States and anti-asbestos groups are pushing back on the Environmental Protection Agency’s attempts to circumvent a court order mandating asbestos reporting requirements.

In legal briefs filed Feb. 26, three states and a coalition of anti-asbestos groups asked the Ninth U.S. Circuit Court of Appeals to enforce a Dec. 22 order compelling the EPA to include asbestos in its Chemical Data Reporting (CDR) requirements. Asbestos importers were previously required to report exposure and use data to the agency under the CDR, but the agency exempted asbestos from the requirements in 2017.

The court filings were prompted by a Feb. 2 agency request that the Ninth Circuit waive the order and the associated asbestos reporting rule. The agency proposed that in place of the order, it be allowed to simply revisit citizen petitions filed by the anti-asbestos groups to restore asbestos to the CDR reporting rules — petitions that the agency rejected, which prompted a lawsuit and the resulting court order.

Evasion Alleged

The anti-asbestos organizations — a coalition of six groups led by the Asbestos Disease Awareness Organization (ADAO) — accused the EPA of trying to evade its responsibilities with its latest legal maneuver.

“It has been two months since entry of the court’s ... order and EPA has made no progress in amending the CDR rule,” the brief states. “Instead of directing it to conduct rulemaking, EPA would convert the order into an open-ended remand that instructs EPA merely to reexamine the petition denials, without any obligation to propose amendments to the CDR rule or indeed take any action at all.”

“Instead of directing it to conduct rulemaking, EPA would convert the order into an open-ended remand that instructs EPA merely to reexamine the petition denials, without any obligation to propose amendments to the CDR rule or indeed take any action at all.” — Legal Brief

The filings asked the Ninth Circuit to reject the EPA’s proposed revisions to the order and impose a compliance schedule for the agency to follow. The ADAO brief includes a suggested order that would require the agency to propose CDR amendments within 45 days and to finalize the proposals 60 days later. Such a compliance schedule is “realistic and achievable,” the filing asserts.

States Chime In

A separate filing from three of the 10 states involved in the case — California, Massachusetts and Connecticut — echoed many of the arguments made in the ADAO brief, noting that the EPA’s request was attempting to “litigate old matters” by offering nothing new in its defense.

It also contended that the EPA’s motion failed to demonstrate that the court’s order commits a “manifest error of law,” the legal standard for amending a judgment.

In a statement, ADAO’s counsel — Robert Sussman of the firm Sussman & Associates — said the group is “disappointed” that this was its first experience with the new administration under President Joe Biden, “especially since during the presidential campaign, Biden’s team made it clear he was ready to address the horrible legacy of asbestos death and disease in our country.”

Motion to Intervene

On a related note, a trade association for chlor-alkali producers — the Chlorine Institute — filed a motion to intervene in a connected case on Feb. 25. The motion was prompted by a Jan. 26 filing from ADAO asking the Ninth Circuit to review the EPA’s handling of a risk evaluation for asbestos, which focused exclusively on chrysotile asbestos.

More specifically, the motion centered on ADAO’s request that the court review the EPA’s decision “determining the risks of certain conditions of use of chrysotile asbestos fibers but declining to consider the risks of other asbestos fibers, conditions of use, health effects and pathways of exposure that impact public health.”

In the Chlorine Institute’s eyes, this request was ambiguous, as the organization could not determine whether the request applied to chrysotile asbestos — which the group champions on behalf of its members — or only other forms of asbestos.

Uncertainty Abounds

Based on that uncertainty, the group filed its motion with the court, saying it should be allowed a seat at the table if ADAO seeks to restrict the importation or use of chrysotile.

“The Institute’s member companies who use chrysotile asbestos for the manufacture of chlorine may be adversely affected by such remedies, depending on the precise remedies petitioners seek,” the motion stated.

In a Feb. 28 release touting the Chlorine Institute’s response, ADAO noted that it does indeed harbor concerns about the EPA’s conclusions on chrysotile’s risk, though the group did not explicitly say this was the intention behind its filing.

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