Closer Scrutiny of Chemicals Needed, Groups to Say in Lawsuits

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By Pat Rizzuto

Manufacturers could escape new regulations on their products because the EPA process for evaluating hazardous chemicals underestimates the health risks they pose, environmental and health groups challenging the process say.

The Environmental Protection Agency in its assessments is ignoring some of the ways people are exposed to hazardous chemicals, which in turn reduces the potential to identify injuries those chemicals are causing, a finding that could trigger restrictions of them, Andy Igrejas, founder of the Safer Chemicals, Healthy Families coalition, told Bloomberg BNA.

Environmental and public health advocates have filed six lawsuits in three different courts challenging the EPA’s methodology for reviewing hazardous chemicals under the amended Toxic Substances Control Act, beginning with 10 substances including asbestos.

The groups are challenging two rules intended to implement the 2016 amendments to TSCA, saying the agency unlawfully allows itself to exclude chemical uses from its risk evaluation. New regulations would mean companies as diverse as the Occidental Chemical Corp., Tiffany & Co., and General Motors could face restrictions on their products.

“EPA’s position that it can ignore known and foreseeable uses violates the text of the law,” wrote the Environmental Defense Fund in comments it recently submitted to the EPA about the agency’s preliminary plans to determine whether 10 chemicals pose risks to people or the environment.

Those 10 chemicals are asbestos, pigment violet 29, seven solvents, and a cluster of three related flame retardants. EPA began the evaluation process in December, but has 3 1/2 years to announce its risk assessment findings on the 10 chemicals.

“Americans are still being exposed to deadly asbestos today. We need the EPA to step up and use the landmark bipartisan 2016 TSCA reform law to implement a meaningful asbestos review, without loopholes or exceptions,” Sen. Richard Durbin (D-Ill.) told Bloomberg BNA by email. Durbin was among the senators who worked to overhaul TSCA.

Focusing on ‘Greatest Concern’

The two rules environmental, health and labor groups are challenging describe how the EPA will go about prioritizing chemicals for risk evaluation and the procedures it will use for those reviews. The risk evaluation rule summarizes the agency’s rationale for excluding uses.

The EPA may exclude chemical uses “in order to focus its analytical efforts on those exposures that are likely to present the greatest concern, and consequently merit an unreasonable risk determination,” the agency said.

Companies and trade associations supported that rationale in comments and public meetings that proceeded the final rule. No company or trade association would discuss legal arguments to be raised in the upcoming lawsuits, but the American Chemistry Council and more than a dozen other trade associations asked the courts to allow them to intervene in the lawsuits supporting the EPA.

“Some stakeholders claimed that EPA is required to examine all conditions of use, all vulnerable subpopulations, aggregate risks, continuing exposures to legacy contamination, intended and actual uses (even misuses), and incidental and cumulative exposures,” the chemistry council wrote in comments on the agency’s plans to evaluate the first 10 chemicals.

The wider evaluations sought by public health and environmental groups are “neither legally required nor practical,” it said.

Asbestos a Particular Worry

The EPA evaluations should look at all exposure risks of a chemical, past and present, while making its evaluation, the American Public Health Association said.

Of particular concern is asbestos, which was once in much wider use than it is today.

“Asbestos is widely prevalent in the environment due largely to legacy uses and risk evaluations that assess only exposures from current uses will fail to characterize the risks these chemicals pose,” wrote Georges Benjamin, a physician and executive director of the health association.

The EPA’s preliminary plan to exclude from its risk evaluations so-called “legacy” asbestos exposures resulting from insulation, roof shingles, siding, floor tiles, and other older products has spurred the most opposition.

“EPA doesn’t want to look at the legacy issue. We have to look at the legacy uses,” Patrick Morrison, who oversees occupational health, safety and medicine for the International Association of Fire Fighters, told Bloomberg BNA.

Fire fighters are twice as likely to contract malignant mesothelioma, a rare type of cancer caused by asbestos exposure, than the general population, Morrison said, citing a National Institute for Occupational Safety and Health study.

Asbestos Still Imported

While past uses of asbestos should be evaluated, Linda Reinstein, president of the Asbestos Disease Awareness Organization, said ongoing imports of asbestos and asbestos-containing products also require review.

Chlor-alkali plants, which use asbestos as part of their process to make chlorine and caustic soda, probably account for 100 percent of asbestos imports, according to the U.S. Geological Survey.

The U.S. imported 705 metric tons of the mineral in 2016, Reinstein said, citing data from the U.S. International Trade Commission. The 2016 import volume was about twice as much as the 343 metric tons the USGS said was imported in 2015. The 2016 import volume—much of which came in the year’s final quarter—also was much higher than the USGS had estimated it would be based on earlier import figures that year.

The EPA’s planned asbestos evaluation doesn’t consider exposures that could occur during activities such as loading ships with the mined material, off-loading, transport, and the disposal of asbestos-based diaphragms chlor-alkali plants use, Brent Kynoch, executive director of the Environmental Information Association, told Bloomberg BNA. The association provides information about asbestos, mold, and other indoor air hazards to property owners and the public.

Failed Reforms

The EPA plans to only look at current manufacture, processing, and distribution in commerce, he said.

“Since the only current imports of asbestos are for the chlor-alkali industry, if EPA deems that the risk of exposure in that industry is low, then EPA could effectively say there is no need to ban asbestos,” Kynoch said.

Occidental Chemical Corp., which imports asbestos for its chlor-alkali operations, repeatedly has declined to discuss its use of the mineral. The company, however, recently submitted extensive materials and exposure data to the EPA to document its contention that exposures throughout its U.S. supply chain are low.

But advocates of tougher rules are not mollified.

“If you can’t restrict asbestos with this law, what the hell can you do?” Igrejas said. “If EPA cannot use the new law to ban asbestos, it will suggest the reform effort failed.”

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

Information about the EPA's risk evaluations is available at http://src.bna.com/sUR

EPA's final risk evaluation rule is available at http://src.bna.com/sTE

Its final chemical prioritization rule is available at http://src.bna.com/sUS

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