70 



goals. Moreover, as interpreted by some courts, the current statutory language 

 verges on the unworkable, particularly for multi-faceted problems that require 

 major regulatory initiatives. 



This unacceptable result arises from the interplay of several elements of the exist- 

 ing statutory language: (i) the "substantial evidence" standard for judicial review of 

 testing requirements (section 4(a)), significant new uses rules (section 5(b)(4)), and 

 core regulatory authorities (section 6); (ii) section 6's requirement that EPA utilize 

 the "least burdensome" approach in crafting regulations; and (iii) the "unreasonable 

 risk" standard utilized in sections 4, 5, and 6. To make matters even worse, section 

 6 also imposes an unusual and unwieldy set of procedural requirements on the 

 Agency. EDF strongly believes that this situation must be rectified as an essential 

 component of any meaningfiil TSCA reauthorization. 



Unlike most provisions of other major environmental statutes of the modem era, 

 EPA's substantive evidentiary standard for promulgating regulations on is not the 

 usual one of "arbitrary and capricious" but rather "substantial evidence." Although 

 EDF has itself prevailed against EPA under this standard {EDF v. EPA, 630 F.2d 

 1267 (D.C. Cir. 1980) (holding that EPA lacked substantial evidence to support its 

 failure to comprehensively regulate PCBs), we strongly believe that the "substantial 

 evidence" standard unduly constrains EPA's regulatory discretion, particularly in 

 light of subsequent case law. 



The constraints potentially posed by the interplay of these factors — and their ill- 

 wisdom as a matter of environmental policy — are amply illustrated by the notorious 

 asbestos regulations case, Corrosion Proof Fitting v. EPA, 947 F.2d 1201 (5th Cir. 

 1991). There, the Fifth Circuit vacated EPA's regulations limiting most uses of as- 

 bestos on the grounds that the Agency failed to present enough evidence to qualify 

 as "substantial" regarding the 'least burdensome" and "unreasonable risk" compo- 

 nents of TSCA. 



The court first interpreted the substantial evidence standard as calling for "a con- 

 siderably more generous [i.e., less deferential] judicial review" than does the arbi- 

 trary-and-capricious standard. 947 F.2d at 1213. n. 13. In effect, the court relied 

 upon this language to justify its refiisal to accord deference to EPA's conclusions. 

 Assuming arguendo that the court's interpretation of the "substantisd evidence" 

 standard is correct, it has no place in a statute such as TSCA that may depend on 

 EPA's exercise of its expertise in weighing complex factual issues "on the frontiers 

 of scientific knowledge" (cf. Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir.) (upholding 

 lead-gas phasedown regulations under Clean Air Act)). If, however, this reading of 

 the "substantial evidence" does not accvu-ately reflect Congress's intentions under 

 TSCA, Congress should clarify as much to minimize further judicial misinteipreta- 

 tions. 



The Fifth Circuit then proceeded to apply its sweeping reading of the substantial 

 evidence test to the "least burdensome" requirement in a way that severely under- 

 cuts the workability of section 6. In doing so, the court largely disregarded the asso- 

 ciated phrase of the statute, i.e., "necessary to protect adequately against such risk." 

 As EPA noted in its petition for rehearing, the Agency had expressly concluded in 

 its decisional record that only a ban will adequately reduce the risks posed by the 

 manufacture, installation, use, maintenance, repair, removal, and disposal of the 

 products subject to this rule. . . EPA rejected further reliance on stricter exposure 

 standards, and on work practices, precautions, and controls ("controlled use") alter- 

 natives under TSCA section 6(a)(5) because they have been used before and shown 

 to be "ineffective" in reducing "the unreasonable risk to human health posed by as- 

 bestos exposure. . .". 



Respondents' Petition for Rehearing, Corrosion Proof Fitting v. EPA, No. 89-4596 

 (filed Nov. 15, 1991). 



Finally, the court interpreted "unreasonable risk" as essentially requiring cost- 

 benefit analysis, and as prohibiting regulatory action where — in the court's view — 

 the costs are too great compared to the benefits. 947 F.2d at 1223. While the court 

 accused EPA of ignoring costs, it is abundantly clear that the agency did no such 

 thing; indeed, it separately calculated dollars-per-life-saved for various uses of as- 

 bestos addressed by the regulation. Rather, the court invalidated the asbestos regu- 

 lations because it disagreed with the balancing decision EPA made in terms of dol- 



