Document zQQpx8RRGoVkb9m7ekBmn5En6

716 N CHEMICAL REGULATION REPORTER Special Analysis APPEALS COURT RULING OVERTURNING EPA ASBESTOS BAN: TAKING THE RUST OFF THE TOXIC SUBSTANCES CONTROL ACT by Edward W. Warren, Timothy S. Hardy and Gary E. Marchant1 In Corrosion Proof Fittings v. EPA,2 the Fifth Circnit Court of Appeals overturned the Environmental Protection Agency's ban on asbestos-containing products under the Toxic Substances Control Act.* The court's decision has been described by some as a "death knell" for TSCA4 and at least one senator has reportedly stated that the ruling proves that TSCA is weak and should be amended.* To be sure, the Fifth Circuit's decision is without doubt one of the most significant environmental decisions in re cent years. Contrary to the gloomy predictions of some, however, the effect of the court's decision will be to restore the original congressional goals for the TSCA program and to provide for more effective, principled, and rational regu lation of hazardous substances under TSCA as well as other regulatory statutes. And, properly administered, TSCA re mains a source of substantial EPA regulatory authority over chemical use. EPA's Proceedings To Ban Asbestos In 1976, with chemicals such as asbestos in mind, Con gress enacted TSCA as a "gap-filling" or "umbrella" statute intended to coordinate government regulation of chemical substances that posed risks to workers as well as to the general public through many different environmental media.6 The concept was to give EPA plenary authority to take a variety of steps up to and including the imposition of product bans as necessary to deal most effectively with toxic substances. EPA's authority to take such steps was clear, provided that the agency had a "reasonable basis" for finding that current uses of a substance posed an "unreason able risk," and that the regulatory measure chosen was the "least burdensome" that would "adequately" control the risk.7 * * 10 1 Warren and Hardy are partners of Kirkland It Kills, which represented the petitioners in Corrosion Proof Fittings. Marchant, a 1990 graduate of the Harvard Law School and the John F. Kennedy School of Government, Is an associate with Kirkland A Ellis. 1947 F.id 1202 (5th Or. 1991). *See 54 FR 29456 (1989). 4 See Environmentalists Say Asbestos Decision Proves TSCA Inadequate To Control Chemicals, Chemical Regulation Report er, Oct. 25, 1991, at 1020, 1021 (quoting Jacqueline Warren of the Natural Resources Defense Council and others). See Special Analysis: Possible TSCA Changes, Pollution Prevention, Pesticide Reregistration Seen As Top 1002 Issues, Chemical Regulation Reporter, Jan. 17,1992, at 1497. * See House Report No. 1541, 94th Cong., 2d Sess. 6 (1975) ("Hit Rep. 1341"); Senate Report No. 698,94th Cong., 2d Sess. 1 (1976) ("S. Rep. 698"). 715 USC 2605(a) (1988). When EPA formally commenced its asbestos proceeding in 1979,* asbestos seemed to be an ideal candidate for exercising the agency's authority under TSCA* Asbestos is the generic term for a group of naturally occurring, silicate fibers that exist in a variety of types and sizes and which have been used for decades in products because of their resistance to heat and fire, as well as their high tensile strength and flexibility. As of 1974, the United States was consuming more than 767,000 tons of asbestos annually,16 which were used in as many as 5,000 separate consumer and industrial products.11 * * It has been known for decades that exposure to high levels of asbestos could lead to progressive pulmonary disease (asbestosis).11 By the 1970s, asbestos also was recognized widely as a human carcinogen, shown by epidemiological studies to produce mesothelioma, lung cancer, and perhaps other malignancies.1* Evidence available to EPA suggested that as many as 10,000 people annually were dying from past exposure to asbestos fibers, mostly resulting from asbestos insulation products used in shipbuilding during World War II and the Korean War and thereafter during the postwar construction boom.14 * It was against this background that EPA in 1979 launched a joint proceeding with the Consumer Product Safety Com mission to ban, phase out, or otherwise regulate some or all of the many hundreds of commercial uses for asbestos.16 Even before EPA's proceeding had begun, however, the commercial realities regarding asbestos use had begun to change. The products most responsible for the epidemic of asbestos disease had disappeared from the market, partially because manufacturers and industrial and commercial users became aware of the hazardous properties and potential liabilities of asbestos products, and partially because of the stringent regulatory measures imposed in the early 1970s.16 144 FR 60061 (1979) (EPA Asbestos Advance Notice of Proposed Rule-making ("ANPR")). * Asbestos was ooe of the substances Congress had in mind when it enacted TSCA See House Report No. 1541, supra note 8, at 3. 10 US. Dept of Interior, Bureau of Mines, Mineral Indnstry Sur veys 5 (April 18,1986). 1144 FR 60062. 11 See Irving J. Selikoff A Douglas H. K Lee, Asbestos and Disease 22-25 (1978). 11 Id. at 26-50. 14 See 51 FR 3738 (Jan. 29,1986). 1144 FR at 60057 (CPSC ANPR); 44 FR 60061 (EPA ANPR). 11 See, e.0., 36 FR 10466 (1971) (OSHA sets 12 fiber/cnhic centi meter occupational exposure standard for asbestos); 36 FR 23208 (1971) (OSHA lowers standard on an emergency basis to 5 l/cc% 37 FR 11318 (1972) (OSHA lowers asbestos standard again to 2 f/cc); 38 FR 8820 (1973) (EPA Issued hazardous air pollutant standards for asbestos, effectively banning the use of asbestos in insulating prod ucts); 44 FR 60057 (1979) (CPSC ban on various asbestos products). 7-10-92 Copyright 01992 by The Bureau of NsOonsI AMrs. Inc. 014S-7973/92/SO+JO HWBUI0006361 CURRENT REPORT 717 By 1984, U.S. asbestos consumption was less then 35 percent of the 1974 total;17 1b8y* 1990, It wonld be only 5 percent.1* Most asbestos products that remained on the market as of 1979, when EPA's proceeding began, had the asbestos fibers encapsulated in or locked into a plastic, cement, tar, or other matrix that greatly diminished fiber release.1* Despite such changes in asbestos use and exposures, and after almost 10 years of policy reversals, EPA promulgated a final rule in July 1989 that banned essentially all asbestos products in three stages, concluding in 1996.* EPA calculat ed that its final regulation would prevent 202 cancer cases (or 148 cases if benefits were discounted from the time of first exposure). The total costs of the ban, expected to be incurred over a 13-year period, were estimated to be 1459 million, assuming that the cost of asbestos substitutes de creased by 1 percent per year.21 If the price of substitutes were not to decline, the total costs would reach |806 million.22 23 Of the 202 undiscounted cancer cases that EPA predicted the ban would avoid, about 144 were accounted for by friction products, most significantly including asbestos brake pads.22 The industry maintained that these benefits were exaggerated because the fiber type used in asbestos brake pads (chrysotile) was not associated with mesotheli oma and had proven far less potent in the relevant epidemi ological studies 24 Accordingly, they argued that EPA should have estimated benefits for the friction product industry based solely on the epidemiological evidence applicable to brake manufacturing, as various other countries had done in their regulation of asbestos.22 * EPA rejected these contentions as well as the following three arguments made by the industry that would have undercut substantially the agency's benefits estimates. First, EPA acknowledged that its bans would require asbestos in brakes to be replaced by other fibers that are themselves probable or possible carcinogens.28 However, 17 Total asbestos consumption in 1984 was 226,000 tons, down from 767,000 tons in 1974. See US. Dept of Interior, supra note 10, at 5. 11 Total US. asbestos consumption in 1989 was 85,000 tons. See U.S. Department of Interior, Bureau of Mines, Asbestos 1090 3 (1991). 18 See Joint Brief of Petitioners Asbestos Information Associa tion/North America and The Asbestos Institute at 19, Corrosion Proof Fittings. (5th Circuit 1991) (No. 89-4596) (hereinafter AIA/AI Joint Brief). 24 54 FR 29466 (1989). 1154 FR at 29485. "Id. 23 Id. (Table VHI). Disc and drum brake pads were the major asbestos "friction" products included in the EPA ban. Other friction products included automatic transmission components and clutch facings. 24 See Comments of the Asbestos Information Association/North At ca and the Asbestos Institute on EPA's New Case, Vol. IX, at 16 (June 30,1988) (EPA Docket No. OPTS 62036D) (hereinafter AIA/AI Comments on New Case). See also B.T. Mossman, et al,, Asbestos: Scientific Developments and Implications for Public Policy, 247 Science 294, 296 (1990); G. Berry It M.L. Newbouse, Mortality of Workers Manufacturing Friction Materials Us ing Asbestos, 40 Br. J. Indus. Med. 1, 3-4 (1983). 28 See AIA/AI Comments on New Case, supra note 24, at 16-17. 28 See 54 FR 29480. EPA admitted that the use of substitutes "may potentially result in some exposures that exceed exposures from asbestos" and might present nwonantifixt carcinogenic risks. Id. at 29482. EPA determined that it was not able to make a "definitive assessment" of the risks from these substitute products.27 Rather than attempting to approximate these risks, EPA chose to ignore them altogether in its cost-benefit calcula tions. thereby imnlidtly assuming the risks from substitute fibers were zero.** Second, EPA refused to include consideration of the po tentially increased safety risks of non-asbestos brakes in its cost-benefit calculations.2* This issue had figured promi nently in the 1986 hearings where auto manufacturers ex pressed concern that switching from asbestos would pose formidable re-engineering problems, especially for rearwheel drum brakes, and that a serious safety issue might arise if EPA forced brakes originally designed for asbestos pads to be repaired with non-asbestos pads.20 In 1987, EPA commissioned an expert report from the American Society of Mechanical Engineers (ASME) that largely confirmed the auto industry's concerns.21 Despite further testimony that even a small decrease in safety from the use of non-asbestos pads could dwarf the health benefits estimated by EPA, the agency nonetheless elected to omit the safety issue from its benefits calculations.22 Finally, the industry argued that most of EPA's predicted benefits from banning asbestos friction products could be achieved simply by imposing tighter engineering controls on brake repair operations.22 Accounting for nearly 75 percent of the benefits cited by EPA, asbestos exposure from brake repair operations was being studied by the Occupational Safety and Health \4ministration on remand from the D.C. Circuit.24 In ad ce of OSHA's proceedings, the National Institute for Occupational Safety and Health had conducted a number of studies of engineering controls that showed that asbestos exposures could be reduced far below current levels in brake repair shops.25 Despite industry arguments that the imposition of such controls by OSHA or EPA must be considered as a "less burdensome" regulatory alternative under TSCA, EPA re fused to alter its benefits estimate or to calculate the alternative benefits that would be achieved by such engi neering controls.28 27 Id. at 29481-82. 22 Id. at 29482. 28 Id. at 29494-95. 20 See AIA/AI Comments on New Case, supra note 24, at 35-40. 21 See American Society of Mechanical Engineers, Analysis of the Feasibility of Replacing Asbestos in Automobile and Track Brakes (April 15.1987). " For example. Dr. Robert Crandall testified that a 1 percent increase in U.S. annual traffic fatalities would result in an addition al 500 immediate traffic fatalities per year -- far outweighing the 143.7 statistical cancer cases prevented which EPA projected over the next SO years as a result of the ban on asbestos products. See Robert W. Crandall, The Cost-Effectiveness of EPA's Proposed Ban and Phase-Out of Asbestos Products, AIA/AI Comments on New Case, supra note 24, Vol. X. App. B3, at 32. 22 See Opening Written Comments of the Asbestos Information Association/North America and the Asbestos Institute, Vol. 1, at 97-98 (June 29, 1986) (EPA Docket No. OPTS 62036) (hereinafter AIA/AI Opening Comments). 24 See Building & Construction Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258 (D.C. Cir. 1988). 22 NIOSH found that by using new technology it was possible tr reduce average worker exposures to 0.004 f/cc -- l/50th of the then current OSHA PEL. See AIA/AI Joint Brief at 06. 24 54 FR 29489. 7-10-92 Chemical Regulation Reporter 014S-7973/92/SO+.5O HWBUI0006362 718 Apart from asbestos friction products, most of the other benefits claimed by EPA were spread over the dozen or so products that bad survived from the nearly 3,000 asbestos product uses a decade earlier. Three of the most important product categories in terms of current asbestos use were asbestos cement ("A/C") pipe, A/C shingles and asbestos roof coatings.17 The respective benefits and costs of banning those three products are summarized in the table below, accepting EPA's substitute price decline assumption, and discounting benefits nominally from the time of first exposure. Table: Cost-Effectiveness Of Ban Of Three Asbestos Product Categories -- Assuming Discounting of Benefits And No Annual Decline In Price Of Substitutes Product Category Benefits (Cancer Cases) Prevented) Costs (Million 3) Cost-PerCancer Case Prevented (Million f) A/C Pipe A/C Shingles Roof Coatings 3.17 0.23 1.08 227.33 34.18 177.40 71.7 151.5 164.3 Far greater differences are seen if benefits are discounted from the onset of expected disease rather than from the time of exposure.** EPA's estimates for these and the other products covered by its ban were challenged on grounds analogous to those regarding asbestos friction products. Most significantly, the industry argued that A/C pipe would be replaced either by polyvinyl chloride or iron ductile pipe, both of which posed carcinogenic risks comparable to A/C pipe.*8 EPA acknowl edged that the risks from both of these substitutes were significant but it nonetheless refused to make approximate quantitative estimates or otherwise discount the relatively small benefits the agency claimed would result from ban ning A/C pipe.40 Similar arguments were rejected by EPA regarding other substitutes that would be used to replace asbestos in many other products.41 * * Reversal Of The Asbestos Ban Confronted with this record, the Fifth Circuit reversed EPA's ban on asbestos products, but significantly with little of the usual delving into technical and scientific issues that CHEMICAL REGULATION REPORTER frequently characterize intrusive "hard look" judicial reversals.4* Although expressly anchored in TSCA and its "substantial evidence" test, the court's opinion focused broadly on the overall unreasonableness of the result reached by EPA. Thus, the court viewed its role as that of determining whether EPA's decision rested upon what "a reasonable mind might accept as adequate to support [its] conclu sion.''4* Invoking TSCA's admonition that EPA act in a "reasonable and prudent manner,"44 4t5he* court cautioned that the "burden remains on the EPA" to "offer a rational connection between the facts found and the choice made." 48 * First and foremost, the court concluded that EPA must engage in "a balancing test like that familiar in tort law." 44 Although such "balancing" need not include "an exhaustive, full-scale cost-benefit analysis," it would call for "a general ized balancing of costs and benefits."47 EPA accordingly was required to show that "benefits to be achieved by" its product ban "bear a reasonable relation ship to the costs imposed." 41 While stating its reluctance to decide "what an appropriate expenditure is to prevent someone from incurring the risk of an asbestos-related death," the court opined that the benefits estimated by EPA for products such as those in the previously described table "seem far outweighed by the astronomical costs."48 The court's confidence in this conclusion was bolstered by the fact that its "review of EPA case law reveals [that] such high costs are rarely, if ever, used to support a safety regulation." 50 As further support, the court cited a recent study showing that deaths from "ingested toothpicks" over the same period would be nearly double those predicted by EPA from banning "asbestos pipe, shingles and roof coatings."S1 * * The court also faulted EPA for failing to consider regula tory alternatives less burdensome than a total product ban. EPA thus "presented only two comparisons ... a world with no regulation ..., and a world in which no manufacture of asbestos would take place." ** In calculating the benefits of its ban, EPA had "explicitly refused to compare it to an improved workplace in which currently available control technology is utilized," and bad thereby "artificially inflated] the purported benefits." Ac cordingly, EPA was required to show "that there is rot some intermediate state of regulation that would be superior to both the currently regulated and completely- banned world." 5* For asbestos friction products, where petitioners had come forward with evidence of the relative efficacy of brake shop engineering controls, "EPA's failure to consider the regulatory alternatives" was a critical ground leading to reversal of EPA's product ban.54 17 In 1990, these three products accounted for over 70 percent of all domestic consumption of asbestos not used in friction products. See U.S. Dept, of Interior, supra note It, at 3. ** If benefits are discounted from the onset of expected disease, the total benefits of EPA's ban of non-brake asbestos products is less than one expected cancer reduction for the next century. See Crandall, supra note 32, at 13. EPA's contrary assumption that benefits should be discounted from the time of exposure rather than the expected onset of disease "is equivalent to assuming that the average victim would be indifferent between contracting cancer immediately upon exposure ... or waiting 30 to 40 years for the cancer to occur." Jd. at 10. ** See AIA/AI Opening Comments, supra note 33, Vol. L at <2-33. 40 54 FR 29497-98. 41 Id. at 29481-83. 41 See generally William H. Rodgers, A Hard Look at Vermont Yankee: Environmental Law Under Close Scrutiny, 57 Geo. L.J. 699 (1979V, Stephen G. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986). 41 Id. at 1213 (emphasis added). 44 15 USC 2601(c) (1988). (emphasis added) 45 947 F.2d at 1214-15 (emphasis added). 44 Id. at 1222. 47 Id. ** Id. at 1223. 48 Id. at 1219,1222. 54 Id. at 1223. 51 Id. at 1223 n.23. "Jd. at 1216. " Id. at 1217. 54 Jd. at 1226. 7-10-92 Copyright C1992 by Ths Bissau of National Affairs. Inc. 014S-7973/S2/SO+J0 HWBUI0006363 CURRENT REPORT 719 Ztro Risk Argument Rejected making procedures are entitled to great deference, as the EPA excused its failure to consider such intermediate measures tra the grounds that no such measure would be agencies are `best situated to determine bow they should allocate their finite resources.' " M "completely" effective since "there is no known level of Soma Implications Of Tbo Decision asbestos exposure below which there is no risk." M The court rejected this "zero risk" argument on the ground that EPA's goal, instead, should be that of achieving "the minirnnm reasonable risk." 66 Thus, it was EPA's job to strive, not for a risk-free world, but rather to determine "an acceptable level of non-zero risk," and then to "choose the least burdensome method of reaching that level." 67 These defects in the agency's analysis were compounded by EPA's failure to give any weight whatsoever to the health and safety risks posed by the products that would substitute for asbestos. While acknowledging that EPA does not have "an affirmative duty to seek out and test every workplace substitute," the court nonetheless held that a duty to consider substantial risks does arise "once interested parties introduce credible studies and evidence."M With respect to asbestos friction products, the court faulted EPA for overlooking credible evidence from health studies and the ASME Report that "substitute products actually might increase fatalities" due to "cancer deaths from the other fibers used and highwav deaths occasioned by less effective, non-asbestos brakes." Likewise, the court reversed EPA's A/C pipe ban partial ly because EPA "refused to assess the risks of substitutes," despite conceding that "the increased cancer risks" associat ed with both PVC and ductile iron pipe were "both credible and known." 60 Just as important as what the court did do is what it did not do. While the court overturned the agency's regulation for failure to apply the general principles of reasoned decisionmaking noted above, the court expressly eschewed as inappropriate any review of EPA's technical or scientific findings. For example, the court rejected the petitioner's challenge that EPA had decided unreasonably to treat all types of asbestos the same,*1 even though there is strong evidence that different fiber types and sizes present very different risks.62 In declining to scrutinize EPA's reasoning on such technical issues, the court summarized its reviewing role as follows: "On these, and many similar points, the petitioners merely seek to have us reevaluate the EPA's initial evalua tion of the evidence___ Decisions such as the EPA's decision Corrosion Proof Fittings does not spell the "death knell" of regulation under Section 6 of TSCA. To the con trary, the Fifth Circuit's decision reflects Congress' under standing in enacting TSCA that maximizing health protec tion against toxic substances can be achieved only by efficient allocation of regulatory resources. This, in turn, requires that benefits and costs be compared, that substitute risks be considered, that alternatives be evaluated, and that regulation of trivial risks be avoided. These principles, embodied in TSCA, increasingly are being reflected in judi cial decisions under a wide variety of other environmental statutes. While such principles undoubtedly limit the discretion of agencies to squander public resources on inconsequential health issues, they simultaneously help to focus and channel agency action on spending societal resources wisely and cost-effectively on the most pressing and solvable environ mental problems. Regarding TSCA, the Fifth Circuit thus took seriously the congressional mandate that "jejosts are not to be incurred unless they are offset by benefits of at least the same magnitude."65 By authorizing EPA only to regulate sub stances under Section 6(a) of TSCA that present an "unrea sonable risk," Congress specifically intended to require "a balancing of risks and benefits." M While Congress, like the Fifth Circuit, did not require "an exhaustive, full-scale cost-benefit analysis," 67 the court rig orously applied the congressional requirement that the bene fits of a regulatory action under TSCA must exceed the costs. Unsupported, conclusory statements to this effect are not sufficient, and thus EPA's unexplicated conclusion that costs exceeding 630 million to |40 million per life saved were justified was rejected by the court as "meaningless" and a "cavalier" disregard of the agency's "duty to consider the economic effects of its decisions." " The Fifth Circuit's embracement of TSCA's requirement that EPA balance costs and benefits comports with the trend of recent judicial decisions accepting the need to weigh costs and benefits as a necessary precondition of "rational" or "reasonable" agency regulation of environ mental, health, and safety risks.6* to treat various types of asbestos as presenting similar health risks properly are better left for agency determina tion ___ " 62 64 Id. at 1211 (quoting Superior Oil Co. v. FERC, 563 F.2d 191, 201 (5th Cir. 1977)). Thus, the court refused to entertain most of Similarly, the court refused to second-guess the agency's petitioners' procedural challenges to the EPA rule. Id. The court procedural choices within the bounds of statutory require however did review procedural defects in EPA's rule-making that ments, stating that "an agency's choices concerning its rule-* 60 6w1e6r2e *contrary to specific statutory requirements, such as the need to allow cross-examination of the agency's evidence and the need to give public notice on the agency's last minute use of "analogous exposure" data from other substances to estimate exposures from 65 Brief for Respondent EPA, at 96,96, Corrosion Proof Fittings asbestos products. Id. at 1211-13. (5th Cir. 1991) (No. 89-4596). 66 947 F.2d at 1215. 67 Id. "Id. at 1221. * Id. at 1224. 60 Id. at 1227. 61 Id. at 1229. The court also refused to entertain petitioners' 66 Senate Report 698 at 13. 66 Id. at 12; accord Bouse Report 1341 at 14. 67 Corrosion Proof Fittings, 947 F.2d at 1222. " Id. at 1223. "See e.g.. International Union v. 0SHA, 936 F.2d 1310, 1319-21 (D.C. Cir. 1991k National Grain A Food Ass'n v. OSHA, 866 FJd 717, 733 (5th Cir. 1989k Love v. Thomas, 858 F.2d 1347 technical challenges to EPA's cost and benefit calculations, stating (9th Cir. 1988); United States v. General Motors, 656 F.Supp. that "|d)ecjsions such as these are better left to the agency's expertise." Id. at 1224. 62 See supra note S3. " Id. at 1229. 1555,1579 (D.D.C. 1987), aff'd 841 F.2d 400 (D.C. Cir. 1988); Center for Science in the Public Interest r. Dept, of Treasury, 797 FJd 995, 1003 (D.C. Cir. 1986k American Mining Congress v. Thom as, Til F.2d 617, 632 (10th Cir. 1985k American Financial Ser- 7-10-92 Chemical Regulation Reporter 0148-7973/92/30+.50 HWBUI0006364 720 CHEMICAL REGULATION REPORTER This trend reflects maturation of society's understanding of the nature of health and safety risks since the first major environmental statutes were enacted over 20 years ago. In the early years of health and safety regulation, only a few substances were seen as environmental or occupational carcinogens, and the objective was to eliminate these few substances regardless of cost*70 This simplistic and mistaken understanding was questioned in TSCA, and now has been rejected broadly as more and more natural and manmade substances are recognized as potential carcinogens. It no longer is realistic to attempt to eliminate carcinogens com pletely; rather, there need to be limiting principles such as cost-benefit balancing and its derivative principles to deter mine the appropriate level of regulation. The Fifth Circuit also recognized that EPA's cost-benefit weighing could not be valid unless all significant costs and benefits were included in the balance. The need for such a comprehensive balancing meant that EPA could not provide a "reasonable basis" for banning asbestos without considering the health risks of substitute products, like PVC and ductile iron pipe and non-asbestos brakes.71 Again, this holding is consistent with a series of recent decisions under other statutes recognizing that rational deci sionmaking about health and safety risks necessitates that the agency consider the inevitable public health tradeoffs involved in such regulatory decisions.72 Least Burdensome Alternatives In enacting TSCA, Congress also required EPA to choose the "least burdensome" alternative for regulating hazardous substances that present an unreasonable risk.72 Congress provided EPA with a hierarchy of possible regu latory options that ranges from labeling toxic substances to the most extreme option of a product ban.7* The Fifth Circuit's decision clarified that EPA may adopt a product ban, characterized as the "death penalty alternative," only vices v. FTC, 767 F.2d 957, 986 (D.C. Cir. 1985); Thompson v. Clark, 741 F.2d 401, 405 (D.C. Cir. 1984); Asbestos Information Assn./Horth America v. OSHA, 727 F.2d 415, 428 (5th Cir. 1984); Donovan v. Castle & Cooke Foods, 692 F.2d 641, 647-49 (9th Cir. 1982). 70 See, e.g., Richard A. Merrill, FDA's Implementation of the Delaney Clause: Repudiation of Congressional Choice or Rea soned Adaptation to Scientific Progress?, 5 Yale J. Reg. 1,15-18 (1988); James C. Robinson & William S. Pease, From HealthBased to Technology-Based Standards for Hazardous Air Pol lutants. 81 Am. J. Pub. Health 1518,1518 (1991). 71 947 F.2d at 1221-22. 72 See Competitive Enterprise Inst. v. NHTSA, 956 F.2d 321 (D.C. Cir. 1992) (agency must consider safety tradeoffs of stricter fuel economy standards); Consumer Federation of America v. CPSC, 833 FJd 1073, 1079 (D.C. Cir. 1989) (CPSC decision not to regulate methylene chloride because of increased risks from substi tutes upheld); Buildings & Construction Trades Dep't, AFLrCIO v. Brock, 838 F.2d 1258, 1274 (D.C. Cir. 1988) (OSHA properly decided against requiring use of air supplied respirators because of increased risk of accidents eroded the benefits of such use); Envi ronmental Defense Fund v. EPA, 510 F.2d 1292, 1303 (D.C. Cir. 1975) (EPA must consider substitute risks before banning pesti cides); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 385 (D.C. Cir. 1973), cert, denied, 417 U.S. 921 (1974) (requiring EPA "to take into account counter-productive environmental effects of a proposed standard"). See also OSHA, "Air Contaminants: Proposed Rule," 57 FR 26001,26005-09 (June 12,1992) (discussing "risk-risk" tradeoffs). 7115 USC 2605 (1988). 74 Id. if the agency first considers and rejects as inadequate the less burdensome alternatives in the congressionally speci fied menu of regulatory options.72 While stated explicitly in TSCA, this requirement parallels the general duty under the Administrative Procedure Act that agencies always must consider, and provides a reasoned basis for rejecting alter native regulatory approaches.72 Finally, the Fifth Circuit's holding echoes Congress' ad monition that EPA should not strive for a "risk-free world"77 and that it accordingly should limit itself to ad dressing "significant risks."72 As with other aspects of the Fifth Circuit's decision, this bolding reflects a judicial ac ceptance that the overall health protection goals pursued by EPA and other agencies are defeated--rather than fos tered--by regulating insignificant risks.72 Critics, of course, will say that EPA cannot regulate at all if it is required to satisfy the principles of reasoned decision making about risk that are embodied in the Fifth Circuit's decision. That surely is not true. Were EPA confronted today with many of the now-discontinued asbestos products, such as asbestos insulation and fireproofing materials, or various uses of lead now discontinued such as lead paint or leaded gasoline, there is no doubt that the agency could have developed a case to support its ban authority under Section 6 of TSCA. Similar cases for product bans still may exist--the many uses of chlorofluorocarbons would seem to have been an ideal candidate for action under TSCA had that issue not been dealt with separately under the Montreal Protocol on Substances that Deplete the Ozone Layer .M Looking Beyond Product Bant Far too much attention, however, has been focused on product bans, EPA's "nuclear weapon," and not enough on TSCA's unique and original purpose as the single statute administered by the environmental agency that allows it to coordinate its own regulatory actions and those of other agencies on a multienvironmental media basis. This author ity is manifest in Section 6(c) and Section 9 of the statute and is exhaustively documented in TSCA's legislative history.21 EPA in recent years has taken important steps in exercis ing this plenary authority to coordinate regulatory risk 75 947 F.2d at 1215-17. 74 See e.g., Motor Vehicle Manufacturers Ass'n, Inc. v. State Farm Mutual Automobile Insurance Co, 463 U.S. 29, 43 (1983k Building & Construction Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988k Center for Science v. Dept, of Treasury, 797 F.2d 995, 1003 (D.C. Cir. 1986k International La dies' Garment Union v. Donovan, 722 F.2d 795, 815 (D.C. Cir. 1983k National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095, 1112-13 (D.C. Cir. 1977), cert, denied, 436 US. 926 (1978). 77 See House Report 1341 at 15. 7,947 F2d at 1228. 72 See Industrial Union Department, AFL-CIO v. American Petroleum Inst., 448 U.S. 607,639 (1980k Chemical Manufactur ers Ass'n v. EPA, 899 F.2d 344, 359 (5th Cir. 1990k Building St Construction Trades Dep't, AFL-CIO v. Brock, 838 FJd 1258, 1271 (D.C. Cir. 1988k Environmental Defense Fund v. EPA, 636 F.2d 1267, 1283-84 (D.C. Cir. 1980k United States v. General Motors, 656 Fupp. 1555, 1579 (D.D.C. 1987), aff'd, 641 FJd 400 (D.C. Cir. 1988). M See Montreal Protocol on Substances that Deplete the Ozone Layer, 261.L.M. 1540 (1987) (entered into force Jan. 1,1969). A ban on "aerosol propellant" uses of CFCs was adopted by EPA under TSCA in 1978. See 40 CFR Part 762. 21 See TSCA Section 6(c), 15 USC 2605(c) (1988k TSCA aectioiis 9, 15 USC. 2608 (1988k H.R. Conf. Rep. No. 1302, 94th Cong., 2d Seat. 76. 84-85 (1976). 7-10-92 Copyright C1992 by The Bureau at National Affaire, Inc. 0140-7973/92/10+ SO HWBUI0006365 CURRENT REPORT reduction activities for a number of substances and generically in its various pollution prevention Initiatives.12 It is in this connection that the broad, indeed unprecedent ed, authority granted to EPA under Section 6 is likely to be put to its most effective use. Section 6 allows, for example, EPA to regulate work places that are exempted from OSHA regulation,*2 and to take a variety of regulatory steps short of product bans that K For example, EPA has used its TSCA authority to refer regula tion of various chemicals such as 1,3-butadiene and glycol ethers to OSHA. See 50 FR 41393 (1985) (EPA referral of 14-butadiene and glycol ethers to OSHA). " See, e.g., 40 CFR 763, Subpart G (establishing requirements for 721 are not permitted under any other statute administered by EPA. In addition, using its TSCA authority, EPA significant ly can influence the regulatory agendas of OSHA and the Consumer Product Safety Commission, and other EPA pro gram offices. None of this is to say that product bans under Section 6 should never be employed. But to suggest that Section 6 of TSCA is a "dead letter" simply ignores the immense opportunity that the statute offers as a means of coordinating not only EPA's regulatory agenda for toxic substances, but that of other agencies as well asbestos abatement projects by State and local governments which are exempt from similar OSHA regulations). 7-10-92 Chemical Regulation Reporter 014S-7973/92/S0+30 HWBUI0006366