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EPA Must Account for Legacy Asbestos Uses in Determining Its Environmental Risk

EPA Offices in Washington, D.C.
By Joseph Fawbush, Esq. on November 19, 2019 12:27 PM

Firms focusing on mesothelioma litigation will be aware of the Environmental Protection Agency's Risk Evaluation Rule of 2017. That rule guides the agency's determination in the risk asbestos and other toxins like lead pose to the environment. If the EPA judges a toxin to pose an unreasonable risk, it then must take steps to regulate it.

Legacy Uses and the Toxic Substances Control Act

In 2016, Congress amended the Toxic Substances Control Act (TSCA) to require the Environmental Protection Agency to evaluate whether a chemical poses an unreasonable risk to the environment. In 2017, the EPA created the Risk Evaluation Rule to guide this determination. However, the Risk Evaluation Rule did not factor in the health effects of “legacy" uses of certain toxic substances such as lead and asbestos.

Asbestos was widely used in construction until the 1980s. Millions of residential homes, businesses and schools contain asbestos. Materials contaminated with asbestos do not generally pose a threat if in good condition. But renovations or bad repair can lead to asbestos dust being released into the air.

Inhaled asbestos causes mesothelioma, a rare form of lung cancer. Mesothelioma litigation remains a significant part of many personal injury practices across the country. Billions in funds exist in asbestos bankruptcy trusts for victims of asbestos exposure.

Ninth Circuit Finds Risk Evaluation Rule Unlawful

While the Ninth Circuit upheld the majority of the EPA's Risk Evaluation Rule, it did hold that the agency erred in failing to account for the danger of legacy uses of asbestos. The unanimous panel held that the TSCA clearly mandated that the agency examine all uses of toxic chemicals, which encompasses legacy uses.

Environmental groups, including the Sierra Club and the Environmental Defense Fund, celebrated the decision as a victory. However, the panel did not find that the EPA needed to examine the risk associated with legacy disposal of toxic chemicals. In other words, the risk asbestos and other toxins that are already in landfills poses.

Back to the Drawing Board?

In April, based on the criteria in the Risk Evaluation Rule, the EPA issued a final rule on asbestos regulation. The rule prevented products that used to be on the market from returning without EPA approval.

The Ninth Circuit's recent decision does not necessarily alter that final rule. However, the underlying Risk Evaluation Rule will need to be re-evaluated.

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