The Environmental Protection Agency (EPA) is continuing its renewed reviews of asbestos products, and has just issued a requirement that “discontinued” uses receive new review and approval before they can re-enter commerce in the United States. Formally, EPA has issued a Significant New Use Rule (SNUR) covering these products (I wrote about the SNUR proposal here).
EPA’s asbestos-related initiatives respond to provisions of the 2016 amendments to the Toxic Substances Control Act (TSCA) -- the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.” Statutory provisions distinguish between “existing” uses that are ongoing, and “new” uses it interprets to include renewal of lapsed uses. (I wrote about provisions relating to existing chemical here, and to new chemicals and new formulations of existing chemicals here).
What’s the Present Legal Status of Asbestos-Containing Products?
As many readers know, asbestos was a widely-used insulating material, found to pose significant risks of cancer and lesser health impacts to exposed individuals. Beginning in 1979, EPA spent a decade applying its TSCA authority to assess the risks and benefits of asbestos-containing products, and in 1989 issued regulations scheduling future prohibitions on the manufacture, importation, processing, and distribution of most asbestos-containing products. However, EPA was sued by domestic and foreign producers of asbestos and manufacturers of asbestos-containing materials (joined by provincial and federal governments in Canada), who alleged serious procedural defects in EPA’s rulemaking. In 1991, the Fifth Circuit Court of Appeals agreed with many of these arguments (Corrosion Proof Fittings v. EPA), vacated the phaseout provisions, sustained EPA’s authority to restrict or ban new uses of asbestos, and remanded the proceeding to EPA to conduct further rulemaking. As a result, the status of asbestos-containing products under EPA regulation since 1991 has been:
Corrugated paper, rollboard, commercial and specialty paper, flooring felt, and new uses of asbestos-containing products (after August 25, 1989) are banned.
Asbestos-cement corrugated and flat sheet, asbestos-cement shingle and pipe, asbestos clothing, pipeline wrap, roofing felt, vinyl-asbestos floor tile, millboard, automatic transmission components, clutch facings, friction materials, disc brake pads, drum brake linings, brake blocks, gaskets, and non-roofing and roofing coatings are not banned, but EPA retains authority to establish regulations.
EPA left asbestos’ regulatory status unchanged for many years thereafter. However, EPA is responding to the 2016 Amendments to TSCA by revisiting the regulatory status of existing and potential future asbestos-containing products. In 2016 EPA designated asbestos as one of the first 10 chemical substances subject to chemical risk evaluations (I wrote about this here). The new SNUR caps another rulemaking.
What’s A SNUR?
TSCA Section 5 directs EPA to collect information about new chemical substances proposed for distribution, and for new uses of existing chemicals. EPA requires would-be manufacturers and imports to file a premanufacture notice (PMN) for a new chemical, and a significant new use notification (SNUN) for a “significant new use” of a chemical that’s already in the TSCA Inventory. After EPA issues a Consent Order setting regulatory conditions for a material that was subject to a SNUN for one would-be manufacturer or importer, the agency often follows up with a SNUR to bind all other manufacturers and processors to the terms and conditions contained in the Consent Order. Each SNUN or SNUR contains information requirements specific to the chemical it covers.
What Does EPA’s New SNUR Require?
In issuing the new SNUR, EPA reports that its data collection efforts have failed to find indications that many pre-1989 uses of asbestos continue today, and decides that any attempt to revive these lapsed activities would amount to new uses that require review under the agency’s TSCA Section 5 authority. This new rule (40 CFR §721.11095) applies to the following uses of “asbestos” – which the rule defines as “the asbestiform varieties of chrysotile (serpentine), crocidolite (riebeckite), amosite cummingtonite-grunerite), anthophyllite, tremolite or actinolite)”:
Extruded sealant tape and other tape
Filler for acetylene cylinders
High grade electrical paper
Adhesives, sealants, roof and non-roof coatings
Separators in fuel cells and batteries
Vinyl-asbestos floor tile
Other building products (other than cement products).
Any would-be manufacturer or importer of any of these uses must comply with the SNUR and seek EPA review before beginning to distribute their product within the U.S. This particular SNUR covers not just the materials listed above, but also items that contain them.
The proposal describes EPA’s activities and realizations from the recently initiated risk assessment mentioned above, recites the general standards for SNUNs, and cites the need to ensure advance filing of information that would allow the agency to evaluate a would-be significant new use of asbestos within any of the permissible product categories listed above. EPA’s notice proposes the scope of products to be covered (essentially, those listed above) but makes no mention of any indication from any would-be manufacturer or importer of interest in the introduction of such new uses.
Because this is all so speculative, environmental and health advocates who distrust EPA’s motivations are expressing concern that the agency intends the proposal as a way to facilitate expanded use of asbestos. I’ve been unable to find any evidence one way or the other.
EPA describes this SNUR as a decades-delayed followup to the 1979-1989 rulemaking and subsequent court action. This rule adds lapsed uses to the category of “new” uses that cannot be introduced into commerce without agency review. EPA also removes these uses from the chemical hazard review for asbestos that I noted above, but continues that review for other “existing” uses. Accordingly, organizations that manufacturer or import asbestos containing materials, or use materials produced by others, should continue to track developments.
Does the organization manufacture, import, process or use any asbestos-containing products?
Is the organization considering whether manufacture, import, process or use any asbestos-containing product not now permissible within the United States, but which could be introduced in compliance with the SNUR?
Where Can I Go For More Information?
* EPA’s Asbestos web information portal
* EPA asbestos SNUR (4/25/19 Federal Register)
* EPA’s Risk Evaluation for Asbestos webpage
* Corrosion Proof Fittings v. EPA (947 F. 2d 1201 (5th Cir. 1991)
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About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: email@example.com