Court: Trump EPA Acted ‘Unlawfully’ in Refusing To Consider Legacy Use of Asbestos, Lead

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For Immediate Release: 
Friday, November 15, 2019

WASHINGTON – A federal court on Thursday ruled the Trump EPA acted “unlawfully” when the agency refused to consider “legacy” uses of toxic substances like asbestos and lead when reviewing health risks under a revamped chemicals safety law signed by President Obama.

The ruling, by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, tossed out a portion of a 2017 rule initiated by then-EPA Administrator Scott Pruitt that dismissed the requirement to consider legacy uses, like asbestos-containing insulation and lead pipes, when the agency evaluates health risks from chemicals under the federal Toxic Substances Control Act, or TSCA.

“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,” wrote Judge Michelle Friedland on behalf of the court. “EPA’s exclusion of legacy uses and associated disposals from the definition of ‘conditions of use’ is therefore unlawful.”

“This court decision underscores how, almost from day one, the Trump administration has not only bent, but also broken federal chemicals law to benefit industry,” said EWG Legislative Attorney Melanie Benesh. “Asbestos and lead are two notorious examples of extremely dangerous substances that were so widely used decades ago they continue to harm and even kill people today. The court understood Congress’s intent to address the ongoing threat these and other contaminants present to public health, and it acted accordingly by calling out the Trump EPA’s illegal actions that ignored the lingering threat that legacy uses pose to the public.”

After lobbying from the American Chemistry Council, the main lobby and trade group for the chemical industry, the EPA gave itself discretion to exclude important sources of chemical exposure from safety assessments, including “legacy” exposures.

The lawsuit was filed by a number of environmental, public health and labor organizations, including EWG and the Environmental Defense Fund; Natural Resources Defense Council; Safer Chemicals, Healthy Families; Environmental Health Strategy Center; Asbestos Disease Awareness Organization; Union of Concerned Scientists; Learning Disabilities Association of America; WE ACT for Environmental Justice; Sierra Club; United Steelworkers; AFL-CIO; and Canadian Labour Congress.

EWG was represented in the lawsuit against EPA by Earthjustice.

Asbestos is one of the most dangerous substances on Earth. From federal mortality data, EWG Action Fund estimated that up to 15,000 Americans die each year from asbestos-triggered diseases, including mesothelioma and asbestosis. Last year, an international peer-reviewed study found the annual death toll from asbestos exposure may be much higher – nearly 40,000 Americans a year, and more than 255,000 a year worldwide.

The harmful impacts of lead exposure during childhood are permanent, including diminished IQ and behavioral problems. There is a strong scientific consensus that any amount of lead exposure during childhood is harmful. Lead was long ago removed from both gasoline and paint, but millions of older homes could still have lead-based paint and lead-containing water delivery pipes.

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The Environmental Working Group is a nonprofit, non-partisan organization that empowers people to live healthier lives in a healthier environment. Through research, advocacy and unique education tools, EWG drives consumer choice and civic action.

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