Partner Mike Showalter was quoted extensively in this Inside EPA story regarding EPA's recent decision to limit its review of asbestos to the current six-fiber definition in the Toxic Substances Control Act (TSCA). The decision to focus on six statutorily defined forms of asbestos answers one of several questions Mike posed in a blog post last November.
Mike observed that TSCA's six-fiber definition can be under-inclusive, citing the W.R. Grace case involving "a similar fiber but not in the six-fiber definition." The 9th Circuit rejected W.R. Grace's argument that the substances at issue were not "asbestos" simply because they fell outside the six-fiber definition. Mike pointed out that the six-fiber definition can also be over-inclusive, as it is impractical to conduct repeated mineralogy tests on large amounts of natural materials.
Mike concluded that EPA "would not be constrained by the old part of TSCA" defining six forms of asbestos.
“Anything outside the six-fiber definition could be viewed as a new chemical," said Mike. "EPA could then evaluate it like any other substance.” He added, “Using the six-fiber definition in the short term is conservative if only because those terms have been around for years, people understand what falls within them, and there is precedent as to how to evaluate whether something is or is not one of them.”