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EPA to Close Asbestos Reporting Loopholes Under Settlement

To settle a lawsuit with the state of California and public health advocacy groups, the Biden administration will restart a rulemaking process aimed at ending the EPA's asbestos reporting exemptions.

SAN FRANCISCO (CN) --- The U.S. Environmental Protection Agency will eliminate asbestos reporting loopholes put in place by the Trump administration and collect more data on how much of the carcinogen is made, imported and put into U.S products under a settlement announced Monday.

“Today's commitment by the Biden Administration's EPA to collect missing information about the import and use of asbestos is an important step toward ensuring all Americans live in a community that is healthy and safe,” California Attorney General Rob Bonta said in a statement Monday.

Recognized as a human carcinogen since the 1970s, asbestos exposure has been linked to cancers of the lungs, ovaries and larynx. The EPA banned asbestos in 1989, but the Fifth Circuit overturned the ban two years later.

The EPA’s Chemical Data Reporting (CDR) rule, enacted in 2011, mandates that companies report asbestos levels in their products. But in July 2017, the EPA exempted companies from those requirements, finding that “reporting is not required for ‘naturally occurring chemical substances.”

In denying a petition to close that loophole, the agency said 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."

California and a coalition of public health groups sued the EPA over that decision in 2019. They argued the EPA was ignoring “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.

This past December, a federal judge ordered the EPA to abolish the asbestos reporting exemptions and collect more data. U.S. District Judge Edward Chen found the agency’s 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 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. He directed the EPA to revise its rule to address the “information-gathering deficiencies” identified in his 36-page ruling.

Instead of taking that action, the EPA responded by filing a motion to alter judgment, insisting that Judge Chen overstepped his authority by directing the EPA to grant a petition seeking stricter reporting rules.

“By ordering EPA to take the specific action of amending the CDR Rule on remand, the court interferes with EPA’s discretionary authority to reconsider its response to the petitions,” the EPA argued in its court filing.

On Monday, the EPA agreed to withdraw that motion and restart the rulemaking process on asbestos reporting requirements.

Under the terms of the settlement, both sides filed a joint stipulation asking Chen to amend his prior ruling to state that the EPA is directed to “initiate a rulemaking process” on asbestos reporting rules that addresses the problems identified in his decision.

Chen approved the stipulation Monday evening.

Linda Reinstein is president of the Asbestos Disease Awareness Organization, one of the groups that sued the EPA over its refusal to end reporting exemptions. She called the settlement a “huge win” for public health in a statement Monday.

“The lack of reporting on asbestos has been a gaping hole in EPA’s efforts to protect Americans from exposure to this lethal carcinogen,” Reinstein said. “We’ve always said that we can’t protect Americans from asbestos if we don’t know where it is.”

Reinstein, who lost her husband to asbestos-related mesothelioma in 2006, said the Biden administration deserves “immense credit” for acknowledging that the government can’t effectively reduce deaths and diseases caused by asbestos unless it knows how much “is entering the country, where it is going, how it is used, and how many people are exposed to it.”

Her group’s attorney, Bob Sussman, said this is the first case in which a citizen’s petition authorized by Section 21 of the Toxic Control Substances Act was used to obtain a court order forcing the EPA to initiate rulemaking it had refused to conduct.

“Section 21 was included in the law so citizens can hold EPA accountable for failing to use its TSCA authorities to address important public health concerns,” Sussman said. “It is good news for all of us that this remedy is working as intended and motivating EPA to do the right thing.”

Bonta said the settlement is especially important for protecting the health of vulnerable communities.

“As with so many environmental toxins, it is our low-income communities, communities of color, and young children who are disproportionately exposed to this deadly carcinogen and who suffer the resulting health consequences,” Bonta said.

The EPA did not immediately respond to an email requesting comment Monday.

The Asbestos Disease Awareness Organization has also asked the Ninth Circuit to invalidate the Trump administration's December 2020 final risk evaluation for asbestos, which found that one form of asbestos — chrysotile asbestos — poses unreasonable risks to human health but no serious risks to the environment. ADAO claims the assessment was flawed and unreliable.

The group filed a separate lawsuit in May seeking to force the EPA to set a deadline for its evaluation of legacy uses of asbestos. The Ninth Circuit ruled in 2019 that the EPA cannot ignore past uses of chemicals no longer being manufactured for a particular purpose when it assesses their risk to public health.

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