131 



rected to the agency quite often is simply stamped CBI and every- 

 thing contained in that report or transmittal has to maintained as 

 CBI. 



So really the question is, How do we properly create a gate-keep- 

 ing device to make sure that 



Senator Reid. That is the question I am asking you. 



Mr. MONSMA. I think OTS at USEPA should be given the author- 

 ity to declare the information that is clearly not CBI as such. The 

 process for them to declassify it has to go through OGC and is 

 quite cumbersome. In a practical matter, it doesn't happen. So em- 

 powering the agency to make those clear statements would be help- 

 ful. 



Senator Reid. Do you agree, as some have suggested, that the 

 Fifth Circuit's decision on EPA's asbestos rule cripples TSCA? 



Mr. MoNSMA. Absolutely. A lot of discussion here today was what 

 we do about existing chemicals. Some of it is couched in terms of 

 new programs, new structures, and new standards. I think the ar- 

 bitrar>' and capricious standard that is usually used for reviewing 

 administrative regulatory activity should be replaced to TSCA in- 

 stead of the substantial evidence rule. That element alone raises 

 the burden and raises the level at which the agency must perform. 



I think the agency is quite adept at being able to do the analysis 

 and reach the conclusions. But if they are having to create a docu- 

 mentary record that accounts for all cost-benefit analysis and has 

 some type of alternative analysis, they are really not going to be 

 able to perform properly under TSCA. 



Senator Reid. So you don't see a problem with, in effect, redoing 

 the statute pursuant to the Fifth Circuit's ruling? 



Mr. MONSMA. I think that has to be addressed. Mr. Chairman, 

 10 years ago, I believed in Senator Durenberger's bill. The arbi- 

 trary and capricious standard was cited as a potential substitute 

 for the substantial evidence rule. As a matter of fact, that was be- 

 fore the asbestos case. So even then, it was considered to be inhib- 

 iting the agency, besides whatever the other ideological inhibitions 

 may be at the agency. 



Senator Reid. Your testimony offers several suggestions for 

 modifying section 6, such as changing the substantial evidence re- 

 view standard and the least burdensome language. 



Do you think it is possible to modify the section or make it more 

 effective without changing the unreasonable risk standard? 



Mr. MONSMA. I have struggled with that question. I think the 

 unreasonable risk standard may be — there may be a context in 

 which it is appropriate. Part of the reason unreasonable risk seems 

 so ominous is that we have come to rely too much on cost-benefit 

 analysis and risk assessment that is overstated. There are a num- 

 ber of indicators and a number of public concerns that aren't rep- 

 resented in those formulas. 



So if the agency was able to find unreasonable risk based on a 

 rational basis — that is to say, they were able to produce an admin- 

 istrative record that satisfied reasonable or rational choices — ^that 

 test of unreasonable risk may not seem so daunting. As it is struc- 

 tured now, the court interpretation really makes it unquestionable. 

 In other words, the agency has to find irrefutable evidence. 



