Federal Judge Orders EPA to Close Loopholes in Asbestos Reporting Procedures

The U.S. Environmental Protection Agency (EPA) must take action to improve its data collection efforts involving the use, manufacture and importation of asbestos into the United States, according to a new order by a federal judge in California. U.S. District Judge Edward Chen of California’s Northern District issued the ruling late last month, in complaints filed against the EPA and its administrator, Andrew Wheeler, by a group of nonprofit public health and environmental organizations that promote awareness about the health risks associated with asbestos. The court order requires the agency to make a greater effort to enforce existing asbestos regulations and close current loopholes in asbestos reporting procedures.

Asbestos Exposure Linked to Mesothelioma, Other Diseases

Asbestos is the name given to a set of six naturally occurring silicate minerals that are composed of long, thin fibrous crystals. Because of its fiber strength, durability, flexibility, and resistance to heat, fire and chemicals, asbestos has long been used in many different applications, from insulation and construction materials to fireproof clothing and automotive brake pads. However, asbestos is also a known carcinogen, which means exposure to the toxic mineral can lead to cancer. In fact, inhaling asbestos dust or fibers, even in small amounts, is the primary cause of a deadly type of cancer called mesothelioma.

The potential for asbestos exposure to cause mesothelioma, asbestosis, lung cancer and other serious, potentially life-threatening diseases has been studied for more than a century, though the health risks associated with asbestos were not widely publicized until the 1960s. In light of these well-known safety risks, asbestos has been banned by more than 60 countries around the world, including the United Kingdom, Canada and Australia. The U.S. never instituted a full ban on asbestos, however, and while the production of asbestos in the U.S. was halted in 2002, the toxic mineral is still routinely imported for use in manufacturing items like roofing materials, automotive parts, household products, fireproofing materials and other products consumers use or come in contact with every day. According to the U.S. Geological Survey, 750 metric tons of asbestos was imported in 2018 alone.

History of Asbestos Legislation in the U.S.

Throughout the 1970s and 1980s, there was a great deal of legislation implemented in the U.S. regulating the use of asbestos, including the Clean Air Act of 1970, the Toxic Substances Control Act of 1976, and the Asbestos Hazard Emergency Response Act of 1986. In 1989, the EPA issued the Asbestos Ban and Phase-Out Rule with the objective of imposing a full ban on the manufacturing, sale, importation and processing of asbestos-containing products in the U.S. However, the ban was overturned in a lawsuit filed by asbestos manufacturers who claimed that the action would have devastating economic consequences and lead to widespread job loss. In the years since, several other bills have sought to prohibit the future manufacture, processing, importation and distribution of asbestos-containing products in the U.S., but none have been successful.

Current Asbestos Use Puts Workers, Consumers at “Unreasonable” Risk

In 2018, the EPA balked at another chance to implement an outright ban on asbestos as part of a significant new use rule, despite promising to strengthen public health protections. According to two internal memos from the EPA, the agency ignored the advice of its own scientists and lawyers when it issued a rule that, instead of “closing the door” on asbestos, kept open a loophole allowing manufacturers to adopt new uses for asbestos or return to older uses, with approval from the EPA. The agency, facing considerable backlash over its failure to implement a ban on asbestos, argued that voluntary reporting by companies manufacturing and using asbestos was enough. According to Judge Edward Chen, however, a draft risk evaluation for asbestos issued by the EPA earlier this year indicating that current uses of asbestos put workers and consumers at an “unreasonable” risk for serious adverse health consequences flies in the face of that argument.

EPA Has Failed to Calculate Amount of Asbestos Used, Imported into U.S.

According to the new ruling issued by Judge Chen on December 22 in lawsuits filed against the EPA and Administrator Andrew Wheeler by the State of California and the Asbestos Disease Awareness Organization, rather than relying on companies to voluntarily report their use of asbestos, the EPA must work harder to collect data on the amount of asbestos used by manufacturers of asbestos-containing products like automotive brakes, adhesives, cement products, and other building and construction materials. “More fundamentally… EPA has not attempted to quantify the volume of asbestos-containing articles imported into the U.S.,” Judge Chen stated. “This lack of information is particularly significant given the EPA’s unwillingness to capture and quantify downstream uses of asbestos-containing articles.”

According to Judge Chen, the EPA’s failure to keep track of how much asbestos is imported into the country and used by manufacturers makes it virtually impossible to ascertain the true asbestos exposure rate of U.S. consumers. Under this new order, the EPA has 90 days to address the asbestos data-gathering deficiencies highlighted by the court and propose a rule that focuses on these concerns.