The Asbestos Disease Awareness Organization (ADAO), an independent nonprofit dedicated to preventing asbestos exposure, announced it had reached two landmark legal settlements with the Environmental Protection Agency (EPA) that strengthen and broaden its work to evaluate the health risks of asbestos under the Toxic Substances Control Act (TSCA).
Asbestos, tragically, is not yet banned in the US. Asbestos exposure in the workplace, for decades, has resulted in an epidemic of workers' compensation claims and civil litigation flowing from its long legacy of illness and death.
“The Biden EPA has recognized the need to fix the flaws in the incomplete and unprotective risk evaluation conducted by the Trump Administration,” said Linda Reinstein, president and co-founder of ADAO. “We are very pleased because a more robust and comprehensive evaluation will better document the immense harm asbestos continues to cause in the United States.”
More than 1 million Americans have died from asbestos-caused illness and disease since the EPA first tried to ban asbestos in 1989. Every year, over 40,000 additional Americans die because of asbestos. These settlements are a critical step in protecting the public from exposure, illness and death.
Together, the two settlements will ensure that EPA’s risk evaluation of asbestos under TSCA is comprehensive, protects public health, and is completed without further delay.
The first settlement resolves ADAO’s January 26, 2021 challenge in the Ninth Circuit Court of Appeals to the agency’s Part I Asbestos Risk Evaluation. ADAO filed this case in conjunction with leading public health groups and scientists because egregious gaps and omissions in the Part 1 evaluation violated TSCA, ignored the best available science, and failed to provide the public with a full picture of the risks of this deadly carcinogen.
In its settlement agreement, EPA agreed to expand its planned Part 2 Asbestos Risk Evaluation to address the deficiencies in Part 1. The agency will:
- include all of the six asbestos fiber types rather than only chrysotile asbestos;
- examine all the cancer and non-cancer diseases linked to asbestos exposure;
- assess risks to human health from all environmental pathways of exposure and from inhalation, ingestion and dermal contact with asbestos;
- evaluate the association between exposure to asbestos in talc and talc-containing products and human health hazard endpoints;
- assess health risks to potentially exposed or susceptible subpopulations, including individuals who may be more susceptible to the hazards of asbestos;
- and address any known, intended, or reasonably foreseen conditions of use of asbestos that were omitted from the Part 1 evaluation.
Using EPA’s established Asbestos Hazard Emergency Response Act (AHERA) definition, the Part 2 evaluation will address the six fiber types included in the TSCA Title II, Section 202 definition for asbestos—the asbestiform varieties of chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite and actinolite -- plus richterite-asbestos and winchite-asbestos fiber types.
In the second settlement, EPA and ADAO entered into a consent decree to resolve ADAO’s May 18, 2021 suit in the U.S. District Court for the Northern District of California to require the Agency to carry out its obligation to evaluate the risks of “legacy” asbestos found in millions of buildings and in consumer products across the United States by December 1, 2024.
“After years of delay, we will finally have an enforceable court order that assures that EPA performs its legal duty to determine the risks of legacy asbestos,” said ADAO Counsel Bob Sussman. “This is encouraging progress in the long battle for effective use of TSCA to recognize and protect the public from the enormous harm that asbestos is still inflicting across the country,” he continued.
After inaction by Trump’s EPA, the Ninth Circuit ruled in 2019 that TSCA directed EPA to address the use and disposal of legacy asbestos. The Part 1 evaluation, however, did not include legacy asbestos. The Trump EPA announced that it would conduct a Part 2 risk evaluation addressing legacy asbestos but did not define its scope or set a schedule for completing it.
“Legacy asbestos is everywhere, and our country has not yet taken the necessary steps in evaluating the magnitude of this risk and protecting the public from harm,” said Reinstein. “Trump’s EPA failed to address the deadly and often hidden threat asbestos poses in schools, factories, commercial buildings, homes, and consumer products across the U.S. Now, the Biden EPA is stepping up to carry out this long overdue task.”
“While we are pleased the EPA has taken steps to better evaluate the risks of asbestos, we still need a full and complete ban on asbestos imports and use in the United States,” said Reinstein. “Legislation is the fastest and most effective path for putting this ban in place. Nearly 70 countries around the world have banned asbestos and we must do the same. This is why this Congress must continue efforts to reintroduce and pass the Alan Reinstein Ban Asbestos Now Act,” she concluded.
The two settlements build on a June 7, 2021 settlement between EPA and ADAO in which the Agency committed to rulemaking under section 8 of TSCA to require reporting on asbestos use and exposure. The information that EPA collects under the new reporting rule will make a valuable contribution to the Part 2 asbestos risk evaluation.
Public health organizations and leading scientists who joined ADAO’s suit and are now joining in the two settlements include the American Public Health Association (APHA); Center for Environmental Health (CEH); Environmental Information Association (EIA): Safer Chemicals, Healthy Families (SCHF); and Vermont Public Interest Research Group (VPIRG) Scientists participating are Barry Castleman, ScD; Raja Flores, MD; Arthur Frank, MD, PhD; Philip Landrigan, MD, MSc; Richard Lemen, PhD, MSPH; and Celeste Monforton, DrPH, MPH.
Recommended Citation: Gelman, Jon L., Across Two Separate Settlements, EPA Commits to Expedite and Strengthen Asbestos Risk Reevaluation Under TSCA, Workers' Compensation Blog (Oct. 18, 2021), https://workers-compensation.blogspot.com/2021/10/across-two-separate-settlements-epa.html.
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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 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters
