The Environmental Protection Agency (EPA) is expanding its attention to asbestos and its associated hazards, including both existing uses and possible new uses. EPA is undertaking these initiatives under the aegis of extension of its authority under the Toxic Substances Control Act (TSCA), enacted in 2016 Amendments to TSCA -- the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.” (I wrote about provisions relating to existing chemical here, and for 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, which health experts learned poses 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 setting a schedule for future prohibitions on the manufacture, importation, processing, and distribution of most asbestos-containing products. 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 is as follows:
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Corrugated paper, rollboard, commercial and specialty paper, flooring felt, and new uses of asbestos-containing products (after August 25, 1989) are banned.
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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). More recently, EPA has proposed a TSCA Significant New Use Rule (SNUR) that would apply to the non-banned uses.
What’s a SNUR, and What Does EPA’s Latest Proposal Mean?
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, the agency often follows up with a significant new use rule (SNUR) to bind all other manufacturers and processors to the terms and conditions contained in the Consent Order.
Formalistically, therefore, EPA’s new asbestos proposal can be considered a decades-delayed routine followup to presence of asbestos-containing products in commerce within the U.S. 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.
What’s Next?
Comments were due by August 10. EPA will now process those comments and decide whether to move forward with a SNUR.
Self-Evaluation Checklist
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 a SNUR?
Where Can I Go For More Information?
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EPA’s Risk Evaluation for Asbestos webpage
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EPA asbestos SNUR proposal (6/11/18 Federal Register)
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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. He was involved in developing Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
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: tei@ix.netcom.com