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EPA Denies TSCA Petition for Asbestos Reporting

The Environmental Protection Agency (EPA) recently rejected a petition filed under Section 21 of the Toxic Substances Control Act (TSCA) that called for a revision to the TSCA rule for asbestos reporting. The basis for the denial was that the petitioners – the Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, Environmental Health Strategy Center, and Safety Chemicals Healthy Families- did not demonstrate the need to revise the existing rule.

The petitioners, however, claim that they have a strong case for amending the TSCA Chemical Data Reporting (CDR) rule which governs asbestos reporting. The organizations are in favor of a comprehensive and thorough risk assessment of asbestos under TSCA Section 6(b) and rulemaking to prohibit asbestos exposure under TSCA Section 6(a). An amendment of the CDR rule would entail: (i) reporting on importation and use of asbestos and asbestos-containing products in the United States; (ii) amending the reporting threshold, eliminating exemptions for impurities, and mandating reporting by others to ensure that the EPA is equipped with all the necessary information to carry out its obligations under the TSCA; and (iii) issuing a finding that asbestos reports are not protected as confidential business information because disclosure is required for public health reasons.

The EPA had selected asbestos as one of the initial ten chemicals to be subject to risk evaluations in accordance with TSCA as amended in 2016. However, petitioners objected to the agency description of the uses that will be covered in the risk evaluation stating that it is limited, arbitrary and non-specific. Petitioners particularly oppose what they view as a loophole in the rule allowing naturally occurring asbestos to be exempt from CDR reporting. This, they claim, has led to a lack of verifiable information regarding who is importing asbestos, how much is being imported, where it is being used in the country, who is primarily exposed to it, and what the main methods of exposure are.

In December 2018, EPA denied the petition mainly on the basis of the following reasons: (i) the requested revisions would not result in disclosure of information that is not already available; (ii) manufacturers and importers are already subject to asbestos reporting requirements if they meet the volume threshold and few companies exceed this threshold; and (iii) the import of a substance as part of an article is exempt from reporting under other applicable rules. The EPA provided other reasons as well in its well-reasoned denial, which will surely be met with opposition from the petitioners.

In the meantime, on January 31, 2019, the Attorneys General from 14 states submitted their own petition to EPA. Citing the December 2018 petition denial, the Attorneys General request EPA to: (1) require reporting under TSCA Section 8(a); (2) eliminate the naturally occurring exemption in the CDR rule; (3) apply the CDR rule to processors of asbestos; and (4) require reporting with respect to imported articles.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.