71 



lars per life saved. In doing so, the court "substituted its judgment for EPA's regard- 

 ing the degree to which unquantified factors may be used. . . Nowhere in TSCA or 

 its legislative history did Congress restrict EPA's judgment by saying, as the Court 

 did^ that unquantified benefits may only be used to 'tip the balance' in close cases, 

 but may not play a significant role in EPA's unreasonable risk determination." 



Petition for Rehearing at 13. In reauthorizing TSCA, Congress should clarify that 

 the Fifth Circuit's interpretation of TSCA is erroneous. 



Finally, TSCA's efficacy is further reduced by unnecessary procedural burdens im- 

 posed on EPA. In addition to following normal public-notice-and comment rule- 

 making procedures. TSCA provides that, as part of a section 6 rulemaking, "inter- 

 ested parties" can force EPA to undertake an unwieldy process entailing cross-exam- 

 ination of witnesses and generation of verbatim transcripts. TSCA § 6(c)(3). While 

 cross-examination has a time-honored place in the judicial context and elsewhere 

 when personal demeanor and credibility are critical to fact-finding, we know of no 

 basis for believing that cross-examination is more likely to gather pertinent informa- 

 tion than the normal notice-and-comment process that Congress has found sufficient 

 for regulatory development under most other major environmental statutes. 



In sum, as abundantly demonstrated by experience in dealing with asbestos, the 

 cross-examination provisions contained in section 6(c)(3) are more trouble than they 

 are worth; they are a drain on the resources of the Agency, industry, and advocacy 

 groups alike. EDF urges Congress to delete this provision, which contributed to the 

 lengthy delays in the asbestos proceeding. Interested persons' interests can be suffi- 

 ciently protected by their ability to make written submissions to the rulemaking 

 docket, pursuant to section 6(c)(2) and the Administrative Procedure Act. Deletion 

 of Section 6(c)(3) of course would not preclude the Agency from including cross-ex- 

 amination opportunities in its public hearings where the Agency saw a value in 

 doing so. 



6. Confidential Business information 



The role of public access to confidential business information is a thorny one, no- 

 where more so than under TSCA. Through our membership in the Community- 

 Right-To-Know Working Group, EDF has been participating in a dialogue with EPA 

 on this topic, as reflected in the attached comments. We encourage the Committee 

 to give full consideration to these important issues in reauthorizing TSCA. 



7. Biotechnology 



Finally, EDF understands that EPA's TSCA rule covering genetically engineered 

 micro-organisms was submitted to the Office of Management and Budget for review 

 within the last few weeks. EDF applauds this long-awaited step. We also under- 

 stand that rumblings from the regulated community suggest that the Agency may 

 be faced with a challenge to its legal authority under TSCA to issue such regula- 

 tions. While EDF believes EPA has ample authority under the statute as it now 

 stands, we urge Congress to obviate the need for protracted legal proceedings by 

 clarifying EPA's authority to regulate such micro-organisms under TSCA. Under 

 separate cover, EDF Senior Scientist Dr. Rebecca Goldburg and Senior Attorney D. 

 Douglas Hopkins are supplying the Committee with additional information on this 

 topic for inclusion in the record of todays hearing. 



Thank you for the opportunity to present our views. 



Comments on the Environmental Protection Agency's Proposed Actions to 

 Reform TSCA Confidential Business information 



Working Group on Community Right-to-Know, 



Washington, DC, August 27, 1993. 



The Working Group on Community Right-to-Know is a national affiliation of envi- 

 ronmental and public interest groups concerned with the public's right-to-know 

 about chemical hazards. We appreciate the opportunity to comment on EPA's pro- 

 posed steps for making TSCA data publicly accessible and generally useful. 



