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EPA Must Close Asbestos Reporting Loopholes, Federal Judge Rules

The U.S. Environmental Protection Agency (EPA) must take actions to better collect data on the amount of asbestos being used, made, and imported into the United States, according to recent orders issued by a federal judge.

U.S. District Judge Edward Chen of the Northern District of California issued a ruling (PDF) on December 22, in lawsuits brought by the Asbestos Disease Awareness Organization and the State of California against the EPA and its administrator, Andrew Wheeler. The ruling calls on the EPA to close loop holes in reporting procedures and to bring its enforcement powers to bear on companies who fail to accurately report their use of asbestos.

The risks of asbestos exposure, which can cause lung cancer, asbestosis, mesothelioma and other serious health injuries, have been known for about a century, although they did not get widely publicized until 1964. Most modern, first-world countries banned asbestos use in its entirety decades ago. But not the United States.

Despite the ban on most applications, there is still about 750 metric tons of asbestos used in the United States every year. The EPA was given a chance to ban asbestos again in 2016, as part of a new chemical safety law meant to require safety reviews of key chemicals, but refused.

The EPA again refused to put an outright ban on asbestos in place in April 2019, as part of a significant new use rule. That decision came amid public comments by doctors, health experts and consumers who supported a ban.

In May 2019, The New York Times published internal memos showing even the EPA’s own experts were against the decision and thought remaining asbestos uses should be banned. At the time, EPA personnel objected to claims that “new uses” of asbestos could be safer, of narrow definitions of what asbestos is, and also complained that the EPA was only considering lung cancer and mesothelioma as potential asbestos harms.

In the face of lawsuits over its decisions not to ban asbestos the EPA argued, under the Trump administration, that voluntary reporting by companies using and manufacturing asbestos were enough. However, Judge Chen said a draft risk evaluation released by the EPA earlier this year, is evidence against that argument.

In the draft risk evaluation, EPA experts warned keeping asbestos in circulation, even in limited quantities, was an “unreasonable” risk for consumers and workers. That assessment looked at uses of asbestos in the chlor-alkali industry, sheet gaskets and other types of gaskets and automotive brakes.

Judge Chen said the EPA needed to work harder to collect data on asbestos, instead of relying on manufacturers to self-report, and said it needed to more vigorously enforce existing regulations.

“More fundamentally… EPA has not attempted to quantify the volume of asbestos-containing articles imported into the U.S.,” Judge Chen noted. “This lack of information is particularly significant given the EPA’s unwillingness to capture and quantify downstream uses of asbestos-containing articles.”

Judge Chen noted the EPA explicitly acknowledged its own lack of action on calculating how much asbestos is imported into the country makes it virtually impossible to determine the asbestos exposure rate of U.S. consumers.

“In one significant example, the EPA fails to measure the extent of consumer exposure which occurs when mechanics change asbestos-containing brake linings, or when consumers use asbestos-containing woven products,” he wrote. “This despite the fact that EPA anticipates that consumers are likely to be exposed to asbestos while changing asbestos-containing brake linings, and that the most likely route of exposure is inhalation of asbestos fibers.”

Judge Chen ordered the agency to amend its reporting rules to address information-gathering deficiencies and propose a rule within 90 days which addresses the concerns of the Court.

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