EPA sued as groups seek to initiate rules regarding asbestos reporting

By Takesha Thomas | Mar 8, 2019

SAN FRANCISCO (Legal Newsline) – Several nonprofit public health and environmental groups have filed an amended complaint for relief in a federal district court in California asking that the EPA require companies to submit reports on potential amounts of asbestos in products.

On Feb. 19, the groups Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, Environmental Health Strategy Center and Safer Chemicals Healthy Families filed the complaint in U.S. District Court for the Northern District of California at San Francisco.

The complaint, which seeks declaratory and injunctive relief, alleges that Andrew Wheeler, the acting administrator of the U.S. Environmental Protection Agency (EPA), and the agency "initiate rulemaking under section 8(a) of the Toxic Substances Control Act (TSCA) to require importers, manufacturers and processors of asbestos and asbestos-containing mixtures and articles to submit reports on the amounts of asbestos they import and use, the sites where these activities occur, the nature of the use and the resulting potential for exposure to asbestos by workers and members of the public."

The suit states the plaintiffs filed a section 21 petition in September to request the EPA initiate the rulemaking.

"As it explained, '[t]he discovery of asbestos in Claire’s makeup products – and previous detection of asbestos in certain crayons - raises the possibility that thousands of asbestos containing products may be imported in the U.S. for sale to consumers. However, no information about these products is provided in the problem formulation – presumably because EPA lacks reliable data on their importation and use,'" the complaint states.

The petition was denied by the EPA in December 2018. 

In addition, the complaint contends that the defendants' denial of the petition "contains errors of law and fact, misrepresents the basis for the petition and ignores information in the docket and EPA's own past statements."

They are asking that the court require the EPA to initiate the rulemaking and requested that the EPA pay attorneys' fees and costs.

According to the filing, TSCA was enacted in 1976 to "create a national program for assessing and managing the risks of chemicals to human health and the environment." 

Under the Act, the EPA is required to initiate risk evaluations on 10 chemical substances within 180 days of the enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), enacted in 2016, the suit says.

In June 2017, the EPA issued a scoping document "and a problem formulation in June 2018 setting out the fiber types, products, exposure pathways and health end-points that it planned to address in its asbestos risk evaluation and summarizing the information in its possession on importation and use of asbestos and asbestos-containing products in the United States," the suit says.

However, after being notified by two of the plaintiffs in May 2017 of three U.S. companies that use "asbestos diaphragm cells" in manufacturing, the EPA advised that "asbestos imports were not subject to reporting because... reporting is not required for 'naturally occurring chemical substances'" under the law, the suit claims.

The petition also contends that the EPA "lacked critical information about consumer products contaminated by asbestos." 

The plaintiffs are represented by Michael Connett of Waters Kraus and Paul of El Segundo, California and Robert M. Sussman of Sussman & Associates in Washington, D.C.

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U.S. District Court for the Northern District of California U.S. Environmental Protection Agency (EPA)

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