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Court issues decision in Safer Chemicals Healthy Families et al v. U.S. EPA

Washington, DC — Today, the U.S. Court of Appeals for the Ninth Circuit handed down a decision in Safer Chemicals Healthy Families, et al v. U.S. EPA. The petition challenged EPA’s “framework rules” under the 2016 Lautenberg Chemical Safety Act, amending the Toxic Substances Control Act (TSCA).

Bob Sussman, Counsel for Safer Chemicals Healthy Families, issued the following statement:

“The Ninth Circuit decision announced today is an important step forward in assuring that EPA’s risk evaluations under TSCA protect public health and comply with the law.

Importantly, the Court found that EPA violated TSCA by excluding legacy uses of dangerous chemicals like asbestos from consideration in TSCA risk evaluations. EPA now needs to go back and fix its ongoing risk evaluation to assess the serious threat to workers and consumers from asbestos found in millions of buildings across the country.

As EPA releases its draft risk evaluations, the results are proving worse than we feared when we filed this petition three years ago. Not only have these draft risk evaluations contained inexcusable lapses in good science but they have excluded sources of exposure, such as drinking water contamination, air emissions and use of personal care products, that are harmful to health and the environment and need to be restricted under the law. Both public commenters and EPA’s independent Scientific Advisory Committee on Chemicals (SACC) have forcefully criticized EPA for these deficiencies.

Safer Chemicals Healthy Families and other groups will continue to hold EPA accountable for ongoing violations of TSCA reflected in its risk evaluations. The Ninth Circuit decision does not legitimize EPA’s actions under TSCA and, in fact, rejects important aspects of how EPA is implementing the law.”

Details about the decision:

The Court found that EPA’s “framework rules” did not clearly address whether EPA is required to combine the risks of different conditions of use rather than evaluating the risk of each use in isolation. Because of these ambiguities, the Court said it was premature to decide whether TSCA allows EPA to ignore the contribution of individual chemical uses to overall health and environmental risk. But it left the door open to challenging individual risk evaluations that reflect this flawed and unprotective interpretation of TSCA.

The Court also did not accept EPA’s extreme position that TSCA allows it to “pick and choose” which uses to include in risk evaluations – an approach that could enable EPA to ignore uses with widespread exposure and significant potential for risk. Although the Court did not decide whether this approach violates TSCA, it did determine that EPA lacks the discretion to remove risk and exposure pathways from its risk evaluations under the express terms of the framework rules themselves. This means that the several use exclusions in ongoing TSCA risk evaluations are unlawful and must be eliminated.

Safer Chemicals Healthy Families, Vermont Public Interest Research Group and the Asbestos Disease Awareness Organization filed the lawsuit in August 2017, challenging Trump administration rules issued in July 2017 for evaluating the risks of toxic chemicals. Those rules address how the EPA planned to prioritize chemicals and evaluate their health risks under the Toxic Substances Control Act.

Additional petitioners in the consolidated lawsuit include:

  • Alaska Community Action on Toxics, Environmental Health Strategy Center, Environmental Working Group, Learning Disabilities Association of America, Sierra Club, Union of Concerned Scientists, We Act for Environmental Justice;
  • United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC;
  • Natural Resources Defense Council, the Alliance of Nurses for Healthy Environments and Cape Fear River Watch and;
  • the Environmental Defense Fund.

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