## Facts

- The Environmental Protection Agency (EPA) issued a final rule in 1989 under § 6 of the Toxic Substances Control Act (TSCA), the Asbestos Ban and Phase-Out Rule, prohibiting future manufacture, importation, processing, and distribution of asbestos in most products and requiring warning labels for covered products.
- The rule followed a multi-year EPA study concluding occupational asbestos exposure can cause serious disease, including cancers.
- Asbestos-industry manufacturers and trade associations petitioned for review, challenging the rule’s evidentiary support, its selection of a near-total ban, and aspects of the rulemaking process.
- EPA’s risk and economic analyses indicated very high costs relative to the number of lives saved for certain product categories.
- Petitioners asserted the rule failed to assess sufficiently the feasibility and risks of substitute products and raised concerns about economic and trade effects.

## Issues

1. Whether the asbestos ban and phase-out rule was supported by substantial evidence in the record as required for TSCA § 6 rules.
2. Whether EPA satisfied TSCA § 6’s requirement to select the least burdensome regulatory option that adequately reduces the identified unreasonable risk.
3. Whether EPA committed procedural error by relying on key risk-assessment methodologies introduced too late in the rulemaking to allow meaningful public comment.

## Decision

- The court vacated most of the asbestos ban and phase-out rule and remanded to EPA.
- The court held EPA failed to support the rule with substantial evidence.
- The court held EPA did not show that a near-total ban was the least burdensome adequate response under TSCA § 6.
- The court found a procedural violation where EPA adopted critical methodological changes late in the process without adequate opportunity for public comment.
- On clarification, the court explained the decision left in place the rule’s effect on asbestos-containing products not being manufactured, imported, or processed as of July 12, 1989, preserving the ban on reintroduction and future uses while undoing much of the ban affecting ongoing uses.

## Legal Principles

- TSCA § 6 requires EPA to show a chemical presents an unreasonable risk of injury to health or the environment and to regulate through the least burdensome alternative that adequately reduces that risk.
- Judicial review of TSCA § 6 rules applies a substantial-evidence standard, demanding a stronger record basis than ordinary arbitrary-and-capricious review.
- To satisfy the least-burdensome requirement, EPA must comparatively evaluate plausible regulatory alternatives and justify why less restrictive options (e.g., labeling, targeted restrictions, phased controls) are inadequate.
- Economic and risk analyses supporting a TSCA § 6 rule must be supported by record evidence, including reasoned treatment of costs, expected benefits, and key assumptions affecting net effects.
- Agencies must provide meaningful notice and opportunity to comment on central methodologies and data used to justify a final rule; late adoption of critical exposure or modeling approaches can invalidate the rule.

## Conclusion

The Fifth Circuit largely set aside EPA’s asbestos ban because the agency did not support the rule with substantial evidence, did not justify a near-total ban as the least burdensome adequate measure under TSCA § 6, and relied on late-stage methodological changes without meaningful public participation; the decision preserved limits on reintroducing asbestos in products not in production as of the rule’s promulgation date.


Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991)