Chemicals, EHS Administration, EHS Management

EPA Reaches Settlement to Close Asbestos Reporting Loopholes

In a settlement agreement announced June 7, 2021, the EPA said it will require reporting on asbestos usage under the Toxic Substances Control Act (TSCA), according to San Francisco CBS.

Toxic Substance Control Act
Barry Barnes / Shutterstock.com

The legal battle over this decision was preceded by the 2017 EPA refusal to consider a petition to close some asbestos reporting “loopholes.”

“The EPA refused to start the rule-making process on several grounds, most notably that the ‘EPA does not believe that the requested amendments would result in the reporting of any information that is not already known to EPA,’” according to San Francisco CBS.

Following the EPA’s refusal of the petition, some environmental advocacy groups, led by the Asbestos Disease Awareness Organization (ADOA), filed suit against the EPA to challenge the decision.  In June 2019, a similar suit was filed by 10 states, led by California and the District of Columbia.

The two suits were later joined and eventually heard before U.S. District Court Judge Edward Chen.  Judge Chen granted summary judgment to the plaintiffs on Dec. 22, 2020.

“After reviewing the dense regulatory environment in which the issue arose, Chen found that under the TSCA, the EPA was required to consider ‘reasonably available information’ when conducting risk assessments on hazardous chemical substances,” according to San Francisco CBS.

“The judge went on to find that ‘despite the strong enforcement powers at its disposal and the importance of complete and adequate information, the EPA, in this instance, has declined to collect all reasonably available information concerning the risks posed by asbestos conditions of use.’

“Chen was not sympathetic to the EPA’s argument that it already knew all there was to know,” according to San Francisco CBS.

After Chen’s decision, the EPA filed a motion to alter judgment, “insisting that Judge Chen overstepped his authority by directing the EPA to grant a petition seeking stricter reporting rules,” according to Courthouse News.

“’By ordering EPA to take the specific action of amending the [Chemical Data Reporting (CDR)] Rule on remand, the court interferes with EPA’s discretionary authority to reconsider its response to the petitions,’ the EPA argued in its court filing,” according to Courthouse News.  “On Monday, the EPA agreed to withdraw that motion and restart the rulemaking process on asbestos reporting requirements.

“Under the terms of the settlement, both sides filed a joint stipulation asking Chen to amend his prior ruling to state that the EPA is directed to ‘initiate a rulemaking process’ on asbestos reporting rules that addresses the problems identified in his decision. … Chen approved the stipulation … .”

California Attorney General Rob Bonta was pleased with the Biden administration’s decision and classified the long-time failure of the EPA in regulating asbestos as “an environmental injustice and public health tragedy,” according to a press release issued by his office.

Asbestos was first recognized as a carcinogen in 1970 and is responsible for more than 40,000 deaths per year, according to the ADAO.

The settlement terms include an agreement by the EPA “to meet specific deadlines for the rulemaking process and to not appeal the court’s decision,” according to Courthouse News.  “The EPA will publish a proposed rule no later than nine months after the effective date of the settlement and a final rule no later than 18 months after the effective date of the settlement.  

As part of the settlement, the states seek to amend their complaint to allege only a cause of action under the TSCA and agree to a slightly modified final judgment that directs the EPA to initiate rulemaking under the TSCA to address the information-gathering deficiencies that the court identified.”