SAN FRANCISCO (CN) — Despite identifying major gaps in knowledge about asbestos in a recent draft risk report, the Trump administration on Thursday defended lax reporting rules that let companies avoid disclosing how much asbestos is made, imported and put into U.S. products.
“The EPA has offered its basis which is rooted in science, and the court should defer to the agency’s discretion,” Justice Department lawyer Brandon Adkins argued in federal court in California.
Adkins was defending the U.S. Environmental Protection Agency’s December 2018 denial of a petition seeking to close loopholes in asbestos reporting requirements for U.S. importers and manufacturers.
Asbestos Disease Awareness Organization and four other groups sued the EPA in February last year for denying their petition. They said the agency 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.
Ten states and the District of Columbia, led by California, followed with their own lawsuit challenging the agency’s refusal to close those loopholes in June 2019.
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.
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 and already has the information that EPA would receive if EPA were to amend the CDR requirements.”
During a hearing on dueling motions for summary judgment Thursday, the states and public health advocacy groups said the EPA’s explanation is contradicted by its April 2020 draft risk evaluation for asbestos. The report acknowledged “a lack of information/details on the market share of asbestos-containing products available to both workers and consumers.”
“What we’re hearing from the agency is some scientific hocus pocus provides a basis for overlooking these critical information gaps and not using the CDR reporting to fill them,” attorney Robert Sussman, representing public health advocacy groups, argued in court.
The Trump administration says the court cannot consider the EPA’s April 2020 draft risk report because it was not considered when the agency denied the petition at issue in 2018. Because the report is not final, it also may not be considered as an official EPA comment or position, Adkins argued.
But ignoring the draft report might cause the court to miss an important piece of evidence, U.S. District Judge Edward Chen suggested.
“Here, the action was taken when the agency said, ‘We have enough facts,’ and then there’s other evidence — call it extraneous, extrinsic evidence — that tends to show the contrary,” Chen said.
Adkins replied that the court need not look to that report for evidence that the EPA lacked information. The agency acknowledged as much in prior reports, including in a 2017 scoping document.
“EPA was very upfront in denying the petitions that there existed certain information gaps,” Adkins said. “The EPA also explained, whereas here when EPA has certain information gaps, EPA relies on other scientific processes such as modeling that are subject to scientific review.”
Sussman said the EPA has yet to explain how its modeling and other scientific processes make it unnecessary to obtain more data on how many U.S. workers and consumers are exposed to asbestos.
The EPA is required to use “reasonably available information” when it conducts risk assessments for toxic substances. Adkins said Congress gave the EPA power to determine what information is reasonably available. In this case, the agency found that voluntary reporting by industries would provide adequate information.
Chen questioned how information accessible through reporting rules authorized by Congress is not easily attainable.
“If additional information that may be helpful is available through narrowing some of these exemptions and requiring more robust reportage by the submitters, why is that information not reasonably available?” Chen asked.
Evaluating the adequacy of information the EPA relied on for its risk assessment falls outside the scope of this litigation and the court’s jurisdiction, Adkins replied. Only a U.S. court of appeals can review the risk evaluation once it’s finalized.
The real question, Adkins insisted, is whether the petitioners presented adequate evidence to convince the EPA that expanded reporting would produce pertinent information, and whether the agency rationally denied their petition.
“I think the court’s review here is to see if there’s a reasonable basis for that decision,” Adkins said.
Representing the states, California Deputy Attorney General Elizabeth Rumsey implored Chen to consider the April 2020 draft risk report, arguing it clearly shows EPA’s efforts to backfill its knowledge gaps has fallen short.
“It terrifies me as the mother of a four-year-old that this substance is coming in yarn, in crayons, in talc,” Rumsey said. “For EPA to say, ‘we have all the information we need,’ the [draft risk evaluation] shows it was wrong then. It has not paid off. Those information gaps have not been filled.”
After about two hours of debate, Chen took the arguments under submission.