Judge Advances Challenge of Asbestos Reporting Loopholes

SAN FRANCISCO (CN) – A federal judge on Friday advanced a lawsuit claiming the U.S. Environmental Protection Agency fails to track how much hazardous asbestos is made, imported and added to U.S. products.

The Environmental Protection Agency Building in Washington. (AP Photo/Pablo Martinez Monsivais, File)

“This decision gives us the green light to press ahead with our suit to hold EPA accountable for refusing to require simple and straightforward reporting by the asbestos industry,” said Linda Reinstein, president of the Asbestos Disease Awareness Organization.

Reinstein’s organization and four other groups sued the EPA in February, challenging its decision to allow exemptions to asbestos reporting rules and denial of a petition to impose stricter reporting requirements on companies that handle asbestos.

U.S. District Judge Edward Chen denied the EPA’s motion to dismiss the lawsuit, finding the Administrative Procedure Act permits judicial review of the EPA’s denial of a rulemaking petition.

However, the judge rejected the plaintiffs’ request for de novo review, which would have allowed the court to consider evidence beyond documents and information the EPA relied on when it made its decision.

The judge found that because the plaintiffs’ petition sought to amend an existing rule, rather than issue a new rule, denial of the petition was not subject to de novo review under Section 21 of the Toxic Substances Control Act.

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 Court of Appeals overturned the ban two years later.

Plaintiffs claim the lack of reliable data weakens the EPA’s ability to track where asbestos is made, processed and imported in the U.S. – all information they say could help the agency as it embarks on a required risk assessment for the chemical.

The EPA published a scoping document in June 2017 identifying asbestos-containing products, but the plaintiffs say the document provides “virtually no information” on how much asbestos exists in each product, the quantities produced and imported, sites where it is used, or the number of individuals exposed to it.

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 the Occidental Chemical Corporation, which uses asbestos to make chlorine and other products, from those rules because “reporting is not required for ‘naturally occurring chemical substances,’” according to the lawsuit.

The plaintiffs filed a petition in September 2018 asking the EPA to eliminate this loophole. The agency denied the petition two months later.

The EPA said stricter reporting rules would not produce new information “that is not already known to EPA” and that the agency 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.”

The plaintiffs dispute that claim, arguing the EPA is 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.

“EPA has greatly overstated its knowledge of asbestos use and exposure in the United States,” the plaintiffs stated in a letter urging the EPA to reconsider its decision on Jan. 31, 2019.

Judge Chen’s decision to advance the lawsuit comes one day after the Ninth Circuit ruled the EPA cannot ignore past uses or disposals of chemicals such as asbestos in required risk assessments.

Reinstein said the two legal victories in two days have “reaffirmed the fact that the EPA has failed to do its job to protect public health and the environment.”

Reinstein, a widow who lost her husband to asbestos-related mesothelioma in 2006, said the recent court findings strengthen the case for lawmakers to approve a bill to ban asbestos pending in Congress. The Alan Reinstein Ban Asbestos Now Act, named after Reinstein’s late husband, was introduced by U.S. Senator Jeff Merkeley, D-Oregon, in March.

Though the exact number of deaths caused by asbestos in the U.S. is unknown, a study by the Environmental Working Group estimated the substance killed 12,000 to 15,000 Americans per year from 1999 to 2013.

Other plaintiffs in the lawsuit include the American Public Health Association, Center for Environmental Health, Environmental Working Group, Environmental Health Strategy Center, and Safer Chemicals Healthy Families.

Environmental Working Group spokesman Alex Formuzis lamented that federal judges, rather than EPA officials, are the ones making decisions to protect public health under the Trump administration.

“EPA Administrator Andrew Wheeler’s efforts to keep the public in the dark about where and how asbestos is being used in this country is antithetical to what the American people should expect from the head of the EPA,” Formuzis said.

An EPA spokesman said the agency will review the decision and declined to comment further.

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