Plaintiffs Push to Initiate Asbestos Reporting Rules

Last week, various public health and environmental organizations sued to compel the Environmental Protection Agency to initiate an asbestos reporting rule under the Toxic Substances and Control Act (“TSCA”). Plaintiffs seek to compel importers, manufacturers, and possessors of asbestos and asbestos-containing materials to submit reports on the amounts of asbestos imported and used, the sites where use occurs, the nature of the use, and the resulting potential for exposure of workers and the public.

The complaint for declaratory and injunctive relief was filed in District Court for the Northern District of California by the Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, and Environmental Health Strategy Center. Plaintiffs’ firms Motley Rice, Simmons Hanley Conroy, and Early, Lucarelli, Sweeney & Meisenkothen are sponsors of the Asbestos Disease Awareness Organization’s annual conference.

The EPA “shall promulgate rules” for asbestos reporting as the “Administrator may reasonably require.” Using its TSCA authority, the EPA promulgated the Chemical Data Reporting rule, which requires reporting of all chemicals imported and manufactured in amounts of 25,000 pounds or greater at a site. However, the EPA advised an asbestos manufacturer and importer in a letter that asbestos was not subject to the Chemical Data Reporting rule because it is a naturally occurring chemical substance.

The EPA denied plaintiffs’ December 2018 petition to expand the Chemical Data Reporting requirements, designate asbestos as a reportable substance, and eliminate exemptions. The EPA reasoned that the Chemical Data Reporting rule did not apply to all asbestos manufacturers or importers, and reporting would not provide information that is not already known by the EPA. Following this denial, plaintiffs have a right to de novo review in a judicial proceeding within 60 days. This lawsuit says asbestos should be subject to the Chemical Data Reporting rule.

This complaint is not alone. Last month, the Attorneys General of 14 states and Washington, D.C. petitioned the EPA to initiate similar rulemaking on asbestos reporting. If a judge rules in favor of the asbestos reporting rule, defendants that manufacture, import, or possess asbesto may be subject to the requirements of the Chemical Data Reporting rule. If an asbestos reporting rule is not initiated, plaintiffs and plaintiffs’ firms will surely continue to challenge the EPA.