze Bitterant Act, H.R. 2567. I would also like to
introduce one of the witnesses today on the third panel, Dr. Melinda Eyrich.
Dr. Eyrich is from Albuquerque, New Mexico, and has been a veterinarian for
15 years. I would like to welcome Dr. Eyrich and I look forward to her
testimony and the testimony of all the witnesses.
Antifreeze poisoning is a real danger. Because antifreeze tastes
and smells sweet, it is ingested by children and pets. Last year 74 people
in New Mexico were poisoned by antifreeze, and many more animals were
poisoned, with several animal deaths. Losing a pet is not an easy thing.
Just ask anyone who has lost their pet. Lisa Hecker of New Mexico lost her
dog when someone put dog food swimming in antifreeze out in the arroyo next
to the road where they live in September 2004. Nine dogs and 2 cats were
killed by antifreeze poisoning in her neighborhood within a two week period.
But we can do something to stop these poisonings, whether they are
intentional or accidental.
The City of Albuquerque passed a law in 2004 to include the bittering
agent denatonium benzoate in antifreeze, and the State of New Mexico followed
suit in 2005. Denatonium benzoate is also a required additive to make
antifreeze bitter in the UK, Japan, Australia, and France. The United States
should follow suit.
Making antifreeze bitter only costs about 3 cents per gallon. This
seems like a small price to pay to keep our children and our pets safe.
Frankly, I don't see how anyone could oppose this legislation.
MR. GILLMOR. The gentleman from Michigan.
MR. STUPAK. Thank you, Mr. Chairman. I will be in and out of this
hearing, so I am going to pass on my opening statement.
MR. GILLMOR. Mr. Doyle.
MR. DOYLE. Thank you, Mr. Chairman. I want to thank you for
holding this hearing so that this committee can fully investigate the effect
that H.R. 2567 will have on our families, our environment and the
antifreeze industry itself. At a time when far too many bills skip all or
part of this committee's legislative process, Mr. Chairman, I want to
applaud you for allowing us to fully vet this bill through normal order. I
am a cosponsor of this bill, and I am a long-time supporter of efforts to
protect our pets from harm, be it from physical abuse or accidental
means, such as which result from their consumption of antifreeze.
Consequently, I fully support adding a bittering agent to antifreeze and
think it is long overdue. However, I have some concerns with the
mandate that one specific bittering agent must be used in order to make
antifreeze less appealing to our pets and small children.
I believe we can achieve our goal of making antifreeze distasteful to
our pets without potentially creating a new threat to the environment. As
many of our witnesses will testify today, we simply do not know what
effects Bitrex may have if released into our environment through a spill.
Since its been described as the most bitter substance we could possibly
add to antifreeze, the danger of a spill and a contamination of any local
drinking water is a real concern and something that needs further
examination. Because we don't know what dangers this bittering agent
may or may not pose to our environment and our health, I support the
liability protection waivers of this legislation because I find it a bit
irresponsible that this committee and this Congress would mandate that a
company must include it in their product without giving that company
some protections against being sued if the bittering agent does, in fact,
end up causing widespread damage.
Don't get me wrong. I generally do not support blanket liability
waivers for any industry and believe strongly that if you are the one who
pollutes, you are the one who should pay for the cleanup. However, in
this particular circumstance, industry is being ordered to include a
specific substance in their product when neither I nor you nor any of the
experts in this room can tell for certain that the substance is safe. That
would sort of be like ordering a shower maker to add an electrical unit to
its product in the name of making it more energy efficient without any
testing whether the electrical unit posed any risk of electrocution.
Simply put, Mr. Chairman, until we know for certain what risk
Bitrex poses, I must support the waiver of liability provisions contained
in this legislation. In conclusion, I fully support the intention of this
legislation. I hope that we can work together to answer the questions that
Bitrex poses. I know that we can find a way to make antifreeze less
appealing to children and pets while simultaneously protecting our
environment and I look forward to working with you to achieve this goal.
Mr. Chairman, I yield back the balance of my time.
MR. GILLMOR. The gentleman yields back. The gentlelady from
Illinois.
MS. SCHAKOWSKY. Thank you, Chairman Gillmor and Ranking
Member Solis, for holding today's hearing on antifreeze products. I am
concerned that what was a bill that would protect both children and pets
from consuming deadly antifreeze is now a bill that will shield the
chemical industry from willful misconduct and preempt strong State
laws. I want to say from the outset that I have been a strong supporter of
this legislation. I was a cosponsor in the last Congress of the Antifreeze
Bittering Act along with 132 others. I wouldn't cede ground to anyone
in my support for animals and the Humane Society and the Doris Day
Animal League and the veterinarian that we will hear from. I am sure I
am going to agree with you on everything, but we need to, in my view,
collect more evidence to analyze the environmental impact and adverse
effects of DB before legislating on this issue.
The problem before the subcommittee is clear. Ethylene glycol, in
which the antifreeze most commonly used in the United States, is
registered by the EPA as a toxic substance and is ingested by thousands
of children and pets each year. That is indisputable. The solution,
however, is somewhat less clear. Ethylene glycol isn't the only type of
antifreeze on the market in the United States. We should consider
whether promoting a safer version of antifreeze based on propylene
glycol is a viable option. And while a number of studies indicate that
DB has a bittering effect that deters both pets and humans from
consuming it, its environmental impact remains unclear. We may
discover alternative bittering agents that would both have a taste
adversive effect and have no demonstrable impact on the environment.
The problem with this bill, first it expands the liability waiver to
include environmental damage, even though some research suggests that
DB is not biodegradable and could contaminate drinking water,
eliminates the willful misconduct exception that was included in the
previous versions of the legislation, mandates the use of DB as the
bittering agent. It preempts stronger State laws like those in California
and Oregon, which would allow the use of adversive agents other than
DB, allowing science not speculation to dictate the best option.
I know that the chemical industry has reversed its position on this
issue since it was considered in 2004. At that time, the Consumer
Specialty Products Association argued "There is no credible scientific
evidence showing that the inclusion of bitterants in antifreeze has
resulted in a reduction in incidents of accidental poison." The CPSA
submitted a number of studies to the Library of Congress to document
the inconclusiveness of that science. But now that the liability waiver
has been broadened to include environmental damage and eliminated the
exception for willful misconduct, the industry is here today testifying in
support of the legislation.
My view is that before passing a bill that wipes out some consumer
and environmental protections and preempts State laws, that we have to
ensure that we are acting based on conclusive science in support of a
solution that will protect our children, our pets, and the environment.
Thank you, Mr. Chairman.
MR. GILLMOR. The gentlelady from Wisconsin.
MS. BALDWIN. Thank you, Mr. Chairman. Today's hearing is an
important one. I share the concerns raised by my colleagues about the
dangers of ingesting engine coolant and antifreeze products. Last
Congress I was pleased to cosponsor the antifreeze bittering legislation.
Last session's bill provided a balanced approach to protect our children,
animals, and our environment. It would have held liable those parties
responsible for environmental damage or those liable for willful
misconduct. And it would also have allowed States to protect the safety
of their citizens by establishing their own standards for the use of
antifreeze. But this Congress, the bill is different.
Mr. Chairman, I thought long and hard about this measure and my
co-sponsorship of it and despite supporting last session's bill and
certainly the intent behind the bill before us this session, I concluded that
the language in this version would simply cause more harm than good.
Specifically, I am concerned about the strict requirement that denatonium
benzoate be used as the bittering agent, despite the lack of sufficient
evidence providing that DB is safe for the environment. In studies
sponsored by antifreeze manufacturers, evidence shows that DB does not
biodegrade, resulting in its being passed through to our water treatment
plants. Further, studies show that DB can accumulate in the groundwater
resulting in the contamination of area wells.
In all, the science is just not behind DB, at least it is not behind
DB to the extent that we should mandate its use, exempt manufacturers from
liability, and cross our fingers and hope that our environment will not
suffer. Valid concerns about the State preemption provision were also
brought to my attention. States should have the ability to determine the
appropriate means for protecting their citizens, just as our longstanding
environmental laws explicitly allow them to do.
Finally, I am troubled that antifreeze manufacturers get a free pass
from any damages their products cause to the environment. It seems like
just yesterday when we refused to exempt MTBE manufacturers from
liability during the Energy Policy Act debate, that we should apply the
same logic here today. Antifreeze manufacturers, producers and
distributors should be held liable for spills or other damages caused by
their ordinary use, negligence or willful misconduct. Broad legal
immunity fails to protect our citizens and our environment.
Mr. Chairman, in all there are better ways for us to make antifreeze
into a safer product for children and animals. No one wants to see them
harmed from ingested antifreeze. But we are setting a bad precedent by
closing the courthouse doors, preventing States from taking action, and
mandating the use of the product when we are not quite sure about all the
risks. I look forward to hearing about how we can find a more balanced
approach to protecting the safety of our children and animals while also
protecting our environment and the rights of the citizens and our States.
Thank you, Mr. Chairman.
MR. GILLMOR. Are there further opening statements? If not, we will
turn the chair to Mr. Ackerman.
[Additional statements submitted for the record follows:]
PREPARED STATEMENT OF THE HON. CHARLES F. BASS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Thank you Chairman Gillmor for holding this hearing today about the
proposed legislation to federally mandate the addition of an aversive agent
in antifreeze. Sadly, every year children and animals become ill from the
unintentional -and sometimes intentional poisoning - from drinking this
commonly available toxic substance. Especially coming from the Northeast, it
is not uncommon for households to have a gallon of antifreeze stored in their
garage. Over the years, the industry has taken significant steps in
preventing unintentional poisoning by including foil seals and safety
caps on their products to prevent children and animals from getting a hold of
this highly toxic product. Unfortunately, human error and just the simple
nature of the substance being in the environment, there are still a
significant number of cases of children and animals becoming extremely ill
and in some extreme circumstances dying from kidney failure each year.
Several states have passed legislation to require the inclusion of
bittering agents to antifreeze. Bittering agents has been found to be
successful in preventing the consumption of toxic but sweet tasting chemicals.
Currently, there are several additional states considering implementing
similar legislation. However, due to our increasing mobile society which
carries this substance daily across state lines and that the distribution of
antifreeze is an interstate commerce issue, it is clear that Congress needs
to consider federal regulations on the inclusion of bittering agent-
denatonium benzoate (DP) - in antifreeze. It is impractical to have a
patchwork of 50 different regulations on antifreeze. Additionally, it is
important to note that DP has been used for years in other products as a
bittering agent. The U.S. Bureau of Alcohol, Tobacco, and Firearms requires
that industrial alcohol products contain a bittering agent and is
specifically used in deodorants, shampoos, soaps, room deodorizers, and
disinfectants.
In testimony submitted by Mr. Tom Bonazquisti, the Director of Water
Quality and Production, the water treatment industry expresses concerns over
the use of DB in anti-freeze and its possible environmental and health impact
it would have if the substance escapes into the environment and possibly into
our water systems. However, I hope Mr. Bonzaquisti will take a moment to
comment on what type of impact DB has had since it is found in many common
household products since 1963 and is regularly released into our water sewer
systems. If DB does cause a potential environmental hazard, I think then
the issue should be addressed by this Committee is whether we continual use
bittering agent in household products.
Currently, H.R. 2567, the Antifreeze Bittering Act is pending before
this Committee. This legislation is a bipartisan effort that has been part
of ongoing discussions between chemical industry and environmental groups.
The Senate has recently marked up the companion bill and added language
regarding a study to ensure that DB or alternative bittering agents have no
adverse affect on the environment. Due to its long use in common household
products and its use in three states, there should be significant amount of
data that can be looked at to make a determination. I hope that the witnesses
will discuss their take of the changes made in the Senate.
The addition of a bittering agent to antifreeze will assist in
preventing the unnecessary death of wildlife and family pets. This
legislation appears to be a commonsense strategy toward this goal and has
developed out of discussions between the various stakeholders. I look
forward to the testimony from our witnesses and thank them for coming before
the Subcommittee.
PREPARED STATEMENT OF THE HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Chairman, today the Subcommittee is holding a hearing on H.R.
2567, the Antifreeze Bittering Act of 2005, a bill that amends the Federal
Hazardous Substances Act to require that a bittering agent, denatonium
benzoate, be added to antifreeze sold commercially. The hearing today
provides the opportunity to begin the process of answering some very
necessary questions about this legislation. Let me highlight a few
of them:
<bullet> Why have the manufacturers of denatonium benzoate declined
to provide scientific data on the environmental fate and environmental
toxicology of denatonium benzoate?
<bullet> Do we have full toxicological, exposure, and risk
evaluations on the bitterant denatonium benzoate or other bittering agents
before us and available for Congress and the public to review?
<bullet> Should the Congress be mandating a market for a product,
denatonium benzoate, that is manufactured almost exclusively in other
countries?
<bullet> What scientific evidence shows that the inclusion of
bitterants in automotive products has resulted in a reduction in incidents
of accidental poisoning?
<bullet> Has the Environmental Protection Agency (EPA) reviewed
the numerous scientific studies about denatonium benzoate? Has the EPA
rendered a conclusion as to whether it is safe if released in the
environment?
<bullet> Should Congress provide broad legal immunity for the use
of denatonium benzoate, including a liability exemption from the Superfund
statute?
<bullet> Should we consider other options, such as the use of
propylene glycol, as an alternative to ethylene glycol?
<bullet> Should we reverse 30 years of precedent in our pollution
statutes by preempting State laws that may adopt more effective aversive
agents or allow the use of aversive agents that are less harmful to the
environment, or by preempting laws that maintain liability for
environmentally harmful releases?
Mr. Chairman, while the goal of this legislation is worthy, we need
answers to these questions before we proceed, and I look forward to the
testimony of our witnesses.
PREPARED STATEMENT OF THE HON. FRANK PALLONE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW JERSEY
Mr. Chairman, thank you for holding this hearing.
As a strong supporter of animal rights, I recognize the need to
protect our children, pets, and wild animals from the accidental ingestion
of ethylene glycol, the main ingredient in automobile antifreeze.
Still, I have serious concerns about whether H.R. 2567 as written
will actually prevent unnecessary ingestion. I also have concerns about
changes in this bill from its original form in the 108th Congress, when it
was introduced as H.R. 1563 and had widespread support from members
including myself.
First is the requirement in the new bill to mandate the use of
denatonium benzoate, or DB, as the bittering agent -- and not allow the use
of other agents. Scientific evidence at this point is inconclusive as to
whether DB will prevent or inhibit ingestion and on whether the widespread
use of DB is environmentally safe.
Furthermore, mandating the specific levels of DB to be used appears
to me to be micromanagement of the worse kind. The result would likely be
that we effectively prevent the development and use of other, possibly
safer, antifreeze solutions or bittering agents.
I am also concerned that the bill selects a bittering agent made
by only four manufacturers, none of which are in the United States.
These manufacturers have not released full data on the composition
of their DB products despite being requested to do so. While this may be
their right, our obligation as policymakers is to ensure that DB is safe
and effective before mandating its use in the United States.
EPA will testify today that there is just not enough information
to make a decision on the safety of releasing DB into the environment. We
need additional time to gain the information necessary to understand what
we are potentially going to release into our environment and could harm
the same people and pets that we are seeking to protect.
I also cannot support legislation that would require the use of
an agent of unknown composition and then release the companies who use it
from any liability. Dating back to the debate over MTBE and other substances,
there is a disturbing trend in Congress towards giving companies a free pass
from pollution. Ultimately, the American people end up paying the bill when
a liability waiver covers a chemical that turns out to have serious
environmental impacts.
Finally, I am concerned about the state preemption language in this
bill. I strongly support the ability of individual states to go beyond
federal regulations. New Jersey frequently leads the nation in progressive
environmental protections, and I cannot support any effort to infringe on
their right to do so. The bill before us explicitly prohibits states from
implementing more stringent protections or substituting safer and more
effective bittering agents. I fail to see how such a restriction is a
benefit to the people and pets we are seeking to protect.
I am interested in hearing from the witnesses on these matters, and
I hope that we are able to fashion some sort of solution to all of the
concerns surrounding this legislation.
Thank you, Mr. Chairman.
STATEMENT OF HON. GARY L. ACKERMAN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF
NEW YORK
MR. ACKERMAN. Thank you very much, Chairman Gillmor and
Ranking Member Solis. I listened to everybody's opening statement.
Everybody is right. Welcome to the happy hour. Let me tell you a
couple of things before we talk about accidental poisonings. Orlando,
Florida; Lake Mary woman faces a charge of attempted murder after
authorities accused her of giving her husband a glass of antifreeze.
Marietta, Georgia; Lynn Turner convicted of poisoning her husband with
antifreeze, sentenced to life in prison. She is also scheduled to go on
trial for the antifreeze poisoning, subsequently, of her firefighter
boyfriend. Cambridge, Massachusetts; Kevin Keown, a talk show host,
arrested and accused of murdering his wife by spiking her Gatorade with
antifreeze. Belton, Missouri; Michelle Hollis, arrested and charged with
first degree murder, allegedly killing her husband by poisoning him with
antifreeze. Albridge, New Jersey; Maryann Neabor, charged with killing her
brother-in-law, spiking his fruit drink with antifreeze. Kansas City,
Kansas; Ralph Trout and Donna Ozuna Trout charged with attempted
murder for trying to kill the mayor and the mayor's family by sending
them cupcakes and root beer laced with antifreeze. Omaha, Nebraska;
Maureen Clamback sentenced to up to 26 years in prison for spiking a
bottle of strawberry margarita mix with antifreeze, trying to kill her
sister-in-law.
All this is what we have discovered during the past two years and I
am sure there is a lot more that we will never know of. And why is this
becoming the weapon of choice for murder? It is because it tastes so
sweet. Children taste it, they want more; pets taste it, they lap it up.
This is what the antifreeze looks like. It looks very much like all of
these soft drinks and if you want, I will taste each and every one of them.
They are soft drinks and they taste sweet. I am not going to taste this one.
This is that substance that we are all having such great difficulty
pronouncing. This is DB and it is, we are told, the bitterest agent known
on earth, worse than sucking a thousand lemons. And two drops of this,
costing maybe two pennies for the cost plus the manufacture plus the
mixing it in, two drops of this in the antifreeze per gallon, there you go,
will now make the antifreeze bitter, very bitter. You may not think its
bitter; I am not going to taste it. But if you would allow me to just move
these things out of the way and do what some people would call New
York's three card Monty thing, and ask you which one you would prefer
to drink, I don't think anybody would play Russian Roulette with these
stakes.
And although maybe one is a little darker than the other, I assure
you, if we spilled them on your table or in your garage or in your
driveway, they would all look exactly the same. With one exception;
that if you tasted any one of them, nothing would happen to you. With
one exception; if you tasted the one with DB, you would not taste
anymore, not because of it being unhealthy, the unhealthy part is from
this; but because of the bitter, extremely bitter taste that it has.
Now, the question is this dangerous? This can kill you. It has,
and I am not even addressing the deliberate killings. We don't know what
that amounts to and evidently, there is a spate of them now that people have
discovered how to do it and how to slip your friend a mickey at a party
and you know, whatever and them enjoying it. You put this in it, they
can tell the difference. I am worried more about the 1,400 kids that have
been poisoned last year. If we wait the 10 years that it takes for other
things to be decided, that is 14,000 kids are going to be poisoned. Why?
Because of inaction, because of uncertainty.
Well, you may ask and you have in the opening statements of some,
how do we know about this stuff? How do we know about DB? And
that concerns me, also. But if you do a little research and see what our
society is doing right now, those of us who get our nails manicured; yes,
I am one of them. We just got this down in CVS down the block, at CVS
drugs, right off the shelf. So you are putting this product, this nail
polish remover on your nails and then you wash it off and then it goes into
the water supply. Nobody seems concerned about it. Why? Nobody is
regulating it. Why? Because nobody real, in the scientific industry,
thinks it is a problem.
And if you are grown up and you are saying well, you know, I am
taking good care of my nails; I probably don't bite them if I am--another
product, and I didn't want to bore you by filling the shelf with household
items here, but you could just go down and read the labels and find out
what you have in every store that you go into. This is something that we
put on the nails of our children and our grandchildren to prevent them
from biting their nails. Why? Because it has a bittering agent. What is
the bittering agent? Why, it is DB.
Now, why would you put this on the nails of a child that you love if
you are going to be poisoning him? And the answer is he doesn't get
poisoned. He is putting it in his mouth. Well, if he is playing in the
driveway or in the garage and he puts his hand on the floor, it is not the
DB that we are worried about, because we are already using it in just
about half the things that we use, but it is the antifreeze. That is the
problem.
Let me address the two issues that I have heard people express as
concerns, and the answers really are in the bill, if you read the bill
carefully and it is not a very long bill. Liability. I don't want anybody
to be off the hook. If you are responsible for something dangerous, then
you are responsible to the fullest extent of the law. But the gentleman is
right. If you are going to require somebody to put their product in your
product, you should be responsible for your product; they should be
responsible for their product. The bill specifically says that. The
antifreeze manufacturers are answerable in every single way under the
bill; it is on page 3 under Limitation of Liability, that if you are required
to put the DB in your antifreeze, you are responsible for everything that
you voluntarily put in the antifreeze, environmentally and health-wise.
And right, that is on line one. If you go down to line two, it says
you are not being left off the hook. If you go to paragraph three, it says
that nothing in this bill is construed to keep the manufacturer of DB on that
slippery slope we are worried about. If you made the DB and there is a
problem with DB to the environment or to somebody's health, you are
responsible for that. Manufacturer A is responsible for A; Manufacturer
B is responsible for B. If we require A to be inserted in B, that is our
demand. And the people who are making these things are responsible.
Nobody gets off the hook.
Preemption. And by the way, I didn't mention it, the issue of
effectiveness arose. This is the stuff that they put, those of you who are
fortunate enough to live in areas where there are deer and animals, et
cetera, this is the stuff that we put DB in the spray on the trunks of our
trees and on our foliage to keep the deer from eating it. Seems to me that
washes into our soil pretty quick, as soon as it rains and into our aquifers
and water supplies. We don't worry about that. Why? Because
evidently, there is nothing to worry about.
The second issue that people brought up as a concern was
preemption, and I am as interested in preemption as anybody else. But
States are beginning to act because they are ahead of us in understanding
the danger both to animals that we all profess to love and our children
that I know we all love, and the environment that everybody talks so
much about. States are beginning to act. Three States have done it, eight
more States are considering it. If every State had different regulations
you are not going to have manufacturers of anything making 50 different
products in 50 different States.
And besides, even if they did, or even if those three States did,
what is to prevent this mean New Yorker from driving my mean New York
car with my terrible antifreeze in it, without a bittering agent into your
State in California? Are we going to stop every car from every State
from coming into the three States or whatever amount of States it
amounts to and make you sign an affidavit that there is no DB because
your car is going to leak if it is going to leak. And if you think they
don't, walk through the parking garage in any of our buildings or the
parking lots outside where all the staff cars are and just look at the
ground and see all these liquids there.
It is a problem and it is a mobile problem and being that mobile in
every way. And if we are talking about motor vehicles that go around
the country, maybe less because of the price of gas, but how do you stop
this, in one State there is no protection? And the real answer is there
should be one standard. And if there is one standard that everybody
sticks to, as long as we can agree on it, and by the way, this isn't a boon
to any one company. You know the amount of this that it would take
annually, is 7,000 gallons, total. This isn't MTBE where you are talking
about 82 billion gallons of gasoline stored in cans that are underground
that are going to leak. This isn't that material. This is something
completely different.
So I just urge my colleagues, and this has been very confusing and it
has to do with chemistry and I was never good at chemistry, but I am
starting to learn a little bit now that I am watching it a little bit more
closely with respect to this. This is easy to figure out. This is cheap.
It is a heck of a lot cheaper than the pain and anguish to 14,000 mothers
and 14,000 fathers and 56,000 grandparents mourning over the poisoning
of a child. And if we are talking about up to 90,000 dogs and cats, some
are strangers, some are family members to a lot of people, over 10 years,
that is 900,000 pets. This is something that we can do something about.
And if we are worried, let us rush to ban all of these household items that
everybody uses. I thank you for your attention.
[The prepared statement of Hon. Gary L. Ackerman follows:]
PREPARED STATEMENT OF GARY L. ACKERMAN, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF NEW YORK
Good afternoon. I want to thank Chairman Gillmor and Ranking Member
Solis for holding this important hearing and allowing me to testify before
the subcommittee.
I'm here for one simple reason: 1,400 children are poisoned by
antifreeze every year. In addition between 10,000 and 90,000 dogs and cats
are poisoned by antifreeze ingestion each year. A mere sip or lick of
antifreeze can result in agonizing kidney failure, respiratory arrest, comas,
and death.
That is why this bill is so important. Unless Congress acts,
thousands more children and tens of thousands more household pets will
unnecessarily suffer horribly, or even die. We can prevent all of this
suffering for no more than 3 pennies per gallon.
We all know that cars sometimes leak fluids, including antifreeze,
which can puddle up in driveways, along curbsides, and in parking lots.
Animals are all too eager to lap up these sweet-tasting puddles, and children
playing outdoors can easily come into contact with these puddles and then
place their hands in their mouths. In fact, the sweet taste of antifreeze
may cause these unsuspecting children to return for more of the deadly
substance. Moreover, dogs have been known to chew the necks of antifreeze
containers, and curious children may come across the bright colored, sweet
tasting substance in a garage and mistake it for a juice-drink or other safe
beverage. I ask all of you, can you tell me which of these glasses contain
the safe drinks and which one is filled with toxic antifreeze?
Antifreeze has also become the weapon of choice for intentionally
poisoning people as well as pets. Its sweet taste makes it all too easy to
mix into a deadly cocktail for an unsuspecting guest or neighborhood pet.
The Antifreeze Bittering Act would prevent all of these tragedies
by requiring the world's bitterest known substance, denatonium benzoate --
which, for ease of use, I will refer to as DB from now on -- to be added to
antifreeze in order to make it unpalatable. According to antifreeze
producers, the process would be simple to implement and cost only two to
three pennies per gallon.
For once, we have a simple solution for a very grave problem, and it
has a lot of support. The Antifreeze Bittering Act has 61 bipartisan
cosponsors and has been endorsed by the American Academy of Pediatrics, the
American Veterinary Medical Association, Doris Day Animal League, The Humane
Society of the United States, Pfizer Animal Health, the Society for Animal
Protective Legislation, the American Humane Association, the Pet Food
Institute, the Long Island Pine Barrens Society, Consumer Specialty Products
Association (who represent the antifreeze industry), and Honeywell (the
leading manufacturer of antifreeze).
Moreover, the American Medical Association, the American Association
of Poison Control Centers, the National Safety Council, and the American
Journal of Public Health all publicly urged the addition of an aversive agent
to antifreeze. The U.S. Conference of Mayors passed a resolution in 2004
urging Congress to "help cities protect children and animals" by passing a
bill to require the addition of DB to antifreeze. And, three states --
Oregon, California, and New Mexico -- have already adopted their own laws
requiring the addition of a bittering agent to antifreeze, while eight others
-- Maine, Massachusetts, Nebraska, Nevada, New York, New Jersey, Tennessee,
and Washington -- currently have legislation pending.
Given this unique combination of supporters -- animal activists
agreeing with the industry, pediatricians and veterinarians are on the same
page as drug manufacturers, republicans standing with democrats -- this bill
should be headed for the suspension calendar. Nevertheless, I do understand
that there are some concerns about the bill's language, and I am hopeful that
we can work through these differences together.
There is a misunderstanding that the Antifreeze Bittering Act would
set a dangerous precedent regarding environmental liability waivers because
they think the bill contains broad liability waivers that could undermine the
"polluter pays" principle. This is simply not the case -- there are no
blanket liability exemptions. Instead, the bill contains a tightly drafted
provision that establishes assigned liability for the antifreeze and DB
industries. Since the legislation would require the antifreeze industry to
add a substance to their product, a substance that they do not produce, the
language makes it clear that each industry is to be held liable for their own
product: the antifreeze industry will be liable for antifreeze and the DB
industry will be liable for DB. No one gets off the hook. There is
absolutely no gap in corporate liability and there are no loopholes.
I also understand that some of you are concerned about the
environmental fate of DB. DB was first approved for use in the United
States in the 1960s, and has been used for decades as a bittering agent in
hundreds of household cleaning products, cosmetics and personal care products,
detergents, drain cleaners, paint, pesticides, and even outdoor garden sprays.
To date, DB has demonstrated no significant environmental hazards,
whether disposed of properly or not, and will not enter the drinking water
supply. An analysis by the California Integrated Waste Management Board
found that DB "readily biodegrades, its transport is attenuated [or withheld]
by soil, and it is easily treated in sewage treatment systems and drinking
water systems. The analysis also "determined that the addition of [DB] to
antifreeze would not lead to any adverse health or environmental effects."
And, even if all of the DB analysis turns out to be inaccurate or incomplete,
the DB industry remains liable for their product.
We must also remember that ethylene glycol antifreeze is already
considered a hazardous substance. The EPA warns that dumping antifreeze can
cause serious water quality problems, as used antifreeze contains lead,
cadmium, and other heavy metals. As a result, the industry urges consumers
to properly dispose of used antifreeze, and the addition of DB to antifreeze
will certainly not change this fact.
It's also important to keep in mind that we are talking about minute
amounts of DB. It is estimated that only 7,000 gallons of DB can bitter all
of the approximately 157 million gallons of antifreeze covered by the
legislation. Let me repeat that -- 7,000 gallons of DB for 158 million
gallons of antifreeze. To help put that into perspective, we are talking
about 1-2 droplets of DB for this 1 gallon container of antifreeze.
There is also a growing need for Congress to address this issue. As
I mentioned earlier, states, cities, and even municipalities have already
begun the process of enacting their own antifreeze bittering laws. Since
antifreeze is sold throughout the entire country, there is an obvious need
for one single federal standard.
It is my sincere hope that this hearing will help to clear up some of
the misunderstandings surrounding the Antifreeze Bittering Act, and that we
can act quickly to prevent further poisonings of children, household pets,
and other unsuspecting victims who suffer needlessly because they have
unintentionally ingested antifreeze.
MR. GILLMOR. Thank you, Mr. Ackerman. Questions? Any
questions for Mr. Ackerman? If not, thank you very much for being
here.
MR. ACKERMAN. I will take this from the table and if anybody
wants, the drinks are on me later.
MR. GILLMOR. I call our second panelist. Just don't drink anything
that was left there. I ask Jim Willis, the Division Director of the
Chemical Control Division, Office of Pollution Prevention and Toxic
Substances of U.S. EPA to come forward. Mr. Willis, whenever you are
ready.
STATEMENT OF JIM WILLIS, DIVISION DIRECTOR, CHEMICAL CONTROL DIVISION,
OFFICE OF POLLUTION PREVENTION AND TOXIC SUBSTANCES, U.S. ENVIRONMENTAL
PROTECTION AGENCY
MR. WILLIS. Thank you. Chairman Gillmor, Ranking Member
Solis, members of the committee, thank you for your invitation to appear
before you today. I am Jim Willis. I am director of EPA's Chemical
Control Division and it is my division that is responsible for managing
EPA's processes for reviewing new and existing chemicals and taking
action, if appropriate, under the Toxic Substances Control Act, TSCA.
With your kind permission, I would be grateful if my written testimony
could be included in the record of today's meeting.
MR. GILLMOR. Without objection.
MR. WILLIS. Thank you. It is my privilege to represent EPA during
this discussion on the bittering agent denatonium benzoate or DB for
short. The bill under consideration, H.R. 2567, would mandate the
addition of this bittering agent to engine coolant or antifreeze that
contains more than 10 percent ethylene glycol. At the present time, the
Administration does not have a position on this bill. I would like to give
the subcommittee a summary of our findings concerning the risks of DB.
This is, of course, preliminary in nature and we are pleased to update this
as new data become available. The agency has collected information and
performed a screening level analysis of DB. We have not conducted a
full risk assessment.
There is not an extensive database of toxicity or environmental fate
information on DB, although there is a 2 year oral toxicity study in rats
and several other oral studies in rats of shorter duration. Using the
available information, the agency has applied screening level toxicity and
environmental exposure estimation techniques that are often used in
assessments of industrial chemicals prior to entry into commerce
pursuant to TSCA. These analyses typically employ techniques where
toxicity and exposure values are estimated from structurally similar
compounds. We use computer-based models or expert judgment where
toxicity or environmental exposure values are predicted based on a
chemical structure.
I am pleased to share with the committee an overview of this
analysis, although I would like to repeat my earlier caveat that this is not
exhaustive. Concerning possible environmental exposure, based on the
chemical structure, DB is predicted to be water soluble. We also predict
that the chemical may readily move from water and adhere to soil or
sediment. It is not predicted to bio-accumulate in living organisms. In
addition, the chemical is not predicted to be volatile, so it would not be
expected to move from water into the atmosphere.
The chemical is predicted to be resistant to biodegradation. So for
example, if DB were released into a sanitary sewer system, it most likely
would be removed in a sewage treatment plant through absorption to
sludge and not through appreciable biodegradation. If DB were released
directly to surface waters, we would expect it to accumulate in sediments
due to its predicted tendency to move from water and adhere to soil and
its resistance to biodegradation. The chemical would not be predicted to
readily migrate to groundwater because of this same tendency. With
sandy soils, however, potential movement to groundwater would be
greater than for soil-rich organic matter.
Concerning possible human and wildlife exposure, we would note
that DB is one of the most bitter and bad tasting chemicals known.
Consequently, it is at times used as a minor ingredient in a number of
consumer products, which was amply demonstrated earlier, to deter
human ingestion. Because of this human aversion to DB, oral exposure
potential for humans is therefore expected to be low. Other mammals
are likely also adverse to DB. If orally consumed, data on these
structurally similar chemicals leads us to believe DB would not be
readily absorbed into the gastrointestinal tract and not likely to be
efficiently absorbed through the skin.
With regards to toxicity, our evaluation indicates that there were
no appreciable concerns identified for mutagenicity, carcinogenicity or
developmental toxicity from this chemical. Overall, given the limited
database and the uncertainties thereby presented, it is predicted that there
is low to moderate concern for toxicity to humans and mammalian
wildlife. Please note that this low to moderate ranking is, indeed, the
lowest ranking of health concern that we give during our screening level
analyses.
We also predict that DB is not likely to be highly toxic to birds.
We predict that DB is likely to be, at most, moderately toxic to aquatic
organisms and plants, with fish, aquatic invertebrates, and algae being
least to most sensitive, respectively. The toxicity to aquatic species is
predicted to be reduced, again, to the extent that soils or sediments are
present in the water and the DB adheres to them.
In summary, on the basis of our screening level analysis, DB would
not be expected to pose a significant risk to human health or the
environment. While the information presented is limited and should not
be construed as an exhaustive assessment, I hope it is nonetheless useful
to the committee as you consider this issue. Thank you for the
opportunity to testify today. I would be pleased to answer any questions.
[The prepared statement of Jim Willis follows:]
PREPARED STATEMENT OF JIM WILLIS, DIVISION DIRECTOR, CHEMICAL CONTROL
DIVISION, OFFICE OF POLLUTION PREVENTION AND TOXIC SUBSTANCES, U.S.
ENVIRONMENTAL PROTECTION AGENCY
I. Introduction
Mr. Chairman and Members of the Committee, thank you for the
invitation to appear before you today. It is my privilege to represent the
U.S. Environmental Protection Agency during this discussion on the bittering
agent denatonium benzoate. The bill under consideration, H.R.2567, would
mandate the addition of this bittering agent to engine coolant or antifreeze
that contains more than 10 percent ethylene glycol. At the present time,
the Administration does not have a position on this bill.
II. Background
The Agency has collected limited information and performed some
screening-level analyses on denatonium benzoate; however, we have not
conducted a full risk assessment, nor is there available an extensive
database of toxicity or environmental fate information on denatonium benzoate.
Using the available information, the Agency has applied screening-level
toxicity and environmental exposure estimation techniques that are often used
in assessments of industrial chemicals prior to entry into commerce pursuant
to the Toxic Substances Control Act (TSCA).
These analyses typically employ techniques where toxicity and
exposure values are estimated from structurally similar compounds, using
computer-based models or expert judgment, where toxicity or environmental
exposure values are predicted based on a chemical's structure. These
analyses do not currently provide enough information for the Agency to
conduct a thorough human health or environmental assessment on this
chemical. As such, the Agency's analyses on denatonium benzoate should not
be construed to be an Agency position on the health and safety of denatonium
benzoate. There simply is not enough information available at this time to
make such a finding. Nonetheless, I am pleased to share with the Committee
the results of the Agency's screening-level analyses on the exposure and
toxicity information that we have developed by employing the modeling
techniques mentioned above.
III. Environmental Exposure
Based on the chemical's structure, denatonium benzoate is predicted
to be water soluble; however, it is predicted that the chemical may readily
move from water and adhere to soil or sediment. It is not predicted to
bioaccumulate in living organisms. In addition, the chemical is not
predicted to be volatile, so it would not be expected to move from water to
the atmosphere. The chemical is predicted to be resistant to biodegradation.
For example, if denatonium benzoate were to be released into a sanitary sewer
system, it most likely would be removed in a sewage treatment plant through
adsorption to sludge and not through appreciable biodegradation. If
denatonium benzoate were released directly to surface waters, it would be
expected to accumulate in sediments due to its predicted propensity to move
from water and adhere to soil, and its resistance to biodegradation. The
chemical would not be predicted to readily migrate to groundwater because of
its propensity to adsorb to soil; however, with sandy soils, potential
movement to groundwater would be greater than if applied to soil rich in
organic matter.
IV. Human/Wildlife Exposure
Denatonium benzoate is one of the most bitter and bad tasting
chemical substances known. Consequently, it is at times used as a minor
ingredient in consumer products, such as denatured alcohol, to deter human
ingestion. Because of human aversion to denatonium benzoate, oral exposure
potential for humans is expected to be low. Other mammals are likely also
averse to denatonium benzoate. If orally consumed, data on structurally
similar chemicals leads us to believe it would not be readily absorbed in
the gastrointestinal tract and not likely to be efficiently absorbed across
the skin.
V. Human/Wildlife Toxicity
Our preliminary evaluation indicated there were no appreciable
concerns identified for mutagenicity, carcinogenicity, or developmental
toxicity from this chemical. Overall, given the limited data base, and the
uncertainties thereby presented, it is predicted that there is low to
moderate concern for toxicity to humans and mammalian wildlife and that
the chemical is not likely to be highly toxic to birds.
VI. Aquatic Toxicity
Again, based on the models and the Agency's screening-level
analyses, the compound is predicted to be moderately toxic to aquatic
organisms and plants, with fish, aquatic invertebrates, and algae being least
to most sensitive, respectively. The toxicity to fish, aquatic invertebrates,
algae and aquatic plants in the water column is predicted to be reduced to
the extent that soils or sediments are present in the water, again, because
of the chemical's propensity to adhere to these materials.
V. Conclusion
Thank you for the opportunity to provide you with this information.
While the information presented is limited and should not be construed as an
Agency position on the health and safety of denatonium benzoate, I hope the
information nonetheless is useful to the Committee as you consider this issue.
I will be pleased to answer any questions.
MR. GILLMOR. Thank you very much, Mr. Willis. The testimony of
our first witness, Congressman Ackerman, talked about DB being in a
myriad of products commonly used, everything from Q-tips to being
sprayed on trees. Would you agree with that, that it is a very common
substance in a number of products?
MR. WILLIS. Yes, I would agree that it is commonly found.
MR. GILLMOR. Are you aware of any problems as a result of that
widespread use?
MR. WILLIS. Well, we have not done an exhaustive search of
whether there are reported problems, but in the areas where we have
looked, we have not heard any reports of problems.
MR. GILLMOR. Title II of the Consumer Product Safety
Improvement Act of 1990 mandates a study of the effectiveness of
adversive agents in deterring ingestion of hazardous products. Are you
familiar with that study?
MR. WILLIS. Unfortunately, Mr. Chairman, I am not familiar with
that study.
MR. GILLMOR. Okay. Let me ask you about the environmental
effects of plain antifreeze, forget bittering agents, plain antifreeze being
released into soil and water. Would it be possible to have a bittered
antifreeze released into the environment and then have the only
environmental damage come from the antifreeze and not from the
bitterant?
MR. WILLIS. Thank you for that question, Mr. Chairman. The
environmental effects of plain antifreeze being released into the
environment are low. Plain antifreeze has a very low toxicity and is
easily biodegradable, so it is not persistent in the environment. The
environmental damage caused by the bittering agent, if added to
antifreeze and released with antifreeze, is also expected to be low. It has
a low toxicity to fish and aquatic invertebrates. It does have moderate
toxicity to green algae, but green algae recovers relatively quickly to
threats and so this is not anticipated to be a serious problem. And once
the part of the chemical of concern is absorbed to soil, that toxicity
would also be reduced.
MR. GILLMOR. Thank you. Further questions of the witness? Ms.
Solis.
MS. SOLIS. Thank you. Mr. Willis, thank you for being here and
your presentation. I wanted to ask you if EPA has done any actual
analysis of the measured toxicity, values, or environmental fate in
transport of bitrex?
MR. WILLIS. No, Congresswoman Solis, we have not actually done
any testing ourselves. We have reviewed available data that has been
made known to us. We have also reviewed two structurally very similar
chemicals and looked at the data associated with them and a number of
other analogs, but we have not done any testing ourselves.
MS. SOLIS. Okay. Mr. Willis, to your knowledge, has Honeywell or
their trade association, the Consumer Specialty Products Association,
provided you with scientific studies they have accumulated which show
that DB does not biodegrade in the environment or presents risks in the
groundwater?
MR. WILLIS. I am not aware of that, no.
MS. SOLIS. And are you aware of a study done by a consulting firm
known as Roy F. Weston that concluded that DB does not biodegrade
and would pass through publicly owned treatment works?
MR. WILLIS. I am not aware of that study, no.
MS. SOLIS. Are you aware of another study done by Roy F. Weston
that reached the conclusion that if you put DB down the drain, it goes
right into the water and does not biodegrade?
MR. WILLIS. No, I have not looked at any of these studies myself.
MS. SOLIS. Okay. And are you aware of another study performed
by the Chemical Specialties Manufacturers Association which concluded
that DB does not stick in the soil, rather it stays in and travels with the
groundwater, therefore it is reasonable to expect contamination
problems. As the DB accumulates in the groundwater, the net result is
that the groundwater may become bitter and thus, well water in the area
would potentially be unpotable?
MR. WILLIS. No, I am not familiar with that.
MS. SOLIS. Since there are numerous studies that show DB does not
biodegrade, is it likely not safe for the environment? Is the EPA
supporting the sweeping liability exemption from the Superfund and
other environmental laws as contained in H.R. 2567?
MR. WILLIS. Congresswoman, as I noted in my testimony, the
Administration doesn't actually have a position on this bill and that
would include on the liability provision.
MS. SOLIS. And has EPA attempted to get environmental fate and
transport data from the manufacturers of this product?
MR. WILLIS. No, Congresswoman. We have just performed the in-
house screening level analysis based on data that was readily available.
MS. SOLIS. So does that exclude sound scientific studies?
MR. WILLIS. It would not exclude sound scientific studies, no. It
would be based on any data that were available to us. We did not do a
data call-in, for example, to get data from manufacturers and others who
may have tested this, but relied on readily available information.
MS. SOLIS. Thank you. I would also like to ask for unanimous
consent to submit correspondence that we have received in the
committee to be added to the record and hopefully allow for other
materials that Members might have to bring forward to put in the record.
MR. GILLMOR. Would the gentlelady have any objection to giving
Members a couple of days as part of the unanimous consent to submit, as
part of the record, any rebuttal materials, as well, so that both sides of
the issue are in the record? Okay. Then, without objection, the unanimous
consent request as amended is agreed to.
[The information follows:]
<GRAPHICS NOT AVAILABLE IN TIFF FORMAT>
MR. GILLMOR. The gentlelady from New Mexico.
MRS. WILSON. Thank you, Mr. Chairman, and Mr. Willis, thank you
for being here. What is the proper way to dispose of antifreeze? When
you take your car in to get the coolant changed when it gets to be
summertime, what are they supposed to do with it? Do you know?
MR. WILLIS. I am afraid I don't, Congresswoman.
MRS. WILSON. So is this stuff that you are not supposed to put down
the drain and dispose of in some other way or is this just a benign
chemical that you can put down the sink?
MR. WILLIS. I am afraid I don't actually have the answer to your
question, Congresswoman.
MRS. WILSON. You said in your testimony that plain antifreeze has
low toxicity and is easily biodegradable. Does that imply that it--that
was kind of a surprising statement to me, and I am always taught that
you don't put that stuff down the drain.
MR. WILLIS. Congresswoman, I don't think I said it is
biodegradable. I think I said it is relatively not biodegradable. And
based on my personal understanding, I think it probably does need to be
disposed of properly. I am simply ignorant of which law it is that it
needs to be disposed of properly under.
MRS. WILSON. But to your knowledge, this bittering agent, DB,
which is included in shampoo, laundry detergent, fabric softener, animal
repellants, pesticides, bath cleaners, stain removers for clothing, so it is
going down our drains in all of those products when we rinse the stuff
out of the shower after we have cleaned it, but you are not aware of any
contamination problems or environmental problems where a site has
been located where the groundwater has been contaminated by DB?
MR. WILLIS. That is correct, Congresswoman. We are not aware of
any cases of environmental contamination by DB.
MRS. WILSON. And how long has this substance been routinely used
in consumer products?
MR. WILLIS. I think for several decades.
MRS. WILSON. So this is not a case of this being a new thing and we
have got some terrible problem to look forward to, this has been on the
market and used since I was, probably since I was born, 1963, I think is
the date that I recall, so we are talking about several decades of
experience with this going down our water systems, right?
MR. WILLIS. Well, yes, with environmental exposure to this
chemical, indeed. For example, through its use as a deer repellant or in
consumer products.
MRS. WILSON. Or down my drain if I use something to wash the
shower or wash clothes or--
MR. WILLIS. Yes, Congresswoman.
MRS. WILSON. Okay. Thank you, Mr. Chairman.
MR. GILLMOR. Thank you. Further questions? The gentleman from
Washington. I beg your pardon. I am told Mrs. Capps was first.
MS. CAPPS. Thank you. Thank you for your testimony, Mr. Willis.
On the next panel today, we are going to hear testimony from the
American Waterworks Association representing 4,800 utilities
nationwide to the effect that history is replete with examples of the
unintended consequences of measures adopted to obtain laudable goals.
MTBE is an example, when added to motor fuels, an example that has
left many local governments and drinking water utilities with
contaminated water and huge treatment and cleanup costs.
Now, your testimony describes the knowledge of EPA about
denatonium benzoate as, and these are quotes, these phrases: "limited
information." Another quote, "Not conducted a full risk assessment,"
and the third one, "No extensive database of toxicity or environmental
fate information on DB." And finally, "Not enough information for the
agency to conduct a thorough human health or environmental assessment
on this chemical."
I ask you if there may be unintended consequences to this bill and
whether it is your concern that there may be and if it should be of
concern to us, in your position with the Environmental Protection
Agency?
MR. WILLIS. Yes, thank you, Congresswoman. DB is, as was noted
earlier, is not similar to MTBE.
MS. CAPPS. I know that. I was using it as just an example of
something with very good intentions leading to very severe, unintended
consequences.
MR. WILLIS. Indeed, Congresswoman, some of the differences
between this chemical and MTBE, however, point up some of the
differences of a chemical of this nature and chemicals that tend to cause
widespread environmental contamination. One of the issues is the
concentration a chemical is used at, and this would be used in low
concentrations.
MS. CAPPS. I don't want to make a comparison between DB and
MTBE. I was only using that as an example. What I am getting at is the
level of studies that have been conducted, the numbers of them, the range
of them, the variety of them, and this is your agency. Do you consider
that there may be, based on your knowledge that you have already in the
agency, that there may be unintended consequences that perhaps could
be ferreted out ahead of time so that we don't fall into the path that we
have on other occasions?
MR. WILLIS. We do not have a concern about a significant health or
environmental risk from DB based on our present analysis.
MS. CAPPS. You have enough information that leads you to say
there is no reason for concern? Let me phrase it a different way, because
I really want to get you to say something that will be useful to us,
because this is a tough decision that we have to make. I was on the bill
the last time, but now I have questions because I am concerned about the
statements that I just gave you that might indicate that there may not be
sufficient studies. Let me say it this way. Do you believe that it is in
our interest, here on this committee, that there be a full scientific
assessment of this chemical conducted before we take a very unusual
step, different from the other products in which it is used, of mandating
that DB be added to an automotive product?
MR. WILLIS. Congresswoman, I think it is a bit of a challenge for
me in my position to, if you will, tell you what I think you should do. I
think that would--
MS. CAPPS. You think it would be useful to have a more extensive
scientific assessment?
MR. WILLIS. There are some data gaps.
MS. CAPPS. There are some data gaps. Would it be useful to have
those gaps filled?
MR. WILLIS. It would depend on a number--
MS. CAPPS. You can't say yes or no?
MR. WILLIS. I cannot say yes or no because it depends on a number
of exposure situations where we also don't have the data.
MS. CAPPS. Well, could this be tested out? Exposure situations.
Could there be a variety of situations at least examined?
MR. WILLIS. Congresswoman, I feel myself getting in trouble here.
MS. CAPPS. Oh. Let me ask you one more yes or no question. I
have about 10 seconds. This is a statement made by the Consumer
Specialty Products Association on July 16th of 2004 in a letter that they
wrote. This is their quote. I want to ask if you agree with them or not.
They say and I quote, "We believe that any additional requirements for
the inclusion of bitterants in antifreeze and other automotive products or
engine coolants should be deferred at least until such time as a full
toxicological exposure and risk evaluation be publicly available for the
bitterants, themselves, both as discreet chemicals and as incorporated
into automotive products." Do you agree? They believe more studies
are warranted. This is the industry. Do you agree?
MR. WILLIS. Congresswoman, we would, for a chemical of this
type, with the expected production volume and exposure considerations,
we would not be going after more data to conduct a fuller risk
assessment.
MS. CAPPS. I yield back.
MR. GILLMOR. Further questions? Mr. Bass.
MR. BASS. Thank you, Mr. Chairman. I will just ask one question.
Mr. Willis, you stated that--by the way, this is a follow under the
distinguished Ranking Member's comment about the absorptive nature
of DB in soil and it says here that you state that the chemical properties
of DB would make it unlikely for it to migrate to groundwater because of
its propensity to absorb soil unless it is sandy soil. Can you give us a
practical explanation of exactly what this means? Does this mean that
you think it is a problem if it gets into groundwater or not? If DB is not
filtered out by drinking water systems since it does not biodegrade, is it a
threat to health or the environment?
MR. WILLIS. Based on our modeling, we think if this reaches the
soil, it is unlikely to move through the soil into groundwater at any
appreciable rate.
MR. BASS. All right. Well, that is it, Mr. Chairman. Thank you.
MR. GILLMOR. Thank you. Further questions? Mr. Inslee.
MR. INSLEE. Thank you.
Do you think, can the Federal government guarantee that DB will not
be harmful to human health in any manifestation?
MR. WILLIS. No, Congressman, we cannot make that guarantee.
MR. INSLEE. And why can't you make that guarantee?
MR. WILLIS. Because we don't have the test data for all possible
endpoints, nor do we have the fate and exposure data that would allow us
to do that sort of assessment.
MR. INSLEE. So the bill essentially works on the assumption that a
guess that the Federal government can guarantee the safety of this
product because as a total exemption from liability of the manufacturer
of the antifreeze compound, assuming, I guess, that means that we are
supposed to be guaranteeing to the public that it is safe so that when we
tell a manufacturer to put it in there, that no one has a claim if they are
killed or get cancer or have some other health problem. To me that
doesn't make any sense. If the Federal government can't guarantee it is
safe, we shouldn't be denying citizens a claim against a manufacturer of
the product once we tell them to put it in there. Am I right on that?
MR. WILLIS. Congressman, you are drawing me into a position on
liability and I think I have noted that the agency doesn't have a position
on this bill, including on the liability.
MR. INSLEE. Well, I have a position that if the Federal government
can't guarantee the safety of a product, we shouldn't be denying citizens
the right for a claim when Congress insists it be in there and that is why I
think this blanket liability, and I have read it, it is a blanket liability
for the manufacturer of the product as long as the product is put in there
according to the Congressional specification. Now, it isn't for the
manufacturer of the DB, but that will be the bankrupt corporation that
has $1.20 in their till when people start getting sick, if that were to
happen. So I think we have real problems with this liability perspective.
Is there anything that you can give us on a lay basis to characterize
that the potential toxicity, biodegradable--I don't know what the word is-
-its characteristic of being biodegradable or not, is there anything else
you can put this in kind of a spectrum? Is it benign as mother's milk? Is
it as potentially dangerous as DDT? Is it unknown as other products? Is
there any kind of spectrum you can give us as something we could--
MR. WILLIS. Well, Congressman, there are a number of chemicals
that sort of fall in this low to moderate range. One that members may be
familiar with is something called sodium benzoate. Sodium benzoate is
commonly found as a food additive. It shows up in soda pop. It may
have been in the drinkable green liquid and is in the same general
toxicity range as DB.
MR. INSLEE. And can you think of anything else that has a similar
characteristic of being biodegradable or not biodegradable?
MR. WILLIS. I would have to get back you on that, Congressman. I
can't think of a good example offhand.
MR. INSLEE. I read in your testimony, you made some reference to,
again, based on the models of the agency's screening analyses, the
compound is predicted to be moderately toxic to aquatic organisms and
plants, with fish, aquatic invertebrates, and algae being least to most
sensitive, respectively, so that would mean algae would be the most
sensitive. Is there any way to characterize that? Aquatic invertebrates
second most sensitive?
MR. WILLIS. It is in high concentrations, Congressman, it would
likely kill some, but possibly not all algae in a water system. Similarly,
it may kill a number of the invertebrates that live in the water column
and that fish feed on, although it is less toxic to those aquatic
invertebrates than to algae.
MR. INSLEE. So we have a situation where ingestion to pets, we
know, can cause death and we know that there is some risk of death to
other animals or--it may not be pets, but they are in the animal kingdom,
is that the situation?
MR. WILLIS. Congressman, I may have misunderstood your original
question. I thought we were talking about DB, but the deaths to pets, I
think, are--
MR. INSLEE. Yes, let me rephrase my question. With the death to
pets that we are all concerned about here, besides our children, or death
to pets that happen when they eat the antifreeze, itself, but in order to
prevent that, if we mandate a product that can end up mortal to other
animals in the animal kingdom, it is kind of an irony, I guess, that I am
troubled by a little bit because they may not be our pets but they are
God's creatures and we do have concerns about salmon who live on
these little aquatic invertebrates in the Puget Sound and it is just
something we ought to think about. Thank you.
MR. GILLMOR. Further questions of the witness? Ms. Schakowsky.
MS. SCHAKOWSKY. Thank you. Mr. Willis, you are Division
Director, Chemical Control Division, Office of Pollution Prevention and
Toxic Substances. I was a little concerned that you were unable to
answer what I think would be a pretty common question, how do you
dispose of antifreeze in a safe way. We are talking about, I mean, if part
of it is Office of Pollution Prevention, I would think that common
substances, particularly those that people use so often and might have,
likely have questions about, is that not your field?
MR. WILLIS. That is correct, Congresswoman. Disposal of
antifreeze is not one of our office's activities.
MS. SCHAKOWSKY. So who is concerned about pollution
prevention, that is how one would dispose of chemical hazard, et cetera?
Does anybody oversee that?
MR. WILLIS. Congresswoman, I believe the Office of Solid Waste
would oversee that.
MS. SCHAKOWSKY. And antifreeze would fit into solid waste?
MR. WILLIS. Indeed. It would, Congresswoman.
MS. SCHAKOWSKY. Okay.
MR. WILLIS. I would have to get back to you with an answer
because it is outside of the realm of our office's work. However, I can
tell you what offices in EPA are engaged in that and what they are doing.
MS. SCHAKOWSKY. Okay. Let me understand your response to Ms.
Capps' question. We are now in the process, potentially, of mandating
the inclusion of a widely used, of a substance in a widely used product
and my understanding of what you said, that you would not do any
further risk assessments than have already been done on DB, that we
could proceed ahead, mandate it, it become law without any more
inquiry into DB?
MR. WILLIS. Yes, Congresswoman. If a chemical like DB came
into our program with the data that we had readily available to us during
the screening level analysis, we would not have taken an action to
control the risk of this chemical.
MS. SCHAKOWSKY. The difference between this and many other
things is the Federal government is taking, I think, a fairly unusual step, I
don't know, to actually mandate the use of a particular product, which is
somewhat different than, it seems to me, than examining the toxicity or
the environmental impact of just any old product; we are actually going
to be mandating that. And to follow up on Mr. Inslee's remarks, the
toxicity to fish, aquatic invertebrates, algae, and aquatic plants is
predicted, there are environmental impacts that could affect the salmon
or others. At what level does that become a concern?
MR. WILLIS. Congresswoman, at the levels that this chemical is
estimated to be used at in products, we would not be concerned about
these toxicities because those levels would not be expected in, for
example, the aquatic ecosystems that we are talking about here.
MS. SCHAKOWSKY. Low to moderate concern for toxicity to
humans and mammalian wildlife. Well, moderate concern. Also, I just
wanted to point out when our Ranking Member Solis, asked you about a
number of other studies and there are all kinds of, there is a whole book
of them here and you were unfamiliar with them. Now knowing that
there have been studies, and I understand there are some conflicting
findings, do you feel obligated to assess those, to add that to your
decision making process or your evaluations?
MR. WILLIS. Indeed, Congresswoman. We would very much like to
review those studies and add that to our evaluation.
MS. SCHAKOWSKY. So in fact, under certain circumstances, you
would increase your risk assessment, that is to look further, perhaps
change your view?
MR. WILLIS. Oh, indeed, Madam. Any time data becomes available
to us, we are always happy to reevaluate a chemical.
MS. SCHAKOWSKY. Thank you.
MR. GILLMOR. Thank you very much, Mr. Willis. We appreciate
you coming. We will call Panel 3 forward. Very well. If the panel is
prepared, we will start with Mr. Jeffrey Bye of Honeywell, who is
testifying on behalf of the Consumer Specialty Products Association.
Mr. Bye.
STATEMENTS OF JEFFREY BYE, VICE PRESIDENT, PRESTONE, HONEYWELL
INTERNATIONAL, INC. ON BEHALF OF CONSUMER SPECIALTY PRODUCTS ASSOCIATION;
PATRICE L. SIMMS, SENIOR PROJECT ATTORNEY, NATURAL RESOURCES DEFENSE
COUNCIL; SARAH AMUNDSON, DEPUTY AND LEGISLATIVE DIRECTOR, DORIS DAY ANIMAL
LEAGUE; MELINDA EYRICH, DVM, CO-OWNER, URGENT CARE VETERINARIAN HOSPITAL;
AND TOM BONACQUISTI, DIRECTOR OF WATER QUALITY AND PRODUCTION, FAIRFAX
COUNTY WATER AUTHORITY ON BEHALF OF AMERICAN WATER WORKS ASSOCIATION
MR. BYE. Thank you, Mr. Chairman and Ranking Member Solis.
My name is Jeff Bye. I manage the Prestone Antifreeze business for the
Consumer Products Group of Honeywell International, and I also, as
mentioned, represent our industry association through the CSPA. Our
business is an automotive after-market business. We also manufacture
FRAM filters and Autolite sparkplugs. Our business is headquartered in
Danbury, Connecticut. We are part of Honeywell International, which I
am sure many of you know is a large, multinational corporation, maybe
120,000 employees, about 60,000 in the United States.
A little history: Prestone, the business I manage, is the leading
producer in North America and the leading marketer of antifreeze. We
sell the product in all 50 States, as well as Canada and Mexico. We sell
the product primarily into retail through people like Auto Zone, Advance
Auto Parts, and Pep Boys. We also sell through mass merchants, such as
Wal-Mart, K-Mart, and a number of smaller outlets. The product is
produced in three plants in the United States, in Freehold, New Jersey;
Alsip, Illinois; and Torrance, California. We also have a small plant in
Mexico City.
We manufacture and the brands we sell, again, primarily to retail,
are under the Prestone brand, and then a whole host of store brands and
private label brands. We also do some bulk manufacturing for the auto
manufacturers, themselves, primarily General Motors, Ford, and Toyota.
A little bit about antifreeze that maybe we didn't get completely from
Mr. Ackerman. It has been around for over 75 years in a form not unlike
it is today and that is primarily with the chemical ethylene glycol in it.
Ethylene glycol has some phenomenal properties in terms of lowering
the freeze point of water and keeping high temperatures under control, so
it makes a perfect coolant in a car's engine. And then again, it has been
like that for over 75 years.
In more recent history, antifreeze has been called on to provide some
other functions within an engine and primarily, that revolves around
corrosion protection of a car's cooling system and heating system. To
accomplish that, over the last 20 to 30 years, along with the ethylene
glycol, a number of chemical additives have been put into antifreeze, and
if you were to buy that gallon of antifreeze today, it would be about 95
percent ethylene glycol and about 5 percent other chemicals. Most of
what we do and most of what our chemists do for us and in the industry
is work on those other chemicals, that 5 percent. Those are the
chemicals that are proprietary, patented formulas that work for corrosion
protection. Ethylene glycol is ethylene glycol, and it has its temperature
controlling properties.
Ethylene glycol does a great job of controlling temperatures and
providing freeze protection, but as you have also heard, it has a down
side in that it is highly toxic, especially when ingested by people or pets.
To that end, we have, as a company and our industry, taken extensive
steps throughout the years to protect people and particularly children:
child-proof caps, foil seals, and warning labels. We sponsor poison
control centers. We do public service announcements on proper disposal
and handling of the antifreeze. Although there haven't been fatalities,
there are poisonings that happen periodically by accident with adults and
children.
We can't say the same for pets, as you pointed out. Mr. Ackerman
pointed out, you will find it in the parking lots spilled out of older
radiators, people will dispose of it improperly, leave it open in a garage
and pets have consumed it and have died from it. To that, the animal
rights folks and animal welfare people have, for the past number of
years, pushed lawmakers on a local, State and Federal basis to support
legislation that requires manufacturers like ourselves to provide and put
into our product a bittering agent to discourage animals from drinking
the product.
In fact, going back to 1991 up to now, three States have enacted
legislation; Oregon being the first, followed by California in 2002, and
most recently New Mexico last year. Those States require us to include
the product DB in our product to prevent accidental poisonings. In 2004,
we partnered with, as an industry, with the Doris Day League to get
Federal legislation passed that would accomplish what they are looking
for, which is the prevention of poisoning of animals on a broader basis.
And what we, as manufacturers, would look for, which is a way to
provide that product to all 50 States, but in a way that is sort of within
the course of commerce--practical and reasonable and efficient. Because
right now there are 11 States that have legislation pending, and that
legislation covers a number of plants and a number of locations. Even
the bills themselves are not uniform in what they require of the
producers, so the bill would provide a uniform benefit to both sides from
poisoning and to distribution.
Further, that bill also provides assigned liability to us, as
manufacturers of the antifreeze. It holds us responsible for that product
which we know and design, antifreeze. We are fully responsible for our
product in any way, shape, and form, always have been and always will
be, and assigns liability to the producers of bitterant, in this case the
producers of DB, for their product and its impact if there is a problem.
Because at the end of the day, what we do as an industry is, and what our
chemists, what they spend all their time on is analyzing products that go
in car's cooling system and the impact of that product on a car's cooling
system. And to that end, you know, we are fully responsible for that.
We are more than happy to include a product that is not intended for that
purpose, if it satisfies the needs of another group. But we are not experts
in that product and to that end, that is why we look to have this bill
assign liability to those people that are in that realm, which is not where
our expertise lies.
And with that, I appreciate the opportunity to speak here and will
welcome any questions at the right time. Thank you.
[The prepared statement of Jeffrey Bye follows:]
PREPARED STATEMENT OF JEFFREY BYE, VICE PRESIDENT, PRESTONE, HONEYWELL
INTERNATIONAL, INC., ON BEHALF OF CONSUMER SPECIALTY PRODUCTS ASSOCIATION
Introduction
Good afternoon. I am Jeff Bye, Vice President for Prestone, a
Honeywell business. Prestone has been the leader in the manufacture,
marketing and sale of antifreeze products for over 75 years. I am here
representing Honeywell as well as the domestic antifreeze industry, which
has been organized by the Consumer Specialty Products Association. We
appear before the Committee in support of HR 2567.
Honeywell is a diversified technology and manufacturing leader,
serving customers with aerospace products and services; control, sensing and
security technologies; automotive products; specialty chemicals; fibers; and
electronic materials. Based in Morris Township, New Jersey, Honeywell's
shares are traded on the New York Stock Exchange as well as on the London,
Chicago and Pacific Stock Exchanges. We are one of the 30 stocks that make
up the Dow Jones Industrial Average and we are also a component of the
Standard & Poor's 500 Index. The company employs over 120,000 employees,
with approximately 60,000 in the United States, and is comprised of four
business units: Aerospace, Automation and Control Systems; Specialty
Materials, and Transportation Systems. Prestone is part of the Consumer
Products Group within the Transportation Systems business unit, with
business headquarters in Torrance, California.
Prestone Background
Honeywell is the largest manufacturer and supplier of automotive
antifreeze in the United States, Canada and Mexico. Its Prestone brand is
the most widely recognized and distributed brand of antifreeze in North
America. In the United States, our Prestone antifreeze is sold in all 50
states and through virtually all major mass retailers, such as Wal-Mart, and
auto retailers, such as Autozone and Advance. In addition, we supply private
label antifreeze to most major retailers throughout the nation. We also
supply automakers, such as General Motors, Ford and Toyota, for the factory
fill of their automobiles in North America.
It may be helpful to understand the origin of antifreeze use in the
automotive industry. Originally, motorists drove cars, such as the Ford
Model T, without heaters or side and rear windows and, not surprisingly,
winter driving was very unpleasant. Later, with the development of car
heaters, installation of side and rear windows, and improvements in engines
and engine lubricants, motorists drove more comfortably and frequently in
winter and demand for engine antifreeze arose. At that time, many compounds
were used with water as a form of antifreeze, including honey, sugar,
molasses and, the most popular, methyl alcohol. Even methyl alcohol,
however, had significant drawbacks including odor and flammability.
Motorists were often uncertain about the freezing protection afforded by
these fluids.
The antifreeze/coolant business as we know it today began with
Prestone brand ethylene glycol antifreeze in 1927. It was pure ethylene
glycol in cans and was packaged with charts showing the protection afforded
by specific dilutions. The fluid would not evaporate or burn, was relatively
odorless and offered many advantages over the substances used earlier by
motorists. A few years later, Prestone developed and marketed the first
inhibitor in its antifreeze to offer additional protection for the cooling
system and to retard rust. In the early 1960s, Ford, General Motors and
Chrysler began filling their new cars with a 50% ethylene glycol and 50%
water antifreeze/coolant solution, which led to the emergence of
antifreeze/coolant as a year-round functional fluid in the automotive
industry. Since then, Prestone and other producers of antifreeze/coolant
have developed their formulations to provide even better corrosion protection
and extend the life of a car's cooling system.
Ethylene glycol, which is a major ingredient of antifreeze, is toxic.
For several decades, manufacturers of antifreeze have used foil safety seals
and childproof caps to guard against the accidental human ingestion of
antifreeze. Prestone provides prominent label warnings about proper use,
storage and disposal of antifreeze. We fully comply with all child protection
requirements established by the Consumer Products Safety Commission and we
are dedicated to continual improvement. In addition, manufacturers have
participated in public education and outreach promoting the safe use and
storage of antifreeze. During the past ten years, antifreeze manufacturers
have supported the American Association of Poison Control Centers in a series
of public service announcements entitled "Take Care: Car Fluids, Children and
Pets." These public service announcements also help to educate consumers
about proper use and storage of antifreeze and other automobile fluids.
Although it is rare that children are accidentally exposed to
antifreeze, there are occasions where household pets and other animals are
exposed to ethylene glycol products and are injured by ingesting the product.
Some animal deaths are likely caused by intentional poisoning, such as a
disgruntled person targeting a neighborhood dog that has been barking at night
or causing other problems. Other animal fatalities are accidentally caused by
antifreeze that has spilled or been carelessly left in improperly secured
containers. We and other antifreeze manufacturers sponsor a national poison
control center as a resource and service for veterinarians and pet owners. The
center is staffed with specially trained veterinary toxicologists available
to handle any animal poison-related emergency, 24 hours a day, 365 days a
year.
Need for a Single Uniform Antifreeze Standard
For several years, the animal welfare community has encouraged local,
state and federal lawmakers to pass legislation requiring antifreeze
manufacturers to add denatonium benzoate ("DB"), a widely known bittering
agent, to their product. The animal welfare community has argued that adding
DB to antifreeze would make the product taste bitter, discouraging animals
from ingesting the liquid. Their legislative efforts have met with some
success, with laws passed in Oregon, California and New Mexico in 1991, 2002
and 2005, respectively.
In December 2004, the antifreeze industry reached out to the Doris
Day Animal League to develop consensus federal legislation that would address
the safety concerns of the animal rights community. The consensus federal
legislation -- HR 2567 -- would require the addition of DB in antifreeze with
the goal of rendering the product unpalatable and deterring children, pets and
other animals from accidental poisoning. This federal legislation would
create a national standard. Although California, Oregon and New Mexico have
passed similar or identical laws, HR 2567's preemption provision would avoid
the potential inconsistency and practical difficulty of manufacturers
complying with a patchwork of various state and local mandates. At least
eleven states have been actively considering similar requirements, including
Alabama, Maine, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio,
Tennessee, Virginia and Washington, and the trend indicates that additional
states will pursue antifreeze bills.
Now is the appropriate time for Congress to establish a national
standard. The difficulty of managing compliance with a patchwork of
inconsistent state mandates would be significant and would hinder an adequate
supply of antifreeze across the country. Further, the additional costs at
the manufacturing and distribution levels would ultimately be borne by the
American consumer -- for a product that is considered a necessity for the
proper maintenance of an automobile's engine. A national standard would
ensure that the mandate is both uniform and cost effective, while responding
to the call for improved antifreeze safety measures. Some states that have
passed or considered antifreeze legislation, including New Mexico and Maine,
have expressed their desire for Congress to pass a federal bill because they
recognize the appropriateness of a national standard and federal enforcement.
Liability Provisions
HR 2567 would provide fair responsibility for the antifreeze and DB
products by assigning liability between the respective manufacturers.
Prestone scientists have developed antifreeze products that we stand behind
and are willing to defend. Antifreeze manufacturers, however, do not
manufacture or distribute DB. While antifreeze manufacturers are willing to
add DB in compliance with a national standard, antifreeze manufacturers should
not be exposed to liability for complying with that mandate. The proposed
federal legislation would not change the liability of antifreeze
manufacturers for their products. Under the legislation, antifreeze
manufacturers continue to be liable for the ethylene glycol antifreeze itself,
and DB manufacturers and distributors are liable for their bittering agent.
HR 2567 shares the essential components of the liability provisions
within the New Mexico, California and Oregon state laws as well as
legislation introduced in the House of Representatives in 2004. Notably, the
three state laws and HR 1563, sponsored in the 108th Congress by Reps. Gary
Ackerman (D-NY) and Dana Rohrabacher (R-CA), all provide some form of
liability protection to antifreeze manufacturers for the consequences of DB.
Indeed, HR 1563 in the 108th Congress was cosponsored by 110 House Democrats
and 23 House Republicans.
The 2005 New Mexico law (NM �57-19-38) includes the following
liability provisions:
"A manufacturer, packager, distributor, or recycler or seller of
engine coolant or antifreeze that is required to contain an aversive or
bittering agent pursuant to this section is not liable to any person for
personal injury, death, property damage, damage to the environment or natural
resources or economic loss that results from the inclusion of denatonium
benzoate in engine coolant or antifreeze. The limitation on liability ...
of this section is only applicable if denatonium benzoate is included in
engine coolant or antifreeze in the concentrations mandated by this section.
The limitation on liability provided ... does not apply to a particular
liability to the extent that the cause of that liability is unrelated to the
inclusion of denatonium benzoate in engine coolant or antifreeze."
The 2002 California law (Section 17582) includes the following
liability provisions: "A manufacturer, distributor, recycler, or seller of
an automotive product that is required to contain an aversive agent under
this section is not liable to any person for any personal injury, death, or
property damage that results from the inclusion of denatonium in ethylene
glycol antifreeze."
The 1992 Oregon law (��431.870 -- 915) includes the following
liability provisions:
"(1) A manufacturer, distributor or seller of a toxic household
product that is required to contain an aversive agent ... is not liable to
any person for any personal injury, death or property damage that results
from the inclusion of the aversive agent in the toxic household product.
(2) The limitation on liability provided by this section is only
applicable if the aversive agent is included in the toxic household product
in concentrations approved by the Poison Prevention Task Force.
(3) The limitation on liability provided by this section does not
apply if the personal injury, death or property results from willful and
wanton misconduct by the manufacturer, distributor or seller of the toxic
household product."
HR 1563 in the 108th Congress included the following liability
provisions: "LIABILITY-
(1) LIMITATION- A manufacturer, distributor, recycler, or seller of
an automotive product that is required to contain an aversive agent under
this section is not liable to any person for any personal injury, death, or
property damage that results from the inclusion of denatonium benzoate in
ethylene glycol antifreeze, provided that the inclusion of denatonium
benzoate is in concentrations mandated by subsection
(a).
(2) EXCEPTION FOR WILLFUL MISCONDUCT- The limitation on liability
provided by this subsection shall not apply if the personal injury, death,
or property damage results from willful or wanton misconduct by the
manufacturer, distributor, recycler, or seller of the ethylene glycol
antifreeze."
The current House legislation in the 109th Congress, HR 2567,
includes the following liability provisions:
"Limitation on Liability- (1) Subject to paragraph (2), a
manufacturer, processor, distributor, recycler, or seller of an engine
coolant or antifreeze that is required to contain an aversive agent...
shall not be liable to any person for any personal injury, death, property
damage, damage to the environment (including natural resources), or
economic loss that results from the inclusion of denatonium benzoate in any
engine coolant or antifreeze, provided that the inclusion of denatonium
benzoate is present in concentrations mandated...
(2) The limitation on liability provided in this subsection does
not apply to a particular liability to the extent that the cause of such
liability is unrelated to the inclusion of denatonium benzoate in any
engine coolant or antifreeze.
(3) Nothing in this subsection shall be construed to exempt any
manufacturer or distributor of denatonium benzoate from any liability
related to denatonium benzoate."
In fact, the current version of the federal bill improves upon the
bill in the 108th Congress by unambiguously establishing the liability
responsibilities of antifreeze and denatonium benzoate manufacturers. HR
2567 includes the final provision of the liability section (paragraph (3))
to clarify that the liability protections regarding DB extend only
to antifreeze manufacturers, while paragraph (2) explicitly restricts any
protections only to the consequences of DB.
Alternative Bittering Agents
The three state laws differ in regard to allowing alternative
bittering agents beyond DB, and the bill passed by the Senate Commerce
Committee in November 2005 differs as well. New Mexico law requires
antifreeze manufacturers to specifically add DB as the sole bittering agent
to their products. California law specifies DB as an appropriate
bittering agent, but allows alternatives to DB if another agent meets the
same degree of aversion at the same concentration. Because DB is the only
chemical that currently satisfies the legislation's bitterness standard at
the specified concentration, California law effectively establishes a
mandate requiring manufacturers to use DB to fulfill the state law
requirements. Oregon law as passed in 1992 generically called for the
addition of an aversive agent, but a 1993 litigation settlement regarding
the statute specifies DB as the sole agent at a required concentration.
In November 2005, the Senate Commerce Committee considered the
possibility of allowing alternatives to DB, and the Committee passed a
bipartisan amendment to allow the Consumer Product Safety Commission (CPSC)
to propose an alternative bittering agent if the alternative is as effective
as DB as a bitterant, is compatible with motor vehicle engines, and shows
no evidence of unreasonable adverse effects on the environment. The CPSC
is the federal agency responsible for regulation and enforcement of federal
laws associated with antifreeze and other consumer products.
Prestone and the other domestic antifreeze manufacturers supported
the Senate Commerce Committee amendment allowing alternative bittering
agents. The CPSC's requirements, however, are important to recognize.
Because of DB's unique bittering characteristics, we are able to add a
minimal quantity of the additive. Antifreeze manufacturers would have to
add more volume of other bittering agents to achieve the same level of
discouragement based on odor and/or taste. Another important consideration
is the affect of the alternative bittering agent on an automobile. DB has
proven to be a safe substance within motor vehicle engines, and alternatives
may corrode the engine or impact its functionality.
Prestone and the U.S. antifreeze industry appreciate the
deliberative approach that Chairman Gillmor has taken in regard to the
development of HR 2567, the Antifreeze Bittering Agent Act of 2005. We
are ready to assist the Committee as it considers the legislation, and we
will be happy to answer any of the Committee's questions.
MR. GILLMOR. Thank you very much, and we will now go to Mr.
Patrice Simms, Natural Resources Defense Council.
MR. SIMMS. Good afternoon, Chairman and members of the
committee. My name is Patrice Simms. I am a Senior Project Attorney
with the Natural Resources Defense Council, and I thank you very much
for asking me here to speak to you today. I also have written comments
that I have provided, and I hope that you will accept them.
MR. GILLMOR. Everybody's full written statement will be part of the
record.
MR. SIMMS. Thank you very much. I am not going to strictly follow
my written comments, but I am going to follow that outline. And I do
want to reiterate, at the very beginning, that NRDC is a staunch supporter
of strong laws to protect people and the environment, including animal
life, both domestic animals and wildlife. More specifically, we support
the idea of making antifreeze a safer product to have in the marketplace.
We also recognize that one way to do that may be to make antifreeze less
palatable, therefore making it less attractive and reducing the number and
seriousness of instances of accidental ingestion, particularly, again,
among children, pets, and wildlife. That said, unfortunately, NRDC
must oppose the bill as it is currently written, and I want to discuss a
little bit the outline of our objections to the bill and the basis for those
objections.
From NRDC's perspective there are two really critical issues. The
first one is one that you have heard mentioned again and again here
today, that the bill currently includes a liability waiver for the
manufacturers and in fact, apparently for the entire chain, from the
antifreeze production all the way through the recycling stage. And this
waiver essentially holds harmless this entire industry from injury,
whether it is property damage, whether it is physical injury, permanent
disability, death, any range in there, as well as environmental harms,
including harms that would impair our important natural resources such
as drinking water. Second, the bill preempts States from regulating
antifreeze bitterants, and you have heard this from a couple of people
who have spoken already today States' ability to regulate products that
are dangerous to people's health and the environment is incredibly
important, and treading on that ability is something that should be
avoided. In this case, the ability for States to act is very important as a
backstop to any potential injury that might happen down the road, and
preempting States from that ability is something that we would
strenuously object to.
With respect to the liability waiver, as a matter of general
principle, liability waivers are, in our view, not good policy, especially
where the underlying requirement, in this case, the requirement for a
bittering agent to be added to the market product, is imposed to address a
harm that is directly the result of the production and resale of the product
itself. That is the reason that the DB, or the other bittering agent, needs
to be in the product is because the product is otherwise unacceptably
dangerous for the public to have. At least that would presumably be the
basis for requiring some regulation to make it safer. And it only makes
sense to hold the industry that benefits from having that product, that
highly toxic product, in the marketplace, responsible not only for instances
of harm caused by the product itself, but instances of harm caused by
additives that are necessary to make that product acceptably safe, and for
that reason, the idea of a liability waiver is particularly objectionable in
this case.
I would note that the public always carries its share of the risk,
because the public stands at the frontline whenever any injury does
occur, and it is fundamentally unfair, in this situation, to insist that the
public continuing to carry its risk and to not require the industry that is
benefiting from the product to also carry its risk of possible harm in the
future.
Now I would note we have heard a number of things today. I would
like to emphasize one of the things that we have heard come up again
and again, and that is that we know very little about the impact of DB in
the environment, and that is critically important, and we have included as
an attachment to NRDC's testimony some summary of the same studies
that people have spoken about today. And the fact that we know very
little means, in our view, it is very unwise at this point to suggest that we
ought to be waiving liability for this product. Similarly, in our view, it
makes very little sense at this point to specifically identify DB as the
only possible bitterant to be added to antifreeze to make it a safer
product. From what we are aware, there is very little reason for that
limitation and in fact, the primary function of that limitation is to set up a
justification for a liability waiver.
MR. GILLMOR. I don't want to assume, but we are trying to stay
within our time constraints.
MR. SIMMS. Okay.
Very well. So I will note only one other point and that is something
that confuses me a little bit here, and that is that there has been argument
back and forth about whether or not DB is dangerous or not. If it is
dangerous, it is unwise to waive liability. If it is not dangerous, why is
the application of liability to the industry problematic? It would be, if
you accept that factual basis, it is a negligible risk and so why is that a
problem? And from our view, the liability waiver and the preemption of
State authority, any way you look at the facts underlying this particular
bill, are inappropriate. Thank you very much for allowing me to speak.
[The prepared statement of Patrice L. Simms follows:]
PREPARED STATEMENT OF PATRICE L. SIMMS, SENIOR PROJECT ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL
Mr. Chairman, and Honorable Members of the Committee, thank you for
this opportunity to speak with you today about H.R. 2567, the Antifreeze
Bittering Act of 2005.
Allow me to start by saying that NRDC is a staunch supporter of strong
laws that protect the health and wellbeing of people and animals. At its
core, the intent of this bill is certainly positive -- to protect the health
and wellbeing of children, household pets, and wildlife that may be exposed
to ethylene glycol (the highly toxic chemical commonly used as automobile
antifreeze). We also commend organizations like the Doris Day Animal League
for pursuing this worthy cause, and the sponsors and supporters of this bill
for making this important issue a priority.
Unfortunately, NRDC must oppose this bill as it is currently written.
As a general matter, we do not oppose, and in some cases have specifically
recognized the value of bitterants as one means of reducing the number and
severity of exposures to toxic chemicals. However, the inclusion of a
sweeping liability waiver in H.R. 2567, that would give antifreeze
manufacturers, processors, distributors, recyclers and retailers, a
get-out-of-jail-free card with respect to any harm that a bittering agent
might cause in the future, is simply unpalatable. This "free pass" would
apply not only in instances where the bittering agent causes damage to motor
vehicle equipment, but also where it directly harms people (by causing
sickness or death) or where it causes environmental damage (including
impairment of natural resources). Significantly, the waiver also includes no
exceptions for harm that results from gross negligence or willful misconduct.
Additionally, the bill includes a provision that preempts States
from regulating, in any way and for any reason, antifreeze bitterants (except
to the extent that the State regulations are identical to the provisions of
H.R. 2567). Preempting State authority to adopt stricter rules than those
required at the federal level is rarely a good policy, and in this case it
is both unnecessary and unwise.
While we support the regulatory objective of making antifreeze a
safer product, including, as one option, a bittering agent requirement in
order to reduce the chances of poisoning children, pets, and wildlife, we do
not understand why this bill mandates the use of a specific bitterant and
then provides a liability waiver. We would urge that the legislation simply
require the use of an effective bitterant that will prevent children and
pets from consuming this otherwise sweet-tasting toxic product, and allow
the industry to determine what bitterant might be most safe and effective.
In our view, it is inappropriate to assign the risks that denotonium benzoate
(DB) or another bitterant may pose to the public and the environment, rather
than to the industry that reaps the economic benefit from sale of a toxic
product that requires a bitterant to be safe.
The mandate to use DB exclusively appears to serve no purpose other
than to create a justification for also including a liability waiver -- a
waiver that takes important protections away from the American people. In
fact, allowing flexibility in the use of bitterants would make it easier for
industry to respond to any problems that might arise with a particular
chemical, or to shift to a more effective, more readily available, safer,
less expensive, or otherwise more appropriate chemical if one were to emerge.
There is nothing inappropriate about requiring that the antifreeze
industry to make a product that is as safe at it can be -- by appropriately
addressing the attractiveness and availability of its product to children and
animals (including, e.g., taste, color and safety packaging) and by taking
responsibility for the toxicity and adverse health and environmental impacts
of all the product's ingredients (including impacts resulting from
the use of bitterants).
The bill's preemption of State authority to regulate antifreeze
bitterants is also troubling. NRDC has a long history of opposing attempts
to preempt more stringent State law. In general, in our view, it makes little
sense to limit the tools available to States in their front line battles to
protect their citizens and respond to public health or environmental hazards.
Precluding States from adopting laws more stringent than, or in addition to,
federal law prevents advances in public health and environmental protection
and leaves people more vulnerable.
While we recognize the importance of the issue that the bill sponsors
are attempting to address, and we hope that Congress is able to pass a strong
bill that makes antifreeze a safer product, for the reasons I have outlined
here, NRDC cannot support H.R. 2567.
Once again, thank you for giving me the opportunity to address this
committee today and explain to you NRDC's position on this bill.
MR. GILLMOR. Thank you. And next is Dr. Melinda Eyrich, Co-
owner of Urgent Care Veterinarian Hospital. Dr. Eyrich.
DR. EYRICH. Thank you, Mr. Chairman, for the opportunity to speak
here before this committee today. I have been a veterinarian for
approximately 15 years, focusing on emergency medicine for that past
seven years. I am a member of the AVA, the American Veterinary
Association, and I also have a letter from the AVA to submit to record
today, with me.
When I was asked to speak here today, I was asked to reflect on
specific cases of antifreeze poisoning that I have seen over the years as
an emergency veterinarian, and there are way too many, to be quite
honest with you. But one case specifically came to my mind, and I
would like you to indulge me to relay that case to you today.
An 8 year-old male golden retriever was presented into my clinic one
evening in the fall of the year. He was unable to lift his head, but being a
golden retriever he could still just very weakly wag his tail as he laid on
the table. His lab values showed that he was in kidney failure, and the
test for ethylene glycol, or antifreeze, in his blood was extremely
positive.
And I have to tell you, on the other side of this exam room table
from me was a family with 2 young boys, approximately the age of 10
and 12, and they were in tears over their sick friend, and I gave his
family a very poor prognosis for this dog's recovery. At that time, I also
discussed with them the extreme expense involved in trying to treat this
animal. The pharmaceutical that we use to treat antifreeze poisoning is
called Antizol, and it is approximately $300 a vial. It is an extreme
financial hardship for most families, and in most families the cost of
treating this disease is actually prohibitive. But this family decided,
because of the extreme worth to this family that this dog was, that they
were going to go ahead and try to treat this animal. So over the next 3
days we tried to save this dog, and in the course of visits with his family,
I got to know them and I got to know the relationship they had with this
dog. This animal was a gift. He had played fetch with the boys, he had
gone swimming with them in the summertime, he had slept on one of the
boys' beds every night, faithfully, and he waited for them to come home.
But at the end of the 3 days, we were not able to save this dog and the
decision was make to humanely euthanize him, in the face of worsening
lab work.
But as we sat around this dog after we had euthanized him, the
younger of the two boys looked at me and he asked me a question and he
said, "Why does antifreeze kill dogs?" And I started with a medical
explanation of why antifreeze kills dogs. I said, "It causes kidney failure
and sometimes we can't reverse that process." But part way through my
explanation, he interrupted me and he said, "No. What I want to know
is, why do we have a substance around so commonly that kills dogs?"
His statement to me was everybody has it. And then I tried to explain to
him that it was not the intention of antifreeze to kill dogs. It is the
intention of antifreeze to help car engines. And his response to me was,
that doesn't make it right. And he was correct, it doesn't make it right.
As I looked at my own two children before I left today, I realized
that there are enough things that are difficult to explain to children in this
world, that if we have a chance to change something that is very difficult
to explain to them, then maybe we should act and try to do that. This
seems like a very simple solution to a very deadly problem.
Antifreeze, for dogs, is not only deadly, but it is attractive. It has a
sweet taste, as you have already learned today. I can tell you,
anecdotally, dogs do not like bitter tastes. Also, this toxicity, as I have
already mentioned, is also not only emotionally taxing for families, but it
is financially taxing for families. I am fortunate. I live in the State of
New Mexico. We already have a law in place requiring a bitterant added
to antifreeze. I would like to see help for my peers in the other 47 States,
as it sounds like they need help with this issue. Thank you for your time.
[The prepared statement of Dr. Melinda Eyrich follows:]
PREPARED STATEMENT OF DR. MELINDA EYRICH, DVM, CO-OWNER, URGENT CARE
VETERINARIAN HOSPITAL
Thank you Mr. Chairman for the opportunity to testify before the
committee today.
My name is Dr. Melinda Eyrich; I have been a veterinarian for the
past 15 years, focusing on emergency medicine for the past 7 years. I am the
owner of Urgent Care Veterinary Hospital in Albuquerque, New Mexico.
When I was asked to speak today, I was also asked to reflect on
specific cases of antifreeze poisoning. One case in particular jumped into
my mind. An 8 year old male Golden Retriever. He presented in the fall of
the year, unable to raise his head but he could still weakly wag his tail.
He was in kidney failure. The test for the presence of ethylene glycol in
his system was strongly positive.
On the other side of the exam table from me were two young boys, in
tears, over their sick friend. Their approximate ages were 10 and 12 years
old. I gave the family a very poor prognosis for recovery. The decision
was made to try and save this important family member. As we worked to
save him over the next three days, the two boys recalled countless stories
of how he had shared their youth. In their young eyes, This Golden
Retriever had shared their entire lives. He had played fetch, swam and
slept on their beds. This friend had waited loyally for them to return on
the bus at the end of each day.
The most effective treatment for ethylene glycol poisoning is very
expensive. I am not able to mark up the drug we use because, at approximately
three hundred dollars a vial, the expense is prohibitive to most families.
At the end of three tear-filled and heart wrenching days--in the face of
worsening lab results--we could not save this family member.
These boys witnessed a horrible painful death until the difficult
decision was made to euthanize their friend. When the younger boy asked why
antifreeze kills dogs, I initially started to explain the clinical reason
for the kidney failure it causes. Part way into my explanation, he
interrupted me and reworded his question so that I understood that what he
was really asking is why do we have something so commonly around that kills
dogs. I remember him saying "everyone has it". I tried to explain that was
not its intended use and that his friend's death was an accident. He replied
"that does not make it all right."
He was correct. The events of this world can be hard enough to
explain to children. If we have a chance to lessen some of the wrongs, and
make them right, we should act.
The addition of an agent to make antifreeze taste bitter appears to
be a practical simple solution, to a very deadly killer. This type of
toxicity is not only emotionally taxing for families but a financial
hardship as well -- usually in the face of a guarded prognosis. I would
love to be able to never dread the change of seasons, when well-meaning
people change their antifreeze and do not dispose of it safely. It would be
a celebration to never lose a friend to something that could be made
preventable.
Thank you.
MR. GILLMOR. Thank you, Doctor. Mr. Tom Bonacquisti.
MR. BONACQUISTI. Bonacquisti.
MR. GILLMOR. Okay. Good. The Director of Water Quality and
Production, Fairfax County Water Authority, and he is testifying on
behalf of the American Water Works Association.
MR. BONACQUISTI. Good afternoon, Mr. Chairman and members of
the subcommittee. I am Tom Bonacquisti, Director of Water Quality and
Production for the Fairfax County Water Authority in Fairfax County,
Virginia. I am here on behalf of the American Water Works Association,
or AWWA. AWWA commends you for holding this hearing and
appreciates the opportunity to present its views on H.R. 2567, the
Antifreeze Bittering Act of 2005.
Founded in 1881, AWWA is the world's largest and oldest scientific
and educational association representing drinking water supply
professionals. Our membership, over 57,000 strong, is comprised of
administrators, utility operators, professional engineers, contractors,
manufacturers, scientists, professors, health professionals, and ordinary
citizens. The association's membership includes over 4,800 utilities that
provide over 80 percent of this Nation's drinking water. AWWA and its
members are dedicated to providing safe, reliable drinking water to the
American people.
AWWA commends efforts to protect children and animals from the
dangers of ingesting antifreeze. We support efforts to find a solution to
prevent the tragedies that occur when children or animals ingest toxic
doses of antifreeze. As an association of professionals dedicated to
protecting public health, we can relate to the desire to ensure that
children and animals don't accidentally ingest a poisonous compound.
AWWA's members work everyday to ensure that millions of Americans
have safe, high-quality water. We understand that if antifreeze had a
bitter taste, some needless suffering and expense might be avoided.
In our statement today, we will not comment on how best to achieve
the goal of protecting our children and pets from antifreeze poisoning, or
which bittering agent to use. Those issues lie outside of our area of
expertise. We have serious reservations about statutorily mandating a
specific bittering agent and specific concentrations of that agent. We
generally believe those kinds of decisions should be left to the regulatory
process, in which all available scientific data can be examined and
decisions can be made with opportunity for public review and comment
and outside an overtly political process.
We also have very serious concerns about language in the bill that
waives the liability of any manufacturer, processor, seller, or recycler of
antifreeze containing the prescribed adversive agent from any damages
arising from natural resource or environmental damages. This provision
is unwise, unsound, and unfair and should be removed from the bill.
In this statement, I will primarily address the liability issue,
which is our chief concern with the bill. H.R. 2567 requires the use of
denatonium benzoate, DB, as a bittering agent for antifreeze. Little is
known about the environmental fate and transport of DB. The material
safety data sheet for commercial formulations of DB are not helpful on
this matter, as they contain little or no data on the fate and transport of
this agent. According to manufacturers, DB is biodegradable and is not
known to bioaccumulate. However, studies by other researchers have
found that the denatonium ion does not biodegrade during treatment in
typical wastewater treatment plants. Some research suggests that to the
extent degradation does occur, it is primarily the result of the breakdown
of benzoate and that the denatonium ion responsible for the adversive
taste of the compound is not easily biodegradable.
Studies also suggest that DB does not adhere to soil, but rather stays
in and travels with the groundwater. We believe it is reasonable to
expect contamination problems as DB accumulates in the groundwater
supplies. Given the extreme bitter properties of DB, it appears that tiny
amounts of the chemical could render drinking water supplies bitter and
unpalatable. One manufacturer's material safety data sheet states that in
cases of accidental release, DB is to be kept out of water supplies and
sewers. Given the conflicting and inconclusive data on the fate and
transport of DB, particularly in water, it would be very imprudent to
provide far-reaching liability immunity to companies making or handling
antifreeze containing this chemical or another other adversive agent.
A liability waiver is of particular concern because sooner or later,
somewhere, and perhaps in many places, contamination of drinking
water supplies is likely to occur. When that happens, drinking water
utilities will be forced to treat or remove this compound from the water
they deliver to their customers. Our customers will not accept the taste
of antifreeze in their tap water. When contamination occurs, drinking
water utilities will be forced to change or add treatment or removal to get
DB out of the drinking water. In severe cases, this could even require the
abandonment of water supplies and the development of new sources.
Increasingly, in many areas of the country, such new sources are
unavailable. Whatever a drinking water utility is forced to do, it is all but
certain to increase the cost of water in that community, perhaps
significantly. The question will become, who should fairly bear that
cost?
History is replete with examples of the unintended consequences of
measures adopted to obtain laudable goals. Perchlorate was added to
munitions to make them more stable. However, perchlorate is now
found to be contaminating drinking water supplies. MTBE, or methyl
tertiary butyl ether, was added to motor fuels to reduce air pollution.
However, MTBE contaminated drinking water supplies in many areas of
the country, and even minute quantities of MTBE made drinking water
unpalatable. The cost of cleaning up MTBE-contaminated drinking
water supplies is conservatively estimated at billions of dollars.
No one can know what the cost of removing DB from drinking water
supplies might be, and I am not asserting that it would be billions of
dollars. Some contamination of water supplies by DB and some
increased cost of treatment or removal, perhaps significant, is all but
inevitable. It is also important to remember that antifreeze is used in
large volumes.
I would like to say, in conclusion, AWWA recommends a regulatory
rather than a legislative process to identify an adverse agent for
antifreeze. We strongly oppose the limitation on liability provisions of
H.R. 2567 and strongly recommend that liability provisions be deleted
from this bill. AWWA and its members thank you for holding this
hearing concerning H.R. 2567, and thank you for considering our views.
[The prepared statement of Tom Bonacquisti follows:]
PREPARED STATEMENT OF TOM BONACQUISTI, DIRECTOR OF WATER QUALITY AND
PRODUCTION, FAIRFAX COUNTY WATER AUTHORITY, ON BEHALF OF AMERICAN WATER
WORKS ASSOCIATION
SUMMARY OF MAJOR POINTS
1. AWWA commends efforts to protect children and animals from the
dangers of ingesting antifreeze.
2. AWWA recommends a regulatory rather than a legislative process to
identify an aversive agent for antifreeze.
3. AWWA strongly opposes the Limitation on Liability provisions of H.R.
2567, and strongly recommends that liability provisions be deleted from
the bill.
INTRODUCTION
Good morning Mr. Chairman. I am Tom Bonacquisti, Director of Water
Quality and Production for the Fairfax County Water Authority in Fairfax,
Virginia. I am here on behalf of the American Water Works Association (AWWA).
AWWA commends you for holding this hearing and appreciates the opportunity to
present its views on H.R. 2567
-- The Antifreeze Bittering Act of 2005.
Founded in 1881, AWWA is the world's largest and oldest scientific
and educational association representing drinking water supply professionals.
Our membership, over 57,000 strong, is comprised of administrators, utility
operators, professional engineers, contractors, manufacturers, scientists,
professors, health professionals, and ordinary citizens. The association's
membership includes over 4,800 utilities that provide over 80 percent of the
nation's drinking water. AWWA and its members are dedicated to providing
safe, reliable drinking water to the American people.
ANTIFREEZE POISONING IN CHILDREN AND PETS
AWWA commends your committee's efforts to protect children and
animals from the dangers of ingesting antifreeze. We support efforts to find
a solution to prevent the tragedies that occur when children or animals
ingest toxic doses of antifreeze. As an association of professionals
dedicated to protecting public health, we can relate to the desire to ensure
that children and animals don't accidentally ingest a poisonous compound.
AWWA's members work every day to ensure that millions of Americans have safe,
high quality water. We understand that if antifreeze had a bitter taste,
some needless suffering and expense might be avoided.
In our statement today, we will not comment on how best to achieve
the goal of protecting our children and pets from antifreeze poisoning or
which bittering agent to use. Those issues lie outside our area of expertise.
However, we do have serious reservations about statutorily mandating a
specific bittering agent and specific concentrations of that agent. We
generally believe those kinds of decisions should be left to the regulatory
process in which all available scientific data can be examined and decisions
can be made with opportunity for public review and comment outside an overtly
political process.
We also have very serious concerns about language in the bill that
waives the liability of any manufacturer, processor, seller, or recycler of
antifreeze containing the prescribed aversive agent from any damages arising
from natural resource or environmental damages. This provision is unwise,
unsound, and unfair, and should be removed from the bill. In this statement,
I will primarily address the liability issue, which is our chief concern with
the bill.
LIMITATION ON LIABILITY
H.R. 2567 requires the use of denatonium benzoate (DB) as a
bittering agent for antifreeze. Little is known about the environmental fate
and transport of DB. The Material Safety Data Sheet (MSDS) for commercial
formulations of DB are not helpful on this matter as they contain little or
no data on the fate and transport of this agent. According to the
manufacturers, DB is biodegradable and is not known to bioaccumulate.
However, studies by other researchers have found that the denatonium ion
does not biodegrade during treatment in a typical wastewater treatment plant.
Moreover, some research suggests that to the extent degradation does occur,
it is primarily the result of the breakdown of benzoate and that the
denatonium ion, responsible for the aversive taste of the compound, is not
easily biodegradable.
Studies also suggest that DB does not adhere to soil, but rather
stays in and travels with the ground water. We believe it is reasonable to
expect contamination problems as DB accumulates in the groundwater supplies.
Given the extreme bitter properties of DB, it appears that tiny amounts of
the chemical could render drinking water supplies bitter and unpalatable.
One manufacturer's Material Safety Data Sheet states that in cases of
accidental release, DB is to be kept out of water supplies and sewers.
Given the conflicting and inconclusive data on the fate and
transport of DB, particularly in water, it would be very imprudent to
provide far-reaching liability immunity to companies making or handling
antifreeze containing this chemical or any other aversive agent.
A liability waiver is of particular concern because sooner or later,
somewhere, and perhaps in many places, contamination of drinking water
supplies is likely to occur. When that happens, drinking water utilities
will be forced to treat or remove this compound from the water they deliver
to their customers. Our customers will not accept the taste of antifreeze
in their tap water.
When contamination occurs, drinking water utilities will be forced
to change or add treatment or removal to get DB out of the drinking water.
In severe cases, this could even require the abandonment of water supplies
and the development of new sources. Increasingly, in many areas of the
country such new sources are unavailable. Whatever a drinking water utility
is forced to do, it is all but certain to increase the cost of the water
in that community, perhaps significantly. The question will become, who
should fairly bear that cost?
History is replete with examples of the unintended consequences of
measures adopted to attain laudable goals. Perchlorate was added to
munitions to make them more stable; however, perchlorate is now found to be
contaminating drinking water supplies. MTBE (methyl tertiary butyl ether)
was added to motor fuels to reduce air pollution; however MTBE contaminated
drinking water supplies in many areas of the country, and even minute
quantities of MTBE made drinking water unpalatable. The cost of cleaning
up MTBE-contaminated drinking water supplies is conservatively estimated at
billions of dollars.
No one can know what the cost of removing DB from drinking water
supplies might be, and I am not asserting that it would be billions of
dollars. However, some contamination of water supplies by DB and some
increased cost of treatment or removal, perhaps significant, is all but
inevitable. It is also important to remember that antifreeze is used in
large volumes in many industrial applications, such as airplane de-icing,
and that large releases and widespread contamination of water supplies are
possible.
Informed by the MTBE experience, we should seek to avoid DB becoming
the problem that MTBE became. The impact of even small releases of DB on
drinking water supplies is unknown. With a widespread mandate for the use
of DB in antifreeze, the incidence of contaminated drinking water supplies
can only increase. If this happens, it would be no more fair to excuse the
companies making or handling antifreeze from liability than it would be to
mandate that they be always liable. The question of liability is and should
remain a decision that is made based on the facts of particular cases.
CONCLUSION
In conclusion, AWWA recommends a regulatory rather than a
legislative process to identify an aversive agent for antifreeze, strongly
opposes the Limitation on Liability provisions of H.R. 2567, and strongly
recommends that liability provisions be deleted from this bill.
AWWA and its members thank you for holding this hearing concerning
H.R. 2567 -- The Antifreeze Bittering Act of 2005. AWWA. And thank for you
considering our views. We will be pleased to answer any questions or provide
additional material for the committee.
MR. GILLMOR. Thank you. Sarah Amundson, Deputy and
Legislative Director of the Doris Day Animal League.
MS. AMUNDSON. Thank you, Mr. Chairman, and also to Ranking
Member Solis, for this opportunity to testify in support of the Antifreeze
Bittering Act. I am Sarah Amundson, the Legislative Director with the
Doris Day Animal League, and I also want to express our genuine thanks
to Representatives Ackerman, Rohrabacher, and Wilson for their
leadership on this issue. Do keep in mind that there are more than 58
million homes in this country that have pets. We are a Nation of pet
lovers, and the very thought of having 90,000 of our companion animals
ingest antifreeze and the majority of them die, on an annul basis, is
simply unacceptable. We certainly recognize that there are three States,
all three of which we have had a hand in moving legislation in, that
currently have this statutory provision on their books. I want to remind
folks that all three of those States also have liability provisions in them.
So much information has been covered, both through the wonderful
Member statements that were given with the opening of the hearing, and
also the folks who have testified. I would like to go straight to some of
the considerations that have been raised, in the hope that we can address
some of these concerns.
First of all, the Doris Day Animal League would by no means
advocate for the addition of DB in antifreeze as the panacea to this
genuine problem. For obvious reasons we are careful to tell consumers
and pet lovers that they need to ensure that antifreeze is properly
disposed of, properly stored, and that the industry's efforts to ensure
there are child safety caps and foils on the tops of those containers are
measures of protecting pets. But what we do know is that animals are
actually chewing through those containers, which means they are
ingesting antifreeze, not only from spills on driveways, but also through
those containers, and that means we need another tool in the toolbox.
That is the additional of denatonium benzoate in the antifreeze. We did
advocate strongly in 2002, in California, for a very similar statute. We
have the support of the American Academy of Pediatrics, the California
Integrated Waste Management Board, and yes, folks, the Sierra Club, in
that endeavor. In that situation, we were very pleased to have taken an
active role, but clearly, as Congressman Ackerman demonstrated, he
wants to prevent his colleagues in New York from driving to New Jersey
and exposing pets and children to antifreeze poisonings. For that reason,
we have got to have a uniform standard, and obviously, the only way to
regulate interstate commerce in this country is through a Federal law.
We are an animal protection organization, which means we are
necessarily committed to environmental protection. What that means is,
we have done a grave analysis of what is known about DB, the
information that is in the risk assessment profile, consideration for the
fact that it is between 30 and 50 parts per million that actually goes into
antifreeze in this country to render it bitter, revisit the fact that it only
takes 7,000 gallons to render all of the antifreeze covered by this bill in
this country bitter. And I just want to make a valuable point here. There
has been some misinformation. This bill will only cover the consumer
market where we have seen the grave nature of this problem. It does not
cover industrial or commercial uses, which means plane deicing is not
covered by this bill. We are talking about consumers here.
In addition, there have been grave concerns raised about the
liability waiver. As an animal organization concerned about environmental
protection, I can say that there is no possible way we would support a
blanket sort of liability waiver, and it doesn't exist in this bill. For
obvious reasons, I am sure if you asked Mr. Bye here, he would state that
whether it is Superfund, RCRA, or any of the other existing
environmental statutes in this country, he knows for a fact that they will
still be responsible for cleanup for ethylene glycol antifreeze.
Let us get to the volume issue again. DB is not handled, stored, or
used in the same sort of volume as the additive MTBE in this country,
and I think Congressman Ackerman did a wonderful job of illustrating
the nature of 80 million gallons, on a daily basis, of MTBE versus 7,000
gallons for the entire product of antifreeze covered under the bill, on an
annual basis. I wish Congressman Ackerman, with his illustrative points,
had taken that cup of denatonium benzoate and showed us just how little
of that cup would go into that one-gallon containing, because at 30 to 50
parts per million, you are probably talking about the tip of my finger.
That is how little DB would go into a single container.
You know, a lot of concerns have been raised today, and in other
situations, with regard to water quality. Today, I want to introduce into
the record, with the Chairman's permission, a letter we have received
from the California State Water Resources Control Board, appointed by
the Governor, stating that, "Even though it is regarded as the bitterest
known substance to date, we are unaware of adverse impacts to
California's water supplies arising from the use of denatonium benzoate
in antifreeze and a variety of other products."
Further to that point, I want to note that this statute has been on
the books in the State of Oregon since 1993, and I have a direct quote from a
Maine environmental protection report from their State toxicologist. "No
incidents of drinking water well contamination or groundwater
contamination or bad tasting water due to denatonium benzoate have
become known." And of course, Ranking Member Solis referred to the
California Integrated Waste Management report that found that DB
readily biodegrades and its transport is attenuated in soil.
We have also had a number of concerns raised about the efficacy of
DB, and I would like us to take into consideration a weight-of-evidence
approach, which is what we often do with chemicals. If EPA is
demonstrating what they know about the risk profile, on the basis of the
testimony presented here today, it seems to me that much of the criticism
about the efficacy of DB has come from a 2004 review of the Oregon
Poison Control Center records of pediatric poisonings. I want to point
out two quick things here. First and foremost, the majority of problems
we have in this country of ethylene glycol poisoning are household pets.
There is no reporting requirement for household pet ingestions or deaths
in Oregon, so the issue was not even considered. When it comes to
efficacy, we have definitely got to take that issue to heart.
The survey also measured exposures, but didn't measure the level of
DB in products consumed. A 1996 Oregon study, after the bill was
implemented, did a study of the measurement of DB in the products that
were regulated and there were some that had no detectable amounts.
MR. GILLMOR. We will have to wrap up pretty quickly.
MS. AMUNDSON. Yes, sir. Efficacy has also been studied by EPA.
When you consider rodenticides and the previous requirement to ensure
both dyes and bittering agents were included in rodenticides, EPA did a
review of the scientific data and considered it the bitterest substance
known to man. It did not compromise the value of the rodenticides, and
the conclusion was that it also prevented children's exposure or
children's ingestions of that product. Antifreeze poisonings cause animal
suffering and great death. We have a solution here for pennies per
gallon, and together, we can find a way to mark this bill up and move it
forward, and really address the 90,000 deaths that we are seeing each
year. Thank you, Mr. Chairman.
[The prepared statement of Sarah Amundson follows:]
PREPARED STATEMENT OF SARAH AMUNDSON, DEPUTY AND LEGISLATIVE DIRECTOR,
DORIS DAY ANIMAL LEAGUE
Good afternoon. Thank you Mr. Chairman and members of the
Subcommittee for the opportunity to testify today in support of the
Antifreeze Bittering Act. I am Sara Amundson, Legislative Director for the
Doris Day Animal League (DDAL). DDAL has 350,000 members and supporters
nationwide who strongly support H.R. 2567. The organization was founded in
1987 to promote the protection of animals through legislative advocacy in the
states and on the federal level. DDAL is grateful to Representatives
Ackerman, Rohrabacher, and Wilson for their leadership on H.R. 2567, a
bill with the ultimate goal of better protecting animals and children from a
common household hazard.
This bill enjoys broad support from an unlikely coalition of animal
advocacy organizations, public health organizations, and the antifreeze
industry. In addition to DDAL, these supporters include the American Humane
Association, The Humane Society of the United States, the Society for Animal
Protective Legislation, Honeywell and all U.S. antifreeze manufacturers, the
Consumer Specialty Products Association, the American Academy of Pediatrics,
the American Veterinary Medical Association, and the Pet Food Institute.
Animals and Children are Exposed to Antifreeze
For the past fifteen years, the DDAL has been tracking ingestions of
antifreeze by pets and wildlife. Poisoning occurs with this product because
it is often inadvertently spilled in our driveways or left in open containers
in our garages by automotive "do-it-yourselfers." In addition, a neighbor
wishing to rid himself of a barking dog or wandering cat may deliberately bait
a pet, instigating a cruel solution to a neighborhood squabble.
Because it is colorful and has a sweet taste, animals and children
are drawn to it. Animals may quickly ingest a lethal amount. One
teaspoonful of ethylene glycol antifreeze can kill a cat. As little as one
to two tablespoonfuls can kill a 100-pound dog. One survey found that two out
of three veterinarians see at least one accidental ethylene glycol poisoning
each year. The Washington State School of Veterinary Medicine places the
annual number of dog and cat antifreeze poisonings at approximately 10,000;
however, a 1996 "study of small practice veterinarians throughout the United
States found that more than 90,000 dogs and cats die each year from ingesting
ethylene glycol antifreeze."<sup>1 Unfortunately, the symptoms of poisoning
can be misleading, causing the pet lover to think the animal is merely sleepy
until renal failure causes death.
Moreover, according to statistics compiled by the American
Association of Poison Control Centers, more than 1,300 children ingest
antifreeze each year. The U.S. National Library of Medicine Toxicology Data
Network states that the minimum lethal dose for a 150-pound male is 4 ounces,
which means it takes far less to kill a child. While records indicate that
accidental ingestion by children is caught early enough to prevent death, not
all human victims recover because not all ingestions are accidental. Ethylene
glycol antifreeze is also used in murders and suicides.
Denatonium benzoate
The good news is that, unlike many of the issues we grapple with,
this one has a ready solution. DDAL certainly considers safety caps, seals,
and public education necessary. However, three states and several other
countries have chosen to employ an additional tool, which is requiring the
addition of denatonium benzoate (DB) to antifreeze that is sold directly to
the consumer.
Denatonium benzoate is one of the bitterest substances known and
available to us. In 1963, the Food and Drug Administration (FDA) approved
the addition of DB to cosmetic and toiletry products, including nail polish,
hair spray, and cleaners, as a safety mechanism to deter children from
ingesting them. The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives
(27 CFR 21.76) currently requires that all industrial alcohol-based products
contain a bittering agent and specifically requires the use of DB in certain
products as a denaturant, making the product unpalatable. The addition of
the bitterant has not compromised the usefulness of the products.
Requiring the addition of DB to ethylene glycol antifreeze destined
for the consumer retail market has the potential to save thousands of animal
lives and prevent hundreds of children from being sent to emergency rooms
each year. DDAL strongly urges your support of this small, common-sense
measure, literally costing pennies per gallon, to achieve significant,
beneficial results.
California State Law
The Doris Day Animal League has a long history of lobbying in
support of state legislation to require the addition of denatonium benzoate
to make antifreeze unpalatable to both animals and children. In 1993, in
response to concerns from veterinary emergency rooms, DDAL members who had
lost a beloved pet, the death of a California condor, and the startling
statistics on children gathered annually by the American Association of
Poison Control Centers, we successfully lobbied the California legislature
to require the addition of denatonium benzoate to antifreeze and coolant
products. In spite of significant opposition mounted by the manufacturers
of antifreeze, the bills passed with overwhelming votes in both the
California Assembly and Senate. Unfortunately, the governor vetoed the bill.
Then in 2000, after losing her family's beloved dog Angus to
antifreeze poisoning, Californian Lauren Ward began researching the solution
to her family's tragedy. She contacted her state legislators to demand to
know why the simple addition of DB to antifreeze to help prevent these
unnecessary deaths wasn't required by the state. Fortunately, her
assemblyman agreed to introduce a bill to require the bitterant be added.
Our research in support of the California bill demonstrated that in
the ten years that had passed, despite the voluntary efforts by the
antifreeze industry to educate the public, large numbers of animals were
still being poisoned from ingesting antifreeze. In 2001, 13 California
veterinary clinics reported 136 cases of antifreeze poisoning with 107
deaths. Antifreeze poisoning continued to send many children to the
hospital. Working with Lauren Ward and members of the California State
Senate and Assembly, we lobbied again for passage of an antifreeze bittering
bill. The California Medical Association, American Academy of Pediatrics,
California Veterinary Medical Association and the California Integrated
Waste Management Board all supported the legislation. Over the
objections of the antifreeze industry, the bill passed and was signed into
law in 2002.
Subsequently, we have worked with legislators in several other
states in support of bills to require the addition of denatonium benzoate
to antifreeze. Last year, New Mexico became the third state to pass such a
bill into law. And that language is identical to the federal bill before
you today.
DDAL strongly supports the pursuit of progressive state policies.
However, because of the nature of commerce in this country and because
these poisonings occur regardless of state lines, it is imperative to pass
a federal bill to ensure that the goal of reducing antifreeze poisonings is
realized. It is important to extend to each child and every animal the
extra layer of protection that these states have so wisely adopted. This
can be accomplished in a timely and sensible manner only through federal
action. A product marketed and distributed on a national basis should have
a national standard to meet.
Moreover, the absence of a federal law undermines the effectiveness
of existing state laws: The ease of interstate transportation necessitates
a uniform policy to prevent antifreeze spills in California from cars driving
into the state from Nevada. It is impossible to judge the effectiveness of
these new state laws based on the interstate nature of the problem. In fact,
the U.S. Conference of Mayors, at its 2004 annual meeting, passed a resolution
urging Congress to "help cities protect children and animals by enacting
legislation to require denatonium benzoate as an additive to antifreeze that
contains ethylene glycol...."
Concerns and Questions
We would like to address and, we hope, allay, some of the concerns
about this legislation that have been raised. First and foremost,
comparisons have been made between this legislation and the methyl tertiary
butyl ether (MTBE) issue, but there are significant and meaningful differences
between the two.
? Contrary to characterizations that have been made, there is no
blanket liability waiver in the bill before you today. While the MTBE
liability language would also have extended to MTBE manufacturers, H.R. 2567
does exactly the opposite: It holds the manufacturers of antifreeze and of
DB liable for their respective products, without limit. All three state
laws (California, New Mexico and Oregon) include some form of liability
protection for antifreeze manufacturers. H.R. 2567 goes a step further than
California's and Oregon's laws by establishing "assigned liability" under
which antifreeze manufacturers and denatonium benzoate manufacturers are
liable for any problems that arise from the use of their respective product.
DDAL would not support legislation that exempts manufacturers from liability
for their products.
? In 1999, MTBE use amounted to 8.4 million gallons PER DAY (3 billion+
gallonsper year), whereas approximately 7,000 gallons annually of DB will be
needed to bitter the antifreeze covered by the legislation (i.e., 157 million
gallons). According to a report commissioned by the Maine legislature: "One
gallon of reformulated gasoline, if spilled, would release a mass of 308g of
MTBE to the environment. It would take 2704 gallons of treated antifreeze to
release an equivalent mass of denatonium benzoate."
? MTBE was able to cause such damage to drinking water supplies in
large part because gasoline is stored in underground tanks. About 9 million
gallons of gasoline are released to the environment each year due to spills
and leaks. At no time is either DB or antifreeze stored underground.
That same report by the Maine Department of Environmental Protection cited a
conversation with Ken Kaufmann, Oregon's state toxicologist, in which he
stated that "'no incidents of drinking water well contamination or groundwater
contamination or bad tasting water due to denatonium benzoate have become
known.'"
? EPA data indicate that MTBE is a potential human carcinogen at high
doses. At low doses, such as the low levels needed for aversion, DB exhibits
low mammalian, avian, and aquatic toxicity. There is a record of only one
negative reaction to DB, which occurred in 1978 in a hypersensitive man.
Efficacy Issues
Questions have been raised about whether the addition of DB to
antifreeze will indeed prevent poisonings. Most of those expressing doubts
about DB's efficacy point to a June 2004 retrospective review by Mullins and
Horowitz of Oregon Poison Control Center (OPCC) records of pediatric exposures
to antifreeze and windshield washer fluid for the period 1987-2003, as well
as coroner reports of poisoning deaths between 1994-1997. OPCC reported
"no change in frequency" of pediatric poisoning frequency after 1995. The
authors also found that "no child died or suffered 'major' effects before or
after 1995." They concluded, "The mandatory addition of denatonium benzoate
to automotive products has produced no measurable reduction in unintentional
pediatric toxic alcohol exposures in Oregon."
Not only are there deficiencies in this report, but it must also be
placed in the context of other reports that point to the efficacy of DB.
? The overwhelming problem with antifreeze poisonings, in terms of
number and mortality, occurs among animals, chiefly household pets. The
Mullins/Horowitz review does not even consider this aspect of the issue.
Unfortunately, it would be difficult to perform a similar evaluation of
animal poisonings as there are no reporting requirements, in Oregon or
elsewhere.
? This evaluation actually argues in support of a uniform national
standard inasmuch as it does not account for the effect of the use or misuse
of antifreeze purchased outside Oregon.
? The Mullins/Horowitz retrospective survey does not take into account
variable levels of DB in antifreeze and windshield washer fluid. A state
study done in 1996 found considerable variability in the amount of DB
present in various consumer products. The availability of consumer products
that are not in compliance with the law suggests not merely that the impact
of the law (i.e., decrease in child and animal poisonings) may not be
measurable for some time, but also that the purpose of the law is actually
undermined. This situation argues in favor of a uniform federal standard for
bittering antifreeze.
? This is not the only indication that the Mullins/Horowitz survey may
have been premature. A 2001 analysis of data by the staff of the California
Integrated Waste Management Board (CIWMB) suggests that it would be
ill-advised to make judgments about the efficacy of denatonium benzoate on
the basis of experience over a relatively short time period by noting that
"[c]omparatively, it took 17 years to conclusively prove that child-resistant
caps were effective in reducing child exposures in general."
It is true that data on the efficacy of DB are not abundant, and
that data exist on both sides of the question. That being said, however,
there is evidence of its usefulness in preventing or mitigating ingestion of
substances by children and animals.
For example, in its memo supporting West Harlem Environmental Action
v. U.S. EPA, the Natural Resources Defense Council wrote: "�EPA claims that
it revoked the bittering agent requirement because of efficacy concerns, but
EPA's own analysis disproves these concerns. Before requiring the safety
measures, EPA reviewed scientific studies on denatonium benzoate, a possible
additive and 'the bitterest substance known to man.' EPA 0113I. A field study
of a rodenticide containing 10 parts per million of this bittering agent
resulted in a '95% reduction in rodent activity.' Id. The same level of
bittering agent in different household products 'was found to reduce the
amount ingested by children.' Id. This record evidence supports the
conclusion that a bittering agent can effectively control rats and deter
children's exposure."
In 1963, the FDA approved the addition of denatonium benzoate to
cosmetic and toiletry products as a safety mechanism to deter children from
ingesting these products. It is used in hundreds of products to render them
unpalatable, including cleaning agents, other household products, cosmetics,
and personal care products�everything from detergents and aftershave to fire
extinguisher fluid, gasoline, pesticides and herbicides, ink, wax crayons,
nail polish remover, bubble bath, hair spray, and eyeshadow. It is even
in veterinary sprays and ointments. In 1989, the U.S. Department of
Agriculture approved it for food plant use.
Also, according to the Center for the Science and Engineering of
Materials , DB "is recognized as the bitterest substance known. When it is
added in only minute quantities to potentially harmful household, garden or
automotive products, this harmless additive renders these products unpalatable
and becomes a powerful deterrent against poisoning especially in young
children."
Likewise, the CIWMB staff study also found "that the addition of
denatonium benzoate may not prevent exposures, but it would significantly
reduce the amount ingested, hence the severity of exposures. Numerous
studies have shown that it does repel animals, though until it is used
extensively in antifreeze, the magnitude of its effectiveness for animals
in ethylene glycol based antifreeze will be difficult to verify."
One such study is "Denatonium benzoate as a deterrent to ingestion
of toxic substances: toxicity and efficacy" , in which the authors conclude
the following:
"Since there is evidence that some taste aversion agents reduce the
quantities of liquid substances ingested by dogs, and there is evidence that
denatonium benzoate reduces ingestion quantities by children, denatonium
benzoate may reduce the seriousness of accidental exposures to harmful fatal
substances in dogs. This deterrent potential in animals needs to be
investigated further. Denatonium benzoate should be added to toxic
substances available in and around homes which, when ingested, represent
serious hazards to animals and children."
Given that there is evidence of an aversive reaction to DB by
animals; that there is no evidence indicating animals or children might be
harmed by this safety measure; and that animals are likely to benefit from
this step and children almost certainly will benefit�coupled with the long
history of DB's use (and recognized value) as a bittering agent�a strong case
can be made in favor of a policy decision to require the addition of a
bittering agent to this indisputably toxic substance even in the face of some
scientific uncertainty. We feel that this is a wise step to take since the
possibility exists for preventing some poisonings or at least mitigating the
severity of those that do occur.
Environmental Issues
As an animal protection organization, we would not advocate the use
of chemicals that would harm the environment, animals, or human health, so
we do not take lightly the environmental concerns that have been raised about
DB. We have based our support for adding denatonium benzoate to ethylene
glycol antifreeze not only on the prospect of preventing poisonings, but
also on an extensive record of safe use both here and abroad.
? DB is a chemical that has been used safely and effectively as an
aversive agent in this country for over 40 years; as noted earlier, in 1963
the FDA approved its use in cosmetics and toiletries to deter children from
ingesting them. It is used in dozens of other household and personal care
items, cleaning agents, and many other products, such as deer repellent, that
make their way into the municipal waste stream or are deposited directly on
or applied to the environment. Bitrex, one of the commercial brands of DB,
"has been officially recognized as the denaturant of choice in more than 40
countries."
While some data gaps exist for hazard identification, state
and federal regulators ultimately assess for risk. With that in mind, it
should be noted that:
? The CIWMB staff analysis found that DB "readily biodegrades, its
transport is attenuated by soil, and it is easily treated in sewage treatment
systems and drinking water systems. Staff has determined that the addition
of [DB] to antifreeze would not lead to any adverse health or environmental
effects."
? DB exhibits low mammalian, avian, and aquatic toxicity, especially
at the levels used for aversion.
? Ethylene glycol antifreeze is already rigorously managed as a
hazardous substance; waste antifreeze may contain lead, cadmium, and other
heavy metals. According to EPA, dumping antifreeze can cause serious water
quality problems. Therefore, the industry urges consumers and large-scale
users to dispose of used antifreeze properly. That will not change when DB
is added in the minute quantities needed as a bittering agent. The Consumer
Product Safety Commission's testimony at the Senate hearing confirmed that
DB will contribute little or no incremental hazard or risk to human health
when added to ethylene glycol antifreeze.
Conclusion
Antifreeze poisoning causes animals great suffering and often death.
In addition to the accidents that happen, DDAL knows of numerous cases where
individuals have deliberately given antifreeze to animals because they wanted
to kill them. Our very informal tally of cases of both deliberate and
accidental poisonings includes eight alleged antifreeze deaths in Iowa, and
others in Florida, Maine, Michigan, Missouri, Montana, Mississippi,
Pennsylvania, Tennessee, Texas, and elsewhere. We worked with a family in
Georgia who sought justice for their two dogs killed by a belligerent
neighbor. State Representative Kathy McCoy, who successfully carried the
bill in New Mexico, lost her own companion animal in the same way. Suicides
and murders involving antifreeze have occurred in Florida, Georgia, Kansas,
Maryland, Massachusetts, Missouri, New Jersey, and Pennsylvania.
Where the perpetrator in a deliberate poisoning case is known, it
often is a neighbor; occasionally, it is an adolescent just starting down
the path of antisocial behavior. They use antifreeze because it is easy to
get, easy to give, and almost guaranteed to kill.
Because of its widespread acceptance, and because consumer demand
for less toxic alternatives has been slow to develop, we fully expect
ethylene glycol-based antifreeze to continue to dominate the market for the
foreseeable future. Therefore, accidents will continue to happen despite
the best prevention and precautions, and sadly there are always those who
seek an easy way to harm animals. These are needless tragedies that touch
many lives. This legislation will do much to prevent both kinds of
tragedies from happening.
Please support moving H.R. 2567, the Antifreeze Bittering Act, to
the floor for consideration by the full House of Representatives.
MR. GILLMOR. Thank you very much. With regard to the letter that
you wanted entered into the record, without objection, hearing none, it
will be entered in the record.
[The information follows:]
<GRAPHICS NOT AVAILABLE IN TIFF FORMAT>
MR. GILLMOR. Let me start with Mr. Simms. A couple of
questions. You talked about the necessity of balancing risk, and it was
unfair that the public bear the whole risk. If we look at this situation, we
know on one side there is a risk of death to children, and, if Mr.
Ackerman's testimony is correct, 1,400 children a year, that means on
average we have more than 100 children every month dying from the
lack of a bitterant in antifreeze. On the other hand, we weigh the
chemical DB, which so far we have no evidence of a risk, and we know
it is used in hundreds of products, and in this case it would be a very
minimal use, only 7,000 gallons. Would you explain to me how it is a
good value judgment on our part to let 100 children die a month, instead
of taking a small amount of this agent, which has no risk shown, and
trying to save those children?
MR. SIMMS. I will answer your question, but I want to make a
couple of clarifying points. One, our objection is to the liability waiver.
Removing the liability waiver does not--
MR. GILLMOR. If the liability waiver were not in here, would you
support the bill, saying we ought to mandate the addition of DB, period?
MR. SIMMS. What we object to is the liability waiver and the
preemption of State authority to regulate.
MR. GILLMOR. Well, you still haven't answered my question.
MR. SIMMS. Okay, I will answer. If those two points in the bill
were absent, we would not be objecting to the bill.
MR. GILLMOR. And not be objecting?
MR. SIMMS. That is correct.
MR. GILLMOR. Is that the same as supporting or is that the same as
waffling?
MR. SIMMS. I will give you the best answer that I can give. The
only reason that we are objecting to the bill is the liability waiver and the
preemption. Assuming that those two things were gone, we would look
at the bill again and determine whether it was worthy of support. Given
the balances that you have just discussed, my assumption is that we
would support it. And in fact, we are strongly in support of bills such as
this that have, as their objective, the protection of public health and the
environment, and in fact, have recognized bitterants as a way of
achieving that for poisons that otherwise are--
MR. GILLMOR. Let me ask you, in terms of preemption, would you
agree that there are certain cases in a national market where a product
made in one State is shipped to all 50 States, as Mr. Ackerman pointed
out, a car drives all the way across the country with that product, isn't
there a reason, which we do in a lot of cases, for having a uniform
standard? What is the holy grail of not having a national standard when
you are talking about a chemical like DB and you are talking about a
product that is used all over the country. The antifreeze that I get in Ohio
isn't any different than the antifreeze in Florida or Kentucky. Why
shouldn't there be a national standard?
MR. SIMMS. I am not suggesting that there should not be a national
standard.
MR. GILLMOR. Well, that is what preemption is.
MR. SIMMS. But let me clarify. I mean, what we are suggesting is
that if Congress decides to adopt a national standard and that standard
says, use a bitterant and use it, sufficient to be adversive for this highly
toxic material, then States should be able to regulate beyond that to the
extent that they believe it is necessary to protect their citizens, but it
wouldn't preclude that national standard from being in place.
MR. GILLMOR. But it wouldn't be a national standard. It could be a
national standard--
MR. SIMMS. It would not be a uniform national standard.
MR. GILLMOR. --with 50 different amendments.
MR. SIMMS. It is not clear to me why there is any expectation that
that would happen and why, therefore, there is a need to preempt that in
the bill.
MR. GILLMOR. Well, it is already happening. You have three States
adopting a different standard, and you have 10 others considering it, so I
mean that is the concern. Let me ask you just one more thing, regarding
your concern with DB. On March 29 of last year, your organization
submitted a motion for summary judgment in West Harlem
Environmental Action v. U.S. EPA. In that case, you argued that the
EPA should require a bittering agent, including DB, in rat poisoning, to
protect against unhealthy ingestion by children and deer, and you stated
the evidence from DB tests supports a conclusion that a bittering agent
can effectively control rats and deter children's exposure. So I mean,
why do you think Governor Richardson, who sent us a letter in support
of the bill and a letter against the bill--
MR. SIMMS. Respectfully, I disagree. We are not suggesting that
bittering agents cannot be effective ways to prevent unwanted ingestion
of harmful chemicals. Far from that; we have recognized them as a
valuable means of doing that. Some context to that particular case: what
we were challenging was EPA's withdrawal of the protection of bitterant
and marking dyes in rat poison, which it had decided to impose, based on
a specific finding that rat poison posed an unacceptable risk to health,
poisoning in the range of 15,000 to 50,000 children a year, and we
argued that they could not remove that protection without imposing some
alternative protection for human health and accidental poisonings. And
in doing so, we argued that they needed to reimpose that requirement,
that we acknowledge would protect people from unwanted poisonings.
But by no means is our position here inconsistent. We do not argue here
that bitterants are ineffective or we know nothing about their use in
antifreeze. We have not looked at that or studied that. We certainly
would say that they are effective in some context and very useful in some
context. The problem here is with letting industry off the hook for any
liability that might occur down the road, in an instance where some harm
does occur.
MR. GILLMOR. We could pursue it further, but my time has expired,
so let me go to Ms. Solis.
MS. SOLIS. Thank you. My question is for Dr. Eyrich. Did I
pronounce that correctly? I wanted to ask you if you would support
mandating the use of another antifreeze formulation called propylene
glycol, which would be significantly less toxic and meets the testing
standards for an engine coolant and corrosion properties?
DR. EYRICH. Thank you for your question. I am aware of propylene
glycol. From a medical standpoint, propylene glycol will also respond to
the test they use to test for ethylene glycol, and so it makes it very
difficult, in a medical situation, to actually understand what the animal
has actually been exposed to. Antifreeze or ethylene glycol is still a very
common chemical, and I think there are people in this room that are more
qualified to answer the question of whether it is no longer going to be
used any time in the immediate future or be replaced entirely by
propylene glycol. And certainly, alternatives should be looked at or
entertained as much as possible.
MS. SOLIS. Thank you. And I think that is what some of us are
trying to get at, if there is a way to look at other types of additives that
are not going to be as harmful to the public health and to, obviously, our
water, in this case, and to habitat. And I just wanted to clarify, also, from
Mrs. Amundson. You talked about legislation in California that was
passed. Certainly, they have been ahead of us on many things, and in
this area they did provide for a liability waiver for manufacturers and
what have you, but they did not waive liability for environmental damage
or natural resources, much like the State of Oregon. So let us be clear on
that what we are looking at here, in terms of this legislation, is sweeping.
This will actually remove that liability through the whole process and
that is something that just doesn't sit well with some of the members of
this committee, and myself included. I am concerned about that.
And I also wanted to go to Mr. Bye, regarding your testimony. You
said, on page six, the proposed Federal legislation would not change the
liability of antifreeze manufacturers for the products. Under the
legislation, antifreeze manufacturers continue to be liable for ethylene
glycol antifreeze itself, and DB manufacturers and distributors are liable.
I mean, from what we are hearing here, it sounds like we have some
very, very different perceptions of who is going to be held liable and who
is not. Can you explain your statement again?
MR. BYE. Yes. Our position is very clear on this. As I said, we are
experts on what our product does in the cooling system of a car. That is
where our chemists work, and that is what our expertise lies in. We are
not experts in any way, shape or form, and so we fully stand behind,
always have and always will, any issues that are our product: the
antifreeze and the components of it that are designed to work in a car's
cooling system, any impact they have on the environment. On any
liability situation, we are fully supportive of, always have been and
always will be. When we are asked to put a component into our product
that we are not experts in--
MS. SOLIS. Yes.
MR. BYE. --that is where we feel we should not be held liable for
any impact that product may have, but we feel that full liability should
resort to and be assigned to the people that manufacture it and supply it.
So that is just where the distinction comes, just where our area of
expertise lies, and that is not with a bittering agent; it is with car cooling
systems.
MS. SOLIS. Yes. And if I ask you the same question, would you
support mandating the use of another type of additive that I mentioned,
propylene glycol, which is less toxic.
MR. BYE. Yes, we are the leading seller today of propylene glycol
product in the United States.
MS. SOLIS. Yes.
MR. BYE. Order of magnitude, we sell 250,000 gallons, plus or
minus, out of a total of 50 million. It is readily available at Wal-Mart,
AutoZone, anywhere else. It has some issues with it that would cause us
probably not to be supportive of it, but not the least of which is, it is only
slightly less toxic to start with. Some could maybe address that better.
But the biggest issue for us, on the automotive side, is that it has different
cooling capabilities. It requires different additive packages for corrosion,
and the net of all that is, it would require the car manufacturers to
redesign engine cooling systems.
MS. SOLIS. My time is almost up, so I want to, if I could--sorry to
interrupt.
MR. BYE. Yes.
MS. SOLIS. But wasn't it true that in the 108th Congress, Honeywell
and the trade association, Consumer Specialty Products, opposed H.R.
1563, which required DB to be added in the antifreeze?
MR. BYE. We didn't oppose generally, we have opposed it on a
State basis, prior to late 2004, for many of the reasons stated.
MS. SOLIS. You did not oppose that Federal piece of legislation that
was introduced in the 108th?
MR. BYE. I do not believe so. Oh, we did? Okay. I just had the bill
numbers mixed up.
MS. SOLIS. My understanding is that--
MR. BYE. You were correct. I had the bills--
MS. SOLIS. --the information that was provided back--
MR. BYE. Right.
MS. SOLIS. --at that time was submitted by your association--
MR. BYE. No, you are correct.
MS. SOLIS. --in opposition.
MR. BYE. Yes.
MS. SOLIS. In opposition.
MR. BYE. Yes.
MS. SOLIS. That is a lot of information, by the way.
MR. BYE. Yes.
MS. SOLIS. An analysis that has been done that I believe EPA
mentioned that they did not have a chance to look at, testing that had
been done by your trade organization.
MR. BYE. We provided all of that information to everybody on the
panel, and we have always been forthcoming with all of that information.
MS. SOLIS. But with EPA, do you know if they have actually had an
opportunity to--
MR. BYE. We did not provide it to them. We provided it to the
panel.
MS. SOLIS. Okay. Mr. Bye, is it correct that there are a number of
scientific studies, on the environment fate of DB, that shows it does not
biodegrade in the environment and could present a risk to our
groundwater?
MR. BYE. There may be. There are a number of conflicting studies.
I am not familiar with the content of all of them. Again, that goes back
to--
MS. SOLIS. So these studies are included here in the--
MR. BYE. Yes, they are.
MS. SOLIS. --association that you represent.
MR. BYE. And as we have pointed out, there is conflicting data in
there and hence our reluctance to take on full responsibility for the
product.
MS. SOLIS. Can I go over?
MR. GILLMOR. I was going to let you go over, as much as I went
over, but I think you are there.
MS. SOLIS. All right, thank you.
MR. GILLMOR. The gentlelady from New Mexico.
MRS. WILSON. Thank you, Mr. Chairman. Mr. Bonacquisti, I have
a couple of questions for you. You said in your testimony that you don't
like the liability provisions, the separated liability allowing the DB
manufacturers to be liable for their product and the antifreeze
manufacturers to be liable for this product that is in this bill, and you
called it unwise, unsound and unfair. In the spring of 2003, the
American Water Works Association issued a press release stating that
you supported an act called the Drinking Water Standards Preservation
Act that would protect water utilities from lawsuits as long they are in
compliance with Federal and State regulations.
MR. BONACQUISTI. Yes, that is true.
MRS. WILSON. Why is fair or sound and wise for you and unwise,
unsound and unfair for the guy at the other end of the table?
MR. BONACQUISTI. Well, I think the water utilities are public health
and public service entities. Our mission is to remove contaminants from
a water supply, not to put them in, and if we meet Federal standards for
drinking water contaminants, or if we are below those standards that
have been set by a regulatory process, through EPA and the regulatory
process, we should not be held liable.
MRS. WILSON. So if Mr. Bye complies with the Federal standards,
he should still be liable, but if you do, you shouldn't because you are a
nonprofit?
MR. BONACQUISTI. Well, if Mr. Bye's product went through a
regulatory process.
MRS. WILSON. So your issue here is not that it is the difference
between law and regulation. Is that what I am hearing here?
MR. BONACQUISTI. Well--
MRS. WILSON. I won't push you any further, but as I like to say at
my house, only my mother can have it both ways, and I think you see my
point here.
MR. BONACQUISTI. I understand.
MRS. WILSON. I wanted to ask a question of the folks from the
NRDC, if I could, Mr. Simms. You talked about unacceptable risks and
you talked about rat poison in particular, and the adding of bitterant to rat
poisoning, that there is a level of unacceptable risk and that somewhere
between 15--and as I think I hear you right, 15 and 50,000 children are
poisoned per year with rat poison. At what point does the risk become
unacceptable?
MR. SIMMS. Well, let me clarify. That was EPA's finding of
unacceptable risk. And it was pursuant to fifth row, which is the--
MRS. WILSON. I am familiar with law.
MR. SIMMS. Yes. And so that was not our determination of
unacceptable risk. It was a litigation that revolved around EPA's
regulatory determination of unacceptable risk, and then active afterwards
with respect to rat poison that was inconsistent with that finding of
unacceptable risk.
MRS. WILSON. Do you think that that is unacceptable risk for
15,000 children to be poisoned?
MR. SIMMS. Do I personally think that?
MRS. WILSON. Well, NRDC advocated for keeping the bitterant in
the rat poison.
MR. SIMMS. That is right, that is right.
MRS. WILSON. So you agree that that was--
MR. SIMMS. We would leave it as it is. That is something that
should be addressed.
MRS. WILSON. What the level of risk is.
MR. SIMMS. The level of risk, that level of risk from exposure to rat
poison. Absolutely.
MRS. WILSON. The reason I wanted to hear what you had to say
about that a little more is because that is what we are doing here, we are
balancing risks. We have a known risk with antifreeze of about 1,400
children being poisoned each year, not dying but being poisoned, and
about 90,000 animals per year, and we also have a low risk of an additive
that is very common. And it seems to me that the trial lawyers are upset
because they are going to have one less party to sue. Well, that is a risk I
am willing to take, when the balance is on the other side of the number of
people being poisoned.
Mr. Bonacquisti, one final question for you in the time that I have
available. You talked about in your testimony, you said that it is
inevitable that DB will eventually show up in the water system. There
are other products that contain DB. We have gone through the list here,
the shampoo, the things to clean my shower, all kinds of cosmetics and
so forth. Have any of your members detected this as a problem now, and
what do you and your association members use to get DB out of the
water now?
MR. BONACQUISTI. Right now, I am not sure if we have detected
DB. We would use some analytical techniques to do so. To get DB out
of the water, I really don't know. We have different water treatment
techniques to use for different types of contamination, but I don't think
that there is a enough research or scientific data that has been
accumulated so far to help our water utilities determine what the best
avenue of treatment is.
MRS. WILSON. Well, you said in your testimony that somewhere,
and perhaps in many places, contamination of drinking water supplies is
likely to occur. We have been using this for 45 years.
MR. BONACQUISTI. Yes. And that is where we are going to have do
our research.
MRS. WILSON. Where has it occurred?
MR. BONACQUISTI. We are going to have do our research to find
that out. I mean, if DB is being added to larger and larger quantities of
this antifreeze, then we will potentially see this in the drinking water
supply.
MRS. WILSON. I mean, we are using it in hundreds of products
already that are going down the drain and into the waste water, not into
an antifreeze changing pool at Just Brakes or at Jiffy Lube. Have you
had any cases where it has been detected in the water, and what is the
treatment mechanism used--
MR. BONACQUISTI. Not to my knowledge have we had any
detection on DB.
MRS. WILSON. So this statement that contamination of drinking
water supplies is likely to occur, what is that based on?
MR. BONACQUISTI. On an increased volume of DB being added into
antifreeze, if it is added.
MRS. WILSON. Thank you, Mr. Chairman.
MR. GILLMOR. The gentleman from Washington.
MR. INSLEE. Thank you, thank you. Mr. Bye, if this bill passed
without the liability protection for you, would you quit making
antifreeze?
MR. BYE. Would we quit making antifreeze?
MR. INSLEE. Yes.
MR. BYE. No, we would not.
MR. INSLEE. So the issue is whether or not citizens--they are going
to get their antifreeze. The question is whether they are going to have--in
the existing bill, they won't have relief if they get poisoned, and if we
pass the bill without it, they will have the antifreeze and the protection of
the judicial system in case they do get poisoned, right? Is that pretty
much the deal?
MR. BYE. If the bill passes?
MR. INSLEE. If the bill passes without the liability waiver for the
manufacturer of the antifreeze, consumers will get the antifreeze, you are
going to keep making it--
MR. BYE. Yes.
MR. INSLEE. --to keep their cars running, and they will also have
existing protection in the judicial system in case they get poisoned,
against the manufacturer of the antifreeze, right?
MR. BYE. Correct.
MR. INSLEE. Okay. So if we pass this bill without the liability
provisions, we will get the antifreeze, the cars will still work, the dogs
won't get poisoned, the kids won't get poisoned, and in case somebody
gets poisoned by the product, Americans will have what they have today,
which is the right to a judicial remedy, is that the deal?
MR. BYE. They certainly will.
MR. INSLEE. Okay. That is why I think it probably makes sense to
take the liability provision of this thing out of here, because there is no
reason for it. I want to ask Mr. Bye or anyone else this: why mandate a
specific chemical? If we want to solve this problem, why don't we just
mandate a bittering agent that meets a certain characteristic? Why
wouldn't that be a preferable way to do this? Can anybody articulate
that? Anyone?
MS. AMUNDSON. If I may, Congressman. I guess now is the time to
step up a bit. Mr. Bye could certainly address why it is that denatonium
benzoate is the chemical of choice in this situation, but I do want to say
that we have had the opportunity to experience markup on this bill on the
Senate side, and this is an issue that did arise at that time and the
sponsors did address it through an amendment. I have no idea, and
obviously I cannot speak for the sponsors for this bill, but there is the
possibility that an equivalent chemical that demonstrates the things that
we are asking DB to demonstrate in the Senate version of the bill, could
be a way of addressing this issue.
MR. INSLEE. I am sorry. You know more about that different
universe, the Senate, than I do. But what was the amendment? There
was an amendment to allow alternatives, then?
MS. AMUNDSON. There was an amendment to, in essence, create a
study provision on denatonium benzoate and also to allow for the
addition of other additives that demonstrated what DB did under the
auspices of that study and performed an equivalent level of protection
without injuring cars' engines.
MR. BYE. And to that point, if you asked for all of our comments,
we as an industry, I can't speak to the effectiveness of one over the other.
That is somebody else's expertise, how it works in dogs and all. I can
tell you that DB was analyzed by us for its impact on a car's cooling
system. So any other substance that came along would have to go
through that same process on our side, and the bill refers to that point. It
also has to be compatible with the car's cooling system, and that would
be our only point of view.
MR. INSLEE. You mean the Senate bill, the Senate amendment?
MR. BYE. Yes.
MR. INSLEE. I see. Coming back to--yes, Mr. Simms.
MR. SIMMS. If I could add to that, I think that is a very good
question. And one of our primary concerns is, why would we close the
door to competition in the future, remove the flexibility that would allow
industry to address needs in the future, if some other problem arises with
this bitterant, or if some other bitterant proves to be more effective, more
available, more economical.
MR. INSLEE. Right.
MR. SIMMS. I just wanted to reinforce that.
MR. INSLEE. Got you. Coming back to this liability issue, I think
that the rationale, if there is one, for the liability protection is, if
Congress mandates it, that manufacturers shouldn't be liable for putting
it in, I can understand that a little bit. But it seems to me, doesn't it make
sense that if you do remove protection of Americans who now have
protection, if they get hurt by a product, they have got the right to
reimbursement for their damages, and if we pass it, we would be
stripping Americans of that right. If we were to do that, shouldn't the
Federal government replace it with some compensation plan through the
Federal government?
MR. BYE. Well, my understanding is, we are not stripping them of
the right to do that. We are assigning the person that they would go after
for their damages.
MR. INSLEE. Well, that is in heaven where all defendants are solvent
with huge insurance. And I can assure you, looking at the Exxon
situation, where they took a billion dollars out of my constituents and
now they have $2 in the till, that is not the way the real world works.
You are stripping Americans of having a right to compensation from a
solvent defendant. And in many cases, particularly this case, where you
can have significant damages, frankly, including the MTBE situation, the
manufacturer of the sub-particle component is going to be gone, toast,
history, nothing, and you are going to effectively eliminate any right to a
nickel for the people who could potentially be damaged by this product.
Now, despite the fact that my friend from New Mexico's comment that
just the trial lawyers are the only one with the stake, a game, you know--
as a former practicing lawyer, I can tell you that they are the truck
drivers, they're teachers, they are pharmacists, who can get hurt. And it
is not the trial lawyers we ought to be thinking about, it is the people who
can get poisoned by this product, and they today have a right to
compensation that Congress would be taking away from them in the real
world if we pass this with that liability provision. What I am suggesting
is, if we do that, shouldn't we substitute a Federal compensation package
for them in lieu of that? Would that make sense, if we were going to
remove this liability, this claim? Anybody have any thoughts about that?
MR. GILLMOR. Well, the gentleman's time has expired.
MR. INSLEE. Thank you.
MR. GILLMOR. The gentleman from Oklahoma.
MR. SULLIVAN. Thank you, Mr. Chairman. And my first question is
to Mr. Simms. Your testimony makes a reasonable suggestion that
antifreeze manufacturers have a choice in the adversive agent that they
use in their product. However, to put your legislative recommendation
into context, you would be requiring companies to reformulate a well-
known, 70-year-old product, but not give these same companies any
support for doing these new activities. Since you are unwilling to
support providing targeted legal cover for compliance with this
additional mandate to longstanding manufacturing practices, is your
concern based more on the impact of the adversive on the environment,
or simply the ability to sue the antifreeze manufacturer if there is a
problem with the adversive?
MR. SIMMS. I think that the point is more complicated or multifold.
There is the question, when something goes wrong, if something goes
wrong, someone is injured, does that person have the legal remedies
available to them that are appropriate? It is about preserving the rights of
people who are injured to be made whole by that industry that is
benefiting from having the product in the marketplace. And the fiction
that the DB manufacturer should be responsible for the DB, ignores the
fact that the DB is in the antifreeze because the antifreeze is unsafe. And
if the antifreeze producers, in that chain, that they should be in part
responsible for injuries that might occur from that chemical that is there
to make their product more safe. And that is not suggesting that the DB
manufacturer should be let off the hook. They should bear their share of
the responsibility, and the public, as I have said, always bears their share
of the responsibility, because ultimately they are the ones who end up
getting injured if something goes wrong. If nothing goes wrong, then the
removal of the liability waiver is of negligible consequence to the
industry. It is the question of who are we protecting.
MR. SULLIVAN. Thank you. And Ms.--I know Edmonsons from
Oklahoma, so Amundson. Is that how you say it?
MS. AMUNDSON. Amundson. Thank you.
MR. SULLIVAN. Amundson, okay. Well, since the California law
was passed in 2002, has there been any reduction in poisoning deaths,
accidentally or otherwise? If not, why is that? And spills on highways
aren't likely to be a source of antifreeze ingestion for children or
household pets, or are they?
MS. AMUNDSON. The latter question first. Spills on highways, no,
not necessarily, but it is driveways and it is the way that antifreeze is
stored in containers inside of those garages that we are particularly
concerned about. For obvious reasons there are local, State, and Federal
guidelines for how antifreeze is in fact recycled and disposed of, and it is
the Jiffy Lubes that are abiding by those considerations.
To your first question, I wish there was a reporting requirement for
both pets and people in the State of California around this issue, but due
to concerns about appropriations associated with that component, it was
removed from the bill. And, sir, if I may, just one more point that has
troubled me a little bit today. With all due respect to the call for a
regulatory process to consider the viability of DB in antifreeze, that study
has been done. That was done by CPSC, which made a recommendation
that it in fact be included in a number of common household products,
including antifreeze.
MR. SULLIVAN. Thank you.
MR. GILLMOR. That concludes our hearing, and I want to thank all
of our witnesses for coming. Testimony is very helpful. We stand
adjourned.
[Whereupon, at 4:01 p.m., the subcommittee was adjourned.]
RESPONSE FOR THE RECORD BY DR. MELINDA EYRICH, DVM, CO-OWNER, URGENT CARE
VETERINARIAN HOSPITAL
June 26, 2006
The Honorable Paul E. Gillmor, Chairman
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515
Dear Mr. Chairman,
Thank you for your questions. I am happy to see the interest and
investigation continuing on the Antifreeze Bittering Act of 2005, H.R. 2567.
Any continuing effort to lessen the danger of antifreeze is greatly
appreciated by those of us trying to deal with its effects.
Sincerely,
Melinda S. Eyrich DVM
Urgent Care Veterinary Hospital
9032 Montgomery Blvd
Albuquerque, NM 87108
THE HONORABLE PAUL E. GILLMOR
1. New Mexico has been one of three states to actually require DB in
antifreeze products. Could you please describe for me how the implementation
of this new law has changed, if at all, the number of animals you have had
to see as a result of antifreeze ingestion?
Governor Richardson signed the bill into law in April 2005,
manufacturers were required to add DB beginning July 2005, and retailers
were required to sell bitter antifreeze on January 1, 2006. While the
bittering mandate is new and its effects are not yet fully known, I have
not seen a case of antifreeze poisoning in 2006. If the trend continues,
2006 will be a year to both remember and celebrate!
2. In your professional opinion, at the levels required in the New
Mexico state law and the legislation before the Committee today, would DB
by itself present a serious health risk to pets or humans from ingestion?
Based on the testimony given during the hearing the following facts
were evident to me: DB has been in use as a taste deterrent since
approximately 1964. Since that time, no adverse effects of this chemical
have been found. After the hearing, I looked through both my home and clinic
and found no less than twelve items with DB added to them. These items
include cleaning products I use to clean the bath tub I bathe my four year
old in and fingernail polish remover my teenager uses regularly. I know that
both animal and people do not like very bitter tastes. I feel that DB is a
far safer risk than antifreeze. I know antifreeze kills, so far DB has not
caused any detectable problems.
3. You mention that one vial of the drug used to treat for ingestion of
ethylene glycol costs about $300. How many vials are normally required for
treatment and how much would a person expect to pay to simply restore their
pet's health after ingestion of antifreeze?
Depending on the size of the animal, 1-3 vials would be needed.
With early detection and treatment, the conservative estimate is 1200.00 to
1500.00 dollars. If there are complications associated with kidney failure,
the estimated cost could be 2000.00 and up. This is a significant financial
burden for most families and for a significant number treatment is
financially prohibitive.
RESPONSE FOR THE RECORD BY SARAH AMUNDSON, DEPUTY AND LEGISLATIVE DIRECTOR,
DORIS DAY ANIMAL LEAGUE
June 28, 2006
Honorable Paul E. Gillmor
Chairman, Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
2323 Rayburn House Office Building
Washington, D.C. 20515-6115
Dear Mr. Chairman:
We are pleased to have the opportunity to respond to your additional
questions, as well as those submitted by Committee Ranking Member John
Dingell and Subcommittee Ranking Member Hilda Solis, as part of the hearing
record on H.R. 2567, the Antifreeze Bittering Act.
Thank you for holding the hearing on this important bill. Please let us
know how we can be of further assistance.
Sincerely,
Sara Amundson
Legislative Director
SA/nb
Submitted Questions from Members
Subcommittee on Environment and Hazardous Materials
Hearing on HR 2567, the "Antifreeze Bittering Act of 2005," May 23, 2006
Sara Amundson, Legislative Director, Doris Day Animal League
From the Honorable Paul Gillmor, Chairman, Subcommittee on Environment and
Hazardous Materials
1. Your testimony states that unlike MTBE liability protection that
was debated during the Energy Policy Act of 2006, the liability protection in HR 2567 establishes an "assigned" liability scheme where each manufacturer
remains entirely on the hook for their respective product. Can you explain
how this scheme theoretically would work when a court is assigning damages
based on antifreeze contamination?
The antifreeze manufacturers would remain liable for damages
associated with their product. Denatonium benzoate (DB) is a very distinct
chemical and the manufacturers of that product would remain liable for damages
caused by it. A court would assign damages based on the damages caused by
each product separately. This is no different from assigning liability in
any other case where multiple contaminants might be released at the same
location, and a court must assign liability based on the damages caused by
each contaminant separately. For example, where one party might have released
petroleum products at a site and another party might have released a
chlorinated solvent at the same site, a court would impose liability on each
party for damages caused by the material it released.
2. Does your organization see either the antifreeze manufacturers or
the DB manufacturers as being unfairly advantaged by the inclusion of the
liability protection? How has your group worked with the environmental
organizations and the water utilities at the state level regarding the
liability provisions? Are you aware of any reported contamination cases of
DB from antifreeze in the states that have passed legislation?
No. The purpose behind crafting this provision in the way in which
it was done was to ensure that the manufacturers of antifreeze and the
manufacturers of denatonium benzoate (DB) would be responsible without limit
for correcting any problems and remediating any damage caused by their
respective products.
The Natural Resources Defense Council and the World Wildlife Fund
actually endorsed H.R. 1563 in the 108th Congress, and that bill did include
liability language. While that language differed from the current bill, it
did cover "personal injury, death, or property damage that results from the
inclusion of denatonium benzoate in ethylene glycol antifreeze, provided that
the inclusion of denatonium benzoate is in concentrations mandated" under
the bill. It has been argued that "property damage" could also have
encompassed environmental damage. I would also note that the California
Sierra Club supported the bill that went on to become law there, and the
Sierra Club Rio Grande chapter in New Mexico supported the bill that became
law there, the liability language in which is identical to that in H.R. 2567.
We are not aware of any reported contamination cases involving DB in
antifreeze in the states that have passed legislation. As a matter of fact,
both Oregon and California have stated that they have not observed any ill
effects on water supplies. As noted in my testimony, a report by the Maine
Department of Environmental Protection cited a conversation with Ken
Kaufmann, Oregon's state toxicologist, in which he stated that "'no incidents
of drinking water well contam-ination or groundwater contamination or bad
tasting water due to denatonium benzoate have become known.'" Likewise, a
letter from the California State Water Resources Control Board to the
subcommittee noted that "to date we are unaware of adverse impacts to
California's water supplies arising from the use of denatonium benzoate in
antifreeze and a variety of other products." (New Mexico's law has been in
effect for only a little over a year.) I think Cong. Wilson's
question to Mr. Bonacquisti, who testified on behalf of the American Water
Works Association, got to the crux of the matter: Mr. Bonacquisti could not
cite any cases of water contamination from DB, even though it has been used
in a variety of products for over 40 years.
3. What happens under the liability provisions if one of the
manufacturers or distributors is grossly negligent or malfeasant in the
handling and disposing of antifreeze? What about a user or consumer? Are any
absolved from liability in any way under these provisions?
Our interpretation of the bill's liability language, which states
that the liability limitation applies only insofar as "the inclusion of
denatonium benzoate is present in concentrations mandated by" the bill and
that "limitation on liability�does not apply to a particular liability to
the extent that the cause of such liability is unrelated to the inclusion
of denatonium benzoate in any engine coolant or antifreeze," and our
intention, has been that any use or handling of DB by the antifreeze industry
that does not comply with the law would not be covered. This would include,
of course, any negligence or malfeasance on their part. However, we
appreciate that some have viewed the provision as deficient with regard to
"willful misconduct," and we certainly are amenable to including a
specific exception to the liability provision for "willful misconduct."
The "limitation on liability" applies only to "a manufacturer,
processor, distributor, recycler, or seller of an engine coolant or
antifreeze"; the legislation does not address consumer mishandling or
improper disposal of antifreeze. Localities generally regulate,
or otherwise provide guidance to residents on, the proper disposal of
household chemicals.
4. In your testimony you admit that there are data gaps for hazard
identification. These data gaps, if significant enough, could prevent a
thorough risk analysis. If DB has been in use for over forty years, why are
there any data gaps at all?
The Doris Day Animal League would defer any conclusions regarding a
thorough risk analysis of denatonium benzoate or ethylene glycol to the
federal regulatory agencies responsible for assessing available information
and regulating these respective chemicals. Relevant to denatonium benzoate
is the testimony of Jim Willis of the Office of Pollution Prevention and
Toxic Substances of the Environmental Protection Agency, who, through
available data and further modeling studies, provided chemical structure
background specific to environmental exposure, human/wildlife exposure,
human/wildlife toxicity, and aquatic toxicity.
During questioning, Mr. Willis responded that EPA had not conducted
testing of Bitrex (one of the commercially available brands of denatonium
benzoate) because, based on a review of available data and experience with
similar chemicals and other analogies, such testing was not necessary. In
response to another, similar question, he noted that, more generally, with
respect to a chemical of this nature, with this production volume and
exposure, EPA would determine that a full risk assessment was not warranted.
5. Why don't educational campaigns prevent most of the accidental
ingestions? How have the additional protective measures such as labeling,
child proof caps and education failed? Is there anything that can be done
in terms of an educational campaign to raise awareness even more that may
help to reduce accidental ingestions?
I would preface my response to this question by noting that animal
poisonings and deaths, both in sheer numbers and as a percentage of
ingestions, far exceed those of humans. The packaging, labeling, and
educational efforts of the antifreeze industry don't mean much when a dog
can and will chew through a container, or a disgruntled neighbor takes out
his anger on the cats next door. As we noted in our testimony, the estimates
of such poisonings run from a low of 10,000 to as high as 90,000 deaths per
year.
We recognize the antifreeze industry for its proactive efforts to
safeguard human health with respect to the use and misuse of its products.
To reduce the risks of accidental exposure, all antifreeze products sold to
consumers are equipped with child-resistant caps and provide prominent label
warnings about proper use, storage, and disposal of the product. In addition,
most manufacturers, including Prestone, adhere to a voluntary industry policy
to use foil safety seals on consumer product containers. Between 1983, when
the American Association of Poison Control Centers began collecting such
data, and 2004, there were no reported deaths of children under the age of
six. Unfortunately, there has been such a death this year: According to The
Advocate, a Louisiana newspaper, on May 31, a three-year-old Baton Rouge boy
died after drinking antifreeze left in a cup on a bedroom dresser by his
father's girlfriend. The intended use of the antifreeze was to poison some
dogs hanging around the house. The woman was booked on one count of negligent
homicide.
Deaths of children between 6 and 19 years of age have been primarily
teenage suicides, as have many deaths among adults, although some have been
homicides. Antifreeze is an easy, and easily obtained, weapon for homicide
or suicide; the addition of denatonium benzoate would make antifreeze far less
appealing for these purposes.
Since 2000, the reported number of ethylene-glycol antifreeze
poisoning exposures, of children specifically and in general, have held fairly
steady (about 1300 and 5000 respectively). We would argue that those numbers
are still too high�and unnecessarily high when there is an inexpensive
additional step that can be taken to reduce the number and severity of
ingestions among both humans and animals. Educational campaigns likely reach
a point of maximum effectiveness, and it is not possible to put a complete
end to human carelessness and indifference, or determination to harm one's
self or others. Moreover, educational campaigns and child safety caps do not
discourage pets from licking up the spills that still occur despite industry's
best efforts to prevent them, or keep dogs from chewing through containers,
nor do they dissuade individuals from using antifreeze to deliberately kill
animals or other people, or to commit suicide.
The use of a bittering agent in antifreeze would provide an
inexpensive additional layer of protection against accidental ingestions, and
make it less attractive as a suicide method or as a weapon to use against
animals and humans alike.
Submitted Questions from Members
Subcommittee on Environment and Hazardous Materials
Hearing on HR 2567, the "Antifreeze Bittering Act of 2005," May 23, 2006
Sara Amundson, Legislative Director, Doris Day Animal League
From the Honorable John Dingell, Ranking Member, Committee on Energy and
Commerce, and the Honorable Hilda Solis, Ranking Member, Subcommittee on
Environment and Hazardous Materials
1. Your testimony stated that denatonium benzoate (DB) is added to
"cosmetic and toiletry products, including nail polish, hairspray, and
cleaners."
Have the manufacturers, processors, distributors or recyclers of
cosmetic and toiletry products, including nail polish and hairspray, been
granted immunity from liability for damage to the environment (including
natural resources) that results from the inclusion of denatonium benzoate in
these products? If so, please cite the specific Federal law that provides
liability immunity for "damage to the environment (including natural
resources)" to the manufacturers, processors, distributors, or recyclers of
such products. Not to our knowledge.
2. Do the manufacturers, processors, distributors, recyclers, or sellers
of nail polish, hairspray, or other cosmetic products that include denatonium
benzoate in their products receive immunity from liability for personal
injury, death, property damage, or economic loss that results from the
inclusion of denatonium benzoate in the product? If so please cite the
specific Federal law that provides such immunity from liability.
Not to our knowledge.
3. Are there any scientifically-valid statistics gathered by the State
or an animal poison control center that provide information on whether and
to what degree the Oregon or California laws have led to a reduction in
accidental ethylene glycol poisonings in dogs and cats? If so, please
provide them.
No such data have been collected. This is a glaring shortcoming of
the Mullins and Horowitz review that was published in 2004 (as referenced in
my testimony), since the overwhelming problem with antifreeze poisonings, in
terms of the number of both ingestions and deaths, occurs with companion
animals. We know of no state or other requirement for reporting cases of
ani-mal poisonings. In fact, as part of its antifreeze bittering bill,
California opted not to appropriate funds to collect data on animal
poisonings. Moreover, the data that the national animal poison control
center has on these incidents are somewhat misleading: It is acknowledged
that, since veterinarians see antifreeze poisoning cases so frequently, they
know what to do and most do not even bother to call the center.
4. Does the Doris Day Animal League believe that ethylene glycol
antifreeze is an inherently dangerous product?
The Doris Day Animal League relies upon the characterization of
ethylene glycol by the Environmental Protection Agency in its Integrated Risk
Information System, and by the Agency for Toxic Substances and Disease
Registry's "Toxicological Profile for Ethylene Glycol and Propylene Glycol,"
for acute and chronic effects.
5. Is the Doris Day Animal League aware of any lawsuits that have been
brought against Honeywell or other manufacturers of antifreeze in 2004 or
2005 for accidental antifreeze poisoning due to ingestion of ethylene glycol
that caused death to a dog or cat? If so, please indicate the number of such
lawsuits in 2004 and 2005 and the legal theory behind the lawsuit.
No, we are not.
6. Subcommittee Chairman Gillmor, in questioning a witness about
balancing risks, stated at the hearing that:
"We know on one side there is a risk of death to children, and if
Mr. Ackerman's testimony is correct, 1,400 children a year, that means on
average we have more than 100 children every month dying from the lack of a
bitterant in antifreeze."
Do you agree or disagree with the statement that "we have more than
100 children every month dying from the lack of a bitterant in antifreeze"?
There was a bit of a misunderstanding. Rep. Ackerman referred to
approximately 1400 children each year who are poisoned by antifreeze (with
children defined as persons 19 years of age and under). This number refers
to ingestions, not deaths. Rep. Wilson clarified this later in the hearing.
The number of deaths of children over time has been relatively small, though
it may be said that any is too many. And unfortunately, a 3-year-old boy in
Louisiana died this past May after drinking antifreeze that had been left in
a cup on a dresser; the antifreeze was going to be used to poison dogs.
Deaths of children between 6 and 19 years of age have been primarily teenage
suicides; the presence of a bitterant in antifreeze would discourage at least
some of these rash teenagers from using it to kill themselves.
If I may, I would like to respond to questions #7 and #8 together:
7. Are you aware of a 2005 study by a group of doctors led by Dr. E.
Martin Caravati conducted on behalf of the American Association of Poison
Control Centers, Washington, D.C., and published in Clinical Toxicology
Journal, which made the following statements:
"A review of U.S. poison center fatality data for the 18-year period
1985-2002 did not find any suspected suicides or deaths from ethylene glycol
reported in children under the age of 12 years."
"No deaths of patients under the age of 12 years or from
unintentional exposure were reported by poison centers to TESS (Toxic
Exposure Surveillance System) from 1985-2002"?
If you have any information that supports or conflicts with these
findings, please provide it.
8. In your testimony, you indicate that more than 1,300 children ingest
antifreeze each year. What percentage had moderate or major effects? Are you
aware that the E. M. Caravati et al. study found that for known outcome by
reason for ingestion of ethylene glycol for all ages between 2000-2002, only
4 percent of the unintentional exposures had moderate or major effects?
The Doris Day Animal League was pleased to note the findings in the
2005 study by Dr. E. Martin Caravati, which concurred with conclusions we have
seen and noted in reference materials from other studies of antifreeze
ingestions by children under 12; notably, that no children in that age range
have died from ingestions during the time period examined. Unfor-tunately,
on May 31 of this year, in Baton Rouge, Louisiana, a three-year-old child did
die from ingesting antifreeze, which was stored in a cup on the parent's
dresser to be used to kill nuisance dogs in the neighborhood. This is
particularly tragic because it illustrates one horrific aspect of the problem
all too well; by using antifreeze as a tool to kill dogs and improperly
storing the chemical, a child also unnecessarily died.
The Caravati study also concludes that "only 4 percent of the
unintentional exposures had moderate or major effect." That still represents
approximately 52 people experiencing moderate to major effects every year,
and we contend that if even one of those is a child, that is one child too
many. The financial and emotional toll on a family from rushing a child to
the emergency room to prevent renal failure and other complications is
unacceptable in our society.
Moreover, with respect to the number of persons who ingest antifreeze
and experience moderate to major effects, DDAL would suggest that it is
somewhat disingenuous to exclude intentional ingestions, since these would
not occur if antifreeze were not such an attractive suicide method. In 2003,
across all antifreeze-related cases, the percentage experiencing moderate
to major effects, or death, was 9.5 percent; in 2004, it was 11.5 percent,
according to AAPCC statistics. As I have stated elsewhere and will expand
upon later in response to another question, animal poisonings and deaths,
both in sheer numbers and as a percentage of ingestions, far exceed those
of humans. These numbers more than warrant taking this step to make
anti-freeze taste bad and thus be less attractive to animals, children,
potential suicides, and potential murderers.
9. In your prepared testimony submitted to the Subcommittee, you cited
a California Integrated Waste Management Board (CIWMB) staff analysis as
follows:
"The CIWMB staff analysis found that DB 'readily biodegrades, its
transport is attenuated by soil, and it is easily treated in sewage treatment
systems and drinking water systems. Staff has determined that the addition of
[DB] to antifreeze would not lead to any adverse health or environmental
effects.'"
The CIWMB does not identify any scientific studies upon which these
statements are based or discuss the body of scientific studies that have been
performed that reached a different conclusion. Are you aware of whether the
CIWMB staff performed any scientific studies or whether the CIWMB contracted
for any scientific studies on the environmental fate and transport of DB? If
you are aware of any such studies performed by the CIWMB staff or on behalf
of the CIWMB, please provide them. Further, can you inform the Subcommittee
whether the CIWMB ever explained in their report or elsewhere on what basis
the staff was able to reach these scientific conclusions?
The California Integrated Waste Management Board, appointed by the
governor, released this staff analysis in 2001, leading to the board's
support of the California legislation. Ms. Anna Ward was the staff person
assigned to compile the report. The Doris Day Animal League respectfully
suggests that any questions regarding the studies used or commissioned would
be more appropriately directed to the California Integrated Waste Management
Board.
If I may, I would like to combine questions #10, 11, and 12 for
purposes of responding:
10. In your prepared testimony you state that, "the Washington State
School of Veterinary Medicine places the annual number of dog and cat
antifreeze poisonings at approximately 10,000."
Is the figure based on an actual statistically significant study?
If not, what is the figure based on? Does the term "poisonings" in your
testimony mean exposures or actual deaths?
11. Your prepared testimony also referred to a 1996 study of small
practice veterinarians throughout the United States that found 90,000 dog
and cat deaths each year from ingesting ethylene glycol. Was this a
statistically significant study? How was it performed and by whom? Has
there been a more recent comparable study?
12. What accounts for the significant disparity in numbers between the
Washington State School of Veterinary Medicine estimate and the 1996 study?
When we refer to numbers of poisonings, we are referring to
ingestions. When we say deaths, we are referring to actual deaths.
There are two national estimates of the number of companion animals
who ingest antifreeze each year. One estimate cited frequently by a variety
of sources puts the number of dogs and cats poisoned each year by antifreeze
at 10,000. That number is attributed to the Washington State School of
Veterinary Medicine. We do not know the source of their data.
The higher estimate of 118,000 exposures and 90,000+ DEATHS of dogs
and cats due to antifreeze poisoning comes from a 1996 survey of "a
nationally representative cross-section of small-animal veterinarians"
(total number = 400) conducted by Bruno and Ridgway Research Associates on
behalf of the American Society for the Prevention of Cruelty to Animals
(ASPCA) and Safe Brands Corp. While we cannot account for the
difference between the Washington State University statistics and the ASPCA
survey results, more recent studies support the ASPCA results. A 2002
survey of 21 Nevada pet clinics revealed 78 cases of ethylene glycol
poisonings, with 67 deaths (a fatality rate of 85 percent). A similar
survey in 2001 of 13 California veterinary clinics reported 136 cases, with
107 deaths (a 78 percent fatality rate). These death rates are consistent
with the 77 percent rate found in the 1996 survey.
RESPONSE FOR THE RECORD BY PATRICE L. SIMMS, SENIOR PROJECT ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL
Honorable Mr. Paul E. Gillmor
U.S. House of Representatives
Chairman,
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
Dear Mr. Gillmor:
Thank you for the opportunity to testify before the Subcommittee on
Environment and Hazardous Materials on Tuesday, May 23, 2006, regarding H.R.
2567, the Antifreeze Bittering Act of 2005. Attached please find answers to
the follow-up questions that you forwarded to me by letter dated June 8, 2006.
Sincerely,
Patrice Simms
Senior Project Attorney
Natural Resources Defense Council
Questions from the Honorable Paul E. Gillmor
1. Legislative bodies make value judgments all the time
substituting one risk for another in pursuit of the common good. Do you
think that it is fair or appropriate for a person or entity, pursuant to a
Federal mandate, to fully comply with the law in making their product and
then be liable for damages if an unrelated person or entity is negligent
in the use of that product?
In general, NRDC believes that it is both fair an appropriate to
hold manufacturers of a dangerous product accountable for the injuries that
their product causes, including injuries that are associated with any
additive that is necessary to make their product safer. To the extent that
any individual injury results in part from the activities of "an unrelated
person or entity [who] is negligent in the use of that product," that person
should also bear liability. It is entirely inappropriate, however, to
provide a wholesale waiver of liability for any possible harm for the very
industry involved in the production and sale of a dangerously toxic product. Injured parties should have full access to the courts, and the
ability to seek restitution from each and every responsible party.
2. Why are you opposed to the liability protection included in
this bill when the manufacturers of both products are completely held
accountable for their own products? By opposing this provision, are you
arguing that the deeper pockets should always be available to pay for
damages, even when their product is not legally found to be the cause of
the contamination or damage? Is assigned liability a new concept or do the
courts engage in this practice all the time?
The liability waiver provision of H.R. 2567 rests upon a convenient
fiction that each manufacturer (the maker of the bitterant and the maker of
the antifreeze) should be responsible for the possible ill-effects of its own
product. The underlying presumption being that the antifreeze manufacturers
are responsible for the presence and impact of their product in the
marketplace and the manufacturers of the bitterants are responsible
for their product. However, this fiction ignores entirely the fact that
but for the unacceptably dangerous nature of the antifreeze itself, the
bitterant would be an unnecessary ingredient and would not be in the
marketplace in this product at all. In fact, the manufacturers of the
bitterant are not responsible for creating the need for their product in
antifreeze, and thus should not be, as the bill suggests, uniquely and
exclusively responsible for the risks associated with this particular use
of their product.
Congress is considering a bitterant requirement for antifreeze
because the product that the antifreeze manufacturers make (in the view of
this bill's sponsors) is unacceptably unsafe. Thus, it is due to the
dangerousness of the antifreeze (the product that antifreeze manufacturers
profit from) that a bitterant may be required, and yet Congress is
considering letting antifreeze manufacturers off the hook entirely for any
damage that might result from the use of a bitterant in their product.
This approach would take away significant rights from those people who might
be harmed in the future by this bitterant use -- the right to seek redress
against the industry sector that is both responsible for creating the need
for the bitterant and that profits from the sale of the otherwise dangerous
product. Accordingly, antifreeze manufactures, as the makers of a
dangerous product, must be held responsible (along with the bitterant makers)
for the consequences of introducing a bitterant into the marketplace in
antifreeze, and therefore should bear their share of the risk associated
with possible injury or environmental contamination.
The process of assigning liability among responsible parties, to the
extent that this is necessary at all, should occur in the courts, where the
relevant, case-specific factors can be taken into consideration.
RESPONSE FOR THE RECORD BY JEFFREY BYE, VICE PRESIDENT, PRESTONE, HONEYWELL
INTERNATIONAL, INC., ON BEHALF OF CONSUMER SPECIALTY PRODUCTS ASSOCIATION
Submitted Questions from Members
Subcommittee on Environment and Hazardous Materials
Hearing on HR 2567, the "Antifreeze Bittering Act of 2005"
Jeffrey Bye, Vice President, Prestone
The Honorable Paul E. Gillmor
1. How much of the domestic antifreeze industry does Prestone supply?
Who are your other competitors in the field? Do all U.S. antifreeze
suppliers have the same position on this bill?
Prestone is the largest antifreeze manufacturer in North America,
supplying approximately one-third of the 160 million gallons sold to
American consumers. There are four other major market players in the U.S.
consumer antifreeze industry: Old World, Shell, Valvoline, and Chevron
Texaco. All U.S. antifreeze manufacturers support HR 2567, the Antifreeze
Bittering Act of 2005.
2. Your company has vigorously opposed legislation like this in the
past. Now, you are testifying in support of it. What changed and why is it
so important to you to have these changes? Couldn't you support this bill
without the environmental liability protections in it? Would you support
changes to the bill to preclude liability protections for gross negligence or
willful misconduct?
Prestone has historically opposed state and federal legislative
efforts to require antifreeze manufacturers to reformulate and add ingredients
to our products that we do not produce nor have a heating or cooling function.
Because of the growing trend of states both passing laws and considering
legislation that would mandate our adding a bittering agent to ethylene glycol
antifreeze, in 2004 the industry reconsidered its position.
Existing state laws in Oregon, California and New Mexico vary to
some extent, and our concern is that additional states will pass incompatible
requirements, denying us the ability to efficiently produce a low-cost
effective product sold throughout the nation. The federal legislation
currently under consideration by the House Energy and Commerce
Committee, HR 2567, includes provisions to allocate liability between the
antifreeze and bittering agent manufacturers. The antifreeze industry
supports the legislation because we are comfortable with retaining
responsibility for our own ethylene glycol products, and we recognize the
equity in assigning responsibility for the denatonium benzoate to its
manufacturer.
HR 2567 also establishes a prescribed standard of the type of
bittering agent and concentration, thus setting a uniform national standard.
Because of these changes, we support the bill as introduced. We would not
support the legislation without the assigned liability provisions and
standardized prescription.
The provision in question limits liability only for damages that
result from the inclusion of denatonium benzoate in antifreeze in accordance
with the terms of the statute. An antifreeze manufacturer would be
responsible for action or inaction outside the scope of the limited set of
circumstances outlined by the bill. Given the mandate included in HR 2567,
it is not apparent how such inclusion of denatonium benzoate could be
grossly negligent or amount to willful misconduct. Accordingly, we do not
see the rationale for a change that would limit the protection in cases of
gross negligence or willful misconduct, and are concerned that such a change
would be confusing.
3. Your testimony admits that a major ingredient in antifreeze is a
toxic substance. Some people have argued that by creating a "causation"
standard for environmental liability, you are somehow "muddying the water"
on exactly how much your company should be responsible for cleanup of
antifreeze releases into the environment. How do you respond to that charge?
Prestone has been making ethylene glycol antifreeze for over 70
years and we whole-heartedly take responsibility for our product. We
understand how our product quickly breaks down in the environment and we
would retain liability for damages caused by ethylene glycol under HR 2567.
This legislation espouses sound public policy by allocating liability for
ethylene glycol and denatonium benzoate to their respective manufacturers.
4. The legislation you are testifying about today could pre-empt states
that have already acted and might be more regulation than some states want
to impose. In addition to California, Oregon and New Mexico, your testimony
speaks to 11 other states actively considering similar state laws. Are any
municipalities also considering ordinances on this subject? Why should
Congress act on this if so many jurisdictions are enacting fairly similar
laws?
Many states are considering legislation along the same lines as
Oregon, California and New Mexico, but none of the bills is identical to
another. Antifreeze sold in one-gallon containers is a classic retail
consumer product, with the major "big box" retailers like Wal-Mart and
AutoZone selling most of our products. Because manufacturers like Prestone
don't control the distribution and inventory systems of our retailers,
forcing us to make, store, transport and track state-specific formulas is
not just onerous but also out of our control. Now is the time for Congress
to pass a uniform federal standard before other states pass inconsistent
laws. Even some municipalities within states have added to our concerns,
with cities and counties in the state of New Mexico passing regulations
specific only to their jurisdictions.
Significant stakeholders, including the U.S. Conference of Mayors,
the Natural Resources Committee of the Maine state legislature, the Alabama
House of Representatives, and the Tennessee Senate have recognized that
products in interstate commerce are best governed by federal standards, and
have called on Congress to pass legislation establishing a uniform bittering
law for ethylene glycol.
5. Do you believe DB is the best aversive agent to prevent human or
animal ingestion of your product? If not, do you believe there are equally
effective and potentially less expensive alternatives? Recognizing the
animal health consequences of ingesting antifreeze, why doesn't Prestone
voluntarily place DB in its antifreeze products?
Prestone does not manufacture bittering agents and is not an expert
on bittering additives or other agents that are not part of the heating and
cooling functions of our products. Our understanding of DB, therefore, is
based only on third party statements. DB is consistently regarded as the
"bitterest substance on earth," and only a minimal amount is required to
bitter antifreeze. At this time, we know of no other additive with the same
bittering qualities. We have conducted studies on the effect of bittered
antifreeze on automobile engines and have determined that DB does not cause
corrosion. An alternative that would require a greater volume to achieve the
same degree of bitterness may be more expensive because of the amount
involved, as well as the potential damage to the automobile engine.
Prestone is the market leader in automobile heating and cooling
products and we have no expertise with bittering agents or animal health
issues. We would not voluntarily add denatonium benzoate to our products.
Our efforts to discourage accidental animal ingestion are
well-documented and respected. During the past ten years, antifreeze
manufacturers have supported the American Association of Poison Control
Centers in a series of public service announcements entitled "Take Care:
Car Fluids, Children and Pets." These public service announcements also
help to educate consumers about proper use and storage of antifreeze and
other automobile fluids. Prestone and other antifreeze manufacturers
sponsor a national poison control center as a resource and service for
veterinarians and pet owners. The center is staffed with specially trained
veterinary toxicologists available to handle any animal poison-related
emergency, 24 hours a day, 365 days a year.
6. As I understand it, the only difference between HR 2567 and its
version in the last Congress is that this year's bill contains a shield
against environmental liability and economic loss. Is that correct? How do
these new criteria change the bill from its previous reference to "property
damage" and "personal injury"?
There are two significant differences in the liability provisions
between HR 2567 and the version from the previous Congress. First, as you
noted, is the addition of specific categories of liability protections,
including natural resources. Although this term is arguably contained in the
broader category of "property" included in the bill in the 108th Congress,
we encouraged the bill sponsors to be more explicit in the description
of the liability protections as they updated the legislation for the current
109th Congress.
The second significant difference in the bills' liability provisions
is the establishment of assigned liability in HR 2567 between the
manufacturers of ethylene glycol antifreeze and denatonium benzoate bittering
agent. In the previous federal legislation, as well as the California and
Oregon state laws, the liability protections regarding DB extend to all
parties. The New Mexico law and HR 2567 include an allocation of liability
provision that delineates responsibility between antifreeze and DB
manufacturers respectively for their own products, offering a more
comprehensive responsibility structure.
7. I am confused on your exact stance on the liability provisions in
HR 2567 based on conflicts between your written testimony and your oral
testimony. Could you please clarify for me Prestone and CPSA's stances on
the liability shields in HR 2567? Does this language remove all rights of
action against you? Would a harmed party be able to recover damages from
antifreeze manufacturers?
Prestone and the U.S. antifreeze industry firmly support the
liability provisions in HR 2567 and would oppose the legislation without
them. The provisions allocate liability responsibility between antifreeze
and DB manufacturers respectively, therefore, Prestone remains fully
responsible for all consequences of our ethylene glycol antifreeze
products. Parties in litigation could recover damages from antifreeze
manufacturers for harm caused by the antifreeze, while parties could recover
damages from denatonium benzoate manufacturers and distributors for harm
caused by denatonium benzoate.
8. Would you support language in the bill explicitly clarifying that
no liability protection can be extended for claims involving gross
negligence or willful misconduct?
The liability provision in HR 2567 limits liability only for damages
that result from the inclusion of denatonium benzoate in antifreeze in
accordance with the terms of the statute. An antifreeze manufacturer would
be responsible for action or inaction outside the scope of the limited set of
circumstances. Given the mandate included in HR 2567, it is not apparent how
such inclusion of denatonium benzoate could be grossly negligent or amount
to willful misconduct. Accordingly, we do not see the rationale for a change
that would limit the protection in cases of gross negligence or willful
misconduct, and are concerned that such a change would be confusing.
The Honorable John Sullivan
1. During the hearing, in response to a question from Mr. Inslee, I
thought you suggested that Prestone would continue selling antifreeze if the
liability section was stripped from the bill. Would you please clarify that
for me? In addition, could you please tell me what the impact of this mandate
would be on the affordability of your product? How many other domestic
manufacturers are there and would they be able to easily absorb the cost of
this mandate? How many foreign based manufacturers of antifreeze, who sell
their product in the U.S. market, would be economically advantaged by
compliance with this mandate without the chance to be sued for damages?
Prestone would expect to continue selling antifreeze if the
liability section was stripped from the bill, although we would no longer
support the legislation. The liability provisions within HR 2567 are
consistent with state laws and should remain part of the federal bill. While
the price of antifreeze could be increased to cover potential costs
associated with legal claims and liability related to sales of compliant
product, it is also possible that continued sales and availability of
antifreeze to consumers in the U.S. could be affected.
Although Honeywell is the market leader in consumer antifreeze
products, there are four additional major domestic manufacturers. These
companies are also represented by the Consumer Specialty Products
Association and oppose the legislation absent the liability provisions.
Foreign manufacturers who sell antifreeze in the U.S. would be covered under
the proposed legislation and would maintain the same liability as U.S.
manufacturers. Because the U.S. manufacturers satisfy approximately 95% of
the U.S. market, foreign manufacturers are minimal players.
2. During the hearing, in response to another question from Mr. Inslee,
I thought you suggested that citizens are better off if we preserve their
right to go to court and that in order to do so we should strip the
liability section from the bill. That doing so would ultimately protect
children and animals. Could you please clarify my understanding of your
response? Would the inclusion, or lack thereof, of the liability provisions
in the bill preclude any physical protection to animals and children since
the mandate would still be in place? Does HR 2567, as introduced, prevent
citizens from going to the courthouse or preclude lawsuits for damages?
Under the bill, if antifreeze is the cause of any personal or
environmental harm, would any person be able to sue you for damages?
Have you or your association tried to get environmental fate and transport
information on DB? If you have tried and have been unsuccessful, do you
believe that full compliance with the law, no matter who might agree with
that law, should make your company and its assets eligible for damage suits
over a component you did not choose to add, have little scientific
information concerning it, and have no way of escaping its addition in your
product?
The concept of "assigned liability" provides protection for citizens
seeking to recover damages resulting from the use of a product. The
antifreeze manufacturer would continue to be liable for their product and the
DB manufacturer would be responsible for their product. Absent the liability
protection, the antifreeze industry would oppose this legislation or any
mandate for a bittering agent in antifreeze.
H.R. 2567 does not preclude citizens from going to the courthouse to
seek damages. Parties in litigation could recover damages from antifreeze
manufacturers for harm caused by the antifreeze, while parties could recover
damages from denatonium benzoate manufacturers and distributors for harm
caused by denatonium benzoate.
Prestone and CSPA, the industry association, have sought additional
information on the transport and environmental fate of DB. To date, we have
not received such data due to confidentially concerns of the DB manufacturers.
The Honorable John D. Dingell and the Honorable Hilda L. Solis
1. On July 28, 2004, an Op-Ed article by Consumer Specialty Products
Association (CSPA) President Chris Cathcart entitled "Effectiveness, Safety of
Bitterant Antifreeze Unknown" appeared in the Albuquerque Journal and
stated as follows:
"According to the American Association of Poison Control Centers
(AAPCC), virtually all deaths (22 nationwide in 2003) by antifreeze are
intentional suicides. There has not been a death of a child under the age of
6 related to the accidental ingestion of antifreeze since the AAPCC began
collecting data in 1983. Most exposures reported to the AAPCC are minor in
nature."
Do you agree with those written statements and does CSPA still stand behind
them?
Prestone and CSPA stand behind the numbers stated in the editorial
and referenced by the AAPCC. The AAPCC reported a total of 2,395,582
exposures to chemical substances in 2003. Of these, the AAPCC reported
that it received a total of 5,816 reported exposures to ethylene glycol.
Put in context, the total number of reported exposures to ethylene glycol
amounts to 0.24% percent (i.e., less than one-quarter of one percent) of
the total chemical exposures. In 2003, there were 19 deaths: 16 of the
deaths were ruled intentional suicides, two deaths were of unknown causes
(i.e., suicide could not be conclusively proven), and one death of an 81
year-old man was ruled as "unintentional general." This last case involved
an elderly woman in New Jersey who poisoned her 81-year old companion by
adding ethylene glycol to the man's drink.
For your information, AAPCC recently released their 2004 numbers.
The AAPCC reported a total of 2,438,644 exposures to chemical substances
in 2004. Of these, the AAPCC reported that it received a total of 5,562
reported exposures to antifreeze. The total number of reported exposures
to ethylene glycol amounts to 0.228% percent (i.e., less than one-quarter
of one percent) of the total chemical exposures. In 2004, there were
23 deaths: all of these cases were intentional ingestions and 19 were cases
where the intention of the individual was to commit suicide.
We are pleased that you are asking about child poisonings and public
health. The industry is extremely committed to protecting human health
related to the use and misuse of our products. We have made significant
strides in reducing child poisonings. Unfortunately the recent increase in
suicides and intentional murder is something that is difficult to combat.
The AAPCC reports that there has not been a death of a child under the age of
six related to ingestion of ethylene glycol-based automotive antifreeze since
it began collecting data in 1983?. The producers of antifreeze have also
taken steps to reduce the risks from accidental exposure through the use of
child-resistant closures. All antifreeze products sold to consumers are
equipped with child-resistant closures and provide prominent label warnings
about proper use, storage and disposal of the product. See 16 CFR �
1700.14(a)(11) and 16 CFR � 1500.14(b)(2). In addition, most manufacturers
including Prestone adhere to a voluntary industry policy to use foil safety
seals on consumer product containers. The AAPCC concluded that
child-resistant closures have been extremely effective in preventing
accidental exposures to consumer products.
2. In the same Op-Ed article in the Albuquerque Journal, the President
of the CSPA stated:
"Not only is the effectiveness of mandating the use of a bittering
agent in antifreeze questionable, there are also concerns about the impact
of DB [denatonium benzoate] on the environment. Independent scientific
studies have determined that DB does not biodegrade and is not removed
during the processes used to treat wastewater at publicly owned treatment
facilities. If poured onto the ground, DB could contaminate groundwater,
potentially threatening public drinking water."
Do you share the concerns expressed by the President of CSPA in
his Op-Ed article to the Albuquerque Journal? If not, please explain why not.
Prestone, CSPA and the antifreeze industry have always been
consistent in our position that the environmental fate of denatonium is
uncertain. We understand the environmental impacts of ethylene glycol, but
we do not manufacture DB and have limited knowledge on its chemical profile.
The House legislation, therefore, rightfully distinguishes liability between
the antifreeze manufacturers who maintain responsibility for ethylene glycol
and the DB manufacturers who remain liable for their product.
Also, with regard to the OP-Ed piece, it is important to recognize
that the CSPA response referred to a New Mexico bill that included a
bittering mandate for all antifreeze products including quantities of 55
gallon non-consumer containers and larger. Because of the volume of
antifreeze in these larger containers, the amount of DB would be
proportionally larger as well. That was a significant concern of CSPA's
with the 2003 version of the New Mexico bill. Like the current federal bill,
however, the 2004 New Mexico legislation applied to one gallon consumer
retail containers and had the support of CSPA and Prestone.
3. In your testimony to the Subcommittee you stated, "it is rare that
children are accidentally exposed to antifreeze." Please provide your best
estimate of the number of children accidentally exposed to antifreeze each
year in the United States for the years 2003, 2004, and 2005.
Prestone and the antifreeze industry rely on data from the American
Association of Poison Control Centers (AAPCC). The AAPCC reports that there
has not been a death of a child under the age of six related to ingestion of
ethylene glycol antifreeze since it began collecting data in 1983*. The
producers of antifreeze have taken steps to reduce the risks of accidental
exposure through the use of child-resistant closures, and the AAPCC concluded
that such closures have been extremely effective in preventing accidental
exposures. Consumer antifreeze products feature prominent label warnings
about proper use, storage and disposal. In addition, most manufacturers
including Prestone adhere to a voluntary industry policy to use foil safety
seals on consumer product containers.
The AAPCC reported a total of 2,395,582 exposures to chemical
substances in 2003. Of these, the AAPCC reported that it received a total
of 5,816 reported exposures to ethylene glycol. The total number of reported
exposures to ethylene glycol amounts to 0.24% percent (i.e., less than
one-quarter of one percent) of the total chemical exposures. In 2003, there
were 19 deaths caused by ethylene glycol: 16 of the deaths were ruled
intentional suicides, two deaths were of unknown causes (i.e., suicide
could not be conclusively proven), and one death of an 81 year-old man was
ruled as "unintentional general." This last case involved an elderly woman
in New Jersey who poisoned her 81-year old companion by adding ethylene
glycol to the man's drink.
In 2003, there were 582 exposures to children under 6, and 803 to
children between 6 and 19. In total, 1,385 of the 5,816 reported cases of
exposure involved children under the age of 19.
For 2004, the AAPCC reported a total of 2,438,644 exposures to
chemical substances. Of these, the AAPCC reported a total of 5,562 reported
exposures to antifreeze. The total number of reported exposures to ethylene
glycol amounts to 0.228% percent (i.e., less than one-quarter of one percent)
of the total chemical exposures. In 2004, there were 23 deaths caused by
ethylene glycol: all of these cases were intentional ingestions and 19 were
cases where the intention of the individual was to commit suicide.
In 2004, there were 672 exposures to children under 6, and 678 to
children between 6 and 19. In total, 1,350 of the 5,562 reported cases of
exposure involved children under the age of 19.
The 2005 data has not been released.
4. Do you agree with the findings of Dr. Michael E. Mullins and Dr. B.
Zane Horowitz in a published 2004 report on the Oregon law entitled "Was It
necessary to Add Bitrex (Denatonium Benzoate) to Automotive Products"
when they concluded:
'The first law mandating- addition of DB was never necessary. As
unintentional EG or Meoh exposures in pre-school age children did not cause
measurable toxicity. The mandatory addition of DB to automotive products
has produced no measurable reduction in unintentional pediatric toxic alcohol
exposures in Oregon."
We neither agree nor disagree with the findings of Drs. Mullins and
Horowitz. Prestone and the antifreeze industry have reviewed and examined the
effects of denatonium benzoate only as to its impact on an automobile engine.
Ethylene glycol antifreeze containing DB in the quantities specified by the
House bill will not corrode an engine.
We note that the primary goal of the federal legislation is to
prevent the accidental ingestion of antifreeze by pets and other animals,
with the deterrence of children's ingestion a secondary benefit. Drs.
Mullins and Horowitz focused their study only on pediatric exposures.
5. Do you have any credible evidence that shows that the addition of
DB produced a measurable reduction in unintentional pediatric toxic alcohol
exposures in Oregon?
Prestone and the antifreeze industry have reviewed and examined the
effects of denatonium benzoate as to its impact on an automobile engine. We
have neither pursued nor do we possess evidence regarding the reduction in
pediatric exposures as a result of the addition of DB to ethylene glycol
products.
6. Do any States require reporting of accidental human exposures to
antifreeze? If so, please identify them.
To our knowledge, no states require the reporting of accidental
human exposures to antifreeze. However, the AAPCC compiles exposure data
for all chemicals from 62 state and regional poison control centers. This
data includes accidental exposures to antifreeze.
7. Do any States require reporting of intentional human exposures to
antifreeze? If so, please identify them.
To our knowledge, no states require the reporting of intentional
human exposures to antifreeze. However, the AAPCC compiles exposure data
for all chemicals from 62 state and regional poison control centers. This
data includes intentional exposures to antifreeze.
8. Do any States require reporting of accidental household pet or
other animal exposures to antifreeze? If so, please identify them.
We are not aware of any States requiring the reporting of accidental
animal exposures to antifreeze.
9. In your testimony to the Subcommittee you stated, "there are
occasions where household pets and other animals are exposed to ethylene
glycol products and are injured by ingesting the product." Please provide
the magnitude of the term "occasions" and provide any information you have
on how many household pets and other animals die each year in the United
States from ingesting antifreeze and how many are seriously injured?
Please also provide the basis for the numbers you submit.
There are two national estimates of the number of companion
animals who ingest antifreeze each year. One estimate that is cited
frequently by a variety of sources is that 10,000 dogs and cats are poisoned
each year by antifreeze. That number is attributed to the Washington State
School of Veterinary Medicine. A higher estimate of 118,000 exposures and
90,000+ deaths of dogs and cats due to antifreeze poisoning is attributable
to a survey conducted in 1996 by Bruno and Ridgway Research Associates on
behalf of the ASPCA and Safe Brands Corp.
10. How many lawsuits were filed in each of the years 2003, 2004, and
2005 against Honeywell and Prestone for causing deaths to children from the
ingestion of antifreeze? What is the legal theory behind any such lawsuit?
There were no lawsuits filed against Honeywell and Prestone for
deaths to children from the ingestion of antifreeze in the time period
requested.
11. How many lawsuits were filed in each of the years 2003, 2004, and
2005 against Honeywell and Prestone for causing death or serious injury to
household pets or other animals from the accidental ingestion of antifreeze?
What is the legal theory behind any such lawsuit?
There were no lawsuits filed against Honeywell and Prestone for
deaths or injury to animals from the ingestion of antifreeze in the time
period requested.
12. Is it correct, that in the fall of 2005 officials of the Consumer
Specialty Product Association contacted staff members at the Environmental
Protection Agency (EPA) and requested that they run a computer-based model
for a potential risk profile for bitrex (denatonium benzoate) that relies
on toxicity and environmental exposure estimation techniques?
Since the CSPA had accumulated numerous scientific studies on the
environmental fate of denatonium benzoate, which they had submitted to the
Congressional Research Service by letter dated September 24, 2004, did CSPA
officials provide the same scientific studies to EPA so its review could be
based on actual studies rather than computer models? If not, please explain
why not.
In the fall of 2005, CSPA met with EPA officials to inquire if they
had environmental fate data on DB. It is our understanding that CSPA did
not ask EPA to run modeling studies, although EPA may have conducted studies
either before or after the CSPA meeting at their own volition or after
requests from stakeholders in Congress or elsewhere. CSPA has sought for
many years conclusive environmental fate data of DB from various sources,
although such data does not seem to be publicly available.
In an effort to be transparent on the issue, we understand that
CSPA provided to the Library of Congress as well as the Majority and Minority
staff of the House Energy and Commerce Committee all information that they
had regarding DB. CSPA does not know whether the Majority or Minority staff
shared that information with EPA.
13. On July 16, 2004, correspondence from CSPA to Macfarlan Smith
Limited stated as follows:
"CSPA believes that there is no demonstrated scientific basis for
these state and local requirements. Further, existing studies and records
indicate that, with respect to those jurisdictions that have enacted such
laws, there is no credible scientific evidence showing that the inclusion of
bitterants in such automotive products has resulted in a reduction in
incidents of accidental poisoning."
Do Honeywell and CSPA continue to believe there is "no demonstrated
scientific basis for these state and local requirements" to mandate the
inclusion of denatonium benzoate or other aversive agents in antifreeze?
CSPA and Honeywell possess no scientific data to prove that the
inclusion of denatonium benzoate in antifreeze will prevent accidental
ingestion of antifreeze. Animal welfare advocates, however, believe that DB
will help prevent animal ingestion of antifreeze. Furthermore, we continue
to believe that individual state bills are not the best way to address the
supporters request to mandate DB in ethylene glycol antifreeze, but instead
we recommend a uniform federal solution. The entire antifreeze industry is
willing to add DB to their products, per the mandate of HR 2567, as an
additional layer of safety to protect animals and humans as long as the
liability and uniformity provisions are maintained in the legislation.
14. What specific factual circumstances with respect to the inclusion
of denatonium benzoate in antifreeze cause Honeywell to believe that it is
necessary to have the legal immunity as provided in Section 2 of H.R. 2567
from "damage to the environment (including natural resources)"?
Honeywell, under its Prestone brand, is the market leader in
ethylene glycol and propylene glycol antifreeze products. We are not in the
business of, studying, developing or manufacturing denatonium benzoate or
other bittering agents. HR 2567 rightfully allocates the liability between
the antifreeze and DB manufacturers for their respective products. The
legislation would ensure injured parties the right to sue the appropriate
manufacturer for all damages -- including damage to the environment and
natural resources -- caused by that manufacturer's product.
This arrangement of assigned liability is appropriate because of the
rare circumstance where the federal government is mandating the inclusion of
a substance in a manufacturer's product.
15. If a manufacturer, distributor, or processor of antifreeze
negligently spilled a gallon of denatonium benzoate that it intended to
include or was in the process of including in engine coolant or antifreeze
and it caused contamination of drinking water supplies or a groundwater
aquifer, do you agree that the manufacturer, distributor, or processor would
be immune from environmental liability under Section 2 of H.R. 2567? If not,
please explain why not.
No, a manufacturer of antifreeze who negligently spilled DB in the
manufacturing process would not be immune from environmental liability under
HR 2567 for at least two reasons.
The relevant statutory language in HR 2567 states that any
manufacturer
"(1) Subject to paragraph (2), ... shall not be liable ... for any
... damage .... or loss that results from the inclusion of denatonium
benzoate in any engine coolant or antifreeze, provided that the inclusion
of denatonium benzoate is present in concentrations mandated by subsection
(a).
(2) The limitation on liability provided in this subsection does
not apply to a particular liability to the extent that the cause of such
liability is unrelated to the inclusion of denatonium benzoate in any engine
coolant or antifreeze."
In your scenario, you envision a manufacturer spilling a one gallon
container of DB. First, because the liability in your fact pattern would
stem from the manufacturer's negligence in handling the DB, subsection (2)
of the liability section would explicitly prohibit protection because the
liability is unrelated to the inclusion of denatonium benzoate in the
antifreeze. Second, because the inclusion of DB in the antifreeze would
far exceed the concentrations mandated by subsection (a) of the bill, 30 to
50 parts per million, the liability provisions would not protect the
manufacturer.
A distributor or processor of antifreeze would not be in possession
of DB because they only handle finished product, although our conclusion
would be the same.
16. If a quantity of denatonium benzoate was spilled during the handling
or distribution or during the formulation process by a manufacturer of
antifreeze and caused damage to natural resources, would the natural
resource trustee be able to bring an action under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
against the manufacturer for damage to the natural resources, or would such
an action he precluded by Section 2 of H.R. 2567?
HR 2567 would not preclude an action under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended.
17. Do you agree that all manufacturers of the bitterant denatonium
benzoate are foreign manufacturers? If not, please identify any U.S.
manufacturer and provide any evidence that you have demonstrating that a
U.S. company is currently manufacturing denatonium benzoate.
No, not all manufacturers of DB are foreign. Honeywell Prestone
buys its entire supply of DB for inclusion in ethylene glycol antifreeze (to
satisfy the Oregon, California and New Mexico laws) from an Ohio manufacturer
called PMC. We understand that PMC may contract manufacture the product from
other domestic producers. Dragon Chemical, a subsidiary of Burlington
Scientific, based in Farmingdale, New York, reportedly manufacturers DB as
well.
For your information, the foreign manufacturers of DB would be
liable for damages caused by their products sold in the United States. We
have attached a memorandum from Arnold & Porter describing the scope of U.S.
federal court jurisdiction to assist you in understanding the legal realities.
18. Do you agree that H.R. 2567 preempts State tort laws by providing
immunity to manufacturers and sellers of engine coolant or antifreeze for
injury, death, property damage, or damage to the environment resulting from
adding a bittering agent, denatonium benzoate, to the coolant or antifreeze?
If not, please explain why not.
HR 2567 would preempt state laws in so far as they differ from the
federal regulation as set forth in the bill. State laws, tort and others,
would continue to be effective in the regulation of antifreeze, or the
regulation of bittering agents such as denatonium benzoate, just not state
laws that attempt to regulate the inclusion of a bittering agent in engine
coolant or antifreeze in retail containers under 55 gallons.
The relevant preemption provision in HR 2567 states:
"(d) Preemption- No State or political subdivision of a
State shall have any authority either to establish or continue in effect
with respect to retail containers containing less than 55 gallons of engine
coolant or antifreeze any prohibition, limitation, standard or other
requirement relating to the inclusion of a bittering agent in engine coolant
or antifreeze that is in any way different from, or in addition to, the
provisions of this chapter."
19. At the Subcommittee hearing, a Member of the Subcommittee identified
the following consumer products as having denatonium benzoate in them to make
them bitter: nail polish, hairspray, crayons, bubble bath, shampoo, eye
shadow, ink, hand sanitizer, windshield wash, laundry detergent, fabric
softener, and perfume.
Have the manufacturers of any of these consumer products been
provided immunity under Federal law from liability for any personal injury,
death, property damage, or economic loss that results from the inclusion of
denatonium benzoate in the consumer product? If so, please identify the
consumer product and the specific statute that provides any such immunity
from liability.
With the exception of windshield wash, Honeywell does not manufacture
any of the identified household products and is not in the best position to
describe the scope of liability of their manufacturers. Because of your
positions on the House Energy and Commerce Committee, you and your staff may
have a better understanding of the liability provisions passed under your
Committee's jurisdiction in the past, with or without your support. We do
suspect, however, that the manufacturers of the various products that
contain denatonium benzoate include the ingredient under their own volition
and have the ability to delete the substance or alter their products'
composition without breaking federal law.
Prestone includes DB in windshield wash products in Oregon because
the 1992 Oregon law requires us to do so. The state law, OR Rev. Statutes
Title 36 431.870-915, contains liability protections as described in the
statute:
"Limitation on liability; application. A manufacturer, distributor
or seller of a toxic household product that is required to contain an
aversive agent ... is not liable to any person for any personal injury,
death or property damage that results from the inclusion of the aversive
agent in the toxic household product."
20. Are you aware of any manufacturers of the following products that
have been provided immunity from liability pursuant to Federal law for
"damage to the environment (including natural resources)" that results
from the inclusion of denatonium benzoate in the product:
a. Nail polish
b. Hairspray
c. Crayons
d. Bubble bath
e. Shampoo
f. Eye shadow
g. Ink
h. Hand sanitizer
i. Windshield wash
j. Laundry detergent
k. Fabric softener
1. Perfume
If so, please cite the specific statute and provision that provides
the manufacturer of a product where DB has been added any such immunity from
environmental liability.
As stated in response to the question above, with the exception of
windshield wash, Honeywell does not manufacture any of the identified
household products and is not in the best position to describe the scope of
liability of their manufacturers. Because of your positions on the House
Energy and Commerce Committee, you and your staff may have a better
understanding of the liability provisions passed under your Committee's
jurisdiction in the past, with or without your support. We do suspect,
however, that the manufacturers of the various products that contain
denatonium benzoate include the ingredient under their own volition and
have the ability to delete the substance or alter their products'
composition without breaking federal law.
Prestone includes DB in windshield wash products in Oregon because
the 1992 Oregon law requires us to do so. The state law, OR Rev. Statutes
Title 36 431.870-915, contains liability protections as described in the
statute:
"Limitation on liability; application. A manufacturer, distributor
or seller of a toxic household product that is required to contain an
aversive agent ... is not liable to any person for any personal injury, death
or property damage that results from the inclusion of the aversive agent in
the toxic household product."
RESPONSE FOR THE RECORD BY TOM BONACQUISTI, DIRECTOR OF WATER QUALITY AND
PRODUCTION, FAIRFAX COUNTY WATER AUTHORITY, ON BEHALF OF AMERICAN WATER
WORKS ASSOCIATION
June 10, 2006
The Honorable Paul E. Gilmor, Chairman
Subcommittee on Environment and Hazardous Materials
Committee on Energy and Commerce
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
Enclosed are the American Water Works Association (AWWA) responses to your
questions asked in your letter of June 8, 2006, To Mr. Tom Bonaquisti, the
AWWA witness at the hearing on H.R. 2567, The Antifreeze Bittering Act of
2005, on May 23, 2006.
We would be pleased provide you any additional information that you may need
concerning drinking water issues. If you need additional information, please
call me or Al Warburton, the Association Legislative Director, at
202-628-8303. Thank you for your time and kind consideration of the AWWA
recommendations.
Sincerely,
Tom Curtis
Deputy Executive Director for Government Affairs
RESPONSES TO QUESTIONS ASKED BY
THE HONORABLE PAUL E. GILMOR
June 8, 2006
CONCERNING
THE TESTIMONY OF THE AMERICAN WATER WORKS ASSOCIATION ON
H.R. 2567, THE ANTIFREEZE BITTERING ACT OF 2005
PRESENTED BEFORE
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
COMMITTEE ON ENERGY AND COMMERCE
ON MAY 23, 2006
1. In your testimony, you state that information from the manufacturers of
db show that their product is biodegradable and does not adhere to soil.
However, EPA's testimony states that DB is "predicted to be resistant to
biodegradation" and is "not predicted to readily migrate to soil" unless in
very organically rich soils. This is a key fact because depending on whether
DB is biodegradable relates directly to its absorption to sludge or other
soils, making it more easily removable in a sanitary sewer system. Where is
the source of your contradictory data and have your shared it with EPA?
AWWA RESPONSE: Our statement was contradicting the information
contained in the manufacturers' Material Safety Data sheet (MSDS) which
states that the DB is biodegradable and is not known to bioaccumulate.
According to studies by Roy F. Westin, Inc., DB does NOT fully degrade in
the environment. It was not removed during the sewage treatment process. It
remained in the water and was not removed with the sludge (Study No.
92-042 - August 8, 1992; Study No. 92-051 -- August 27, 1992; Study
No. 92-052 -- August 31, 1992). The SAE International Technical Paper No.
930587 states that in its study the denatonium ion was not removed by
microbial degradation or by adsorption. This research confirms what both
AWWA and EPA said on this point. However, Study No. 93-087 conducted by
Roy F. Westin, Inc. concludes that DB does not "stick" to the soil. Rather,
it stays in and travels with the groundwater. Therefore, it is reasonable
to expect contamination problems as DB accumulates in the groundwater --
the net result is that the groundwater may become bitter and unpotable.
These studies have been in the public domain for over tens years and we
would expect that EPA researchers would have access to the studies. Our
point was that there is conflicting and inconclusive data on the fate and
transport of DB, particularly in water, which would make it very imprudent
to provide far-reaching liability immunity to companies making or handling
antifreeze containing DB.
2. Your statement reads: "It is also important to remember that antifreeze
is used in large volumes in many industrial applications, such as deicing and
large releases and widespread contamination of water supplies are possible."
However, as I read subsection (d) and (e) of the newly created Section 25 in
H.R. 2567, the bill caps its applicability to 55 gallons or less containers
of antifreeze. I understand this to mean that we are only talking about
containers that would be sold in the retail market. In addition, the user
of the antifreeze is not covered under the liability shield in the bill.
Do you share this reading of the bill?
AWWA RESPONSE: Our point in mentioning that antifreeze is used in
large volumes in many industrial applications, was to illustrate that by
mandating DB in all engine coolants or antifreeze, DB would be introduced
into the environment in a larger scale in addition to the retail quantities
of antifreeze and the current uses in certain consumer products. By exempting
one source of DB, the Congress is setting the stage for a constant battle
between potential responsible parties (PRP) as to the source of the DB in
the environment. Those parties that are not exempt would argue that the
source of DB is from an exempted source. Our understanding of the bill is
that the liability shield would extend down to include the distributor or
seller, leaving the user to bear the liability for recovery of damages. In
many, if not most of the cases, the end user is the financially least capable
party in the chain to pay damages. The bill creates enough ambiguity for the
PRPs that endless litigation concerning the source of DB may be the end
result, making recovery of damages from any source problematic.
3. Under this legislation, the makers of antifreeze are responsible for
any and all environmental damage caused by their product, including its main
constituent, ethylene glycol, which EPA considers a toxic substance. Do you
believe that DB-laced antifreeze could seep into groundwater or source water
for a water system without any environmental effects from the antifreeze
itself being in evidence? If this is not the case, since environmental
liability exposure extends to both antifreeze and DB manufacturers, am I not
correct that both parties would still be open to facing legal action?
AWWA RESPONSE: The Roy Westin, Inc. Study No. 93-087 assessed the
results of pouring ethylene glycol on the ground and whether or not DB would
stick to the soil or travel with the groundwater. In rural areas, some people
dispose of used ethylene glycol by pouring it on the ground. The study
concluded that there is minimal environmental impact when ethylene glycol
is poured on the ground since it readily biodegrades into carbon dioxide and
water in a matter of days and does not go into the groundwater in the
form of the ethylene glycol compound. However, the study concludes that DB
does not stick in the soil. Rather it stays in and travels with the
groundwater. Therefore, it is reasonable to expect that when DB-laced
antifreeze is poured on the ground, only the DB component of the antifreeze
would be evident in the in the ground water or source water for a water
system. Our understanding of the bill is that the manufacturer, processor,
distributor, recycler, or seller of any antifreeze with the mandated level
of DB would not be liable for damage to the environment resulting from DB
in the antifreeze.
4. On April 18, 2003, the American Water Works Association issues a press
release stating its support for the Drinking Water Standards Preservation
Act. This bill would protect water utilities -- much like antifreeze makers
-- from lawsuits, so long as they are in compliance with federal and state
regulations. The drinking water bill seems to offer your members the same
protections thing you are opposed to for another interest. How do you square
this logic?
AWWA RESPONSE: As you noted, the American Water Works Association
has endorsed the Drinking Water Standards Preservation Act (H.R. 1540). The
bill would provide some liability protection fort public water systems that
are incompliance with federal and state regulations. The difference between
H.R. 1540 and other proposed liability immunity legislation is that public
water systems are not introducing potential pollutants into the environment.
Rather they are taking pollutants and microbes, many of them naturally
occurring, out of the water. The thrust of the legislation is to protect the
standard setting process rather than seeking liability immunity. AWWA
believes very strongly that drinking water regulations should be based on
the scientific process established in the Safe Drinking Water Act. States
are free to make those standards more stringent through the state regulatory
process. In all cases, the standards are scientifically based to be
protective of public health within a reasonable risk range established by
science. We are opposed to drinking water standards being set by judges and
juries that have a limited capability to make regulatory determinations
based on a scientific process.
5. Based on the testimony of other witnesses, it seems that the antifreeze
industry has in the past not wanted a mandatory requirement for the addition
of a bitterant in antifreeze. If the Congress requires the industry to put a
substance in their product that they would otherwise not do, why shouldn't
Congress excuse those companies from potential liability arising from that
additional product? Wouldn't it be unfair to not allow this liability
protection if the Congress supercedes a business decision?
AWWA RESPONSE: As stated in our testimony, AWWA has serious
reservations about statutorily mandating a specific bittering agent and
specific concentrations of that agent. We generally, believe that those kinds
of decisions should be left to the regulatory process in which all available
scientific data can be examined and decisions can be made with opportunity
for public review and comment. Although our testimony focused on the
limitation on liability, there would be no need for liability immunity if
Congress did not require the industry to put a substance in their product
that they would otherwise not do. We are not expert on how best to achieve
the goal of preventing antifreeze poisoning or which bittering agent to use,
but we do know that there are alternatives that should be examined. It would
be far better for Congress to set a performance standard for the industry to
achieve and let the industry or a regulatory process decide how to meet that
performance standard. The industry then would not need liability protection
because of a Congressional mandate.
6. According to other witnesses, DB has been and additive in certain consumer
products for over 40 years. If that is the case, and if there was such a
concern on what the chemical could do to water supplies, why hasn't AWWA
taken the lead and funded studies regarding this additive? Wouldn't taking
some action like this bolster your argument that your concerns here are
significant and legitimate? Is AWWA aware of past groundwater, drinking water,
or waste water contaminations caused directly by DB?
AWWA RESPONSE: The likelihood that DB would be a contaminant of
widespread concern is largely a function of the volume released to the
environment and the analytical method required to detect it at environmental
concentrations. Based on consultation with environmental laboratories it is
unlikely that standard tests run by drinking water utilities would
inadvertently identify the presence of DB. Currently there is not a
consensus method for the determination of DB in environmental or finished
water samples in ASTM, EPA, or Standard Methods. The only ASTM standard
method for the denatonium ion is WK11066, Standard Test Method for
Determination of Denatonium Ion in Engine Coolant by HPLC. Detection in water
would require a gas chromatography / mass spectrometry or high performance
liquid chromatography / mass spectrometry method. Given the low
concentrations and the absence of a directed search specifically for DB using
such a method its presence is unlikely to be detected.
AWWA has not undertaken any research into DB occurrence or removal as
previously, there has not been a reason to be concerned about the release of
this compound occurring in large quantities on a nation-wide basis. With
limited exceptions, to-date, DB appears to be used in products that are
formulated for use in very small quantities by consumers and in no instance
that we could locate was the application taking place under an shield of
immunity for any inadvertent harm caused by the release of the product.
7. In your testimony, you state that the denatonium ion which is responsible
for the bitter taste is not easily biodegradable. Is it treatable in nay way?
What would a wastewater or drinking water facility have to do to remove the
ion from the water? How much would it cost? How much DB in the water supply
would constitute a severe enough contamination to warrant the abandonment of
that supply? If this law were passed, would that much DB even be added to the
national supply of antifreeze?
AWWA RESPONSE: AWWA was not able to locate a treatability study on DB
removal from drinking water. However, its chemical structure and properties
provide a basis for some general observations regarding likely treatment
approaches for DB. It does not appear that DB would be well removed in a
conventional treatment plant (i.e.,
coagulation-sedimentation-filtration-disinfection). Conventional treatment
is the collection of treatment unit processes that are typical of most
surface water treatment plants in the U.S.
DB's solubility also suggests that it would not be well removed on
activated carbon either making both powered activated carbon addition (PAC)
and granular activated carbon (GAC) filtration unlikely treatment strategies.
PAC is a common step taken to remove taste and odor compounds and GAC is a
much more expensive process, but also one that has served as a benchmark best
available technology (BAT) in the drinking water field for a number of years.
DB does appear amenable to oxidation using advanced oxidants such as
ozone, ozone- hydrogen peroxide, and ultraviolet light-hydrogen peroxide. It
is not clear without additional study if indeed advanced oxidants would work,
what oxidant concentration and contact times would need to be employed or what
disinfection byproducts will be created from such an oxidation approach.
Ozone and other forms of advanced oxidation are only found in a limited
fraction of water treatment plants at which concerns about microbial
pollutants or other site-specific reasons led to their inclusion in the
treatment train.
AWWA does not have the detailed information needed to estimate the
cost of treating DB. But we do know from compliance with other major drinking
water regulations, such as the Long-Term 2 Enhanced Surface Treatment Rule,
that the cost for the capital cost associated with installing treatment and
the annual operation and maintenance cost increase significantly for difficult
to treat contaminants . The total national costs associated with DB would be
a function of the specifics of actually treating for DB and the number of
water treatment plants that found addition of other treatment necessary.
In this context it is also important to realize that many ground
water supplies are of sufficiently high quality that they are not treated.
The addition of one treatment to address DB would trigger additional
regulatory requirements that in turn would elevate cost impacts. This
aspect of adding additional treatment is a particular concern for small
community (e.g., towns, villages, etc.) and non-community (e.g., churches,
camp grounds, restaurants, gas stations, etc.) ground water systems.
This question also asks what level of DB poses a risk of abandoning
a water supply. Solving this question is a local decision, which will need
to take into account the availability of alternative water supplies, the
viability of treatment options, and local resources. Historically and at
present, taste and odor concerns are extremely important to drinking water
utility customers as the public is very aware of water that tastes bad and
they perceive it both as unpalatable and potentially harmful (e.g., the
reasoning behind addition of a bittering agent like DB). Information
provided on Bitrex indicates the aversive level in products like antifreeze
is 30 ppm. Information provided by Market Actives, the U.S. distributor of
Bitrex indicts that DB is Bitrex is aversively bitter at 1 to 10 parts per
million (ppm) in water (http://www.marketactives.com/faq.html). It appears
from the literature that the consumers would taste DB in water at much, much
lower levels on the order of low part per billion levels if not lower. The
question remains how much DB would be released in any one locale so as to
contaminate the water supply at a discernable level. Water supplies are
contaminated through both proper application of products (e.g., pesticides)
and inadvertent releases ( e.g., storage tank failures, inappropriate disposal
practices). There latter risks clearly exist. There are also likely
instances where the former exist as well. For instance, ethylene glycol and
other antifreeze compounds are applied to aircraft at airports as a part of
deicing. This is an important process for aircraft safety. It also results
in the release of antifreeze to storm water in significant quantities. Quantities sufficient to lead to taste and odor episodes
come not only from the DB but also from the ethylene glycol.
8. What are the effects of antifreeze contamination of water supplies
without the DB additive? Is it easily biodegradable? What kind of treatments
would be necessary to remove regular antifreeze from water? How much do they
cost? Has there ever been a case of a severe contamination of a water supply
from antifreeze without the DB additive that caused the abandonment of that
water supply?
AWWA RESPONSE: As stated in our response to Question 3, the Roy
Westin, Inc. Study No. 93-087, concluded that there is minimal environmental
impact when ethylene glycol without the DB additive is poured on the ground
since the ethylene glycol readily biodegrades into carbon dioxide and water
in a matter of days and does not go into the groundwater in the form of the
ethylene glycol compound. We are unaware of any case of a severe contamination
of a water supply from antifreeze without the DB additive that caused the
abandonment of the water supply. However, there are instances where
large-scale application of antifreeze at airports has resulted in taste and
odor episodes at conventional surface water treatment facilities. This
situation occurred at one of Fairfax Water's facilities prior to installation
of ozone and movement of the water treatment plant's intake location.
RESPONSE FOR THE RECORD BY JIM WILLIS, DIVISION DIRECTOR, CHEMICAL CONTROL
DIVISION, OFFICE OF POLLUTION PREVENTION AND TOXIC SUBSTANCES, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Responses to follow-up questions on U.S. EPA's May 23, 2006 testimony before
the Subcommittee on the Environment and Hazardous Materials, at the
legislative hearing on H.R. 2567, the Antifreeze Bittering Act of 2005.
The Honorable Paul E. Gillmor
1. Fourteen (14) years ago, when CPSC did a literature review of denatonium
benzoate, CPSC found a general lack of information on bittering agents. With
your testimony, does this mean that you consider the amount of information
particularly as it relates to environmental fate-and-transport issues to have
increased?
There is not an extensive database of toxicity or environmental fate
information on DB, although there is a 2-year oral toxicity study in rats and
several other oral studies in rats of shorter duration. Although the amount of
publicly available data on the fate and transport of DB has not increased
appreciably in 14 years, EPA's ability to predict the fate and transport of
chemicals such as DB has improved considerably. EPA is confident that its
predictions about the fate and transport of DB are reasonably accurate and
would be supported by future measured test data.
2. The legislation being considered by our committee today contains a Federal
requirement for antifreeze with 10 percent ethylene glycol to contain between
30 to 50 parts per million of DB. CPSC testified before the Senate Commerce
Committee last July that "possible acute toxicity of DB does not appear to be
a significant issue at the low levels used for aversion, such as the 30 to
50 parts per million range." Do you agree that human health is best
protected from ingestion and the environment from releases at this level?
EPA cannot comment on whether DB at the 30 to 50 parts per million
level would offer the best protection. That finding would seem to be a
matter more within the purview of CPSC. However, according to our screening
level analysis, EPA would agree that exposure to DB at such levels should not
pose a significant risk to human health or the environment.
3. What are the environmental effects of plain antifreeze being released
into water or soil? Would it be possible to have bittered antifreeze
released into the environment and only have the environmental damage caused
by the bittering agent?
The environmental effects of plain antifreeze being released into
water and soil are low. Plain antifreeze is easily biodegradable, i.e., is
not persistent. The environmental damage caused by the bittering agent if
added to antifreeze and released with antifreeze is expected to be low.
Based on structure-activity relationship (SAR) analysis, DB is expected to
have low toxicity to fish and aquatic invertebrates and moderate toxicity to
green algae. In a natural environment, potential exposure to green algae
would be reduced due to rapid adsorption of the cation of DB to organic
matter found in water and soils. Once the cation is adsorbed to organic
matter it is less bioavailable, thereby significantly mitigating the
potential for exposure to toxic levels of DB.
4. Has EPA conducted a full risk assessment on DB? Why? How reliable is
the screening-level toxicity and environmental exposure estimation
techniques that EPA has used on DB?
At this time, the Agency does not consider the low expected
production volume and associated low environmental releases and exposure to
support the need for a detailed risk assessment. The Agency is reasonably
confident of the results of the modeling which EPA performed in its screening
level fate and toxicity assessment but would nonetheless benefit from
obtaining copies of existing studies on DB held by industry.
5. Do you think it is a problem if DB gets into groundwater or not? If DB
is not filtered out by a drinking water system, since it does not biodegrade,
is it a threat to health or the environment?
Because of DB's low production volume and pattern of use and storage,
there would be relatively few opportunities for an environmental release that
could reach groundwater in significant quantities. EPA does not expect DB
released to soil to reach groundwater because of its tendency to adsorb to
soil and its extremely slow soil mobility rate. Furthermore, in the event
that DB did eventually reach a water supply, we would expect it to be
filtered out by treatment. Considering the low production volume and
pattern of use and storage and the results of our screening analysis, we
believe that DB is unlikely to pose a significant risk even if not filtered
out.
6. Some people have raised questions about whether it is possible to get DB
information since the major manufacturers of this chemical are based overseas
and past attempts by private parties have been met with resistance due to
confidential business information claims. Do you have the same problems with
getting this data and do you believed that DB manufacturers would be subject
to "personal jurisdiction" in the event of claims of damages caused by DB?
If needed, EPA could use its reporting authority under TSCA sec. 8d
to obtain existing studies from manufacturers and processors.
The Honorable John D. Dingell and the Honorable Hilda L. Solis
1. Is it correct that there is only one registered pesticide where
denatonium benzoate (DB) is an active ingredient?
Currently, there are two products registered with the active
ingredient, DB (bitrex). Each product contains 0.2% active ingredient.
Is that registered use a deer repellent sold under the brand name Tree Guard
for use on shrubs and certain types of trees?
The two registered products are:
1. Tree Guard, EPA Reg. No. 66676-1 (registered January 30, 1996, to
reduce feeding by deer on trees, shrubs, flowers, and other ornamental
plants), and
2. Fooey, EPA Reg. No. 680086-7 (registered August 10, 2005, to reduce
chewing, biting and licking by dogs, cats, horses, and other animals)
3. Is it correct that the use restrictions for Tree Guard include the following?
<bullet> Do not use on food or feed crops
<bullet> Do not apply aerially
<bullet> Do not apply product through any type of irrigation system or hose
proportioner applicator
<bullet> Do not apply directly to water, to areas where surface water is
present, or to inter-tidal areas below the mean high water mark
<bullet> Do not clean equipment or dispose of equipment wash waters in a
manner that will contaminate water resources or arable land.
Yes, the use restrictions for Tree Guard include the five restrictions
listed in your question. The use restrictions for Fooey include these two
restrictions:
<bullet> Do not apply directly to water.
<bullet> Do not clean equipment or dispose of equipment wash waters in a
manner that will contaminate water resources or arable land.
The use restrictions for Fooey are fewer than those for Tree Guard
because the use pattern is more limited.
3. Is it correct that the Environmental Protection Agency (EPA) is
scheduled to review the registration for Tree Guard in June 2006? If so,
what information and data will EPA request on the bitterant denatonium
benzoate and what type of scientific review will be conducted?
Over the next two years, the Agency will review the database for
the active ingredient, denatonium benzoate, and determine whether there are
sufficient data on the active ingredient. If not, the Agency will proceed
to call in any missing data on the individual products themselves. After
the necessary data have been submitted and reviewed, the Agency will be able
to determine whether this pesticide meets the requirements for
reregistration. EPA expects to complete this process by September 2008.
To support the current uses of the active ingredient, EPA would
normally require basic chemistry, toxicity, worker exposure, and
environmental fate and effects data. The final list of requirements will be
determined during the next two years. EPA will review the available data
for denatonium benzoate and conduct ecological and human health risk
assessments based on those studies.
4. Based on your current knowledge, do you expect the registrant for Tree
Guard to seek to re-register this pesticide and submit the necessary data for
an appropriate scientific review?
At this time, we are unaware of the plans of the two registrants to
seek re-registration of this pesticide and submit the necessary data for an
appropriate scientific review.
5. Is it correct that EPA staff conducted its computer-based modeling
estimation technique on denatonium benzoate (bitrex) in the fall of 2005 at
the request of an official of the Consumer Specialty Products Association?
Yes.
6. Did officials of Honeywell or the Consumer Specialty Products Association
ever provide EPA with the independent scientific studies which they possessed
that determined that DB does not biodegrade and is not removed during the
processes used to treat waste water at publicly-owned treatment facilities?
If so, please specify the date when such studies were provided to EPA.
EPA did not receive the full biodegradation and soil adsorption
study reports, along with other review articles and assessments, until the
May 23, 2006 Subcommittee hearing. We are currently reviewing these studies.
7. At the Subcommittee hearing, you testified that "we have reviewed
available data made known to us." Please specify what actual scientific
studies were available to EPA and identify who provided them.
The Agency performed a general literature review for DB. There is
not an extensive database of published toxicity values or environmental fate
information, so the Agency relied on predictive assessments and the results
of the 2-year oral study in rats and other studies summarized in the Food
and Drug Administration's (FDA) FR notice of October 17, 1980 (45 FR 69125),
"Establishment of Monographs for Nailbiting and Thumbsucking Deterrent and
Ingrown Toenail Relief Drug Products for Over-the-Counter Human Use."
8. Has EPA attempted to obtain environmental fate and transport data from
the manufacturers of denatonium benzoate? If so, please describe the
circumstances.
No. The Agency has not attempted to obtain data from the
manufacturers of DB. Following the hearing, the Consumer Specialty Products
Association did provide us the studies referred to in Question and Answer 6
above.
9. Is EPA currently conducting any actual scientific studies on the
environmental fate and transport characteristics of denatonium benzoate?
Given the low expected production volume and associated low
environmental releases and exposure, the results of its screening level
assessment, and pending review of the studies provided by industry, EPA has
not identified a priority need for it to conduct additional studies.
10. Statements were made at the hearing that denatonium benzoate was
used in the following consumer products: nail polish, hairspray, crayons,
bubble bath, shampoo, eye shadow, ink, hand sanitizer windshield wash,
laundry detergent, fabric softener, and perfume. Do the manufacturers of
any of the above mentioned products have an exemption or immunity from
Superfund liability (including natural resources damages) that results
from the inclusion of denatonium benzoate in the consumer product? If so,
please cite the specific statutory provision that provides the exemption or
immunity from environmental liability (including natural resource damages).
No. The exemption from liability that would be provided by sec.
25(c) applies only to "a manufacturer, processor, distributor, recycler, or
seller of an engine coolant or antifreeze that is required to contain an
aversive agent under subsection (a)..."
11. What other laws administered by EPA could be affected by the liability
waiver for "damage to the environment" contained in Section 2 of H.R. 2567?
EPA does not administer the Federal Hazardous Substances Act (FHSA)
and thus does not have primary interpretive authority regarding the statute
or amendments thereto. Based on what appears to be the most straightforward
reading, however, EPA would not expect the liability waiver for damage to
the environment contained in Section 2 of H.R. 2567 to significantly impact
laws administered by EPA. Since the definition of "person" in FHSA Section
2 does not appear to include government agencies, the waiver of liability
"to any person" would not appear to provide protection from possible EPA
enforcement actions for regulatory violations. In addition, although
several statutes administered by EPA provide for "citizen suits" to enforce
the statutes, in those cases the citizens stand in the shoes of the
Government, and the remedy available under these provisions is generally an
injunction against further violations or penalties paid to the U.S. Treasury,
not an award to the plaintiff for environmental damage. The Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), however,
does make certain persons liable for the cost of cleaning up releases of
hazardous substances, and that liability can in some cases be to private
parties. If the term "damage to the environment" were interpreted to
include such cleanup costs, and a bittering agent were a CERCLA hazardous
substance, CERCLA liability could potentially be affected.
12. Could a spill of denatonium benzoate by a manufacturer, processor,
distributor, or recycler of an engine coolant or antifreeze that affects
navigable waterways or results in an imminent and substantial endangerment
to human health or the environment potentially involve the statutory
authorities of the (1) Clean Water Act, (2) Solid Waste Disposal Act or (3)
Safe Drinking Water Act? If not, please explain why not.
A spill of denatonium benzoate that results in an imminent and
substantial endangerment could involve statutory authority under the
Resource Conservation and Recovery Act (RCRA). EPA could require a person
responsible for a spill that results in an imminent and substantial
endangerment to remediate the spill under the authority of RCRA sec. 7003.
13. Is it correct that Section 2 of H.R. 2567 would provide immunity from
liability for manufacturer, processor, distributor, or recycler of an
engine coolant or antifreeze under the Clean Water Act, the Safe Drinking
Water Act, and the Solid Waste Disposal Act for damages to the environment
caused by spills of denatonium benzoate that results from the inclusion of
denatonium benzoate in any engine coolant or antifreeze?
H.R. 2567 states that such persons "shall not be liable to any
person for any personal injury, death, property damage, damage to the
environment (including natural resources), or economic loss that results
from the inclusion of denatonium benzoate in any engine coolant or
antifreeze, provided that the inclusion of denatonium benzoate is present in
concentrations mandated by subsection (a)." These persons as described in
the bill would be exempt from liability under the Clean Water Act, Safe
Drinking Water Act, and Solid Waste Disposal Act, but only if the denatonium
benzoate were present in concentrations mandated by subsection (a).
14. At the time officials of the Consumer Specialty Products Association
asked EPA to provide a screening level analysis of denatonium benzoate, did
any EPA officials ask the industry representatives whether they were aware
of or possessed actual scientific studies that had been performed on the
toxicity or environmental fate and transport of denatonium benzoate? If
not, please explain why not.
The meeting in question was in September, 2005. EPA did not request
further data because the focus and the purpose of the meeting was to discuss
the structure-activity relationship (SAR) analysis approach to assessing DB.
15. With respect to the use of DB in certain consumer products, do the
environmental exposure risks depend and differ on whether it binds to and the
manner it is used in the underlying product (such as nail polish or crayons),
and in the manner in which the underlying product is itself disposed of?
Yes, potential health and environmental risks are related directly
to potential for release and exposure to the chemical. Generally, the risk
posed by a chemical is related to its hazard (toxicity) and exposure levels.
This is the reason that soil adsorption (which limits DB's mobility in soil)
and patterns of use are important for DB. It is not expected to migrate
through soil to groundwater and (for the consumer use in one gallon
containers) is not stored in large underground tanks, where the potential
for spillage and contamination are increased.
16. Does EPA interpret H.R. 2567 as applying to airplane de-icing
operations?
EPA understands this legislation as applying only to consumer uses,
in small containers, as opposed to airplane de-icing, with associated large
volume use and storage and potential for accidental spills.
?
1. Petition published in Fed. Reg. v.63, #27, Feb. 10, 1998, p.6693.
2. Denatonium Benzoate Report, ME Dept. of Environmental Protection,
February 13, 2006, p. 11.
3. Ibid., p. 8.
4. Mullins and Horowitz, Vet Hum Toxicol, 2004 Jun;46(3): 150-2.
5. The Oregon Health Division is responsible for monitoring compliance
with the required addition of a bittering agent to consumer products under
the Household Toxic Products Rules, but there is no protocol for periodic
testing. Henderson et al. [Chemosphere. 1998 Jan;36(1):203-10) developed a
sufficiently sensitive High Pressure Liquid Chromatography method for
analyzing DB in consumer products. They analyzed antifreeze and windshield
washer fluid products purchased in Oregon 1994 and 1996. The concentration
of DB in the products purchased in 1994 ranged from non-detectable (less
than 1.25 ppm) to 30.9 ppm, with 7 out of the 10 products having undetectable
levels. In 1996, the concentration of DB in antifreeze ranged from 26.4 to
32.6, with no non-detects. The concentration of DB in windshield washer fluid
ranged from non-detect to 30.1 ppm, with 8 of the 14 washer fluids having
undetectable levels. Although this is a very small study, this indicates that
in 1996, there was still considerable variability in the amount of DB present
in various consumer products.
6. West Harlem Environmental Action v. US EPA, Memorandum in Support of
Plaintiffs' Motion for Summary Judgment, filed by the Natural Resources
Defense Council in US District Court for the Southern District of NY, March
29, 2005; pp15-16
7. "The National Science Foundation sponsors a network of Materials
Research Science and Engineering Centers (MRSECs) at U.S. universities.
The Center for the Science & Engineering of Materials (CSEM) at Caltech is
one of them. The goal of the program is to stimulate interdisciplinary
research and education in materials." (CSEM Fact Sheet)
8. Hansen SR, Janssen C, Beasley VR. Vet. Hum. Toxicol. 1993 Jun;
35(3):234-6.
? The Advocate (a Louisiana newspaper) reported that on May 31, 2006, a 3
year-old Baton Rouge boy died after drinking antifreeze left in a cup on a
bedroom dresser by his father's girlfriend. The woman was booked on one
count of negligent homicide. The antifreeze was reportedly intended for
a neighbor's dog.
* The Advocate (a Louisiana newspaper) reported that on May 31, 2006, a 3
year-old Baton Rouge boy died after drinking antifreeze left in a cup on a
bedroom dresser by his father's girlfriend. The woman was booked on one
count of negligent homicide. The antifreeze was reportedly intended for
a neighbor's dog.