Court tells EPA it must regulate toxic materials
A federal appeals court agreed with environmental advocates Thursday that the Trump administration must regulate the use and disposal of potentially toxic materials like asbestos insulation and lead pipes that are still found in homes and workplaces, even if they are no longer being manufactured.
The Environmental Protection Agency misread federal law when it declared in July 2017 that the Toxic Substances Control Act, which requires the agency to protect the public from hazardous chemicals, applied only to products that were still being produced, the Ninth U.S. Circuit Court of Appeals in San Francisco said.
The law, passed in 1976 and toughened by Congress in 2016, seeks to “prevent unreasonable risks to health and the environment from toxic chemicals,” Judge Michelle Friedland said in the 30 decision. And it expressly applies to chemicals “known to be used” in commerce and the environment, even if they are no longer commonly manufactured or distributed for those uses, she said.
The ruling requires the EPA to evaluate the health and environmental hazards posed by the use or disposal of substances such as asbestos in insulation and lead in pipes or paint. Once the agency determines that a substance poses an unreasonable risk, it can enact rules to reduce the dangers — requiring employers to prevent workplace contamination during maintenance and repair, mandating protective equipment for workers and monitoring air quality, said a lawyer in the case, Sarah Tallman of the Natural Resources Defense Council.
The ruling means “the Trump EPA — an agency whose policy favors chemical manufacturers like Dow and DuPont — can’t intentionally blindfold itself,” Tallman said. “It can’t pick and choose between uses of chemicals it wants to consider and uses it doesn’t.”
Congress’ 2016 amendments to the toxic substances law required the EPA to conduct new evaluations of chemicals and adopt riskmanagement rules for the most hazardous chemicals within three years. The law passed with bipartisan support and was signed by President Barack Obama, but his administration had not adopted rules to implement the changes before President Trump took office.
According to the groups that filed the suit, one official overseeing the 2017 regulations was Nancy Beck, a top administrator in the EPA’s Office of Chemical Safety and Pollution Prevention, and formerly a director for the American Chemistry Council, an industry lobbying group that filed arguments with the court in support of the EPA. Beck left the agency for a White House position this June and was replaced by David Fischer, who had also worked for the lobbying organization.
Plaintiffs in the suit included a labor union that said its members were exposed to asbestos, a known cause of cancer, when they worked on buildings that were being repaired or demolished.
In defending its rules, the EPA said the law was intended to be “forwardlooking,” allowed the agency to decide which risks were most imminent, and should be interpreted to let regulators concentrate on hazards from chemicals that were still being produced.
But the court said the law was aimed to prevent dangers from chemicals still in use, regardless of when they were manufactured.
As the plaintiffs pointed out, “if lead pipes exist in water distribution systems, they are ‘known to be used’ in those systems,” Friedland said, quoting the language of the law.