Federal court rules Trump EPA unlawfully excluded dangerous chemicals from review

A federal appeals court ruled this week that the Trump administration illegally excluded millions of tons of dangerous and toxic materials in public use from a safety review.

A three-judge panel in the 9th U.S. Circuit Court of Appeals ruled Thursday that the Environmental Protection Agency (EPA) must include risks from asbestos, lead and other toxins regardless of whether or not they are currently being produced. The substances are still present in some homes, including in home insulation, house paint and other products. 

Under the Obama administration, the EPA said it would take risks posed by older products into consideration under the congressionally mandated safety review. However, the Trump administration has sought to limit the review to products that are currently being manufactured, according to The Associated Press.

EPA spokeswoman Corry Schiermeyer confirmed to The Hill that agency officials are reviewing the court’s decision. 

A coalition of unions, safety advocates and scientific groups sued in 2017 to block the EPA’s narrower reading of the safety review. Firefighter and construction worker groups alleged that ignoring the toxic products that were still in use could risk their health.

“The big issue in the case was what exposures does the EPA have to look at it when it assesses the use of a chemical,” Eve Gartner, an Earthjustice attorney who represented the Union of Concerned Scientists, the Sierra Club and others in the case, told the AP. “If EPA doesn’t consider lead pipe or lead paint, then it might end up saying lead is safe because you’re not going to look at how people are exposed to lead.”  

The rule would have allowed regulators to gauge the risk of a few hundred tons of asbestos that are imported into the U.S. each year. But, it would have blocked the estimated 8.9 million tons of asbestos products sold between 1970 and 2016. 

The outlet also reported that the American Chemistry Council (ACC), the lobbying organization for the chemical industry, spearheaded the Trump administration’s interpretation of the Toxic Substances Control Act.

Chemistry council spokesman Scott Openshaw told the AP that the group supported the court’s ruling that the EPA was justified in not considering the risks of toxins that have already been disposed of, such as in landfills. But the court also ruled that if landfills leak or chemicals are spilled, the EPA will have to include those instances in safety reviews.

“ACC and its member companies will continue to constructively engage with EPA and other stakeholders to help ensure implementation of the law enhances public, industry and government confidence in the federal chemical regulatory system,” Allison Starmann, deputy general counsel of the American Chemistry Council, said in a statement to The Hill. 

Updated at 10 a.m.