Us Court Of Appeals Overturns EPA's Ban On

The EPA is required to support its analysis with substantial evidence under TSCA. When one figure is challenged, it cannot back up its position by changing an unrelated figure to yield the same result. Allowing such behavior would require us only the focus on the final numbers provided by an agency, and to ignore how it arrives at that number. Because a conclusion is no better than the methodology used to reach it, such a result cannot survive the substantial evidence test.

Finally, we once again note that the EPA failed to discharge its TSCA-mandated burden that it consider and reject less burdensome alternatives before it impose a more burdensome alternative such as a complete ban. The EPA instead jumped immediately to the ban provision, without calculating whether a less burdensome alternative might accomplish TSCA's goals. See 54 Fed. Reg. At 29, 489. We therefore conclude that the EPA failed to present substantial evidence to support its ban of pipe.

C. Gaskets, Roofing, Shingles and Paper Products.

We here deal with the remaining products affected by the EPA ban. Petitioners challenge the basis for the EPA's finding that beater-add and sheet gaskets, primarily used in automotive parts, should be banned. The agency estimated its ban would save thirty-two lives over a thirteen-year time span, at an overall cost of $207-263 million ($6-8 million per life saved). Id. At 29,484.

We have little to add in this area, beyond our general discussion and comments on other products, apart from a brief highlight of the EPA's use of analogous exposure data to support its gasket bar. For these products, the analogous exposure estimate constituted almost eighty percent of the anticipated total benefits -- a proportion so large that the EPA's duty to give interested parties notice that it intended to use analogous exposure estimates was particularly acute. Considering some of the EPA's support for its analogous exposure estimates -- such as its assumption that none of the same workers who install beater-add and sheet gaskets ever are involved in repairing or disposing of them, and the unexplained discrepancy between its present conclusion that over 50,000 workers are involved in this area and its 1984 estimate that only 768 workers are involved in "gasket removal and installation," see 51 Fed. Reg. 22, 612, 22,665 (1986) --The petitioners complaint that they never were afforded the opportunity to comment publicly upon these figures, or to cross-examine any EPA witnesses regarding them, is particularly telling.

The EPA also banned roof coatings, roof shingles, roof coatings, and paper products. Again, we have little to add beyond our discussions already concluded, especially regarding TSCA's requirement that the EPA always choose the least burdensome alternative, whether it be workplace regulation, labeling, or only a partial ban. We note, however, that in those cases in which a complete ban would save less than one statistical life, such as those affecting paper products and certain roofing materials, the EPA has a particular need to examine the less burdensome alternatives to a complete ban.

When appropriate, the EPA should consider our preceding discussion as applicable to their bans of these products. By following the dictates of Chemical Mfrg. Ass'n. 899 P 2d at 359, that the quantities of the regulated chemical entering into the environment be "substantial," and that the human exposure to the chemical also must be "substantial" or "significant," as well as our concerns expressed in this opinion, the EPA should be able to determine the proper procedures to follow on its reconsideration of its rule and present the cogent explanation of its actions as required under Chemical Manufacturers Association.