There Is Still No New Asbestos Ban

• Author: Jean Warshaw
• Position: Lawyer and author of Guide to the Toxic Substances Control Act, published by Matthew Bender
• Pages: 59-59

MAY/JUNE 2021 | 59

Reprinted by permission from The Environmental Forum®, May/June 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

THE DEBATE

There Is Still

No New

Asbestos Ban

By Jean Warshaw

Implementing the new, reformed

version of TSCA has been predict-

ably slow. e statute incorporates

long time frames, programs have

been underfunded, and the Trump

administration was not commit-

ted to environmental programs. As

often happens, litigation over new

rules and frameworks has brought

uncertainty and implementation dif-

culties. e Biden administration is

more committed to environmental

progress, but funding may continue

to be a roadblock.

e original Toxic Substances

Control Act was passed over 40 years

ago. EPA was empowered to restrict

unreasonable risks primarily by

analyzing existing data on chemicals

before they were commercialized,

and using industry-submitted reports

on commercial chemicals. e stat-

ute had no comprehensive mecha-

nism for reviewing 64,000 existing

chemicals on the 1979 inventory of

substances already in commerce. No-

tably, when EPA restricted asbestos

— a deadly carcinogen — the Fifth

Circuit cited statutory impediments

when it overturned most of those

restrictions in its 1991 decision Cor-

rosion Proof Fittings v. EPA. at case

brought new restrictions on existing

chemicals to a halt.

Asbestos became a rallying cry for

TSCA reform. In 2009, Representa-

tive Bobby L. Rush said, “If TSCA is

incapable of providing EPA with the

regulatory tools to ban asbestos, then

the statutes seem to be in direct need

of serious repair.” e response was the

2016 Frank R. Lautenberg Chemical

Safety for the 21st Century Act, which

reformed TSCA. e Lautenberg Act

gives EPA broad authorities for regu-

lating asbestos and other chemicals.

Five years later, there are no new

TSCA restrictions on asbestos. Last

December, the agency published a

risk evaluation nding that use of

several products containing chrysotile

asbestos presents unreasonable risks.

EPA must address those risks, but

the statutory deadline is December

2022 and compliance may be delayed

until December 2027. Meanwhile,

the agency did not evaluate ve

other forms of asbestos, legacy uses

of asbestos and associated disposal,

or consumer products with asbestos

impurities, sidetracking regulation of

these uses.

EPA issued a Signicant New Use

Rule requiring notications 90 days

before manufacturing or processing

any type of asbestos for a novel ap-

plication. Some sources assert this is a

restriction on asbestos, but it is only a

notication requirement. e agency

may choose not to restrict a new

use. Although many stakeholders are

disappointed in EPA’s omissions, the

reform law does not require restric-

tions for another two years. is aw

in the statute can be remedied by an

administration committed to exceed-

ing the minimum requirements.

e Lautenberg Act process for

evaluating commercialized chemicals

is slow by design. If chemicals were

evaluated at the pace required in the

statute, it would take until 2028 to

perform risk evaluations on the rst

100 chemicals, and until 2040 to

perform 120 more. For context, there

are over 41,000 chemicals actively in

commerce, and over 8,000 chemicals

that are made or imported in vol-

umes over 25,000 pounds per year

(lower volumes if the chemical was

proposed for or subject to specied

restrictions). e agency has already

missed statutory deadlines, and is

on track to miss substantially more.

Again, adequate funding and stang

would facilitate progress.

Industry functions most eectively

when regulations are transparent,

objective, and based on rigorous sci-

ence. at depends on robust risk

evaluations. EPA’s drafts of the rst

risk evaluations under TSCA reform

left regulated entities scrambling to

backll missing worker exposure

data and update obsolete data. e

agency’s implementation of system-

atic review in risk evaluations has

been criticized as not comprehensive,

workable, objective, or transparent.

While it is welcome news that the

current administration will not rely

on the prior interpretation of sys-

tematic review, the primary concern

to industry is evaluations that meet

those objectives, which can only be

achieved with adequate resources.

Adequate resources and a commit-

ment to communicating with indus-

try would have eliminated problems

in Lautenberg Act implementation,

as shown by two examples. First, the

act requires reporting chemicals that

had been in commerce during 2006-

2016. EPA says some companies

did not understand that even if the

agency knew a substance was actively

in commerce, a rm had to report to

maintain condentiality claims, leav-

ing some companies at risk of losing

condentiality protections. Second,

the agency required notications of

making substances about to undergo

risk evaluation so EPA could collect

fees to support that endeavor. e

agency’s fee rule required payment

even if the substance was an impurity.

A problem arose because form-

aldehyde was one of the subject

chemicals, and it is generated by

incomplete fuel combustion, which

other branches of the EPA knew, so

any person who burns fuel would

have had to pay fees. e agency

backtracked on its regulation but did

not have time to amend the rule be-

fore the due date. A more collabora-

tive process and outreach to industry

and other EPA programs could have

avoided these problems.

Industry will benet if this admin-

istration implements the Lautenberg

Act to protect health and the envi-

ronment in a consistent, collabora-

tive, and well-conceived way.

Jean Warshaw is a lawyer and author of Guide

to the Toxic Substances Control Act, published by

Matthew Bender.