The Environmental Protection Agency (EPA) has proposed to ban a number of longstanding uses of chrysotile asbestos, using expanded authority provided as part of amendments adopted to the Toxic Substances Control Act (TSCA) in 2016. This proposal is EPA’s latest step to apply its expanded authority to review and restrict uses of asbestos, renewing agency efforts from the 1980s that were blocked by litigation.
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 then-available TSCA authority to assess the risks and benefits of asbestos-containing products. In 1989 EPA issued regulations scheduling future prohibitions on the manufacture, importation, processing, and distribution of most asbestos-containing products. However, litigation brought by domestic and foreign producers of asbestos and manufacturers of asbestos-containing materials (joined by provincial and federal governments in Canada) 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 but sustained EPA’s authority to restrict or ban new uses of asbestos. As a result, since 1991:
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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.
Since the 2016 TSCA amendments, however, EPA has revisited 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). In 2019 EPA issued a requirement that “discontinued” uses of asbestos receive new review and approval before they can re-enter commerce in the United States (I wrote about this HERE). In 2021, EPA completed review and issued its “Final Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos”, in which it finds “unreasonable risks to human health for uses of chrysotile asbestos.” As expanded in 2016, TSCA authorizes EPA to protect against “unreasonable risks to human health,” up to and including bans on chemical use.
What is EPA proposing?
EPA's April 2022 proposal would add the following restrictions to uses of chrysotile asbestos
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prohibit manufacture (including import), processing, distribution in commerce and commercial use of chrysotile asbestos for
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chrysotile asbestos diaphragms for use in the chlor-alkali industry
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chrysotile asbestos-containing sheet gaskets used in chemical production
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chrysotile asbestos-containing brake blocks used in the oil industry
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aftermarket automotive chrysotile asbestos-containing brakes/linings
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other chrysotile asbestos-containing vehicle friction products, and
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other chrysotile asbestos-containing gaskets
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prohibit manufacture (including import), processing, and distribution in commerce of aftermarket automotive chrysotile asbestos-containing brakes/linings for consumer use, and other chrysotile asbestos-containing gaskets for consumer use
EPA is also proposing disposal and recordkeeping requirements for these conditions of use.
What happens now?
EPA requests comments on this proposal by June 13, 2022. After that EPA is likely to move expeditiously to finalize these rules, which it assesses will have limited impact in marketplaces that have phased down asbestos use over many decades. Note, however, that there are undoubtedly many locations where existing machinery still has asbestos-containing parts in place, so that organizations in the sectors with targeted activities should review existing uses to ensure they are prepared to order and use compliant versions of the equipment in the future.
Self-evaluation checklist
Does the organization manufacture, import, process, distribute or use any asbestos-containing products?
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If so, are any of the products included among those that EPA is proposing to ban from future manufacture, import, distribution and processing?
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If so, does the organization have alternative products that it can substitute for those EPA is proposing to ban?
Is the organization preparing to comment on EPA’s proposal?
Where can I go for more information?
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EPA “Actions to Protect the Public from Exposure to Asbestos” webpage
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EPA “Final Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos” (12/21)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 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: tei@ix.netcom.com