Eleven AGs Challenge EPA’s Refusal to Protect Public Health by Strengthening Asbestos Reporting Requirements

Washington, D.C. — A coalition of 11 state attorneys general led by Massachusetts Attorney General Maura Healey and California Attorney General Xavier Becerra filed a lawsuit on June 28 against the Environmental Protection Agency (EPA) challenging the agency’s denial of the states’ petition to shore up reporting requirements for asbestos under the Chemical Data Reporting rule of the Toxic Substances Control Act (TSCA).

“Asbestos is a known carcinogen that kills tens of thousands of people every year, yet the Trump Administration is choosing to ignore the very serious health risks it poses for our residents,” said Attorney General Healey. “We urge the Court to order EPA to issue this new rule to help protect workers, families, and children from this toxic chemical.”

“It is widely acknowledged that asbestos is one of the most harmful and toxic chemicals known to humankind,” said Attorney General Becerra. “While it’s troubling that we must once again take the EPA to court to force the agency to do its job, we won’t pull any punches. There’s too much at stake to let the EPA ignore the danger that deadly asbestos poses to our communities, including to workers and children.”

TSCA requires the EPA to use the “best available science” to prevent unreasonable risk to public health or to the environment from exposure to toxic chemicals. The EPA has failed to meet that standard with respect to asbestos due to deficiencies in TSCA’s Chemical Data Reporting rule, including the categorization of raw asbestos as an exempted “naturally occurring substance” and the exclusion of imported products that contain asbestos as a component or an impurity from the rule’s reporting requirements. In January, Attorney General Healey and Attorney General Becerra led a multi-state coalition in petitioning the EPA to address those deficiencies; the EPA rejected the petition in April.

In their complaint, the attorneys general note that the EPA justified its denial in part by claiming to already have “sufficient information available,” despite the agency’s own admission that it “does not know the amount of asbestos contained in consumer products.” The U.S. Geological Survey, the source of the EPA’s information on imported asbestos, “disclaims the completeness” of that information, which it says is “only an estimate of total imports” of asbestos.

The attorneys general also note that the EPA’s failure to require thorough reporting on asbestos exposure risks deprives their states of “reliable and comprehensive” information and inhibits their own regulatory efforts. The attorneys general seek judicial review of the EPA’s petition denial under TSCA Section 21, which grants “a specific right to sue where EPA denies a petition,” and the Administrative Procedure Act, which prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

“The dangers of asbestos have been well established for decades, yet the EPA is choosing to ignore information gaps that put the public at risk of continued exposure,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “The EPA’s failure is particularly inexcusable in light of Congress’ clear direction in its 2016 amendments to the Toxic Substances Control Act that the agency collect and analyze precisely this type of asbestos risk-related information.”

The attorneys general of Connecticut, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Washington and Washington, D.C. joined Massachusetts and California in filing the lawsuit.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.