Lawsuit Targets EPA’s Asbestos Reporting Loopholes

SAN FRANCISCO (CN) - Traces of asbestos were recently found in crayons and makeup, but the Environmental Protection Agency has no way to track how much of the toxic chemical gets made, imported or put into U.S. products, public health groups claim in a federal lawsuit.

Asbestos Disease Awareness Organization and four other groups sued the EPA on Monday, challenging the agency's decision to allow exemptions to asbestos reporting rules. The groups also criticized the EPA's denial of a petition to impose stricter reporting requirements on companies that handle asbestos.

"There is overwhelming consensus in the scientific community that there is no safe level of exposure to asbestos," the groups state in their 16-page complaint.

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.

In Monday’s lawsuit, the public health groups 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 toxic 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 complaint.

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

The EPA insisted that 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.

The public health groups accuse the EPA of violating the Toxic Substances Control Act and the Administrative Procedure Act. They seek a declaration that asbestos poses an unreasonable risk to human health and a court order directing the EPA to start a rulemaking process for new asbestos reporting requirements.

Other named plaintiffs include the American Public Health Association, the Center for Environmental Health, the Environmental Working Group and the Environmental Health Strategy Center.

Michael Connett of Waters Kraus and Paul in El Segundo, California, and Robert Sussman in Washington, D.C., represent the public health groups.

The EPA did not immediately respond to an email seeking comment Tuesday afternoon. A Department of Justice spokesman declined to comment.

Follow @NicholasIovino

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