Corrosion Proof Fittings v. The Environmental Protection Agency and William K. Reilly, Administrator

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, im *1208 portation, 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.

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.

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

*1209 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, 422 U.S. at 501, 95 S.Ct. at 2206. This is not to say, however, that all plaintiffs affected by a regulation or order have standing to sue; “[i]n cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399, 107 S.Ct. at 757.

The Canadian petitioners do not have standing to contest the EPA’s actions. Nothing in the statute requires the EPA to consider the effects of its actions in areas outside the scope of section 6. TSCA speaks of the necessity of cleaning up the national environment and protecting United States workers but largely is silent concerning the international effects of agency action. Because of this national emphasis, we are reluctant to ascribe international standing rights to foreign workers affected by the loss of economic sales within this country. We note that the Supreme Court, using similar analysis, recently denied standing rights to workers only incidentally affected by a postal regulation. Air Courier Conference of Am. v. American Postal Workers Union, — U.S. —, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991). Indeed, to “proceed[] at the behest of interests that *1210 coincide only accidentally with [the statutory] goals” of TSCA actually may work to defeat those goals. Hazardous Waste Treatment Council, 861 F.2d at 283. We therefore do not consider the arguments raised by the Canadian petitioners.

Cassiar separately asserts even closer contacts with the United States and believes that its status as a vendor to an American vendee gives it the right to contest administrative decisions that affect the economic well-being of the vendee. Some courts recognize that vendors can stand as third parties in the shoes of their vendees in order to contest administrative decisions. 6

Even if we were to accept this line of reasoning, however, the result would be unavailing. Cassiar’s vendee is an independent entity, fully capable of asserting its own rights. Given the purely national scope of TSCA, Cassiar cannot bootstrap from its vendee simply because it sells asbestos to an American company. Merely inserting a product into the stream of commerce is not sufficient to confer standing under TSCA. If the rule were otherwise, the concept of standing would lose all meaning, for the only parties who would not have standing would be those who sell nothing in the United States and thus are indifferent to federal government actions. There is no indication that Congress intended to enact so loose a concept of standing, and we do not import that intent into the act today. 7

Hence, Cassiar does not have prudential standing to bring this claim, because TSCA expressly concerns itself with national economic concerns. Cassiar brings forth no evidence that it actually controls, and does not just deal with, the American vendee. We thus conclude, along the lines of Moses, 778 F.2d at 271-72, that parties that Congress specifically did not intend to participate in, or benefit from, an administrative decision have no right to challenge the legitimacy of that decision.

We draw support for our holding from the decision of the EPA to give a similar construction to TSCA. “It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute.” Investment Co. Inst. v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971). “Thus, only where congressional intent is pellucid are we entitled to reject reasonable administrative construction of a statute.” National Grain & Feed Ass’n v. OSHA, 866 F.2d 717, 733 (5th Cir.1989).

We find the EPA’s decision to ignore the international effects of its decision to be a rational construction of the statute. Chemical Mfrs. Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 125, 134, 105 S.Ct. 1102, 1107, 1112, 84 L.Ed.2d 90 (1985). Because it is unlikely that these foreign entities were “intended [by Congress] to be relied upon to challenge agency disregard of the law,” Clarke, 479 U.S. at 399, 107 S.Ct. at 757 (citations omitted), we hold that they are *1211 outside the zone of interests encompassed by TSCA and thus lack standing to protest the EPA’s rulemaking. 8

HI.

Rulemaking Defects.

The petitioners allege that the EPA’s rulemaking procedure was flawed. Specifically, the petitioners contend that the EPA erred by not cross-examining petitioner’s witnesses, by not assembling a panel of experts on asbestos disease risks, by designating a hearing officer, rather than an administrative law judge (ALJ), to preside at the hearings on the rule, and by not swearing in witnesses who testified. Petitioners also complain that the EPA did not allow cross-examination of some of its witnesses and did not notify anyone until after the hearings were over that it intended to use “analogous exposure” estimates and a substitute pricing assumption to support its rule. Most of these contentions lack merit and are part of the petitioners’ “protest everything” approach, 9 but we address specifically the two EPA actions of most concern to us, the failure of the EPA to afford cross-examination of its own witnesses and its failure to provide notice of the analogous exposure estimates.

Administrative agencies acting under TSCA are not required to adhere to all of the procedural requirements we might require of an adjudicative body. See 15 U.S.C. § 2605(c)(3). In evaluating petitioners’ claims, we are guided by our long-held view that an agency’s choices concerning its rulemaking procedures are entitled to great deference, as the agencies are “best situated to determine how they should allocate their finite resources.” Superior Oil Co. v. FERC, 563 F.2d 191, 201 (5th Cir. 1977).

Section 19(c)(l)(B)(ii) of TSCA requires that we hold unlawful any rule promulgated where EPA restrictions on cross-examination “precluded disclosure of disputed material facts which [were] necessary to a fair determination by the Administrator.” 15 U.S.C. § 2618(c)(l)(B)(ii). In promulgating this rule, the EPA allowed substantial cross-examination of most, but not all, of its witnesses. Considering the importance TSCA accords to cross-examination, the EPA should have afforded interested parties full cross-examination on all of its major witnesses. We are mindful of the length of the asbestos regulatory process in this case, but Congress, in enacting the rules governing the informal hearing process under TSCA, specifically reserved a place for proper cross-examination on issues of disputed material fact. See id. §§ 2605(c)(3), 2618(c)(l)(B)(ii). Precluding cross-examination of EPA witnesses — even a minority of them — is not the proper way to expedite the finish of a lengthy rulemaking procedure.

The EPA’s general failure to accord the petitioners adequate cross-examination, however, is not sufficient by itself to mandate overturning the rule. The “foundational question is whether any procedural flaw so subverts the process of judicial review that invalidation of the regulation is warranted.” Superior Oil Co., 563 F.2d at *1212 201 (quoting Alabama Ass’n of Ins. Agents v. Board of Governors of the Fed. Reserve Sys., 533 F.2d 224, 236-37 (5th Cir.1976)). Under this standard, the EPA’s denial of cross-examination, by itself, is insufficient to force us to overturn the EPA’s asbestos regulation.

We cannot reach the same conclusion in another area, however. The EPA failed to give notice to the public, before the conclusion of the hearings, that it intended to use “analogous exposure” data to calculate the expected benefits of certain product bans. In general, the EPA should give notice as to its intended methodology while the public still has an opportunity to analyze, comment, and influence the proceedings. The EPA’s use of the analogous exposure estimates, apart from their merits, thus should have been subjected to public scrutiny before the record was closed. While it is true that “[t]he public need not have an opportunity to comment on every bit of information influencing an agency's decision,” Texas v. Lyng, 868 F.2d 795, 799 (5th Cir.1989), this cannot be used as a defense to the late adoption of the analogous exposure estimates, as they are used to support a substantial part of the regulation finally promulgated by the EPA. 10

We draw support for this conclusion from Aqua Slide ’N’ Dive v. CPSC, 569 F.2d 831 (5th Cir.1978), in which the CPSC decided, without granting interested parties the opportunity to comment, that its proposed regulation merely would slow the industry’s rate of growth rather than actually cut sales. We rejected the CPSC’s rule, and our reasons there are similar to those that require us to reject the EPA’s reliance upon the analogous exposure data today:

[T]he evidence on which the Commission relies was only made public after the period for public comment on the standard had closed. Consequently, critics had no realistic chance to rebut it.... It matters not that the late submission probably did not violate the notice requirement of 5 U.S.C.A. § 553_ The statute requires that the Commission’s findings be supported by substantial evidence, and that requirement is not met when the only evidence on a crucial finding is alleged to be unreliable and the Commission has not exposed it to the full public scrutiny which would encourage confidence in its accuracy.

Id. at 842-43 (citations omitted) (emphasis added).

In short, the EPA should not hold critical analysis in reserve and then use it to justify its regulation despite the lack of public comment on the validity of its basis. Failure to seek public comment on such an important part of the EPA’s analysis deprived its rule of the substantial evidence required to survive judicial scrutiny, as in Aqua Slide.

We reach this conclusion despite the relatively lenient standard by which we judge administrative rulemaking proceedings. E.g., Superior Oil Co., 563 F.2d at 201. The EPA seeks to avert this result by contending that the petitioners had constructive notice that the EPA might adopt the analogous exposure theory because it included, among its published data, certain information that might be manipulated to support such an analysis. We hold, however, that considering that for some products the analogous exposure estimates constituted the bulk of the EPA’s analysis, constructive notice was insufficient notice. 11 In summary, on an issue of this import, the EPA should have announced *1213 during the years in which the hearings were ongoing, rather than in the subsequent weeks after which they were closed, that it intended to use the analogous exposure estimates. On reconsideration, the EPA should open to public comment the validity of its analogous exposure estimates and methodology.

IV.

The Language of TSCA.

A.

Standard of Review.

Our inquiry into the legitimacy of the EPA rulemaking begins with a discussion of the standard of review governing this case. EPA’s phase-out ban of most commercial uses of asbestos is a TSCA § 6(a) rulemaking. TSCA provides that a reviewing court “shall hold unlawful and set aside” a final rule promulgated under § 6(a) “if the court finds that the rule is not supported by substantial evidence in the rulemaking record ... taken as a whole.” 15 U.S.C. § 2618(c)(l)(B)(i).

Substantial evidence requires “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). This standard requires (1) that the agency’s decision be based upon the entire record, 12 taking into account whatever in the record detracts from the weight of the agency’s decision; and (2) that the agency’s decision be what “ ‘a reasonable mind might accept as adequate to support [its] conclusion.’ ” American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 522, 101 S.Ct. 2478, 2497, 69 L.Ed.2d 185 (1981) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)). Thus, even if there is enough evidence in the record to support the petitioners’ assertions, we will not reverse if there is substantial evidence to support the agency’s decision. See, e.g., Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir.1990); Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir.1986); accord Fort Valley State College v. Bennett, 853 F.2d 862, 864 (11th Cir.1988) (reviewing court examines the entire record but defers to the agency’s choice between two conflicting views).

Contrary to the EPA’s assertions, the arbitrary and capricious standard found in the APA and the substantial evidence standard found in TSCA are different standards, even in the context of an informal rulemaking. 13 Congress specifically went out of its way to provide that “the standard of review prescribed by paragraph (2)(E) of section 706 [of the APA] shall not apply and the court shall hold unlawful and set aside such rule if the court finds that the rule is not supported by substantial evidence in the rulemaking *1214 record ... taken as a whole.” 15 U.S.C. § 2618(c)(l)(B)(i). “The substantial evidence standard mandated by [TSCA] is generally considered to be more rigorous than the arbitrary and capricious standard normally applied to informal rulemaking,” Environmental Defense Fund v. EPA, 636 F.2d 1267, 1277 (D.C.Cir.1980), and “afford[s] a considerably more generous judicial review” than the arbitrary and capricious test. Abbott Laboratories v. Gardner, 387 U.S. 136, 143, 87 S.Ct. 1507, 1512, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The test “imposes a considerable burden on the agency and limits its discretion in arriving at a factual predicate.” Mobil Oil Corp. v. FPC, 483 F.2d 1238, 1258 (D.C.Cir.1973).

“Under the substantial evidence standard, a reviewing court must give careful scrutiny to agency findings and, at the same time, accord appropriate deference to administrative decisions that are based on agency experience and expertise.” Environmental Defense Fund, 636 F.2d at 1277. As with consumer product legislation, “Congress put the substantial evidence test in the statute because it wanted the courts to scrutinize the Commission’s actions more closely than an ‘arbitrary and capricious’ standard would allow.” Aqua Slide, 569 F.2d at 837.

The recent case of Chemical Mfrs. Ass’n v. EPA, 899 F.2d 344 (5th Cir.1990), provides our basic framework for reviewing the EPA’s actions. In evaluating whether the EPA has presented substantial evidence, we examine (1) whether the quantities of the regulated chemical entering into the environment are “substantial” and (2) whether human exposure to the chemical is “substantial” or “significant.” Id. at 359. An agency may exercise its judgment without strictly relying upon quantifiable risks, costs, and benefits, but it must “cogently explain why it has exercised its discretion in a given manner” and “must offer a ‘rational connection between the facts found and the choice made.’ ” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

We note that in undertaking our review, we give all agency rules a presumption of validity, and it is up to the challenger to any rule to show that the agency action is invalid. Alabama Nursing Home Ass’n v. Harris, 617 F.2d 388, 393-94 (5th Cir.1980). The burden remains on the EPA, however, to justify that the products it bans present an unreasonable risk, no matter how regulated. See Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 662, 100 S.Ct. 2844, 2874, 65 L.Ed.2d 1010 (1980); cf. National Lime Ass’n v. EPA, 627 F.2d 416, 433 (D.C.Cir.1980) (“an initial burden of promulgating and explaining a non-arbitrary, non-capricious rule rests with the Agency”). Finally, as we discuss in detail infra, because TSCA instructs the EPA to undertake the least burdensome regulation sufficient to regulate the substance at issue, the agency bears a heavier burden when it seeks a partial or total ban of a substance than when it merely seeks to regulate that product. See 15 U.S.C. § 2605(a).

B.

The EPA’s Burden Under TSCA.

TSCA provides, in pertinent part, as follows:

(a) Scope of regulation. — If the Administrator finds that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture, or that any combination of such activities, presents or will present an unreasonable risk of injury to health or the environment, the Administrator shall by rule apply one or more of the following requirements to such substance or mixture to the extent necessary to protect adequately against such risk *1215 using the least burdensome requirements.

Id. (emphasis added). As the highlighted language shows, Congress did not enact TSCA as a zero-risk statute. 14 The EPA, rather, was required to consider both alternatives to a ban and the costs of any proposed actions and to “carry out this chapter in a reasonable and prudent manner [after considering] the environmental, economic, and social impact of any action.” 15 U.S.C. § 2601(c).

We conclude that the EPA has presented insufficient evidence to justify its asbestos ban. We base this conclusion upon two grounds: the failure of the EPA to consider all necessary evidence and its failure to give adequate weight to statutory language requiring it to promulgate the least burdensome, reasonable regulation required to protect the environment adequately. Because the EPA failed to address these concerns, and because the EPA is required to articulate a “reasoned basis” for its rules, we are compelled to return the regulation to the agency for reconsideration.

1.

Least Burdensome and Reasonable.

TSCA requires that the EPA use the least burdensome regulation to achieve its goal of minimum reasonable risk. This statutory requirement can create problems in evaluating just what is a “reasonable risk.” Congress’s rejection of a no-risk policy, however, also means that in certain cases, the least burdensome yet still adequate solution may entail somewhat more risk than would other, known regulations that are far more burdensome on the industry and the economy. The very language of TSCA requires that the EPA, once it has determined what an acceptable level of non-zero risk is, choose the least burdensome method of reaching that level.

In this case, the EPA banned, for all practical purposes, all present and future uses of asbestos — a position the petitioners characterize as the “death penalty alternative,” as this is the most burdensome of all possible alternatives listed as open to the EPA under TSCA. TSCA not only provides the EPA with a list of alternative actions, but also provides those alternatives in order of how burdensome they are. 15 The *1216 regulations thus provide for EPA regulation ranging from labeling the least toxic chemicals to limiting the total amount of chemicals an industry may use. Total bans head the list as the most burdensome regulatory option.

By choosing the harshest remedy given to it under TSCA, the EPA assigned to itself the toughest burden in satisfying TSCA’s requirement that its alternative be the least burdensome of all those offered to it. Since, both by definition and by the terms of TSCA, the complete ban of manufacturing is the most burdensome alternative — for even stringent regulation at least allows a manufacturer the chance to invest and meet the new, higher standard — the EPA’s regulation cannot stand if there is any other regulation that would achieve an acceptable level of risk as mandated by TSCA.

We reserve until a later part of the opinion a product-by-product review of the regulation. Before reaching this analysis, however, we lay down the inquiry that the EPA should undertake whenever it seeks total ban of a product.

The EPA considered, and rejected, such options as labeling asbestos products, thereby warning users and workers involved in the manufacture of asbestos-containing products of the chemical’s dangers, and stricter workplace rules. EPA also rejected controlled use of asbestos in the workplace and deferral to other government agencies charged with worker and consumer exposure to industrial and product hazards, such as OSHA, the CPSC, and the MSHA. The EPA determined that deferral to these other agencies was inappropriate because no one other authority could address all the risks posed “throughout the life cycle” by asbestos, and any action by one or more of the other agencies still would leave an unacceptable residual risk. 16

Much of the EPA’s analysis is correct, and the EPA’s basic decision to use TSCA as a comprehensive statute designed to fight a multi-industry problem was a proper one that we uphold today on review. What concerns us, however, is the manner in which the EPA conducted some of its analysis. TSCA requires the EPA to consider, along with the effects of toxic substances on human health and the environment, “the benefits of such substance[s] or mixture[s] for various uses and the availability of substitutes for such uses,” as well as “the reasonably ascertainable economic consequences of the rule, after consideration for the effect on the national economy, small business, technological innovation, the environment, and public health.” Id. § 2605(c)(l)(C-D).

The EPA presented two comparisons in the record: a world with no further regulation under TSCA, and a world in which no manufacture of asbestos takes place. The EPA rejected calculating how many lives a less burdensome regulation would save, and at what cost. Furthermore the EPA, when calculating the benefits of its ban, explicitly refused to compare it to an improved workplace in which currently available control technology is utilized. See 54 Fed.Reg. at 29,474. This decision artificially inflated the purported benefits of the rule by using a baseline comparison sub *1217 stantially lower than what currently available technology could yield.

Under TSCA, the EPA was required to evaluate, rather than ignore, less burdensome regulatory alternatives. TSCA imposes a least-to-most-burdensome hierarchy. In order to impose a regulation at the top of the hierarchy — a total ban of asbestos — the EPA must show not only that its proposed action reduces the risk of the product to an adequate level, but also that the actions Congress identified as less burdensome also would not do the job. 17 The failure of the EPA to do this constitutes a failure to meet its burden of showing that its actions not only reduce the risk but do so in the Congressionally-mandated least burdensome fashion.

Thus it was not enough for the EPA to show, as it did in this case, that banning some asbestos products might reduce the harm that could occur from the use of these products. If that were the standard, it would be no standard at all, for few indeed are the products that are so safe that a complete ban of them would not make the world still safer.

This comparison of two static worlds is insufficient to satisfy the dictates of TSCA. While the EPA may have shown that a world with a complete ban of asbestos might be preferable to one in which there is only the current amount of regulation, the EPA has failed to show that there is not some intermediate state of regulation that would be superior to both the currently-regulated and the completely-banned world. Without showing that asbestos regulation would be ineffective, the EPA cannot discharge its TSCA burden of showing that its regulation is the least burdensome available to it.

Upon an initial showing of product danger, the proper course for the EPA to follow is to consider each regulatory option, beginning with the least burdensome, and the costs and benefits of regulation under each option. The EPA cannot simply skip several rungs, as it did in this case, for in doing so, it may skip a less-burdensome alternative mandated by TSCA. Here, although the EPA mentions the problems posed by intermediate levels of regulation, it takes no steps to calculate the costs and benefits of these intermediate levels. See 54 Fed.Reg. at 29,462, 29,474. Without doing this it is impossible, both for the EPA and for this court on review, to know that none of these alternatives was less burdensome than the ban in fact chosen by the agency.

The EPA’s offhand rejection of these intermediate regulatory steps is “not the stuff of which substantial evidence is made.” Aqua Slide, 569 F.2d at 843. While it is true that the EPA considered five different ban options, these differed solely with respect to their effective dates. The EPA did not calculate the risk levels for intermediate levels of regulation, as it believed that there was no asbestos exposure level for which the risk of injury or death was zero. Reducing risk to zero, however, was not the task that Congress set for the EPA in enacting TSCA. The EPA thus has failed “cogently [to] explain why it has exercised its discretion in a given manner,” Chemical Mfrs. Ass’n,