On June 30, 2020, the federal government released its Spring Unified Regulatory Agenda (SURA), which provides uniform reporting of data on regulatory and deregulatory activities under development throughout the Federal Government, covering approximately 60 departments, agencies, and commissions. The Environmental Protection Agency (EPA) included over 100 action items in this report, one of which surreptitiously includes one Rule that will significantly impact the asbestos regulatory landscape in the United States and represents an about-face in prior statements on the issue that the EPA has indirectly made.
The key Rule in the Spring 2020 SURA that impacts the EPA’s regulatory framework for asbestos is found in its “Reporting and Recordkeeping for Certain Chemicals Under Section 8(a) of the Toxic Substances Control Act (TSCA).” Under the TSCA section 8(a), the EPA is authorized to require manufacturers (defined by TSCA to include importers) and processors of certain chemicals to report information known to or reasonably ascertainable by them, including information on chemical identity and structure, manufacture, use, exposure, disposal, and health and environmental effects, and to maintain records of such information. In the SURA Rule, the EPA signals its intent under section 8(a) of the TSCA to add certain chemicals, including asbestos, that are on the TSCA Work Plan to the Chemical-Specific Reporting and Recordkeeping rules. What this will do is give the EPA the power to collect information about potential hazards and exposure pathways related to asbestos directly from “manufacturer” companies. This will force companies to provide information and data about asbestos use, importation, and known risks associated with asbestos in order to help the EPA fill in data gaps that this SURA Rule signifies that it feels exist.
What is especially revealing about the EPA’s SURA Rule is that it directly contradicts actions that it took in 2019 regarding asbestos. Notably, a group of NGOs and a group of 14 states, through Attorney General’s Offices, filed petitions with the EPA in January of 2019 requesting that the EPA require companies to report importation and use of asbestos in the United States, which the groups felt would help the EPA by providing it with data needed in order to formulate a final asbestos rule. The EPA denied the petitions in April 2019, signaling that they did not feel that they needed information directly from manufacturers in order to complete its TSCA assessment.
Also noteworthy from the SURA Rule is the fact that the EPA indicates that by November 2020, it intends to enact the above-discussed rule. Further, it notes its intention to publish its final asbestos rule pursuant to the TSCA by June 2021. Assuming that the EPA follows this deadline, its final rule will undoubtedly have a significant impact on the asbestos litigation given that any such rule will necessarily include statements by the EPA regarding the risks, hazards, and carcinogenicity of asbestos fibers.
CMBG3 Law LLC has represented clients in toxic torts matters, especially with respect to asbestos, for many years. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information about the asbestos regulations referenced in this article, please contact John Gardella, Esq. (email him or 617-279-8225).