Last week, the 9th U.S. Circuit Court of Appeals delivered a ruling addressing certain issues with the Environmental Protection Agency’s (EPA) approach to assessing risk by a substance or chemical, including asbestos. The court was tasked with deciding three specific issues:
- Whether The Toxic Substances Control Act (TSCA) required the EPA to evaluate risks associated with a chemical’s uses collectively before determining that the chemical is safe.
- Whether the EPA must consider all of a chemical’s conditions of use in that evaluation.
- Whether the EPA must evaluate past disposals of all chemicals, as well as the use and subsequent disposal of chemicals not currently or prospectively manufactured or distributed in commerce for that use.
On point (3), the court ruled that the EPA must evaluate the legacy uses of a substance, even if that substance is no longer manufactured. In the case of asbestos, this would mean that the EPA is required to consider the legacy asbestos use as it formulates its risk assessment for asbestos. For nearly a century, approximately 31 million tons of asbestos were used in the United States, much of it in construction, shipbuilding, military, industry (such as chemical and automotive).
“A significant amount of that asbestos is still in our environment, our homes, schools, and office buildings. With the latency period between exposure and disease development taking decades, it is crucially important to understand the full extent of the risk that legacy asbestos poses,” said Mary Hesdorffer, nurse practitioner and executive director of the Mesothelioma Applied Research Foundation.
“Considering that asbestos is a fiber that once unearthed can be easily airborne and inhaled, we are disappointed that the court did not mandate inclusion of past disposals in EPA’s evaluations,” Ms. Hesdorffer added.
The court rejected the argument that TSCA requires the EPA to evaluate past disposals in their risk assessment.
On challenge (1), the court did not rule claiming lack of jurisdiction, and challenge (2) was failed on merits.
The Mesothelioma Applied Research Foundation is the only 501(c)(3) nonprofit organization working to eradicate mesothelioma and end this national tragedy. Its programs include the funding of promising and peer-reviewed research, education, support and advocacy. The organization strives to bring together thought-leaders in the field to identify the most direct path to a cure.
