Will EPA Look Inside Your Walls?

That’s the question everyone has been asking after the U.S. Court of Appeals for the Ninth Circuit issued its decision in the challenge to U.S. Environmental Protection Agency’s (EPA) risk evaluation framework rule. As part of that decision, the court held that EPA’s exclusion of legacy uses (those “circumstances associated with activities that do not reflect ongoing or prospective manufacturing, processing, or distribution”) and associated disposals (“disposals from such [legacy] uses”) from the definition of “conditions of use” violated the plain language of TSCA. EPA must now decide how to proceed with that direction from the court.

At a recent public meeting, we have learned that EPA may want to respond to this decision by bifurcating the few ongoing risk evaluations for chemicals that have legacy uses. This two-pronged approach envisions the completion of the ongoing risk evaluations and initiation of separate evaluations on the legacy uses for each of the affected chemicals. For example, because the agency decided to exclude legacy uses and associated disposals from the risk evaluation for asbestos, EPA would conduct a separate risk evaluation for asbestos-containing materials that remain in older buildings or are part of older products that are not currently manufactured.

But is this the only way forward? Must EPA look inside everyone’s walls now that the Ninth Circuit has spoken? The answer to both of these questions is a resounding “no.”

The Ninth Circuit’s decision on legacy uses and their disposal was limited to the definition of “conditions of use.” EPA may, therefore, still exclude these uses from the scope of the asbestos risk evaluation. Or, if EPA decides to include these legacy uses in the risk evaluation for asbestos, the agency can apply a “fit-for-purpose” analysis as set forth in the risk evaluation framework rule. In that rule, EPA declared that “all conditions of use will not warrant the same level of evaluation, and EPA expects that it may, in some cases, be able to reach conclusions without extensive or quantitative evaluations of risk.” Notably, EPA’s assertion that it would apply fit-for-purposes evaluations was not challenged in the Ninth Circuit litigation.

Consistent with EPA’s desire to streamline and focus its evaluations, the agency can take the approach of relying on the laws and regulations of federal and state governments to either (1) exclude legacy uses from the scope of the risk evaluation for asbestos or (2) conduct a fit-for-purpose analysis of legacy uses to find no unreasonable risk based on the laws and regulations in place today.

EPA’s website is a good resource for the federal laws and regulations pertaining to asbestos and public safety. And there are many resources describing state asbestos laws, one of which can be found here. Indeed, the problem formulation for the asbestos risk evaluation stated that the agency would “focus its analytical efforts on exposures that are likely to present the greatest concern and consequently merit a risk evaluation under TSCA” by excluding pathways where other environmental statutes “adequately assess and effectively manage exposures and for which long-standing regulatory and analytical processes already exist.”

If EPA were to identify an unreasonable risk due to a potential gap in the law, such as improving protections for our firefighters, it may decide to coordinate with OSHA to require stronger safety protections and precautions for these first responders.

In short, EPA should consider alternative approaches to the one that the agency signaled on Friday. Otherwise, EPA may find itself mired in additional, time-consuming risk evaluations as it seeks to complete the first ten risk evaluations and begin the next twenty evaluations.

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