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EPA Ordered to Seek Broader Asbestos Data, Scrap ‘Loopholes’ (3)

Dec. 22, 2020, 9:29 PM; Updated: Dec. 23, 2020, 3:13 PM

The EPA must expand its information-gathering efforts on health risks related to asbestos, a federal court ruled Tuesday.

The Environmental Protection Agency’s current approach contains multiple “loopholes” that prevent government officials from getting reliable industry information about the known carcinogen, the U.S. District Court for the Northern District of California ruled, siding with states and public health groups.

“These loopholes are large and cannot be cured by EPA’s modeling efforts without sufficiently reliable and comprehensive raw data inputs,” Judge Edward M. Chen wrote. “The EPA has not demonstrated it has a sufficient grasp of the universe of available information to determine it need do nothing further.”

The EPA’s Chemical Data Reporting rule, which governs the agency’s information-gathering for studying chemicals’ risks, includes provisions that effectively exempted some asbestos imports from reporting requirements.

“In light of these deficiencies, EPA has ‘failed to articulate a satisfactory explanation’ for its action, and its action is therefore arbitrary and capricious under the APA,” Chen concluded, referring to the Administrative Procedure Act.

‘Unequivocal Rejection’

“EPA cannot protect the public unless it has basic information on how much asbestos is entering the U.S. and where it goes,” Linda Reinstein, president and co-founder of the Asbestos Disease Awareness Organization, said in a statement. “This win is an unequivocal rejection of EPA’s weak and inadequate protection of public health from a substance that has taken hundreds of thousands of lives.”

Reinstein’s group, other public health organizations, and a coalition of states led by California last year challenged the EPA’s denial of separate petitions they filed that pushed the agency to seek more information about how asbestos is imported into the U.S., where workers, consumers, and the general public could be exposed.

The states and groups argued the denial violated the Administrative Procedure Act and the Toxic Substances Control Act.

During oral arguments in November, attorney Robert M. Sussman argued on behalf of the health groups that collecting more information could help the EPA determine whether and how to regulate asbestos. Federal government lawyers countered that the EPA properly exercised its discretion in denying the petitions.

California Attorney General Xavier Becerra (D) called Tuesday’s decision “a critical first step toward eliminating exemptions that allow this unsafe chemical to harm our communities, including our workers and children.”

Massachusetts Attorney General Maura Healey (D) said: “The Trump administration’s failure to use its authority to protect all of us from dangerous exposures to asbestos is as unconscionable as it is inexplicable.”

Deficiencies

Chen ordered the EPA to amend its Chemical Data Reporting rule “to address the information-gathering deficiencies identified herein.” He said he’ll keep jurisdiction over the case to ensure compliance.

“As demonstrated herein, it is evident that the EPA does not know what it does not know, and its conclusion that closing the loopholes would yield nothing useful is not an informed one,” the judge wrote.

The EPA said it’s reviewing the decision.

Asbestos is imported by about 15 chemical manufacturers who use it to produce equipment they use to make chlorine and caustic soda.

The state attorneys general and health groups suing the EPA wanted the agency to require companies to report imports of asbestos itself, of the substance as a component in aftermarket brake parts and other products, and as a contaminant in products like children’s crayons and cosmetics.

The case is Asbestos Disease Awareness Org. v. Wheeler, N.D. Cal., No. 19-cv-00871, 12/22/20.

(Adds comment in Dec. 22 story from Maura Healey in 11th paragraph.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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