177 



Many questions are raised by the Corrosion Proof Fittings Case, but two observa- 

 tions may serve to help us think about what we want from TSCA. First is a basic 

 question about the standard of review that appears in the Act: Is the substantial 

 evidence rule the proper standard of review for administrative action taken by EPA 

 to test or regulate chemicals under TSCA? 



Historically, the rational basis test to prevent arbitrary and capricious adminis- 

 trative decisions is used to guide the courts in their review of administrative or gov- 

 ernment regulatory activity. If EPA rationally or reasonably determines that a 

 chemical should be tested under Section 4 of TSCA, or that regulatory steps should 

 be taken to restrict the production of a chemical under Section 6, its expertise 

 should be sufficient to permit testing. 



In 1976 Congress chose to include the substantial evidence rule exception for Sec- 

 tions 4, 5 and 6 of the Act. In 1994 the public purposes of the Act should be en- 

 larged and the Agency should be enabled to perform testing and regulation under 

 reasonable regulatory conditions. The courts should not be led in the direction of 

 substituting their judgment for that of the agency. Such a standard has the prac- 

 tical effect of affording less deference to EPA's administrative findings since the 

 court essentially will conduct its own cost-benefit analysis. Congress ought not to 

 delegate to the courts the decision making ability that more properly belongs to an 

 administrative agency. I therefore urge you to repeal the judicial review standard 

 contained Section 19(c)(i)(B)(ii) of TSCA, 15 U.S.C. 2618(c) (i) (B) (ii) 



5. Burden of Proof 



The Fifth Circuit ruling in the Asbestos case also raised the stakes for determin- 

 ing how the Agency could proceed based on a valid Agency finding of unreasonable 

 risk. The court's narrowly interpreted the "unreasonable risk" and "least burden- 

 some alternative" requirements such that any future determinations by the agency 

 must attain a degree of conclusiveness that exceeds what we can reasonably expect 

 from governing bodies. 



Incomplete law and economic ideas such as "least burdensome alternatives" and 

 absolute cost-benefit analysis place on the public the responsibility to show whether 

 a chemical is not safe or presents an unreasonable risk. The burden and the cost 

 to make such determinations, under such arduous standards, has become so infeasi- 

 ble that only a modest number of chemicals are tested and practically none are reg- 

 ulated. Agencies charged with monitoring and regulating a commercial activity as 

 expansive as the chemical industry must be empowered to achieve the legislative 

 goals Congress intends. 



Moreover, such burdensome standards do not permit informed communities to 

 meaningfully participate in the regulatory process because their concerns are not al- 

 ways quantified in cost/benefit terms. 



It is not impossible for Congress to evaluate economic and cost-benefit consider- 

 ations at the legislative level. The cost benefit analysis should be resolved by Con- 

 gress in favor of protecting public health and the environment against "unreason- 

 able risk." TSCA can be restored to a functional state by articulating, as a general 

 purpose of the Act, its pollution prevention purposes and by removing the regulatory 

 trap created by the "least burdensome alternative" language. 



Once a valid finding (rational basis) of "unreasonable risk" is made, EPA should 

 implement steps to assure public health to the extent feasible, thereby allowing it 

 to institute pollution prevention options, including the option to ban production if 

 necessary. The cost-benefit analysis is contained in the unreasonable risk standard 

 created by Congress, not in the law and economics leanings of the courts. Subse- 

 quently, Congress should amend TSCA to add a pollution prevention hierarchy as 

 legitimate provisions for regulatory action under Section 6. The ruling in the asbes- 

 tos case cannot be reconciled with the Pollution Prevention Act of 1990 unless pollu- 

 tion prevention is articulated and authorized under TSCA, both in the general pur- 

 pose clause of the Act and in Section 6. 



It is in this context that TSCA provides a very important lesson about how cost/ 

 benefit analysis, as interpreted by the court, has been used to defeat the Act in one 

 of its essential purposes. It is unreasonable to believe that Congress intended TSCA 



