Federal Court Strikes Down Amendment to Toxic Substances Control Act

gavel sitting on a desk with smoke surrounding it

The Toxic Substances Control Act (TSCA), enacted in 2014, proved to be a monumental victory for legislators and environmental groups seeking to ban or limit dangerous chemicals in the United States. Formulated under the law, asbestos made the list as one of the top ten most deadly substances.

Ruling Fails to Consider “Legacy” Asbestos

This month the U.S. Court of Appeals overturned a 2017 amendment to TSCA because it failed to recognize past uses of asbestos in its plan for risk management.

Several environmental lobbyists including the Environmental Working Group (EWG) filed suit against the Environmental Protection Agency (EPA) fearing the amendment weakened the legislation that was intended to control and eradicate the prevalence of deadly asbestos that kills an estimated 15,000 Americans every year.

EWG Legislative Attorney Melanie Benesh blames the current administration, “The Trump administration has not only bent but also broken federal chemical law to benefit industry.”

Amendment Involved Risk Evaluation Process

Once the most lethal chemicals were prioritized by TSCA legislation, the EPA says the next step was “risk evaluation” which prompted the 2017 amendment. The ruling summary describes the steps as “scope, hazard assessment, exposure assessment, risk characterization, and finally a risk determination.”

At issue for the environmental groups was the omission of prior uses of dangerous substances, which the ruling called “legacy uses.”

The amendment states that the TCSA statute is ambiguous about any substance that is not associated with ongoing manufacture or use and therefore the agency’s interpretation is as follows:

“EPA interprets the mandates under section 6(a)-(b) to conduct risk evaluations and any corresponding risk management to focus on uses for which manufacturing, processing, or distribution in commerce is intended, known to be occurring, or reasonably foreseen to occur (i.e., is prospective or on-going), rather than reaching back to evaluate the risks associated with legacy uses, associated disposal, and legacy disposal.”

Ruling Ignores Existence of Asbestos Throughout the U.S.

Opponents say this language fails to acknowledge the profuse use and presence of asbestos in construction materials used in homes and commercial buildings in the United States for decades prior to the 1970s. It does not address the need for safe disposal of harmful products no longer in production.

“TSCA’s definition of ‘conditions of use’ clearly includes uses and future disposal of chemicals even if those chemicals were only historically manufactured for those uses,” wrote Judge Michelle Friedland, one of a three-judge panel for the 9th Circuit Court. “EPA’s exclusion of legacy uses and associated disposals from the definition of ‘conditions of use’ is therefore unlawful.”

Benesh responded to the decision, “The court understood Congress’s intent to address the ongoing threat these and other contaminants present to public health, and it acted accordingly.”

Asbestos Deaths Well Known

Asbestos exposure has long been linked to severe health issues including asbestosis and the fatal cancer mesothelioma that originates in the lungs.

Inhalation of airborne asbestos fibers causes the microscopic strands to permanently lodge in the lungs and sometimes develop into the rare cancer. The disease has a 20-50 year latency period before manifestation.

Asbestos victims are sometimes described as suffering exposure in three waves in the last 150 years. The first casualties were those who mined the naturally occurring mineral heralded for its excellent fireproofing properties. Workers who used the substance in the trades, including plumbers and those in construction, constitute the second wave.

Since the 1940s, asbestos was used prolifically in pipe insulation, floor and ceiling tiles, and numerous other building materials. Professional and amateur renovators tearing out asbestos-laden materials in old buildings rank as the third wave of those suffering the destructive effects of asbestos contamination.

Unless lawmakers establish tighter asbestos regulations, U.S. citizens will continue to suffer.

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4 references
  1. Formuzi, A. (2019, Nov. 15). Court: Trump EPA Acted ‘Unlawfully’ in Refusing to Consider Legacy Use of Asbestos, Lead. Retrieved from: https://www.ewg.org/release/court-trump-epa-acted-unlawfully-refusing-consider-legacy-use-asbestos-lead
  2. Federal Register: The Daily Journal of the United States Government (n.d.). Procedures for Chemical Risk Evaluation Under the Amended Toxic Substances Control Act. Retrieved from: https://www.federalregister.gov/documents/2017/07/20/2017-14337/procedures-for-chemical-risk-evaluation-under-the-amended-toxic-substances-control-act
  3. United States Court of Appeals. (2019, Nov. 14). Safer Chemicals vs. USEPA. Retrieved from: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/14/17-72260.pdf
  4. Christodoulou, M. (2017, June 1). ‘This house killed me’: DIY home renovators the third wave of asbestos victims. Retrieved from: https://www.smh.com.au/national/nsw/this-house-killed-me-diy-home-renovators-the-third-wave-of-asbestos-victims-20170531-gwh2x1.html