Ninth Circuit Asked to Undo Asbestos Review by Trump EPA

Public advocacy groups say the Trump administration failed to adequately assess the environmental and public health risks posed by asbestos in a required chemical risk evaluation.

SAN FRANCISCO (CN) — On the heels of recent court victories over how toxic chemicals must be evaluated, advocacy groups asked the Ninth Circuit on Tuesday to invalidate a recent Trump administration risk assessment for asbestos that critics say is legally flawed.

Joined by a coalition of public health and environmental advocates, Asbestos Disease Awareness Organization is asking the San Francisco-based appeals court to review the U.S. Environmental Protection Agency’s final risk evaluation for asbestos.

The risk assessment published in December 2020 found one form of asbestos — chrysotile asbestos — poses unreasonable risks to human health but no serious risks to the environment.

Opponents say the EPA failed to examine risks associated with other forms of asbestos, consider past uses of the chemical, address all asbestos-related health conditions or use the best available data to draw its conclusions.

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 November 2019, the Ninth Circuit ruled the EPA cannot ignore “legacy uses,” meaning past uses, and disposals of chemicals when evaluating their impact on public health under the Toxic Substances Control Act.

Acknowledging that decision, the EPA said it plans to consider legacy uses of asbestos in a Part 2 risk evaluation, but it has provided no details on how the study will be conducted or when it will be completed.

Asbestos Disease Awareness Organization and its allies also filed a letter on Tuesday notifying the EPA of its intent to file a separate lawsuit against the agency for not addressing legacy uses of asbestos in its initial risk evaluation.

In December, U.S. District Judge Edward Chen ordered the EPA to start requiring companies to report information on how much asbestos is made, imported and put into U.S. products. The judge found the EPA’s reliance on voluntary submissions and scientific modeling to close data gaps was insufficient, the same conclusion reached by the EPA’s Science Advisory Committee on Chemicals.

Critics say the dearth of available data makes the agency’s December 2020 risk evaluation flawed and unreliable.

“We want to see a comprehensive and robust evaluation of asbestos that looks at all the risks, all the products and types of asbestos which are out there that people are exposed to and looks thoroughly at the science,” said Robert Sussman, a lawyer representing the petitioners, in a phone interview Tuesday.

Sussman objected to “numerous omissions” in the EPA’s recent risk evaluation, including the failure to examine all asbestos fibers and look at products tainted with asbestos impurities, such as talc-based products.

In previous litigation, Sussman’s clients argued the EPA overlooked “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.

Also reached by phone Tuesday, Asbestos Disease Awareness Organization president and CEO Linda Reinstein said the petition is “monumentally important to public health.”

Reinstein, a widow who lost her husband to asbestos-related mesothelioma in 2006, said her organization and its allies are fighting to “hold EPA accountable for a risk evaluation that will truly measure the risk of asbestos, a known human carcinogen.”

More than 1 million Americans have died from asbestos-related health problems since the EPA’s attempt to ban the chemical was overturned by the Fifth Circuit in 1991. About 40,000 Americans die each year from conditions linked to asbestos exposure, according to health data compiled by the University of Washington.

A 2013 study by the National Institute for Occupational Safety and Health found firefighters were more than twice as likely to develop mesothelioma than the general population, mostly due to exposure to asbestos in older buildings during fires.

Other groups backing the petition for review include American Public Health Association, Center For Environmental Health, Environmental Information Association, Safer Chemicals Healthy Families – A Program Of Toxic-Free Future, and Vermont Public Interest Research Group.

The EPA did not immediately respond to an emailed request for comment Tuesday.

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