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EPA Stops Fighting Court Order, Will Find Way To Close Loopholes For Asbestos Usage

June 9, 2021 / 3:09 PM PDT / CBS San Francisco

SAN FRANCISCO (CBS SF/BCN) -- The U.S. Environmental Protection Agency (EPA) said this week that it is going to work to stop allowing asbestos to be used for any kind of application in the United States.

In a settlement announced this week, the EPA dropped its opposition to a 2020 order of a federal judge in San Francisco and agreed to pursue a new rulemaking to close "loopholes" in the gathering of information about asbestos use and importation.

In February 2019, a group of non-profit environmental advocacy organizations, led by the Asbestos Disease Awareness Organization, challenged the EPA's refusal to undertake a process to close exemptions that allowed companies to avoid gathering and reporting certain information about their importation and use of asbestos in the United States.

A similar suit was filed in June 2019 by 10 states, led by California, and the District of Columbia.

The two suits were later consolidated in front of U.S. District Court Judge Edward Chen.

The litigation arose after the EPA, then under the administration of former President Donald Trump, declined to undertake a rule-making process to eliminate several exemptions to the requirement that companies report information about their use of asbestos.

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."

On Dec. 22, 2020, Judge Chen granted summary judgment to the plaintiffs.

After reviewing the dense regulatory environment in which the issue arose, Chen found that under the Toxic Substances Control Act, the EPA was required to consider "reasonably available information" when conducting risk assessments on hazardous chemical substances.

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.

"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," Chen said.

Finding that the EPA had not articulated a satisfactory explanation for its decision, the judge concluded that the EPA's action was arbitrary and capricious. He ordered the EPA to amend the reporting rule to close the loopholes.

Following the decision, the EPA asked the judge to alter his judgment on grounds that it directed the EPA to act beyond its powers.

After the administration of now-President Joe Biden took power, the parties entered settlement negotiations and those discussions resulted in the agreement presented to the court on Monday.

Under the settlement, the EPA consented to initiate a rule-making proceeding with the end goal of eliminating the reporting exemptions for uses of asbestos. The parties agreed to a timetable with specific milestones for the EPA's process.

California Attorney General Rob Bonta said in a statement Monday, "The long-time failure of the EPA to regulate asbestos is an environmental injustice and public health tragedy."

He said that the commitment by the EPA under President Biden to collect the missing information "is an important step toward ensuring all Americans live in a community that is healthy and safe."

Linda Reinstein, president of ADAO, called the settlement a "landmark" and "a huge win for public health."

The ADAO said that it will continue to work to obtain a complete ban on asbestos imports and use.

"Although many other countries have banned asbestos, most uses of asbestos are still lawful in the US. Over 40,000 Americans die annually due to asbestos caused illnesses."