H. Rept. 109-730 - 109th Congress (2005-2006)
December 08, 2006, As Reported by the Energy and Commerce Committee

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House Report 109-730 - ANTIFREEZE BITTERING ACT OF 2006




[House Report 109-730]
[From the U.S. Government Printing Office]



109th Congress                                            Rept. 109-730
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
                    ANTIFREEZE BITTERING ACT OF 2006

                                _______
                                

December 8, 2006.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Barton of Texas, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2567]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2567) to amend the Federal Hazardous Substances 
Act to require engine coolant and antifreeze to contain a 
bittering agent so as to render it unpalatable, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Hearings.........................................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................    11
Statement of General Performance Goals and Objectives............    11
New Budget Authority, Entitlement Authority, and Tax Expenditures    11
Committee Cost Estimate..........................................    11
Congressional Budget Office Estimate.............................    11
Federal Mandates Statement.......................................    13
Advisory Committee Statement.....................................    13
Constitutional Authority Statement...............................    13
Applicability to Legislative Branch..............................    13
Section-by-Section Analysis of the Legislation...................    13
Changes in Existing Law Made by the Bill, as Reported............    15
Dissenting Views.................................................    18

                               Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Antifreeze Bittering Act of 2006''.

SEC. 2. ADDITION OF BITTERING AGENT IN ANTIFREEZE REQUIRED.

  The Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) is 
amended by adding after section 24 (15 U.S.C. 1278) the following new 
section:

``SEC. 25. ADDITION OF BITTERING AGENT IN ANTIFREEZE REQUIRED.

  ``(a) Bittering Agent.--
          ``(1) Environmental evaluation required.--
                  ``(A) In general.--Not later than 30 days after the 
                date of enactment of this section, the Consumer Product 
                Safety Commission shall commence an evaluation, in 
                cooperation with the Environmental Protection Agency 
                and appropriate State health and environmental 
                officials in those States that, as of the date of 
                enactment of this section, have enacted laws requiring 
                a bittering agent in engine coolant or antifreeze, to 
                determine whether there is evidence that the use of the 
                bittering agent denatonium benzoate in engine coolant 
                or antifreeze has an unreasonable adverse effect on the 
                environment.
                  ``(B) Certain tests prohibited.--The evaluation 
                required under subparagraph (A) may not include any new 
                animal or human testing.
                  ``(C) Required date of completion.--The Commission 
                shall complete the evaluation within 180 days after the 
                date of enactment of this section and publish its 
                findings in the Federal Register.
          ``(2) Use of bittering agent.--
                  ``(A) General requirement.--Unless the Commission, in 
                its evaluation under paragraph (1), finds there is 
                evidence of an unreasonable adverse effect on the 
                environment, any engine coolant or antifreeze that is 
                manufactured on or after the date that is 180 days 
                after the date of publication of the Commission's 
                finding in the Federal Register pursuant to paragraph 
                (1)(C), and that contains more than 10 percent ethylene 
                glycol, shall include not less than 30 parts per 
                million, and not more than 50 parts per million, 
                denatonium benzoate as a bittering agent in order to 
                render the coolant or antifreeze unpalatable.
                  ``(B) Alternative agent.--If the inclusion of 
                denatonium benzoate in engine coolant or antifreeze is 
                required under subparagraph (A) and the Commission 
                finds that--
                          ``(i) an alternative bittering agent is as 
                        effective as denatonium benzoate in rendering 
                        coolant or antifreeze unpalatable in terms of 
                        both its bittering capacity and its 
                        compatibility with motor vehicle engine coolant 
                        and antifreeze, and
                          ``(ii) in cooperation with the Environmental 
                        Protection Agency, there is no evidence that 
                        the use of the alternative bittering agent has 
                        an unreasonable adverse effect on the 
                        environment,
                the Commission may initiate a rulemaking to permit the 
                use of the alternative bittering agent in lieu of 
                denatonium benzoate.
          ``(3) Unreasonable adverse effect on the environment 
        defined.--As used in this subsection, the term `unreasonable 
        adverse effect on the environment' means an unreasonable risk 
        to human health or the environment, taking into account the 
        economic, social, and environmental costs and benefits.
          ``(4) Failure to comply.--Any engine coolant or antifreeze 
        that is required to contain a bittering agent under paragraph 
        (2) that is not in compliance with that paragraph shall be 
        considered to be a banned hazardous substance within the 
        meaning of section 2(q) (15 U.S.C. 1261(q)), and shall be 
        subject to the penalties provided for in section 5 (15 U.S.C. 
        1264).
  ``(b) Record Keeping.--
          ``(1) Name and active ingredient.--A manufacturer of an 
        engine coolant or antifreeze that is required to contain a 
        bittering agent under subsection (a) shall maintain a record of 
        the trade name, scientific name, and any active ingredients of 
        a bittering agent used in compliance with such subsection.
          ``(2) Availability to the public.--Any record maintained 
        under paragraph (1) shall be made available to the public on 
        receipt by the manufacturer of a request from any person.
  ``(c) Limitation of Liability.--
          ``(1) In general.--Subject to paragraph (2), a manufacturer, 
        processor, distributor, recycler, or seller of an engine 
        coolant or antifreeze that is required to contain a bittering 
        agent under subsection (a) shall not be liable to a person for 
        any personal injury, death, property damage, damage to the 
        environment (including natural resources), or economic loss 
        that results from the inclusion in the engine coolant or 
        antifreeze of the bittering agent, provided that the bittering 
        agent is present in concentrations mandated by subsection 
        (a)(2)(A) or permitted pursuant to a rulemaking under 
        subsection (a)(2)(B).
          ``(2) Exception.--Paragraph (1) shall not apply in any case 
        in which a cause of liability referred to in that paragraph is 
        unrelated to the inclusion in an engine coolant or antifreeze 
        of the bittering agent as required by subsection (a). Nothing 
        in this subsection shall be construed to exempt any 
        manufacturer or distributor of denatonium benzoate, or an 
        alternative bittering agent the use of which is required or 
        permitted under subsection (a)(2), from any liability related 
        to denatonium benzoate or the alternative bittering agent.
  ``(d) Preemption.--No State or political subdivision of a State shall 
establish or continue to enforce 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 
different from, or in addition to, the requirements of this section.
  ``(e) Exemption.--This section shall not be construed to apply to--
          ``(1) the sale of a motor vehicle that contains engine 
        coolant or antifreeze; or
          ``(2) a wholesale container of engine coolant or antifreeze 
        that contains 55 gallons or more of engine coolant or 
        antifreeze.''.

                          Purpose and Summary

    The purpose of the Antifreeze Bittering Act of 2005 is to 
reduce the number of exposures of people and animals to 
ethylene glycol-based engine coolant and antifreeze products 
through the addition of denatonium benzoate, or other suitable 
bittering agents.

                  Background and Need for Legislation

    Increasing concerns are being raised about the health 
effects of ingestion of antifreeze, particularly by pets and 
small children. Dogs and cats find antifreeze sweet tasting 
and, if not deterred, are prone to consume it. Ethylene glycol 
is the primary active ingredient in many engine coolant and 
antifreeze products sold to consumers. According to the Agency 
for Toxic Substances and Disease Registry, ethylene glycol can 
damage the kidneys, heart, and nervous system of humans. In 
addition, the Washington State University College of Veterinary 
Medicine states on its website that about five tablespoons can 
kill a medium-sized dog and that treatment for antifreeze 
exposure and poisoning needs to be started as soon as possible 
after ingestion to be effective.
    Notwithstanding Federal packaging requirements for retail 
sales of antifreeze and engine coolant, the 2003 Toxic Exposure 
Surveillance System (TESS) report of the American Association 
of Poison Control Centers (AAPCC) stated that it recorded 5,081 
cases of persons who had been exposed to the poison, ethylene 
glycol. The following year (2004), the AAPCC TESS report showed 
an increase in total ethylene glycol exposure cases to 5,562. 
Of note, the 2004 figures bore out a 12 percent increase (from 
592 to 672) in the number of reported cases for children under 
the age of 6 and growth in the number of cases yielding a 
``moderate'' or ``major'' health outcome--from 9.2 percent of 
all reported cases to 11.5 percent. There was also an increase 
from 16 to 23 reported cases of intentional exposures between 
2003 and 2004 resulting in death, 18 of which were intentional 
adult suicides. These statistics regarding an increase in adult 
deaths and the increase in number of reported cases for 
children under the age of 6 stand in contrast to the AAPCC 
data-base numbers from 1985-2002, where there were both no 
deaths of patients reported under the age of 12 years or no 
deaths reported from unintentional exposures. While the 
Committee is concerned about the poisoning of any child, 
regardless of whether it results in death, it is not aware of 
any reported deaths from exposure to ethylene glycol from 2003-
2004. The Washington State University College of Veterinary 
Medicine has also found that approximately 10,000 dogs and cats 
are exposed to antifreeze or engine coolant each year.
    In order to deter children and pets from ingesting 
unhealthy quantities of ethylene glycol-based antifreeze or 
engine coolant, three States have enacted laws to require the 
inclusion of a bittering agent. Currently, California, Oregon, 
and New Mexico have adopted legal requirements that certain 
automotive products--particularly consumer sales of ethylene 
glycol-based antifreeze and engine coolants--contain prescribed 
levels of aversive agents/bitterants. With a number of other 
States and some localities contemplating legislation of this 
nature, there is a concern that inconsistent State laws would 
force antifreeze or engine coolant manufacturers into creating 
several different formulations, thereby affecting the 
production and flow in interstate commerce of engine coolant 
and antifreeze products. This legislation would set forth one 
national standard for the production of embittered engine 
coolant and antifreeze products.
    H.R. 2567 amends the Federal Hazardous Substances Act 
(FHSA) (15 U.S.C. 1261-1278), under which the Consumer Product 
Safety Commission (CPSC) has the authority to regulate engine 
coolant and antifreeze and require that a bittering agent, 
either denatonium benzoate (DB) or another similarly effective 
substance, be added to antifreeze and thereby reduce the 
possibility that a child or animal is enticed to accidentally 
ingest an unsafe--and potentially fatal--amount of antifreeze.
    According to the California Institute of Technology's 
Center for Science and Engineering of Materials, DB is 
recognized as the bitterest substance known. Minute quantities 
of DB can render household, garden, or automotive products 
unpalatable, deterring ingestion by children and animals. While 
testing has determined that DB is aversively bitter at 1 to 10 
parts per million (ppm) in water, most consumer products become 
bitter at 30 to 100 ppm. This aversive method also has been 
used to deter ingestion of a multitude of other consumer 
products, including deer repellant, nail polish, household 
cleaners, paints, windshield washing fluid, and to coat 
electrical cables.

                                Hearings

    The Subcommittee on Environment and Hazardous Materials 
held a hearing on H.R. 2567, the Antifreeze Bittering Act of 
2005 on May 23, 2006. The Subcommittee received testimony from: 
the Honorable Gary Ackerman, Member, U.S. House of 
Representatives; Mr. Jim Willis, Division Director, Chemical 
Control Division Office of Pollution Prevention and Toxic 
Substances, U.S. Environmental Protection Agency; Mr. Jeffrey 
Bye, Vice President, Prestone, Honeywell International, Inc., 
on behalf of Consumer Specialty Products Association; Mr. 
Patrice L. Simms, Senior Project Attorney, Natural Resources 
Defense Council; Ms. Sarah Amundson, Deputy and Legislative 
Director, Doris Day Animal League; Dr. Melinda Eyrich, Co-
owner, Urgent Care Veterinary Hospital, Albuquerque, NM; and 
Mr. Tom Bonacquisti, Director of Water Quality and Production, 
Fairfax County Water Authority on behalf of the American Water 
Works Association.

                        Committee Consideration

    On Wednesday, July 12, 2006, the Committee on Energy and 
Commerce met in open markup session and ordered H.R. 2567 
favorably reported to the House, amended, by a record vote of 
30 yeas and 15 nays, a quorum being present.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. The 
following are the recorded votes taken on amendments offered to 
the measure, including the names of those Members voting for 
and against. A motion by Mr. Barton to order H.R. 2567 
favorably reported to the House, amended, was agreed to by a 
record vote of 30 yeas and 15 nays.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Subcommittee on Environment and 
Hazardous Materials held a legislative hearing and made 
findings that are reflected in this report.

         Statement of General Performance Goals and Objectives

    The objective of H.R. 2567 is to require engine coolant and 
antifreeze to contain a bittering agent so as to render it 
unpalatable.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
2567, the Antifreeze Bittering Act of 2005, would result in no 
new or increased budget authority, entitlement authority, or 
tax expenditures or revenues.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 27, 2006.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2567, the 
Antifreeze Bittering Agent Act of 2006.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Geoffrey 
Gerhardt.
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

H.R. 2567--Antifreeze Bittering Agent Act of 2006

    H.R. 2567 would direct the Consumer Product Safety 
Commission (CPSC) to issue regulations requiring the use of a 
bittering agent in antifreeze and other engine coolants. The 
purpose of the bittering agent would be to make antifreeze 
unpalatable to humans and animals. Prior to issuing its 
regulations, the CPSC would be required to conduct an 
environmental impact evaluation in conjunction with the 
Environmental Protection Agency. The bill would require the 
CPSC to ensure that manufacturers comply with the new 
regulations and maintain compliance records. Based on 
information provided by the CPSC, CBO estimates that 
implementing H.R. 2567 would cost less than $500,000 annually, 
subject to the availability of appropriated funds.
    The legislation would preempt state laws that require the 
addition of bittering agents in antifreeze and would establish 
a uniform federal standard. The bill also would limit liability 
claims associated with the addition of bittering agents to 
antifreeze. The preemption and the limitation on liability 
would be intergovernmental mandates as defined in the Unfunded 
Mandates Reform Act (UMRA).
    Although the preemption would limit the application of 
state law, it would not impose a duty on states that would 
require additional spending. The liability protection would be 
narrow in scope--providing protection primarily to 
manufacturers and other entities involved in distributing 
antifreeze that includes a bittering agent. CBO is unaware of 
any current or pending case that would be affected by the bill; 
consequently, we estimate that the costs of the mandates would 
be small and would not exceed the threshold established in UMRA 
($64 million in 2006, adjusted annually for inflation).
    H.R. 2567 contains private-sector mandates as defined in 
UMRA on manufacturers of engine coolant and antifreeze that 
distribute their products to be sold by retail businesses. In 
the event that the CPSC finds evidence that the use of the 
bittering agent denatonium benzoate (or a comparable 
alternative) has no ``unreasonable adverse effect on the 
environment,'' those manufacturers would be required to:
          
 Add denatonium benzoate to their product 
        mixtures that are comprised of more than 10 percent 
        ethylene glycol; and
          
 Keep detailed records of any bittering 
        agents used in their products.
    As noted above, the bill also would limit liability claims 
associated with the addition of bittering agents to antifreeze. 
CBO estimates that the aggregate direct costs of complying with 
those mandates would be minimal compared to the annual 
threshold established by UMRA for private-sector mandates ($128 
million in 2006, adjusted annually for inflation).
    Under H.R. 2567, if the CPSC determines that the use of the 
bittering agent in engine coolant or antifreeze would have no 
adverse effects on the environment, coolant and antifreeze 
manufacturers would be required to add the agent to certain 
product mixtures. The bill would exempt coolant and antifreeze 
distributed to original manufacturers (such as motor vehicle 
manufacturers) and garages that purchase wholesale engine 
coolant or antifreeze for purposes other than retail sales. 
According to industry sources, about 160 million gallons of 
coolant and antifreeze are sold in the U.S. retail market each 
year. Industry and government sources indicate that adding the 
bittering agent to product mixtures would cost manufacturers 
less than $0.03 per gallon of coolant or antifreeze. 
Furthermore, the industry expects to incur some costs 
associated with upgrades necessary for storing denatonium 
benzoate at manufacturing plants. Industry sources estimate 
such costs fall between $50,000 and $70,000 per plant. Based on 
those data, CBO estimates that the costs associated with this 
mandate would not exceed $6 million per year.
    Also, contingent upon CPSC's determination, coolant and 
antifreeze manufacturers would be required to record the trade 
name, scientific name, and any active ingredient of any 
bittering agent used in product mixtures. The bill also would 
require manufacturers to make those records available to the 
public. Since manufacturers would already have such 
information, CBO expects the costs associated with such record 
keeping to be minimal.
    On December 14, 2005, CBO transmitted a cost estimate for 
S. 1110, the Engine Coolant and Antifreeze Bittering Agent Act 
of 2005, as ordered reported by the Senate Committee on 
Commerce, Science, and Transportation on November 17, 2005. The 
mandates contained in H.R. 2567 are identical to those in S. 
1110.
    The CBO staff contacts for this estimate are Geoffrey 
Gerhardt (for federal costs), Leo Lex (for the state and local 
impact), and Craig Cammarata (for the private-sector impact). 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 3, which grants Congress the power 
to regulate commerce with foreign nations, among the several 
States, and with the Indian tribes.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 sets forth the short title of the bill as the 
``Engine Coolant and Antifreeze Bittering Agent Act of 2005.''

Section 2. Addition of bittering agent in antifreeze

    Section 2 amends the Federal Hazardous Substances Act 
(FHSA) by adding a new Section 25 to FHSA establishing a 
national standard for the production and distribution of engine 
coolant and antifreeze products by requiring the addition of a 
bittering agent, subject to Section 25(a)(1)(A-C).

Section 25. Addition of bittering agent in antifreeze required

    New Section 25(a)(1)(A-C) requires the CPSC, in cooperation 
with the U.S. Environmental Protection Agency (EPA) and State 
and local officials in States that have already enacted an 
antifreeze or engine coolant bitterant requirement, to evaluate 
whether evidence exists of any unreasonable adverse effect on 
the environment resulting from the addition of denatonium 
benzoate in engine coolant and antifreeze products. In 
addition, new Section 25(a)(1)(C) prohibits the use of new 
animal or human testing studies to be used as part of the 
evaluations required under this paragraph.
    New Section 25(a)(2)(A) requires all antifreeze products 
containing more than 10 percent ethylene glycol to have a 
chemical concentration of at least 30-50 parts per million of 
the bittering agent denatonium benzoate. The 10 percent 
threshold covers all off-the-shelf, retail antifreeze products 
made with ethylene glycol.
    New Section 25(a)(2)(B) allows for additional bittering 
agents to enter the market if the CPSC decides, through a 
rulemaking, that an alternative additive is as effective as 
denatonium benzoate and does not present an unreasonable 
adverse effect to the environment.
    New Section 25(a)(3) defines ``unreasonable adverse 
effect'' as that which poses an unreasonable risk to human 
health or the environment, after taking into account economic, 
social, and environmental costs and benefits.
    New Section 25(a)(4) establishes that any antifreeze 
product manufactured without denatonium benzoate, or an 
approved alternative, be considered a banned hazardous 
substance. The CPSC would have the authority to impose 
penalties on manufacturers of antifreeze that fail to add the 
bittering agent. If the omission is purposeful, or a repeat 
offense, the CPSC could fine a manufacturer up to $500,000 when 
a human death occurs, under current regulations.
    New Section 25(b) requires antifreeze manufacturers to 
maintain a record, available to the public upon request, of the 
antifreeze product trade name, a record of the scientific name 
(ethylene glycol), and a compilation of any active ingredients 
of the relevant bittering agent (denatonium benzoate).
    New Section 25(c) assigns liability to manufacturers, 
processors, distributors, recyclers, or sellers of engine 
coolant and antifreeze products, manufacturers and distributors 
of denatonium benzoate, and manufacturers and distributors of 
any alternative bittering agent. It would assign liability 
based upon which product, i.e., antifreeze, or bittering agent, 
is proven to have caused personal injury, death, property 
damage, damage to the environment (including natural 
resources), or economic loss. If the injury, death, damage, or 
loss stems from the inclusion of a bittering agent in an engine 
coolant or antifreeze product, the manufacturer, processor, 
distributor, recycler, or seller of the engine coolant or 
antifreeze product would not be held liable. The bill would not 
afford any protection from liability to manufacturers and 
distributors of DB or alternative bittering agents. The 
liability protection for the antifreeze or coolant manufacturer 
does not attach unless and until the bittering agent is present 
in concentrations mandated by the Act, therefore injury or 
damage caused by mishandling of the bittering agent prior to or 
separate from being blended with the antifreeze or coolant is 
not limited. The assignment of liability established in the 
statute should not be construed to prevent or deter both 
manufacturers from being named as parties to a lawsuit. Each 
manufacturer remains wholly liable for its respective product 
of manufacture, and to the extent a court determines causation 
and liability for that respective product under State or 
Federal law.
    New Section 25(d) preempts all State or political 
subdivision statutes and regulations that prohibit, limit, 
standardize, or impose any requirement different from the 
Federal standard set forth by this Act. The Committee does not 
intend these preemption provisions to apply to any part or 
provision of a State law that addresses the inclusion of a 
bittering agent in any product other than engine coolant or 
antifreeze, especially if that State law requiring the 
bittering agent in another product also contains provisions 
directing the inclusion of a bittering agent in engine coolant 
or antifreeze.
    New Section 25(e) exempts sales of motor vehicles that 
contain engine coolant or antifreeze, or sales of wholesale 
containers of engine coolant or antifreeze containing more than 
55 gallons of antifreeze, from the Federal standard imposed by 
this Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

FEDERAL HAZARDOUS SUBSTANCES ACT

           *       *       *       *       *       *       *



SEC. 25. ADDITION OF BITTERING AGENT IN ANTIFREEZE REQUIRED.

  (a) Bittering Agent.--
          (1) Environmental evaluation required.--
                  (A) In general.--Not later than 30 days after 
                the date of enactment of this section, the 
                Consumer Product Safety Commission shall 
                commence an evaluation, in cooperation with the 
                Environmental Protection Agency and appropriate 
                State health and environmental officials in 
                those States that, as of the date of enactment 
                of this section, have enacted laws requiring a 
                bittering agent in engine coolant or 
                antifreeze, to determine whether there is 
                evidence that the use of the bittering agent 
                denatonium benzoate in engine coolant or 
                antifreeze has an unreasonable adverse effect 
                on the environment.
                  (B) Certain tests prohibited.--The evaluation 
                required under subparagraph (A) may not include 
                any new animal or human testing.
                  (C) Required date of completion.--The 
                Commission shall complete the evaluation within 
                180 days after the date of enactment of this 
                section and publish its findings in the Federal 
                Register.
          (2) Use of bittering agent.--
                  (A) General requirement.--Unless the 
                Commission, in its evaluation under paragraph 
                (1), finds there is evidence of an unreasonable 
                adverse effect on the environment, any engine 
                coolant or antifreeze that is manufactured on 
                or after the date that is 180 days after the 
                date of publication of the Commission's finding 
                in the Federal Register pursuant to paragraph 
                (1)(C), and that contains more than 10 percent 
                ethylene glycol, shall include not less than 30 
                parts per million, and not more than 50 parts 
                per million, denatonium benzoate as a bittering 
                agent in order to render the coolant or 
                antifreeze unpalatable.
                  (B) Alternative agent.--If the inclusion of 
                denatonium benzoate in engine coolant or 
                antifreeze is required under subparagraph (A) 
                and the Commission finds that--
                          (i) an alternative bittering agent is 
                        as effective as denatonium benzoate in 
                        rendering coolant or antifreeze 
                        unpalatable in terms of both its 
                        bittering capacity and its 
                        compatibility with motor vehicle engine 
                        coolant and antifreeze, and
                          (ii) in cooperation with the 
                        Environmental Protection Agency, there 
                        is no evidence that the use of the 
                        alternative bittering agent has an 
                        unreasonable adverse effect on the 
                        environment,
                the Commission may initiate a rulemaking to 
                permit the use of the alternative bittering 
                agent in lieu of denatonium benzoate.
          (3) Unreasonable adverse effect on the environment 
        defined.--As used in this subsection, the term 
        ``unreasonable adverse effect on the environment'' 
        means an unreasonable risk to human health or the 
        environment, taking into account the economic, social, 
        and environmental costs and benefits.
          (4) Failure to comply.--Any engine coolant or 
        antifreeze that is required to contain a bittering 
        agent under paragraph (2) that is not in compliance 
        with that paragraph shall be considered to be a banned 
        hazardous substance within the meaning of section 2(q) 
        (15 U.S.C. 1261(q)), and shall be subject to the 
        penalties provided for in section 5 (15 U.S.C. 1264).
  (b) Record Keeping.--
          (1) Name and active ingredient.--A manufacturer of an 
        engine coolant or antifreeze that is required to 
        contain a bittering agent under subsection (a) shall 
        maintain a record of the trade name, scientific name, 
        and any active ingredients of a bittering agent used in 
        compliance with such subsection.
          (2) Availability to the public.--Any record 
        maintained under paragraph (1) shall be made available 
        to the public on receipt by the manufacturer of a 
        request from any person.
  (c) Limitation of Liability.--
          (1) In general.--Subject to paragraph (2), a 
        manufacturer, processor, distributor, recycler, or 
        seller of an engine coolant or antifreeze that is 
        required to contain a bittering agent under subsection 
        (a) shall not be liable to a person for any personal 
        injury, death, property damage, damage to the 
        environment (including natural resources), or economic 
        loss that results from the inclusion in the engine 
        coolant or antifreeze of the bittering agent, provided 
        that the bittering agent is present in concentrations 
        mandated by subsection (a)(2)(A) or permitted pursuant 
        to a rulemaking under subsection (a)(2)(B).
          (2) Exception.--Paragraph (1) shall not apply in any 
        case in which a cause of liability referred to in that 
        paragraph is unrelated to the inclusion in an engine 
        coolant or antifreeze of the bittering agent as 
        required by subsection (a). Nothing in this subsection 
        shall be construed to exempt any manufacturer or 
        distributor of denatonium benzoate, or an alternative 
        bittering agent the use of which is required or 
        permitted under subsection (a)(2), from any liability 
        related to denatonium benzoate or the alternative 
        bittering agent.
  (d) Preemption.--No State or political subdivision of a State 
shall establish or continue to enforce 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 different from, or in 
addition to, the requirements of this section.
  (e) Exemption.--This section shall not be construed to apply 
to--
          (1) the sale of a motor vehicle that contains engine 
        coolant or antifreeze; or
          (2) a wholesale container of engine coolant or 
        antifreeze that contains 55 gallons or more of engine 
        coolant or antifreeze.

  DISSENTING VIEWS OF THE HONORABLE JOHN D. DINGELL, HENRY A. WAXMAN, 
 EDWARD J. MARKEY, EDOLPHUS TOWNS, FRANK PALLONE, JR., ANNA G. ESHOO, 
   BART STUPAK, GENE GREEN, DIANA DeGETTE, LOIS CAPS, TOM ALLEN, JAN 
       SCHAKOWSKY, HILDA L. SOLIS, JAY INSLEE, AND TAMMY BALDWIN

    H.R. 2567, the ``Antifreeze Bittering Act of 2005'', as 
reported by the Committee on Energy and Commerce is a bill with 
a worthy goal, but a fundamentally flawed approach that puts 
drinking water supplies at risk, eliminates environmental 
liability (including Superfund), and preempts all existing and 
future State laws.
    Under the terms of the bill, Congress will be effectively 
mandating the use of a particular chemical bittering agent, 
denatonium benzoate, in all antifreeze manufactured and sold in 
any container smaller that 55 gallons. The Committee is taking 
this action in the absence of sound science showing this 
chemical is safe for the environment and public health and is 
effective and efficacious in preventing children and pets from 
ingesting antifreeze.
    While many questions remain about the environmental impact 
of this chemical, what we do know is very disturbing. We know 
that multiple studies by reputable companies, such as Roy F. 
Westin, Inc., have shown that denatonium benzoate does not 
biodegrade, that it would pass through publicly-owned treatment 
facilities, and could reasonably be expected to contaminate 
groundwater and make it bitter.
    One such study conducted for the Chemical Specialties 
Manufacturers Association concluded:

          * * * denatonium benzoate 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 denatonium benzoate 
        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).

    The American Water Works Association (AWWA), representing 
4,800 utilities and 57,000 drinking water professionals, 
testified on May 23, 2006, before the Subcommittee on 
Environment and Hazardous Materials that ``we believe it is 
reasonable to expect contamination problems as DB [denatonium 
benzoate] 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.''
    The water utility industry also informed the Committee that 
taste and odor concerns are extremely important to drinking 
water utility customers. According to the U.S. distributor of 
DB, consumers would taste denatonium benzoate in water at 
levels of 1-10 parts per million (ppm), and according to AWWA, 
consumers would taste DB on the order of low part per billion 
levels, if not lower.
    The President of the Consumer Specialty Product 
Association, representing antifreeze manufacturers such as 
Honeywell, raised the same environmental concerns publicly in a 
letter to a New Mexico newspaper when he 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 denatonium 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 ground water, 
        potentially threatening public drinking water. (Letter 
        from Chris Cathcart, President, Consumer Speciality 
        Product Association, to Albuquerque Journal, July 28, 
        2004.)

    In the face of these credible and serious public health and 
environmental concerns, we strongly believe that the Committee 
should require the Environmental Protection Agency (EPA) to 
conduct a comprehensive toxicological, exposure, and risk 
evaluation of the bitterant denatonium benzoate and make a 
finding that it will not endanger public health or the 
environment before we mandate its use in antifreeze. 
Representative Solis offered this approach, but it was rejected 
by a vote of 27-17.
    The amendment offered by Representative Wilson and adopted 
by a vote of 26-13 that proponents claim provides for an 
environmental review actually stacks the deck in favor of 
mandating the one chemical, denatonium benzoate, as a bittering 
agent. It gives the final decision to the Consumer Product 
Safety Commission (CPSC), an agency with no environmental 
expertise, prohibits any new animal testing, does not allow for 
public comment or judicial review under the Federal Hazardous 
Substances Act, and places an unrealistic time frame of 180 
days for the decision by the CPSC.
    Further, the regulatory standard that the CPSC must use 
(unreasonable risk to human health or the environment, taking 
into account the economic, social, and environmental costs and 
benefits) is similar to one EPA used in its failed attempt to 
regulate asbestos, a known carcinogen, after a 10-year 
rulemaking and a 100,000 page record.
    Under the Democratic Substitute we would get the facts 
first, assure the American public that denatonium benzoate is 
safe, and only then require denatonium benzoate or another 
equally effective aversive agent in antifreeze.
    We find the opposition to this sensible and responsible 
approach surprising since it is exactly what the antifreeze 
industry recommended two years ago when they were opposing the 
mandating of denatonium benzoate in antifreeze. In a July 16, 
2004, letter the Consumer Specialty Product Association said:

          * * * In addition we believe that any additional 
        requirements for the inclusion of bitterants in 
        antifreeze and other [automotive products/engine 
        coolants] should be deferred at least until such time 
        as full toxicological, exposure and riskevaluations are 
publicly available for the bitterants themselves--both as discrete 
chemicals, and as incorporated into automotive products. Just as our 
members have developed scientific profiles of their automotive 
products, it is important both that comprehensive scientific 
assessments of the bitterants be performed, and that the complete 
results of those assessments be made to the producers of the automotive 
products, to government officials, and to the general public. This has 
not happened to date. (Letter dated July 16, 2004, from the Consumer 
Specialty Product Association to Macfarlan Smith Limited.)

    The antifreeze industry was so concerned about the 
environmental consequences of the bittering agent, denatonium 
benzoate, that they attempted to get information about its 
environmental fate, environmental toxicology, and mammalian 
toxicology from the foreign manufacturers. These attempts have 
been totally unsuccessful to date.
    The EPA has not performed any comprehensive evaluation and 
has extremely limited actual data about the chemical denatonium 
benzoate. At the Subcommittee on Environment and Hazardous 
Materials hearing on May 23, 2006, the EPA witness testified 
that the EPA had ``not actually done any testing,'' ``did not 
do a data call in,'' had ``no extensive database of toxicity or 
environmental fate information on DB,'' had ``not conducted a 
full risk assessment,'' and had ``not enough information for 
the agency to conduct a thorough human health or environmental 
assessment on this chemical.'' In fact, at the Subcommittee's 
hearing the EPA witness acknowledged that he was not aware of 
the myriad of scientific studies that the Consumer Specialty 
Products Association had submitted to the Congressional 
Research Service indicating serious environmental concerns that 
could lead to the pollution of drinking water supplies. In 
addition, the EPA could not guarantee that DB will not have 
harmful human health effects as the following exchange 
reflects:

          Mr. Inslee. . . . 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.

                            LIABILITY SHIELD

    It appears that these serious environmental concerns, and 
absence of any comprehensive evaluation showing that denatonium 
benzoate is safe, is the reason that the antifreeze 
manufacturers have insisted on the sweeping legal immunity 
provision that would eliminate all environmental liability, 
including Superfund liability for the manufacturers, 
processors, distributors, recyclers, or sellers of antifreeze 
from the inclusion of the prescribed amount of denatonium 
benzoate. Under H.R. 2567 they would be immune from liability 
for the harm caused by denatonium benzoate even if the 
antifreeze spill was caused by their own negligence or gross 
negligence. This provision violates the ``polluter pays'' 
principle. This liability shield would also override State tort 
laws. Three States: Oregon, California, and New Mexico, have 
passed laws requiring aversive agents in antifreeze. Neither 
the California or Oregon laws provide a shield against 
environmental liability, including natural resources damages. 
The New Mexico law has an environmental liability waiver from 
State laws but it has no effect on federal Superfund liability, 
and Governor Richardson informed the Committee by letter dated 
May 22, 2006, that he does not support an exemption from 
Superfund liability.
    In the case of public drinking water supplies or rural 
potable wells contaminated by denatonium benzoate from an 
antifreeze spill, H.R. 2567 would shift the costs of cleanup or 
alternative water supplies onto the community ratepayers or the 
local rancher or farmer. It gives us no comfort that in the 
case of a spill caused by the negligence or gross negligence of 
an antifreeze manufacturer that results in denatonium benzoate 
contamination that the bill does not exempt the liability of 
the foreign manufacturer of DB--a liability they in all 
likelihood do not have in the circumstances described.
    We do not support overriding our Superfund and other 
environmental laws in this manner to leave our citizens with no 
effective legal redress. While denatonium benzoate may be used 
in other household products, we are aware of no such product 
where the manufacturer of the product has been given a 
liability exemption from Federal laws, including environmental 
laws.
    The American Water Works Association, the American 
Metropolitan Water Association, the League of Conservation 
Voters, the Natural Resources Defense Council, Clean Water 
Action, Earth Justice, National Environment Trust, Friends of 
the Earth, the Sierra Club, and the U.S. Public Interest 
Research Group have told the Committee that they strongly 
oppose the environmental liability shield for the antifreeze 
manufacturers. Therefore, an amendment was offered by Reps. 
Schakowsky, Pallone, and Inslee to strike the environmental 
liability shield from the bill. It was rejected by a vote of 
27-15.

            EFFECTIVENESS OF DENATONIUM BENZOATE QUESTIONED

    Very serious questions have also been raised about the 
effectiveness and efficacy of denatonium benzoate in preventing 
unwanted toxic ingestion of antifreeze by children or dogs. The 
Animal Poison Control Center has taken the position that 
legislation requiring the addition of taste deterrents to 
certain commercial products to protect animals is not 
appropriate without scientific data demonstrating that 
commercial products containing taste aversive deterrent agents 
consistently protect dogs from consuming toxic amounts of 
commercial products. Further, the Animal Poison Control Center 
has stated:

          However, 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 
        denatonium benzoate. Furthermore, we are concerned that 
        pet owners will have a false sense of security if 
        products containing taste aversive substances were 
        marketed as ``safer'' for use in households with pets. 
        (Letter dated March 30, 2004, from Animal Poison 
        Control Center to Consumer Specialty Products 
        Association.)

    According to a June 30, 2004, memorandum from the 
Congressional Research Service assessing the studies that have 
been done to determine its effectiveness as a bittering agent 
and deterrent in animals and humans:

          Few studies have been conducted to assess the 
        effectiveness of denatonium benzoate in discouraging 
        tasting, swallowing, or otherwise repelling wildlife, 
        pets, or children. A recent review concluded that with 
        respect to carnivores, ``products that contain 
        denatonium derivatives . . . are ineffective 
        repellents, almost regardless of species . . . or 
        method of application (e.g., topical spray, 
        incorporated into products). Canids [i.e., dogs], in 
        particular coyotes, are markedly insensitive to 
        denatonium benzoate.'' \1\ A comparison of 20 deer 
        repellents reportedly concluded that compared to 
        repellents that emitted sulfurous odors, ``. . 
        .[p]roducts that use a bitter taste (denatonium 
        benzoate) were usually the least effective in reducing 
        damage by herbivores.'' \2\
---------------------------------------------------------------------------
    \1\ Mason, J.R., and J.A. McConnell. 1997. Hedonic responsiveness 
of coyotes to 15 aqueous taste solutions. Journal of Wildlife Research, 
v. 2, p. 21-24.
    \2\ Nolte, D.L., and K.K. Wagner. 2000. Comparing the efficacy of 
delivery systems and active ingredients of deer repellents. In: T.P. 
Salmon and A.C. Crabb (eds.) Proceedings, Nineteenth Vertebrate Pest 
Conference, University of California, Davis, CA, p. 93-100. [http://
www.aphis.usda.gov/ws/nwrc/is/00pubs/00-52.PDF], visited June 30, 2004.
---------------------------------------------------------------------------
          Only a few studies have been conducted with children, 
        and these were too small and narrowly focused to allow 
        conclusions regarding the efficacy of denatonium 
        benzoate.\3\ Because the chemical is odorless, its 
        bitter chemical taste could not deter children from 
        taking an initial drink of the available liquids. Of 30 
        children in one study, 7 took more than a single taste, 
        despite the bitter taste. A comment in the journal 
        Pediatrics provides a succinct summary of the situation 
        and a recommendation.
---------------------------------------------------------------------------
    \3\ Klein-Schwartz, W. 1991. Denatonium benzoate: review of 
efficacy and safety. Veterinary and Human Toxicology, v. 33, n. 6, p. 
545-547.
---------------------------------------------------------------------------
          We recommend that the use of denatonium benzoate be 
        studied in a limited number of products including those 
        containing ethylene glycol, methanol, and toxic 
        pesticides. Such studies must be monitored 
        prospectively to determine the impact of this 
        intervention. The surveillance data annually compiled 
        by the American Association of Poison Control Centers 
        is one tool that could be utilized. Future use of 
        denatonium benzoate as an aversive agent should depend 
        on the clear demonstration of efficacy in such 
        prospective studies. The use of aversive agents must 
        not be a substitute for other preventive measures, such 
        as child-resistant closures.\4\
---------------------------------------------------------------------------
    \4\ Rodgers, G.D. and M. Tenenbein. 1994. The role of aversive 
bittering agents in the prevention of pediatric poisonings. Pediatrics, 
v. 93, n. 1, p. 68-69.

    Similar concerns have been raised by governmental agencies 
and private industry.
    In a final report of the Congressionally directed study of 
aversive agents by the U.S. Consumer Product Safety Commission, 
the Commission found that: ``. . . there is no evidence that 
denatonium benzoate or any other possible aversive agent is 
actually effective at limiting ingestions of consumer 
products.'' (Consumer Product Safety Commission, Final Report--
Study of Aversive Agents, Nov. 18, 1992.)
    In the early 1990s, Texaco, Inc., conducted studies on 
Bitrex, a brand name for denatonium benzoate, and concluded: 
``We have found no evidence to date that Bitrex imparts any 
aversive properties to antifreeze, regardless of composition.'' 
(Letter dated Aug. 26, 1991, from Texaco to the Consumer 
Product Safety Commission.)
    Another study dated November 21, 1990, submitted by the 
antifreeze industry to the Congressional Research Service was 
conducted by the Procter & Gamble Company to evaluate the 
effectiveness of denatonium benzoate as an aversive. The 
Procter & Gamble study concluded the following:

          (1) Denatonium benzoate does not reduce the incidence 
        of ingestions.
          (2) Even though the number of ingestions greater than 
        one ounce is very small, the data demonstrate that even 
        with denatonium benzoate large volume ingestions can 
        occur, and that the percent of ingestions greater than 
        one ounce is similar between products with and without 
        aversive.

    Oregon was the first State in the country to mandate the 
addition of an aversive agent to antifreeze. In 2004, two 
medical doctors from the Oregon Poison Control Center published 
the results of their analysis of whether it was necessary to 
add denatonium benzoate to automotive products:

          The first law mandating addition of DB was never 
        necessary, as unintentional EG [ethylene glycol] or 
        MeOH [methanol] exposures in preschool 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. There is no compelling reason to 
        consider similar legislation in other jurisdictions. 
        (Mullins, Michael E. and B. Zane Horowitz, Veterinary 
        and Human Toxicology, June 2004, p. 46.)

    Unfortunately, we have no other information from any of the 
three States that have passed laws as to whether they are 
effective in preventing unwanted ingestion of antifreeze since 
the States are not collecting or recording such data.
    Nationally, we are aware that without an aversive agent, a 
review of U.S. poison center fatality data for the 18-year 
period between 1985-2002 did not find any suspected suicides or 
deaths from ethylene glycol reported in children under the age 
of 12 years. (American Association of Poison Control Centers 
report in Journal of Clinical Toxicology (2005).)
    Until this year's version of the legislation, H.R. 2567, 
provided the antifreeze industry with broad liability immunity 
and preempted all State laws, the industry opposed the 
inclusion of the bitterant denatonium benzoate in antifreeze, 
stating that ``there is no demonstrated scientific basis for 
these State and local requirements.'' (Letter dated July 16, 
2004, from the Consumer Specialty Product Association to 
Macfarlan Smith Limited.)
    H.R. 2567 would not allow a State to enact and enforce a 
requirement that manufacturers of antifreeze use an ``aversive 
agent'' in antifreeze rather than a bittering agent. The 
Federal Government should not enact legislation that strips 
away the ability of a State to better protect the health and 
safety of its citizens.
    We believe that we should follow a normal and responsible 
legislative process and obtain the facts first, so as to 
resolve the serious questions about the environmental risks and 
effectiveness of denatonium benzoate before nationally 
mandating it or another equally effective aversive agent in 
antifreeze. H.R. 2567 as reported is a deeply-flawed piece of 
legislation and does not merit support.

                                   John D. Dingell.
                                   Henry A. Waxman.
                                   Edward J. Markey.
                                   Edolphus Towns.
                                   Frank Pallone, Jr.
                                   Anna G. Eshoo.
                                   Bart Stupak.
                                   Gene Green.
                                   Diana DeGette.
                                   Lois Capps.
                                   Tom Allen.
                                   Jan Schakowsky.
                                   Hilda L. Solis.
                                   Jay Inslee.
                                   Tammy Baldwin.