EPA: Ban Asbestos – First Under Chemical Safety Act

The U.S. Environmental Protection Agency (EPA) said today it is  finally taking action to protect people from asbestos exposure by releasing a proposed rule to prohibit ongoing uses of the only known form of asbestos currently imported into the U.S. This proposed rule is the first-ever risk management rule issued under the new process for evaluating and addressing the safety of existing chemicals under the Toxic Substances Control Act (TSCA) that was enacted in 2016.

The proposed rule would ban chrysotile asbestos, the only known form of asbestos that’s currently imported into the U.S., which is found in products such as asbestos diaphragms, sheet gaskets, brake blocks, aftermarket automotive brakes/linings, other vehicle friction products, and other gaskets also imported into the U.S. Most consumer products that historically contained chrysotile asbestos have been discontinued.

This proposal would rectify a 1991 court decision* that largely overturned EPA’s 1989 ban on asbestos that significantly weakened EPA’s authority under TSCA to address risks to human health from asbestos or from any other existing chemical. The court was apparently looking for a “less burdensome way “for corporations to deal with deadly asbestos. With the 2016 amendments to TSCA, the law was radically transformed with clear requirements and a mandate to comprehensively prioritize and evaluate chemicals and put in place strong and timely protections against any unreasonable risks.

“Today, we’re taking an important step forward to protect public health and finally put an end to the use of dangerous asbestos in the United States,” said EPA Administrator Michael S. Regan. “This historic proposed ban would protect the American people from exposure to chrysotile asbestos, a known carcinogen, and demonstrates significant progress in our work to implement the TSCA law and take bold, long-overdue actions to protect those most vulnerable among us.”

EPA is also proposing targeted disposal and record-keeping requirements in line with industry standards, Occupational Safety and Health Administration requirements, and the Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP). The proposed disposal and record-keeping requirements would take effect 180 days after the effective date of the final rule.

* From the Fifth Circuit (New Orleans, LA) court papers: “The petitioners in the case alleged that the EPA’s rulemaking procedure was flawed. Specifically, the petitioners contend that the EPA erred by not cross-examining petitioner’s witnesses, by not assembling a panel of experts on asbestos disease risks, by designating a hearing officer, rather than an administrative law judge (ALJ), to preside at the hearings on the rule, and by not swearing in witnesses who testified. Petitioners also complain that the EPA did not allow cross-examination of some of its witnesses and did not notify anyone until after the hearings were over that it intended to use “analogous exposure” estimates and a substitute pricing assumption to support its rule.

“Most of these contentions lack merit and are part of the petitioners’ “protest everything” approach, but we address specifically the two EPA actions of most concern to us, the failure of the EPA to afford cross-examination of its own witnesses and its failure to provide notice of the analogous exposure estimates.”

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