A federal appellate court should overturn an EPA report on asbestos because it doesn’t go far enough in addressing the risks, according to a petition before the court.

A broad coalition of public health groups, academics, physicians and researchers asked the Ninth U.S. Circuit Court of Appeals to review a December 2020 EPA report on asbestos risks in a Jan. 26 filing.

The report in question — “Final Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos” — addresses the risks posed by chrysotile asbestos only, which the groups contend is unacceptable. Chrysotile asbestos is the only known form of asbestos still in use.

Lawsuit Imminent

Concurrent with the petition, the coalition also threatened to sue the EPA in a letter, contending that the risk evaluation fails to meet the agency’s obligation to review legacy forms of asbestos. A 2016 law that updated the Toxics Substances Control Act (TSCA) — which asbestos is classified as — mandated that the agency complete a risk evaluation on all forms of asbestos last June.

“EPA failed to complete a full asbestos risk evaluation in accordance with TSCA by the June 19, 2020 deadline in the law,” the letter states. “Because the asbestos evaluation was required to assess the risks to human health of the use and disposal of legacy asbestos under TSCA as construed by the Ninth Circuit, EPA is in violation of a non-discretionary duty.”

Although the agency initially tried to exclude legacy forms of asbestos from consideration, the Ninth Circuit ordered the agency to include them in a November 2019 ruling, concluding that “EPA’s exclusion of legacy uses and associated disposals [for asbestos] contradicts TSCA’s plain language.”

Part 2 Coming .... Sometime

The EPA’s risk evaluation includes a notation that the agency will issue a Part 2 supplemental report reviewing the health and environmental effects of older forms of asbestos no longer in use but still found in some older buildings. However, as the coalition’s letter states, the agency gives no specifics on what will be in the report or when it will be released.

Part 1 of the report found that chrysotile asbestos poses an unreasonable risk to human health in all consumer uses, such as aftermarket automotive brakes and linings, and certain gaskets. Most consumer products with chrysotile asbestos have been discontinued. Commercial use risk findings were more limited, with the agency declaring the product unsafe for use in chlor-alkali diaphragms, sheet gaskets, brake blocks, aftermarket automotive brakes and linings, other vehicle friction products, and other gaskets.

The agency concluded that chrysotile asbestos poses no unreasonable risk to the environment.

A Diverse Group

The group petitioning the court and threatening suit includes six health groups and six individuals. Among the coalition members are the Asbestos Disease Awareness Organization (ADAO) and Dr. Raja Flores, a mesothelioma surgeon. Other groups include the American Public Health Association, the Center for Environmental Health, the Environmental Information Association, Safer Chemicals Healthy Families and the Vermont Public Interest Research Group.

“Asbestos is one of the world’s largest man-made disasters,” ADAO President Linda Reinstein said in a release excoriating the Trump-era EPA for falling short of its mandate for a comprehensive evaluation of the dangers of asbestos. “The EPA’s piecemeal and dangerously incomplete final risk evaluation for asbestos overlooks numerous sources of asbestos exposure and risk, and understates the enormous toll of disease and death for which asbestos is directly responsible,” she added.

The petition names both the agency and acting Agency Administrator Jane Nishida, who was appointed to the post only six days ago, after Trump-era administrator Andrew Wheeler left. Perhaps because of this, the letter threatening suit mistakenly refers to her as “him.”

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