On January 26, 2021, several public health advocacy organizations and scientists (Petitioners) filed a notice of intent (NOI) to sue the U.S. Environmental Protection Agency (EPA) to compel it “to perform its non-discretionary duty to address the use and disposal of ‘legacy’ asbestos” in its risk evaluation for asbestos under Section 6(b) of the Toxic Substances Control Act (TSCA). As reported in our January 4, 2021, memorandum, “EPA Publishes Final Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos,” Part 1 of the risk evaluation for asbestos does not consider any legacy uses and associated disposal for chrysotile asbestos or other asbestos fiber types. According to the NOI, because EPA “provided no specifics” about how it would conduct a future Part 2 evaluation focused on legacy uses, and did not set a schedule for completing it, “EPA failed to complete a full asbestos risk evaluation in accordance with TSCA by the June 19, 2020” deadline under the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). The NOI states that 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 U.S. Court of Appeals for the Ninth Circuit in Safer Chemicals, Healthy Families v. EPA, “EPA is in violation of a non-discretionary duty under [TSCA] section 20(a)(2).”

According to the NOI, TSCA Section 6(b)(4)(A) provides that the “Administrator shall conduct risk evaluations . . . to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment . . . under the conditions of use.” Under TSCA Section 3(4), the term “conditions of use” means “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.” The NOI notes that TSCA Section 6(b)(4)(G) provides that EPA “shall complete a risk evaluation . . . not later than 3 years after the date on which [it] initiates the risk evaluation.” EPA may extend the deadline for a risk evaluation for not more than six months.

The NOI alleges that the following actions by the Trump EPA constitute a failure to perform a non-discretionary act and duty:

• Exclusion of Legacy Asbestos from the Final Risk Evaluation: Risk evaluations must consider the “circumstances . . . under which a chemical substance . . . is known . . . to be manufactured, processed, distributed in commerce, used or disposed of.” The preamble to EPA’s July 2017 framework rule states that EPA did not consider “legacy activities” -- consisting of “legacy uses,” “associated disposals,” and “legacy disposals” -- to be TSCA conditions of use. EPA defined the term “legacy uses” as “the circumstances associated with activities that do not reflect ongoing or prospective manufacturing, processing, or distribution.” EPA relied on this interpretation to exclude legacy activities from its asbestos risk evaluation.

• Ninth Circuit Rejection of EPA Interpretation: In Safer Chemicals, the U.S. Court of Appeals for the Ninth Circuit held “that EPA’s exclusion of legacy uses and associated disposals contradicts TSCA’s plain language.” The NOI states that the court “was well aware that its conclusion applied to asbestos, noting that ‘[f]or example, although asbestos is now infrequently used in making new insulation, it remains in place in previously installed insulation’” and that “‘future disposal of asbestos insulation . . . unambiguously falls within TSCA’s definition of ‘conditions of use.’”

• Public Health Impact of Legacy Asbestos: According to the NOI, “There is a compelling public health need to include use and disposal of legacy asbestos in EPA’s asbestos risk evaluation.” The NOI cites the recently published study entitled “Global Asbestos Disaster” and states that legacy asbestos contributes to the nearly 40,000 annual deaths caused by asbestos-related diseases in the United States -- “more than double the previous estimates of 15,000 per year.” The NOI states that no assessment of legacy asbestos exposure has been conducted in the last 35 years, “despite the ongoing contribution of this exposure to asbestos-related disease and death.” The NOI describes the TSCA risk evaluation as “a critical tool to update our understanding of the prevalence of legacy asbestos and the magnitude of exposure and risk it poses to the American public.” The NOI notes that in its review of the draft risk evaluation, the Science Advisory Committee on Chemicals (SACC) “strongly recommended that EPA ‘[i‌]nclude legacy and aggregate asbestos exposures in the calculation of cancer risk estimates.’”

• Trump EPA Violations of Its Duties under TSCA: The NOI concludes that the exclusion of legacy asbestos use and disposal from the final risk evaluation is contrary to the plain language of TSCA. In TSCA Section 6(b)(4)(A), Congress directed that EPA “shall conduct risk evaluations . . . to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment . . . under the conditions of use.” Under Safer Chemicals, EPA “has a non-discretionary obligation to determine whether these activities present an unreasonable risk of injury to human health and the environment.” Under TSCA Section 6(b)(4)(G), EPA “shall complete a risk evaluation . . . not later than 3 years after the date on which [it] initiates the risk evaluation,” and this deadline may be extended for not more than six months. According to the NOI, with this extension, the deadline for completing the asbestos evaluation was June 19, 2020. The NOI states that by excluding use and disposal of legacy asbestos from the final risk evaluation, EPA “is in violation of its non-discretionary duty under section 20(a)(2) to complete a full asbestos risk evaluation in accordance with TSCA by this deadline.”

Commentary

Given that the Biden Administration has been in place only subsequent to the issuance of Part 1 of the risk evaluation without an accompanying schedule for the completion of Part 2, and for less than a month, we question whether some means short of judicial intervention could have provided the Petitioners with a sufficient degree of comfort that EPA will move to complete promptly a thorough risk evaluation. Presumably, EPA will publish a draft risk evaluation for the legacy uses of asbestos, giving the Petitioners an opportunity to comment on the adequacy of the evaluation. Pushing the risk evaluation for legacy uses of asbestos into a short timeframe for completion will hamper the new Administration’s ability to revisit the other risk evaluations, especially considering the National Academy’s criticism of the systematic review methodology that EPA relied upon for those risk evaluations. Recognizing the risk evaluation was required to be completed by the June 19, 2020, extended statutory deadline, the Petitioners, however, are clearly not confident that EPA under the Biden Administration will move with due haste to complete Part 2 of the risk evaluation on asbestos and will likely request that the court establish a schedule for EPA’s completion of it. Given the long and tortured history of asbestos regulation under TSCA, this is not surprising.

There is no debate that EPA has missed its statutory deadline to complete the asbestos risk evaluation (as it did with the other “first ten” risk evaluations). We hope that criticism of the timing of each of EPA’s actions will not lead to the sort of never-ending scheduling litigation that befell the Department of the Interior (Interior), when parties continually brought lawsuits because Interior failed to meet a specific deadline under the Endangered Species Act, making it more difficult for Interior to meet other rulemaking deadlines because the Solicitor’s staff was constantly responding to lawsuits rather than implementing the required rulemaking.