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Friday, June 5, 2020

Fourteen Attorney Generals Criticizes EPA for Failing to Protect Americans from Asbestos, a Long-Known Dangerous Carcinogen

California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey, leading a coalition of 14 attorneys general, including New Jersey Attorney General Gurbir S. Grewal, submitted comments criticizing the Environmental Protection Agency’s (EPA) finding that certain uses of asbestos present no unreasonable risk to human health. In the comment letter, the coalition argues that the EPA’s draft risk evaluation for asbestos violates the Toxic Substances Control Act (TSCA) and Congress' intent that the EPA consider all uses of asbestos in its evaluation. The coalition notes the finding is unsupported by the EPA's own assessment and urges the agency to obtain the information it has admitted it needs to conduct the necessary, thorough evaluations of the risks presented by this chemical.

"The dangers of asbestos are indisputable," said Attorney General Becerra. "We urge the EPA to stop this farce and actually consider science and evidence as it evaluates the risk of this known carcinogen. The Trump Administration's disregard for science continues to put our communities, including workers and children, in harm's way." 

Asbestos – a carcinogen that takes 15,000 lives per year – is linked to diseases that are life-threatening or cause substantial pain and suffering, including mesothelioma, fibrosis, lung cancer, gastrointestinal cancer, and other lung disorders and diseases. There is no safe level of exposure to this highly toxic material and addressing its risks were among Congress’ priorities in reforming the TSCA. 

On April 3, 2020, the EPA released its preliminary conclusions, findings, and determinations in its draft risk evaluation of asbestos. The evaluation relies on an incomplete and inadequate characterization of the use of asbestos, to find that conditions of use of asbestos – including import of asbestos and asbestos-containing products - present no unreasonable risk to human health and the environment. In addition, in the draft risk evaluation, the EPA continues to exclude exposures to legacy asbestos from its risk evaluation even though the vast majority of asbestos in the U.S. exists as legacy material—asbestos that is currently in place in buildings and on pipes and equipment, vehicles, underground, and elsewhere. Attorney General Becerra previously criticized the EPA’s earlier step in the process for evaluating asbestos—the agency’s Problem Formulation—for failing to satisfy the TSCA’s “best available science” standard. 

In the comment letter, the coalition argues that the EPA’s draft risk evaluation is fatally flawed and contradicts the TSCA and Congress' intent. The coalition highlights that the EPA:
Concedes that the use of commercial and consumer asbestos identified in the draft risk evaluation presents an unreasonable cancer risk;
Admits in the draft risk evaluation that it lacks sufficient information to be able to evaluate risks to people from imported articles containing asbestos; and therefore
Violates the TSCA when it claims to find no unreasonable risk presented by articles containing asbestos.

Attorney General Becerra is committed to safeguarding California communities from the risks posed by asbestos. On July 12, 2019, Attorneys General Becerra and Healey led a coalition in sending a letter to Congress in support of the Alan Reinstein Ban Asbestos Now Act, which would prohibit the manufacture, importation, processing, and distribution in commerce of asbestos in any of its forms and reinstate an asbestos ban EPA attempted to adopt 30 years ago. Attorneys General Becerra and Healey also led a coalition of attorneys general in calling on EPA Administrator Andrew Wheeler to initiate rulemaking to issue a new “asbestos reporting rule” to eliminate exemptions for asbestos in the current Chemical Data Reporting rule, and then filed a lawsuit challenging the EPA’s failure to initiate the rulemaking. 

Attorneys General Becerra and Healey are joined by the attorneys general of Hawaii, Illinois, Maine, Maryland, Minnesota, New Jersey, New York, Rhode Island, Oregon, Vermont, Washington and the District of Columbia in filing the comment letter.

A copy of the comment letter is can be found here.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

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