176 



sessment have supplanted rational basis and reasonableness as the standards for 

 controlling the presence of toxic chemicals in our environment. Consequently, we op- 

 erate with assumptions about acceptable risk that are so onerous that only Con- 

 gress, at great cost and delay, can decide if a particular substance or its use pre- 

 sents too great a risk for its continued production. This role was properly defined 

 and delegated to the U.S. EPA in 1976 and is a public pvirpose which must now 

 be restored. 



We have allowed the burden of proof required for showing that certain toxic sub- 

 stances present an unreasonable risk to rise to a level that virtually guarantees no 

 chemical is too risky to produce. In fact, we seem to encourage the construction of 

 overt technical obstacles, such as absolute cost/benefit applications, which limit any 

 real control over toxic chemicals. We have fostered a commercial right to escape reg- 

 ulation and are left with a institutional inhibition against such controls. We have 

 chosen to regulate an activity of public concern and then proceeded to thwart our 

 ability to carry forward the responsibility we created. 



3. Relation to Environmental Justice 



How often is the production and distribution of toxic substances disrupted for the 

 sake of keeping the environment healthy? Why does the public bare the burden and 

 cost to prove that a chemical is unsafe? Economically, shoioldn't the cost of proving 

 that products are safe be borne not by taxpayers but the industry that profits from 

 their production? And why shouldn't some chemicals be banned if necessary? Why 

 does the decision to regulate a harmful substance require completely incontrovert- 

 ible evidence of unreasonable risk? If you travel to poor communities and commu- 

 nities of color that live with concentrated industrial activity and pollution, these 

 questions are not uncommon. 



The advent of community right to know laws, computer data transfer, and the on- 

 line services are significant developments in modem environmental awareness. It 

 is my belief that this technology has connected small communities, poor commu- 

 nities and communities of color to environmental decisionmaking in such a way that 

 economic and environmental equity must become basic regulatory factors. The en- 

 actment of these reporting laws has led to the development of the Toxic Release In- 

 ventory which has proven to be instrumental in allowing communities to understand 

 and act upon toxic releases. 



Toxics information collected under SARA Title III forms the necessary pre- 

 requisite for community-based pollution prevention activity such as Toxics Use Re- 

 duction plans and Good Neighbor Agreements. In fact, many significant pollution 

 prevention precedents come out of Citizen Suits filed under SARA Title III. Settle- 

 ments in these enforcement cases have resulted in supplemental environmental 

 projects incorporating source reduction and phase-out plans for TRI chemicals. 



Environmental justice principles are relevant to TSCA in many ways. Adopting 

 pollution prevention 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 decisions to identify, catalog, test and 

 regulate chemicals of concern is a cornerstone of the pollution prevention concept. 



4. Standard of Review 



The principles of pollution prevention and comimunity right to know must be ar- 

 ticulated and observed in order to be meaningful. Similarly, in order to uphold the 

 public right to know about harmful health and environmental risks associated with 

 the use and production of toxic chemicals, the public must be secure in its knowl- 

 edge that the information collected under TSCA will be acted upon. TSCA must per- 

 form according to the public policies and general purposes it was designed bring 

 about. 



Congress must correct the language of TSCA to prevent the unintended outcome 

 of the Fifth Circuit Court of Appeals ruling which determined, based on a strict 

 reading of the substantial evidence rule, that EPA did not sufficiently consider 

 whether a ban of asbestos was the least burdensome alternative available for regu- 

 lation. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991). 



