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unreasonable risk to health or the environment. Unreasonable risk, 

 however, does not mean unquestionable or irrefutable risk. 



It is significant to recognize that TSCA is capable of regulating 

 the production or use of chemicals before they enter the flow of 

 commerce or the waste stream. In this sense, TSCA should be un- 

 derstood as an important pollution prevention and risk prevention 

 law. 



TSCA has become hostage, however, in the industrial and ideo- 

 logical raid on reasonable Grovemment regulation. Undue limita- 

 tions by the courts of TSCA's language have severely diminished 

 TSCA's regulatory capacity to restrict or limit production of harm- 

 ful chemicals. Absolute cost-benefit analysis and sheer risk assess- 

 ment have supplanted rational basis and reasonableness as stand- 

 ards for controlling the presence of toxic chemicals in our environ- 

 ment. 



We have allowed the burden of proof required for showing that 

 certain toxic substances present unreasonable risk to rise to a level 

 that virtually guarantees that no chemical is too risky to produce. 



If you travel to poor communities and communities of color that 

 live with concentration of industrial activity and pollution, you will 

 hear questions such as: How often is the production and distribu- 

 tion of toxic substances disrupted for the sake of keeping the envi- 

 ronment healthy? Why does the public bear the burden and cost to 

 prove that a chemical is unsafe? Why shouldn't some chemicals be 

 banned, if necessary? 



Environmental justice principles such as these and concerns of 

 equity are relevant to TSCA in many ways. Adopting pollution pre- 

 vention and public right-to-know goals, as general purposes of the 

 act, will advance these principles by ensuring that risk information 

 will be disseminated and acted upon. Public participation in the de- 

 cision to identify, catalog, test, and regulate chemicals of concern 

 is also a cornerstone of pollution prevention concepts. 



The principles of pollution prevention and community right-to- 

 know must be articulated and observed in order to be meaningful. 

 Similarly, in order to uphold the public right-to-know about harm- 

 ful health and environmental risks associated with the use and 

 production of toxic chemicals, the public must be secure in the 

 knowledge that the information collected under TSCA will be acted 

 upon. 



Therefore, Congress should amend the language of TSCA to cor- 

 rect the unintended outcome of the Fifth Circuit's asbestos ruling. 

 Many questions were raised by the case, but two observations may 

 serve us to help think about what we want from TSCA. 



First, there is a basic difficulty about the standard of review that 

 appears in the act. The substantial evidence rule, as applied in the 

 asbestos case, is not the proper standard of review for administra- 

 tive action taken by EPA to test or regulate chemicals under TSCA. 

 The substantial evidence rule raises the standard of review too 

 high. In 1976, Congress chose to include this standard in sections 

 4, 5, and 6. 



In 1994, however, the public purposes of the act should be en- 

 larged and the agency should be enabled to perform testing and 

 regulation under the more appropriate arbitrary and capricious 



