Court Orders EPA to Evaluate Past Uses of Asbestos

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man signs court documents

The 9th U.S. Circuit Court of Appeals handed down a recent ruling that requires the Environmental Protection Agency (EPA) to include past asbestos-containing products, called “legacy uses,” in their risk assessment of the toxic substance.

This follows a lawsuit by several environmental groups in response to the 2016 Frank R. Lautenberg Chemical Safety Act (LCSA), which freed the EPA from considering legacy uses of asbestos when assessing risks and taking action.

While the LCSA bolstered the Toxic Substance Control Act (TSCA) of 1976, it didn’t force the EPA to assess asbestos-laden building materials present in buildings or the prolific use of asbestos in the military and the auto industry.

The law only required newly manufactured asbestos-containing products to be evaluated, ignoring millions of old products that are still present in the United States.

Appeal Yielded Only One Favorable Ruling

The lawsuit asked the court to determine whether:

  1. The TSCA required the EPA to evaluate risks associated with a chemical’s use before determining that it is safe.
  2. The EPA must consider all of a chemical’s conditions of use in that evaluation.
  3. The EPA must evaluate past disposals of all chemicals, as well as the use and subsequent disposal of chemicals not made or distributed for that use.

While the court ruled that legacy uses must be considered, it ruled against the requirement that the EPA must count past disposals in their assessments.

“Considering that asbestos is a fiber that, once unearthed, can be easily airborne and inhaled, we are disappointed that the court did not mandate inclusion of past disposals in EPA’s evaluations,” said Mary Hesdorffer, executive director of the Mesothelioma Applied Research Foundation.

On count one, the court claimed lack of jurisdiction. Count two failed on its merits.

Asbestos on EPA’s List of 10 Most Dangerous Chemicals

After the LCSA passed four years ago, the EPA formulated a list of the most dangerous chemicals in the U.S. that needed immediate risk evaluation.

Asbestos topped that list, as it is a known carcinogen definitively linked to mesothelioma.

The United States is one of the few developed nations which has yet to ban the substance despite its deadly health risks. Yet, because of the long latency period of mesothelioma, the legacy uses are currently linked to most new diagnoses of the disease.

Did you know?

Approximately 3,000 new cases of mesothelioma are diagnosed each year, and many of those diagnosed are U.S. veterans.

In a recent appeal of the court’s decision, environmentalist groups like the Asbestos Disease Awareness Organization and the Environmental Working Group argued that failing to consider legacy uses of asbestos would be a deadly mistake.

“A significant amount of that asbestos is still in our environment, our homes, schools, and office buildings. With the latency period between exposure and disease development taking decades, it is crucially important to understand the full extent of the risk that legacy asbestos poses,” stated Hesdorffer.

Veterans Support Team
Beth Swantek PhotoWritten by:

Contributing Author at the Mesothelioma Justice Network

Beth has been writing about the dangers of asbestos and asbestos-related diseases since 2013. With a background in producing and directing, she now teaches her craft at a private Michigan university. After years of serving as a dedicated caregiver, Beth is passionate about helping those experiencing deep loss — such as those suffering from mesothelioma.

View 5 Sources
  1. Environmental Protection Agency. (2018, May). Problem Formulation of the Risk Evaluation for Asbestos. Retrieved from: https://www.epa.gov/sites/production/files/2018-06/documents/asbestos_problem_formulation_05-31-18.pdf
  2. Environmental Protection Agency. (n.d.). Risk Evaluations for Existing Chemicals under TSCA. Retrieved from: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-evaluations-existing-chemicals-under-tsca#ten
  3. Environmental Protection Agency. (n.d.) The Frank R. Lautenberg Chemical Safety for the 21st Century Act. Retrieved from: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act
  4. Mesothelioma Applied Research Foundation. (2019, Nov. 18). Court rules that EPA must evaluate legacy uses of asbestos, along with new uses. Retrieved from: https://www.curemeso.org/2019/11/18/court-rules-that-epa-must-evaluate-legacy-uses-of-asbestos-along-with-new-uses/
  5. United States Court of Appeals for the Ninth Circuit. (n.d.). Petitioners v. U.S. Environmental Protection Agency; Andrew Wheeler, Administrator, United States Environmental Protection Agency. Retrieved from: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/14/17-72260.pdf