Corrosion Proof Fittings v. E.P.A., 89-4596

• Citation: 947 F.2d 1201
• Decision Date: 18 October 1991
• Docket Number: No. 89-4596,89-4596
• Parties: , 60 USLW 2289, 22 Envtl. L. Rep. 20,037, 22 Envtl. L. Rep. 20,304, 1992 O.S.H.D. (CCH) P 29,558 CORROSION PROOF FITTINGS, et al., Petitioners, v. The ENVIRONMENTAL PROTECTION AGENCY and William K. Reilly, Administrator, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1201

947 F.2d 1201

33 ERC 1961, 60 USLW 2289, 22 Envtl.

L. Rep. 20,037,

22 Envtl. L. Rep. 20,304,

1992 O.S.H.D. (CCH) P 29,558

CORROSION PROOF FITTINGS, et al., Petitioners, v. The ENVIRONMENTAL PROTECTION AGENCY and William K. Reilly Administrator, Respondents.

No. 89-4596.

United States Court of Appeals Fifth Circuit.

Oct. 18, 1991.

On Motion for Clarification Nov. 15, 1991.

Rehearing Denied Nov. 27, 1991.

Wm. K. Reilly, Adm'r, E.P.A., Charles Edward Breece, Mary Elizabeth Ward, Richard Thornburgh, Atty. Gen., U.S. Dept. of Justice, Washington, D.C., for E.P.A.

Eve C. Gartner, Berle, Kass & Case, New York City, Karen Florini, Environmental Defense Fund, Washington, D.C., for Natural Resources Defense Council, Inc.

Jacqueline M. Warren, Natural Resources Defense Council, New York City, for Environmental Defense Fund.

Richard J. Fiesta, Robert J. Connerton, Connerton, Ray & Simon, Washington, D.C., for Laborers' Intern. Union of North America, AFL-CIO and Laborers' Nat. Health and Safety Fund.

Martha A. Churchill, Gen. Counsel, Chicago, Ill., for Mid-America Legal Foundation.

Donald N. Dewees, Toronto, Canada, for Federal Government of Canada.

Arthur Kahn, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for amici-applicant The Province of Quebec, Canada.

Robert E. Holden, Mary S. Johnson, Liskow & Lewis, New Orleans, La., for Corrosion Proof Fittings, et al.

Edward W. Warren, Timothy S. Hardy, Susan M. O'Sullivan, Kathleen L. Blaner, Kirkland & Ellis, Washington, D.C., for Abestor Information Ass'n & Asbestor Cement, and the Asbestos Institute, et al.

Michael M. Levy, Levy & Smith, Washington, D.C., for United Steel Workers of America (Canada), et al.

Frederick C. Schafrick, Thomas J. Mikula, David Booth Beers, Michael S. Giannotto, Shea & Gardner, Washington, D.C., for Cassiar Min. Corp.

Duane A. Siler, Patton Boggs & Blow, Washington, D.C. for Institute of Scrap Recycling Ind., Inc.

Jeryl Dezelick, Robert E. Mann, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for Caterpillar Tractor Co. Jane B. McAllister, Ahlers, Cooney, Dorweiler, Des Moines, Iowa, for Grinnell College.

Donald Elisburg, Brian M. Hechinger, OHF, Edward J. Gorman, III, Orrin Baird, Washington, D.C., for Occ. Health Found. United Broth. of Carp. & Joinders and Service Employees Intern. Union.

On Petition for Review of a Rule of the Environmental Protection Agency.

Before BROWN, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Environmental Protection Agency (EPA) issued a final rule under section 6 of the Toxic Substances Control Act (TSCA) to prohibit the future manufacture, importation, processing, and distribution of asbestos in almost all products. Petitioners claim that the EPA's rulemaking procedure was flawed and that the rule was not promulgated on the basis of substantial evidence. Certain petitioners and amici curiae contend that the EPA rule is invalid because it conflicts with international trade agreements and may have adverse economic effects on Canada and other foreign countries. Because the EPA failed to muster substantial evidence to support its rule, we remand this matter to the EPA for further consideration in light of this opinion.

I.

Facts and Procedural History.

Asbestos is a naturally occurring fibrous material that resists fire and most solvents. Its major uses include heat-resistant insulators, cements, building materials, fireproof gloves and clothing, and motor vehicle brake linings. Asbestos is a toxic material, and occupational exposure to asbestos dust can result in mesothelioma, asbestosis, and lung cancer.

The EPA began these proceedings in 1979, when it issued an Advanced Notice of Proposed Rulemaking announcing its intent to explore the use of TSCA "to reduce the risk to human health posed by exposure to asbestos." See 54 Fed.Reg. 29,460 (1989). While these proceedings were pending, other agencies continued their regulation of asbestos uses, in particular the Occupational Safety and Health Administration (OSHA), which in 1983 and 1984 involved itself with lowering standards for workplace asbestos exposure. ¹

An EPA-appointed panel reviewed over one hundred studies of asbestos and conducted several public meetings. Based upon its studies and the public comments, the EPA concluded that asbestos is a potential carcinogen at all levels of exposure, regardless of the type of asbestos or the size of the fiber. The EPA concluded in 1986 that exposure to asbestos "poses an unreasonable risk to human health" and thus proposed at least four regulatory options for prohibiting or restricting the use of asbestos, including a mixed ban and phase-out of asbestos over ten years; a two-stage ban of asbestos, depending upon product usage; a three-stage ban on all asbestos products leading to a total ban in ten years; and labeling of all products containing asbestos. Id. at 29,460-61.

Over the next two years, the EPA updated its data, received further comments, and allowed cross-examination on the updated documents. In 1989, the EPA issued a final rule prohibiting the manufacture, importation, The rule is to take effect in three stages, depending upon the EPA's assessment of how toxic each substance is and how soon adequate substitutes will be available. ² The rule allows affected persons one more year at each stage to sell existing stocks of prohibited products. The rule also imposes labeling requirements on stage 2 or stage 3 products and allows for exemptions from the rule in certain cases.

                processing, and distribution in commerce of most asbestos-containing products.   Finding that asbestos constituted an unreasonable risk to health and the environment, the EPA promulgated a staged ban of most commercial uses of asbestos.   The EPA estimates that this rule will save either 202 or 148 lives, depending upon whether the benefits are discounted, at a cost of approximately $450-800 million, depending upon the price of substitutes.   Id. at 29,468.
                

Section 19(a) of TSCA, 15 U.S.C. § 2618(a), grants interested parties the right to appeal a final rule promulgated under section 6(a) directly to this or any other regional circuit court of appeals. Pursuant to this section, petitioners challenge the EPA's final rule, claiming that the EPA's rulemaking procedure was flawed and that the rule was not promulgated based upon substantial evidence. Some amici curiae also contend that the rule is invalid because it conflicts with international trade agreements and may have adverse economic effects on Canada and other foreign countries. We deal with each of these contentions seriatim.

II.

Standing.

A.

Issues Raised Solely by Amici Curiae.

The EPA argues that the briefs of two of the amici curiae, Quebec and Canada, should be stricken because they improperly raise arguments not mentioned by any petitioner. To the extent that these briefs raise new issues, such as the EPA's decision not to consider the adverse impacts of the asbestos ban on the development of the economies of third-world countries, we disregard these arguments. ³ At times, however, the briefs raise variations of arguments also raised by petitioners. We thus draw on these briefs where helpful in our consideration of other issues properly brought before this court by the parties.

The EPA also asserts that we cannot consider arguments raised by the two amici that relate to the differences in fiber types, sizes, and manufacturing processes because these differences only are raised by the petitioners within the context of prohibiting specific friction products, such as sheet gaskets and roof coating. This is, however, a role that amici are intended to fill: to bridge gaps in issues initially and properly raised by parties. Because various petitioners urge arguments similar to these, we properly can consider these specific issues articulated in the amici briefs. ⁴

B.

Standing of Foreign Entities Under TSCA.

The EPA also contends that certain foreign petitioners and amici do not have standing to contest the EPA's final rule. In its final rulemaking, the EPA decided to exclude foreign effects from its analysis. Cassiar Mining Corporation, a Canadian mining company that operates an asbestos mine, and the other Canadian petitioners believe that the EPA erred by not considering the effects of the ban on foreign countries and workers.

At issue in this case is a question of prudential standing, which is of less than constitutional dimensions. The touchstone of the analysis, therefore, is the statutory language used by Congress in conferring standing upon the general public. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

Only those who come within the "zone of interests to be protected or regulated by the statute" have prudential standing to bring challenges to regulations under the statute at issue. ⁵ Indeed, when a party's interests are "inconsistent with the purposes implicit in the statute," it can "reasonably be assumed that Congress [did not] intend[ ] to permit the suit." Clarke, 479 U.S. at 399, 107 S.Ct. at 757.

The Canadian petitioners believe that Congress, by granting the right of judicial review to "any person," 15 U.S.C.A. § 2618(a)(1)(A) (West Supp.1991), meant to confer standing on anyone who could arrange transportation to the courthouse door. The actual language of TSCA, however, belies the broad meaning the petitioners attempt to impart to the act, for the EPA was not required to consider the effects on people or entities outside the United States. TSCA provides a laundry list of factors to consider when promulgating a rule under section 6, including "the effect [of the rule] on the national economy." Id. § 2605(c)(1)(D) (emphasis added). International concerns are conspicuously absent from the statute.

Under the "zone of interests" test, we liberally construe Congressional acts to favor a plaintiff's standing to challenge administrative actions. Warth, ...