Attorney General Becerra Files Lawsuit to Force EPA to Issue Rule on Toxic Asbestos

SACRAMENTO – California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey, leading a coalition of 11 attorneys general, filed a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA) failure to initiate rulemaking to regulate asbestos. The attorneys general had previously petitioned the EPA to create a new rule requiring data collection on the importation and use of asbestos, one of the world’s most toxic substances.

“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.”

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. Currently, the EPA does not possess, and is not collecting, the necessary comprehensive data about the importation, processing, and use of asbestos and asbestos-containing articles in the U.S.

In January 2019, the coalition of state attorneys general petitioned the EPA pursuant to the Toxic Substances Control Act (TSCA) to create a new set of regulations within the TSCA’s Chemical Data Reporting rule. This rule is intended to provide data on the importation and use of chemicals, including asbestos. The Attorneys General point out that robust reporting of the distribution and use of asbestos and asbestos-containing articles is necessary to provide the EPA with the data it needs to fulfill its obligations under TSCA. The TSCA requires the agency to evaluate and address the risks posed by toxic chemicals like asbestos.  Further, the new rule would have helped ensure that EPA’s regulatory decisions regarding asbestos are consistent with the best available science, and the data resulting from the requested regulations would provide the states with important information that is not currently collected.

The EPA denied the states’ petition in late April. In their lawsuit challenging EPA’s denial of the petition, the coalition argues that the rulemaking they requested is necessary under TSCA. The lawsuit further charges that the denial of the petition was arbitrary and capricious and violates the agency’s obligations under TSCA. Specifically, the Attorneys General ask the court to compel EPA Administrator Andrew Wheeler to initiate a rulemaking and issue a new asbestos reporting rule to:

• Eliminate “naturally occurring substance” as an exemption for asbestos reporting;
• Require processors of asbestos, as well as manufacturers, including importers, of the chemical substance to adhere to reporting requirements;
• Ensure that the impurities exemption in the Chemical Data Reporting rule does not apply to asbestos; and
• Require reporting with respect to imported articles that contain asbestos.

Joining Attorney General Becerra and Attorney General Healey in filing the lawsuit are the Attorneys General of Connecticut, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Washington, and the District of Columbia.

A copy of the complaint can be found here.