The passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act in June 2016 was widely lauded for providing the first real chance to advance a total ban on asbestos-containing products in the United States since 1989. While most people believe that the use of asbestos has been banned in the U.S. since the 1970s, in reality, U.S. manufacturers still import and use hundreds of tons of asbestos each year. The Lautenberg Act empowers the U.S. Environmental Protection Agency to evaluate the risks of new and existing toxic chemicals, and provides guidance for creating rules and restrictions for their use. On the first anniversary of its passing, the EPA released a final rule establishing the criteria and process it will use to identify high priority chemicals for risk evaluation, establishes its process and criteria for evaluating risks, and clarifies its authority in determining which uses of a chemical are appropriate for evaluation. According to the EPA press release posted on that day, the new rules will ensure that the EPA focuses its efforts on the chemicals and uses that present the greatest risk to the public.
Some History of Asbestos Bans for Perspective
In 1989, the U.S. Environmental Protection Agency issued what it believed to be its final rule under the Toxic Substances Control Act of 1976, implementing a phase-out and eventual complete ban on all uses of asbestos in the United States. It followed a series of restrictions that limited or banned certain specific uses of asbestos, including most spray-on asbestos products, and gradually broadened the types of asbestos products that would be banned in the U.S. The asbestos industry challenged that rule in court, and in 1991, a U.S. Circuit Court struck down the rule, effectively removing most of the ban on importing, processing, distribution or manufacture of asbestos and asbestos-containing products included in that rule. While earlier bans on asbestos remained in place, the court ruling effectively stalled further actions to ban asbestos for nearly a quarter of a century. Repeated attempts to widen the ban to include more products and uses of asbestos have failed time and time again, stymied by the lobbying efforts of those who profit from the sale and distribution of products that contain asbestos.
One Year In – Scope Documents on Asbestos Released
One of the most important pieces to come out of the first year of work under the Lautenberg Act is the release of scope documents for the first ten chemicals that will be evaluated. Needless to say, asbestos tops the list of priority chemicals to be evaluated for new regulations. The scope document for asbestos lays out which uses of asbestos will be evaluated, how the evaluations will be conducted, and how new regulations concerning those uses will be established. In addition, the EPA asbestos scope document provides a great deal of information about current and projected future uses of asbestos and asbestos-containing materials. These are some of the most important findings in that EPA document.
- The EPA will not consider “legacy” uses of asbestos. The agency will not be examining the risk of asbestos exposure in old buildings and the environment, nor risks arising from the removal or disposal of those legacy uses of asbestos. Rather they will be focusing on currently allowed uses of asbestos and determining the risk each of those uses carries to those who work with it, live near it or may be otherwise exposed to asbestos through it.
- The working groups will be using the agreed-upon definition of asbestos from the Toxic Substances Control Act, specifically, “asbestiform varieties of six fiber types – chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite or actinolite.”
- In formulating the rules and regulations for the importation, handling, processing, and distribution of asbestos and related products, the EPA will consider all known current or anticipated uses of asbestos in products that are in use or expected to be developed in the future. As of June 2017, the EPA has identified the use of asbestos in the chlor-alkali industry, specifically in the membranes used in the making of chlorine and lye, as well as in sheet gaskets, friction products in the oil industry, auto brakes, roofing products, adhesives and sealants, and imported cement.
- The U.S. imported 340 million metric tonnes of asbestos in 2016, mostly from Brazil.
- The EPA will be considering several different types of exposure risk – occupational exposure, consumer exposure and population (or bystander) exposure.
- Occupational exposure – workers who deal directly with asbestos and asbestos-containing products
- Consumer exposure – people who use asbestos-containing products
- Bystander exposure – people who may be exposed to asbestos fibers because of proximity to manufacturing and other sites where asbestos is used
- The EPA will be taking public commentary on asbestos and its uses specific to this scope document, as well as the other 9 priority toxic chemicals, and may further refine the document based on that commentary.
Lautenberg Act Full Asbestos Ban
It’s important to note that the new regulations are likely to face considerable pushback from those in the industries affected, and that the current regulatory atmosphere may make it more difficult for the EPA to create and enforce more restrictions on the use of asbestos. However, the Lautenberg Act presents the first and best path forward to a complete ban on the use of asbestos in the United States.