“EPA’s work on asbestos must be informed by the best information available from companies that import and use deadly asbestos and asbestos-containing products,” said Linda Reinstein, President and co-founder of ADAO. “EPA can’t protect Americans from asbestos if the Agency and public don’t know where it is, who is using it, and how much is being used,” she continued. “Following ADAO’s court victory in 2020, EPA has taken a strong step forward with its proposed reporting rule, but can do more to make reporting robust, timely and informative.”
ADAO’s comments cautioned against weakening changes recommended by industry and called for a number of improvements, including that EPA must:
1) Expand reportable information to include data on workplace exposure, waste disposal, air emissions and sites where asbestos is present, along with records of OSHA workplace violations and any alleged harm to health or the environment from asbestos subject to recordkeeping under TSCA.
2) Require importers and processors reach out to their suppliers to obtain data on the presence of asbestos or obtain certifications that asbestos is not present.
3) Increase the “lookback” for reportable information to 10 years.
4) Require reporting on an annual basis until EPA completes its Part 2 risk evaluation and risk management rulemaking.
5) Conduct robust outreach to sectors and stakeholders that may have reportable information to make sure that they are aware of the rule’s obligations and will comply.
Promptly post reports submitted publicly on the Agency’s website so that the public is fully informed of information about asbestos use and exposure.
The proposal implements a landmark June 7, 2021 settlement agreement between EPA and ADAO that ended a nearly three-year long legal battle waged by ADAO and its partners under Section 21 of TSCA to require EPA to use its reporting authority to obtain a robust understanding of how Americans are impacted by this deadly substance.
The Court found that the lack of reporting on asbestos “runs contrary to EPA’s obligation to collect reasonably available information to inform and facilitate its regulatory obligations under TSCA.” EPA was ordered to require reporting under TSCA to “address [EPA’s] information-gathering deficiencies.”
The settlement agreement resolving ADAO’s lawsuit and now EPA’s reporting proposal go far to meet this obligation.
The proposal would require the reporting of information on:
1) Importation and use of raw asbestos,
2) Importation and use of asbestos-containing mixtures and articles,
3) Processing of raw asbestos and articles and mixtures, and
4) Presence of asbestos contaminants in other substances and mixtures (including talc).
Under a separate settlement agreement between EPA and ADAO, information obtained under the reporting rule would be taken into account during the Part 2 risk evaluation and any follow-up rulemaking.
“While EPA’s recently proposed Part 1 risk management rule would ban six conditions of use of chrysotile asbestos, it does not address the other five asbestos fibers and likely overlooks other uses of chrysotile asbestos that should also be evaluated and banned,” said Bob Sussman, ADAO counsel. “Information under the reporting rule could fill these serious gaps and enable EPA to address additional sources of asbestos exposure during its asbestos Part 2 risk evaluation and risk management rule.”
ADAO v EPA Settlement Documents for Case 3:19-cv-00871-EMC Filed 06/07/21
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Tracy Russo
Asbestos Disease Awareness Org
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