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Chemical Regulation

Court issues mixed ruling on US chemical risk assessments

Advocacy groups win some, lose some challenges to EPA’s approach

by Britt E. Erickson
November 15, 2019

20191115lnp2-asbestos.jpg
Credit: Shutterstock
The US EPA will need to evaluate the risks of asbestos in older buildings even though the substance is not manufactured for use in building materials today, an appeals court ruled on Nov. 14.

In a win for environmental, labor, and public health groups, a federal appeals court has directed the US Environmental Protection Agency to include “legacy uses” of chemicals in its risk evaluations. A legacy use is when a substance is no longer manufactured for that use but is still present in products made earlier, such as asbestos insulation and fireproofing in older buildings.

On other challenges, the court sided with the EPA. One was related to the agency’s use-by-use approach to evaluating chemical risks and another was for ignoring risks of substances that have been disposed of.

At issue is the EPA’s exclusion of certain uses of chemicals as it evaluates their risks to human health and the environment under the Toxic Substances Control Act. Groups that challenged the agency’s current approach argue that it will lead to underestimated risks.

The US Court of Appeals for the Ninth Circuit threw out the petitioners’ complaint alleging that the EPA is considering each use of a chemical individually rather than all uses together. In the Nov. 14 ruling, the court claims that the argument is too speculative, noting that how the EPA describes its approach is ambiguous. It is unclear “whether the Agency will actually conduct risk evaluations in the manner Petitioners fear,” Judge Michelle T. Friedland wrote. However, the court left open the possibility of future challenges should the EPA’s final risk assessments fail to comply with TSCA’s requirements.

With regard to legacy uses, the court ruled in favor of the petitioners. “TSCA’s definition of ‘conditions of use’ clearly includes uses and future disposals of chemicals even if those chemicals were only historically manufactured for those uses,” Friedland wrote. The court, however, ruled in favor of the EPA with regard to excluding risks from chemicals that have already been disposed of.

Environmental advocates welcomed the court’s ruling. “EPA’s toxic chemicals policy took a huge hit in this decision,” Daniel Rosenberg, director of federal toxics at the Natural Resources Defense Council, one of the petitioners, says in a statement. The EPA “will have to change its approach to evaluating toxic chemicals,” Rosenberg says, adding that the court’s decision is “a sign that the Trump EPA’s industry-friendly policy is starting to unravel.”

The American Chemistry Council, which represents chemical manufacturers, intervened in the case on behalf of the EPA. In an emailed statement, ACC Deputy General Counsel Allison Starmann says that the group is still reviewing the decision, but “we agree with the Court that some of the Petitioners’ challenges to EPA’s risk evaluation procedures were premature and far too speculative.”

The EPA has yet to release draft risk assessments for 4 of the first 10 substances, including asbestos, which the agency is evaluating under revisions to TSCA enacted in 2016. If the EPA revamps its current approach in light of the court’s ruling, it will be even more difficult for the agency to meet a June 2020 deadline to finalize all 10 assessments.

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