EPA Ordered to Close Asbestos Reporting Loopholes

SAN FRANCISCO (CN) — Rejecting the U.S. Environmental Protection Agency’s position that it has everything it needs to assess the risk posed by asbestos, a federal judge on Tuesday ordered the agency to start collecting more data on how much is made, imported and put into U.S. products.

“EPA has not articulated a satisfactory explanation for its decision not to use its significant enforcement powers to collect information from companies concerning asbestos-related health risks,” U.S. District Judge Edward Chen wrote in a 36-page ruling.

In fighting a lawsuit over the agency’s refusal to close asbestos-reporting loopholes, the Trump administration had argued that voluntary reporting by manufacturers, processors and importers provided adequate data for a required chemical risk review that started in 2016.

Chen found that position was undermined by a 2020 draft risk evaluation and recommendations by the EPA’s Science Advisory Committee on Chemicals, both of which acknowledged a lack of data on how much asbestos consumers and workers are exposed to in the U.S.

The advisory committee found the EPA’s risk evaluation was not adequate or reliable, and it “specifically faulted EPA for relying on voluntary submissions instead of its authority to mandate reporting under [Toxic Substances Control Act],” Chen wrote in his ruling.

The EPA had argued the draft risk study and committee recommendations should not be considered because they were not relevant to the decision challenged in two lawsuits filed in 2019. The lawsuits — brought by 10 states, the District of Columbia and five public health advocacy groups — specifically challenged the agency’s January 2019 denial of a petition to close asbestos-reporting loopholes in the EPA’s Chemical Data Reporting (CDR) rule.

The loopholes exempted companies from reporting on asbestos that is “unintentionally present with another chemical substance” in products, not intended for removal or end-use separately from the product in which it is present, or on processing activities, such as repackaging asbestos-containing brake linings.

According to the EPA, stricter reporting rules would not produce new information “that is not already known to EPA” and that it is “aware of all ongoing uses of asbestos and already has the information that EPA would receive if EPA were to amend the CDR requirements.”

Chen rejected the EPA’s demand that he disregard documents faulting the agency for missing information on how much asbestos is present in U.S. products and imports.

“Whether EPA has adequately assembled all reasonably available information, and what kinds of information the EPA did not possess, is at the crux of this case,” Chen wrote.

Information in both documents is “highly probative to those questions because they shed light on the information which EPA does not have,” the judge added.

The plaintiffs claimed the EPA ignored “serious, well-documented concerns,” including the discovery of asbestos in Playskool crayons in 2018 and in makeup sold at the retailer Claire’s in 2017. The EPA said it did not believe that information was “reasonably ascertainable” because the studies were conducted by third parties, not by the product manufacturers themselves.

Chen disagreed, noting that some big companies like Johnson & Johnson, which stopped selling talc-based baby powder this past May amid claims that the product contained asbestos, might have access to third-party testing results for their products.

“EPA cannot know what submitters are ‘expected to possess, control, or know’ unless and until it requests that they submit their test results on asbestos impurities,” Chen wrote.

During a hearing on dueling motions for summary judgment last month, the EPA insisted that its use of scientific modeling to close data gaps makes the collection of more information unnecessary.

But the EPA’s advisory committee described that modeling as flawed, saying it was based on insufficient data.

“EPA’s models do not have the comprehensive raw data necessary to make accurate assessments that capture all ‘reasonably available’ data,” Chen wrote in his ruling.

The judge concluded the EPA violated the Administrative Procedure Act by failing to take a “hard look” at the value and availability of additional data when it denied the petition to close asbestos-reporting loopholes.

“EPA’s unwillingness to act stands in the face of its significant statutory authority to require that this information be reported via the CDR rule and runs contrary to its obligation to collect reasonably available information to inform and facilitate its regulatory obligations under [Toxic Substances Control Act],” Chen wrote.

The judge directed the EPA to amend its Chemical Data Reporting rule to address the “information-gathering deficiencies” identified in his ruling. Chen said he will maintain jurisdiction over the case to ensure compliance with his mandate.

Nonprofits that sued to close the reporting loopholes include Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, Environmental Health Strategy Center and Safer Chemicals Healthy Families.

States that sued over the lack of asbestos reporting include California, Massachusetts, Connecticut, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Washington state and the District of Columbia.

California Attorney General Xavier Becerra called the ruling “a critical first step toward eliminating exemptions that allow this unsafe chemical to harm our communities, including our workers and children.”

In a statement Tuesday, Asbestos Disease Awareness Organization president and CEO Linda Reinstein hailed the decision as a major victory for public health.

“EPA cannot do its job to protect the public unless it has basic information on how much asbestos is entering the United States and where it goes once it is here,” Reinstein said. “This win is an unequivocal rejection of EPA’s weak and inadequate protection of public health from a deadly substance that has taken hundreds of thousands of lives.”

An EPA spokesperson said the agency is reviewing the decision and declined further comment.

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