Defense Counsel Journal

The EPA's March to Ban Asbestos: 2020 Draft Risk Evaluation

Volume 87, No. 3

October 20, 2020

Davis_EvelynFletcher_sized Evelyn Fletcher Davis
Davis_EvelynFletcher_sized

Evelyn Fletcher Davis

Evelyn Fletcher Davis is a senior partner at Hawkins Parnell & Young, LLP. As one of the leading toxic tort and product liability defense lawyers in the U.S., she has tried, managed and settled thousands of complex cases. She has litigated cases involving exposures to asbestos, silica, mold, benzene and other chemicals, in addition to personal and commercial insurance liability. She serves over 40 corporations as national, regional or local counsel with emphasis on Florida, Georgia, and Alabama.
Hawkins_Eric_sized Eric T. Hawkins
Hawkins_Eric_sized

Eric T. Hawkins

Eric T. Hawkins is a partner in the Atlanta office of Hawkins Parnell & Young, LLP, and his practice focuses on product liability, toxic tort, environmental and related claims. He defends a wide variety of complex claims involving asbestos, talc, silica, benzene, premises liability and personal injuries. He works in roles as national and local counsel for corporate clients where he develops and outlines strategy in numerous jurisdictions.
Weglarz_Claire_sized Claire C. Weglarz
Weglarz_Claire_sized

Claire C. Weglarz

Claire C. Weglarz is a first-chair trial attorney with Hawkins Parnell & Young, LLP in Los Angeles. She represents public and private entities in high-risk litigation nationwide in a broad range of industries, from energy and chemicals to manufacturing, automotive and consumer goods. She has extensive experience in product liability, environmental claims and toxic exposures to asbestos, talc and various chemicals. She is also a registered patent and trademark attorney.

In March 2020, the U.S. Environmental Protection Agency released a Draft Risk Evaluation for Asbestos, coinciding with the agency’s fiftieth anniversary. This article looks at why the EPA was created and how the agency’s work has evolved from policing against widespread environmental pollutants in its early years to devoting significant resources in 2020 on a reevaluation of asbestos, a mineral that is rarely used and highly regulated in the U.S.

EPA’s Draft Risk Evaluation will be used by asbestos personal injury attorneys to bolster their chrysotile product cases and undermine the opinions of defense experts if the report is published in its current form. The draft report states, “EPA identified cancer risks from inhalation exposure to chrysotile asbestos.”11United States Envtl. Prot. Agency, Draft Risk Evaluation for Asbestos 20 (Mar. 2020), available at https://www.epa.gov/sites/production/files/2020-03/documents/1_draft_risk_evaluation_for_asbestos_pub.pdf [hereinafter “Draft Risk Evaluation for Asbestos”]. Areas where EPA’s draft report finds an “unreasonable risk to workers” from chrysotile asbestos exposure include “processing and industrial use of asbestos-containing diaphragms, processing and industrial use of asbestos-containing sheet gaskets and industrial use of asbestos-containing brake blocks, aftermarket automotive asbestos-containing brakes/linings, other vehicle friction products, and other asbestos containing gaskets.”22Id. at 25.

Since the draft report’s publication, over seventy individuals or trade associations submitted comments to EPA, including defense experts Charlie Blake, John Spencer, and Drs. Michele Carbone, Bruce Case, David Garabrant, Bryan Hardin, Art Langer, Suresh Moolgavkar, Brooke Mossman, Dennis Paustenbach, Bertram Price, Coreen Robbins, Victor Roggli, Jennifer Sahmel, and Thomas Sporn. On June 8-10, 2020, EPA conducted a peer review meeting at which Drs. Garabrant, Paustenbach, Roggli, and Moolgavkar offered additional comments.

The draft report is controversial with respect to its conclusion as to the cancer risk of chrysotile asbestos products and because of the one-sided inclusion of paid experts for asbestos plaintiffs’ law firms on key peer review committees that are reviewing the draft report: the Toxic Substances Control Act (TSCA) Science Advisory Committee on Chemicals (SACC) and TSCA SACC Ad Hoc Peer Reviewers. The peer reviewers include three testifying experts for asbestos plaintiffs: Drs. Henry Anderson, Steven Markowitz, and Marty Kanarek. There are no experts who testify for asbestos defendants or both defendants and plaintiffs on the peer review groups.

The International Association of Defense Counsel joined a June 2020 comment submitted by the U.S. Chamber of Commerce, U.S. Chamber Institute for Legal Reform, National Federation of Independent Business Small Business Legal Center, American Property Casualty Insurance Association, Coalition for Litigation Justice, Inc., American Tort Reform Association, Aerospace Industries Association, Product Liability Advisory Council, Inc., and Washington Legal Foundation to object to the lack of balance on the EPA’s peer review committees for the  draft report.33See Letter from U.S. Chamber of Commerce et al. to United States Envtl. Prot. Agency Administrator Wheeler and Drs. Diana Wong (EPA Office of Science Coordination and Policy), Stanley Barone, Jr. (EPA Office of Pollution Prevention and Toxics), and Todd Peterson (EPA Office of Science Coordination and Policy) (June 2, 2020), available at https://www.regulations.gov/document?D=EPA-HQ-OPPT-2019-0501-0070. The comment noted that EPA’s decision to include experts who only testify on behalf of plaintiffs may lead the committee to stray from objective science and limit discussion on divergent opinions.

Experts who receive significant fees testifying on behalf of asbestos plaintiffs have been involved in the EPA’s asbestos risk evaluation since at least 2017. For example, in March 2017, Dr. Arthur Frank, a frequent expert for asbestos plaintiffs, sent the EPA a 216-page document that he admittedly put together with the assistance of a plaintiff attorney with whom he works in asbestos litigation matters.44Letter from Dr. Arthur Frank to United States Envtl. Prot. Agency Administrator Scott Pruitt (Mar. 13, 2017). Dr. Frank regularly uses this same document as his report in asbestos litigation. In another instance, Dr. Frank and another asbestos plaintiffs’ expert, Dr. Barry Castleman, met with an EPA deputy administrator to promote the selection of asbestos for this type of evaluation and share their view on the risks of asbestos.55Deposition transcript of Arthur Frank, May 12, 2020, in DeVries v. Allen Bradley Co., Nos. 5-13-cv-00474, 5-13-cv-06856, 2-01-md-00875, at 140-141 (E.D. Pa.); Deposition transcript of Barry Castleman, May 16, 2020, in Arditto v. Autozone, Inc., No. RG19034481 (Alameda Cty. Cal. Super Ct.). The Asbestos Disease Awareness Organization (ADAO), a lobbying group that advocates for the “need for a global asbestos ban,”66See Asbestos Disease Awareness Organization, Who We Are, available at https://www.asbestosdiseaseawareness.org/about-adao/leadership/. and plaintiff experts Drs. John Dement, Richard Lemen, Jacqueline Moline, and Christine Oliver submitted written statements outlining these issues during the comment period. Drs. Frank, Moline, Castleman, Compton, and Lemen gave oral testimony at the EPA’s June 2020 hearing.

EPA performed the asbestos risk evaluation in accordance with the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, which amended the Toxic Substances Control Act (TSCA). Prior to this amendment, the EPA performed a similar risk evaluation of asbestos under TSCA in the 1980s. The first risk evaluation resulted in a 1989 ban of many asbestos-containing products. That ban was largely overturned in the courts. Since the 1989 ban was overturned, the EPA has failed to regulate any existing chemicals using TSCA. When the Lautenberg Chemical Safety Act was signed into law, President Barack Obama remarked the legislation was necessary, saying, “The [old] system was so complex, it was so burdensome that our country hasn’t even been able to uphold a ban on asbestos.”77The White House, Remarks by the President at Bill Signing of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, June 22, 2016, available at https://obamawhitehouse.archives.gov/the-press-office/2016/06/22/remarks-president-bill-signing-frank-r-lautenberg-chemical-safety-2st.

The Lautenberg Chemical Safety Act requires the EPA to conduct risk evaluations “to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors.”8815 U.S.C § 2605(b)(4)(a). This requirement is contrary to Congress’s express intent that the EPA “shall consider the environmental, economic, and social impact of any action [it] takes or proposes” under TSCA.9915 U.S.C. § 2601(c).

The Draft Risk Evaluation for Asbestos is EPA’s first reassessment of the risks of asbestos in decades. A peer review meeting on the evaluation originally scheduled for April 2020 was temporarily postponed due to COVID-19 closures. The agency set a public comment deadline of June 2, 20201010Comments submitted to United States Envtl. Prot. Agency, available at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=EPA-HQ-OPPT-2019-0501. and conducted a public meeting on June 8–10, 2020. Because the comment period and public meeting occurred during a “shutdown” phase of the COVID-19 pandemic, affected entities are operating at less than normal capacity and on strained budgets. The timing of the public comment and peer review periods has created due process issues, including the inability to obtain information and documents necessary to adequately comment because of long processing times for Freedom of Information Act requests and the denial of expedited processing on those requests.

The use of asbestos in the United States is very limited and highly regulated, so the utility of the new risk evaluation is questionable. The EPA admits that the risk evaluation only addresses “a handful of very limited, still ongoing uses of asbestos.”1111United States Envtl. Prot. Agency, EPA Actions to Protect the Public from Exposure to Asbestos, available at https://www.epa.gov/asbestos/epa-actions-protect-public-exposure-asbestos. Asbestos has not been mined or otherwise produced in the U.S. since 2002, and asbestos consumption has decreased from a record high of 803,000 tons in 1973 to an estimated 100 tons in 2019.1212United States Geological Survey, Mineral Commodity Summaries 2020 26 (Jan. 31, 2020), available at https://pubs.usgs.gov/periodicals/mcs2020/mcs2020.pdf. From 2013-2018, U.S. asbestos consumption was “less than 0.1% of peak consumption in the 1970s.”1313Id.

The chloralkali industry accounted for nearly 100% of the nation’s asbestos mineral consumption in 2019.1414Id. Specifically, asbestos diaphragms are used in eleven chloralkali plants which account for about one-third of U.S. chlorine production.1515Id. In 2019, “a small, but unknown, quantity of asbestos was imported within manufactured products, including brake blocks for use in the oil industry, rubber sheets for gaskets used to create a chemical containment seal in the production of titanium dioxide, certain other types of preformed gaskets, and some vehicle friction products.”1616Id. During the peer review hearing, the EPA discovered that some samples from the chlorine industry were double-counted, which may affect the EPA’s final risk estimates.1717Pat Rizzuto, EPA to Correct Error Made with Industry’s Asbestos Data, Bloomberg L. (June 8, 2020), available at https://news.bloomberglaw.com/environment-and-energy/epa-to-correct-error-it-made-using-industrys-asbestos-data.

Asbestos is presently subject to extensive federal and state regulations and reporting requirements. The federal Occupational Safety and Health Administration (OSHA) oversees working conditions for United States workers by implementing and managing occupational safety and health standards, including regulations that pertain to handling asbestos in the workplace. In the consumer context, the Consumer Product Safety Commission (CPSC) protects consumers and families from consumer products that pose hazards. The CPSC has instituted bans and restrictions on asbestos-containing patching compounds, garments, and fireplace materials. The EPA has successfully banned new uses of asbestos in products such as asbestos-containing insulation and fireproofing materials.

The EPA has also addressed all asbestos-products not currently in use in the United States, sometimes described as “legacy uses.” In April 2019, the EPA finalized an Asbestos Significant New Use Rule (SNUR) under TSCA. The Asbestos SNUR prohibits the future manufacture (including import) or processing of discontinued uses of asbestos before the EPA has the opportunity to evaluate each intended use for risks to health and the environment and to take any necessary regulatory action, which may include a prohibition.

I. EPA’s 2020 Draft Risk Evaluation for Asbestos

In stark contrast to the purposes for which the EPA was created, the EPA’s 2020 Draft Risk Evaluation for Asbestos does not evaluate hazards or exposures to the general population. General population exposures to chrysotile asbestos may occur from industrial or commercial uses, industrial releases to air, water, or land, and other conditions of use. The EPA acknowledges that those types of exposures are already covered by environmental statutes administered by the agency.1818EPA Draft Risk Evaluation for Asbestos, supra note 1, at 2. Instead, the current risk evaluation may affect only 10 to 100 persons annually.1919Dennis Paustenbach, Comments to the United States Envtl. Prot. Agency Regarding March 2020 Draft Risk Evaluation for Asbestos, 3 (May 22, 2020), available at https://www.regulations.gov/document?D=EPA-HQ-OPPT-2019-0501-0095 [hereinafter “Paustenbach May 22 EPA Comment”].

Although there are several types of asbestos, the only form of asbestos currently known to be imported, processed, or distributed for use in the U.S. is chrysotile. Thus, the EPA only evaluated the following conditions of use of chrysotile asbestos in its risk evaluation: use of diaphragms in the chloralkali industry, sheet gaskets in chemical production facilities, oilfield brake blocks, aftermarket automotive brakes/linings, other vehicle friction products, and other gaskets.2020EPA Draft Risk Evaluation for Asbestos, supra note 1, at 18. As pointed out by defense expert Dennis Paustenbach, “the available data presented by the Agency does not seem to identify any cohorts which might be routinely exposed above about 1/10 to 1/2 the current OSHA Permissible Exposure Limit for asbestos (and the number of plausible workers is low).”2121Paustenbach May 22 EPA Comment, supra note 19, at 7. Moreover, “if chrysotile could produce mesothelioma (which remains in dispute), it may do so only at doses that are in the vicinity that cause asbestosis. . . .”2222Id. at 5. The EPA nonetheless concluded that the processing and use of these products presents an unreasonable risk to workers, regardless of the nature, duration, or frequency of the exposure.2323EPA Draft Risk Evaluation for Asbestos, supra note 1, at 26.

Public comments identified other issues with the draft risk evaluation, including:

The new risk evalulation for asbestos also lacks integrity, fairness, and legality because some peer reviewers have financial conflicts of interest, appear to lack impartiality and independence, and demonstrate a bias that should result in their disqualification.2525See United States Envtl. Prot. Agency Science & Tech. Pol’y Council, Peer Review Handbook § 1.2.1 (4th ed. 2015) [hereinafter “EPA Peer Review Handbook”]. Specifically, as stated, Drs. Steven Markowitz, Marty Kanarek, and Henry Anderson testify regularly on behalf of asbestos plaintiffs and have made a lot of money doing so.

Drs. Markowitz and Anderson have documented ties to the ADAO. Many sponsors of the ADAO’s annual conferences are asbestos plaintiffs’ law firms. The ADAO’s comment to EPA on the 2020 Draft Risk Evaluation on Asbestos are in line with ADAO’s strong advocacy towards a comprehensive ban on asbestos.

Dr. Markowitz is a member of the ADAO’s Science Advisory Board.2626See ADAO, supra note 6. His position at ADAO is prominently displayed on ADAO’s cover letter to its comments to the Draft Risk Evaluation. Dr. Markowitz is also recognized on the ADAO website as a 2019 and 2020 Emerald Donor.2727See Asbestos Disease Awareness Organization, 2019 ADAO Conference Sponsors and Donors, available at https://www.asbestosdiseaseawareness.org/newsroom/blogs/2019-adao-conference-sponsors/; https://www. asbestosdiseaseawareness.org/newsroom/blogs/2020-adao-conference-sponsors-and-donors/. He has signed on in support of ADAO’s statements to Congress.2828Examining the Human Health Effects of Asbestos and the Methods of Mitigating Such Impacts: Hearing before the Committee on Environment & Public Works, U.S. Senate, 119th Cong. 170, 177, 192 (June 12, 2007).

Dr. Anderson is a signatory to a letter sent by the ADAO urging the EPA “to prioritize asbestos as one of the 2016 top ten high-risk chemicals for evaluation under TSCA, leading toward the prohibition of asbestos in manufacturing, processing, use, distribution in commerce, and disposal.”2929Letter to United States Envtl. Prot. Agency Administrator Gina McCarthy regarding EPA Prioritization of Asbestos (Nov. 9, 2016), available at https://www.asbestosdiseaseawareness.org/wp-content/uploads/2016/11/ADAO-Administrator-Gina-McCarthy-Sign-on-letter-FINAL.pdf.

The inclusion of Drs. Markowitz, Kanarek, and Anderson among the peer reviewer for the draft asbestos risk evaluation defies the EPA’s own policies.3030EPA Peer Review Handbook, supra note 25, at §§ 1.2.1, 5.1, 5.2.1, and 5.3.6.

II. The Birth of EPA: Controlling Air Pollution

The road to the EPA’s 2020 Draft Asbestos Risk Evaluation started decades ago. The EPA was created in response to widespread public concern about decades of rampant and highly visible environmental pollution. The EPA’s photodocumentary project, Documerica (1971-1977), resulted in an archived collection of more than 22,000 photographs documenting these environmental problems. The earliest assignments were closely aligned to the EPA’s proposed areas of concern: air and water pollution, management of solid waste, radiation and pesticides, and noise abatement.3131Gisela Parak, Photographs of Environmental Phenomena: Scientific Images in the Wake of Environmental Awareness, USA 1860s-1970s, 146 (Transcript-Verlag, 2015).

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Toxic asbestos tailings swirl through the western arm of Lake Superior

Donald Emmerich/NARA

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Cleveland obscured by industrial smog in July 1973.

Frank J. Alexsandrowice/NARA

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Sulpher-dusting of grapevines, May 1972.

Gene Daniels/NARA

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Heavy smog in Los Angeles, 1973

Gene Daniels/NARA

Environmentalists credit Rachel Carlson’s Silent Spring as the catalyst of the modern environmental  movement.3232Current regulatory practices for chemical carcinogens were established when scientific understanding of the molecular mechanisms of chemical carcinogenesis was in its infancy. In Silent Spring, Carson presents a “no safe dose” argument about cancer. This zero-dose exposure argument is now known as the linear no-threshold theory. Despite scientific consensus that safe thresholds for carcinogens exist, the EPA remains closely wedded to Ms. Carson and the precautionary principle. See Cato Inst., Silent Spring at 50: The False Crises of Rachel Carson 260 (Roger Meiners et al. eds. Sept. 18, 2012).  Published in 1962, Silent Spring documents the adverse environmental effects of the indiscriminate use of pesticides – DDT was the prime example. After reading her book, President John F. Kennedy established a committee to investigate pesticides.3333Eliza Griswold, How ‘Silent Spring’ Ignited the Environmental Movement, N.Y. Times (Sept. 21, 2012), available at https://www.nytimes.com/2012/09/23/magazine/how-silent-spring-ignited-the-environmental-movement.html. In 1972, the U.S. banned the domestic sale of DDT except where public health concerns warrant its use.3434Id. In the EPA Journal’s November 1985 Special Anniversary Issue, Jack Lewis writes that the EPA is “without exaggeration to be the extended shadow of Rachel Carson.”3535Jack Lewis, The Birth of EPA, EPA J. (Nov. 1985), available at https://archive.epa.gov/epa/aboutepa/birth-epa.html.

Beyond the impact of Silent Spring, a January 1969 oil leak from an offshore drilling site near Santa Barbara, California, “galvanized public awareness of the environment and support for a decade of profound change.”3636Martin Miller, The Oil Spill That Sparked the Green Revolution, L.A. Times (Nov. 3, 1999), available at https://www.latimes.com/archives/la-xpm-1999-nov-30-me-38862-story.html; see also United States Envtl. Prot. Agency, The Origins of EPA, available at https://www.epa.gov/history/origins-epa.  Before the Exxon Valdez oil spill off the coast of Alaska in 1989, the Santa Barbara event was the worst oil spill in the nation’s history. Across the nation, households watched television images of “oil-drenched birds that couldn’t fly, sea otters that couldn’t swim, and tides that brought in the corpses of dead seals  and  dolphins.”3737Miller, supra note 36.  President Richard Nixon remarked that the “incident has frankly touched the conscience of the American people.”3838Id.  In the aftermath of the spill, he signed the National Environmental Policy Act on New Year’s Day of 1970, making the signing his first official act of the decade.

In his January 1970 State of the Union Address, President Nixon proclaimed the new decade a period of environmental transformation.3939Hon. Richard M. Nixon, Annual Message to the Congress on the State of the Union, Jan. 22, 1970, available at https://www.presidency.ucsb.edu/node/241063. In February 1970, the President outlined a comprehensive, thirty-seven point program embracing twenty-three major legislative proposals and fourteen new measures to be taken by administrative action or Executive Order in five major categories (water pollution control, air pollution control, solid waste management, parklands and public recreation, and organizing for action).4040Hon. Richard M. Nixon, Special Message to the Congress on Environmental Quality. Feb. 10, 1970, available at https://www.epaalumni.org/userdata/pdf/354_First_Presidential_Messag.pdf. In July 1970, President Nixon sent Reorganization Plan No. 3 to Congress to establish the EPA. Under the plan, “The principal roles and functions of the EPA would include:

  • The establishment and enforcement of environmental protection standards consistent with national environmental goals.
  • Research on the adverse effects of pollution and on methods and equipment for controlling it, the gathering of information on pollution, and the use of this information in strengthening environmental protection programs and recommending policy changes.
  • Assisting others, through grants, technical assistance and other means in arresting pollution of the environment.
  • Assisting the Council on Environmental Quality in developing and recommending to the President new policies for the protection of the environment.”4141Hon. Richard M. Nixon, “Message of the President” in Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15,623 (1970), available at https://www.govinfo.gov/content/pkg/USCODE-2017-title42/html/USCODE-2017-title42-chap55-sec4321.htm.

EPA opened its doors in December 1970 “to protect and enhance the environment.”4242William D. Ruckelshaus, EPA’s First Administrator on the Establishment of EPA (Dec. 16, 1970), available at https://archive.epa.gov/epa/aboutepa/epas-first-administrator-establishment-epa.html. To fulfill its mission, the EPA had “broad responsibility for research, standard-setting, monitoring and enforcement with regard to five environmental hazards: air and water pollution, solid waste disposal, radiation, and pesticides.”4343Id.

III. The EPA and Asbestos: Going Beyond the Environmental Pollution Problem

During the same time period that the Nixon Administration was constructing the EPA, the World Trade Center was being built in Lower Manhattan. Dr. William Nicholson of Mount Sinai's School of Medicine estimated that 1,000 tons of asbestos would be used in insulating the buildings, and that as much as 20% of that would escape into the air.4444David Bird, Long Battle Seen to End Pollution, N.Y. Times, at 55 (Feb. 1, 1970).  Drs. Nicholson and Arthur Rohl expressed particular concern with the fireproofing of high rise buildings by a fibrous spray mixture containing 12-30% asbestos.4545

William J. Nicholson, Arthur N. Rohl, and E.F. Ferrand, Asbestos Air Pollution in New York City, in H.M. Englund and W.T. Beery eds., Proceedings of the Second International Clean Air Congress (1971) 136-139.  They write that in the 1960s “it was not uncommon to see extensive snowfalls of asbestos-containing material over areas of New York and other metropolitan centers.”4646Id. Called a “growing pollution danger,” in April 1970, New York passed the first regulations in the nation requiring certain work practices to control and contain asbestos sprayed onto building structures.4747City Swears in Two to Act on Asbestos, N.Y. Times, at 26 (Apr. 10, 1970).

In December 1970, President Nixon signed amendments to the Clean Air Act (“CAA”) which established National Emission Standards for Hazardous Air Pollutants (NESHAPs). The 1970 CAA required the EPA to publish a list of air pollutants that might increase either mortality, serious irreversible illness, or incapacitating illness.484842 U.S.C. § 7408(a)(1). On March 1971, the EPA’s first Administrator, William Ruckelshaus, designated asbestos a hazardous air pollutant.4949E.W. Kenworthy. Industrial Emission Standards For 3 Air Pollutants Proposed. N.Y. Times, at 34 (Dec. 4, 1971), available at https://www.nytimes.com/1971/12/04/archives/industrial-emission-standards-for-3-air-pollutants-proposed.html; see also United States Envtl. Prot. Agency, Office of Air and Water Programs, Standards Package for Hazardous Air Pollutants (Dec. 1972). The EPA then proposed emission standards for listed air pollutants in December 1971 – three months behind schedule because of the “complexity” of the problem presented by the fact that there were no “standardized methods” for measuring emission levels of asbestos.5050Kenworthy, supra note 49. As a result, the Asbestos NESHAP the EPA promulgated in April 1973 is phrased “not in terms of numerical emission values” but in “control practices that will limit emissions to an acceptable level.”5151Id.

The 1973 Asbestos NESHAP covered work practices related to asbestos insulation and fireproofing materials and prohibited spray applications of those materials if they contained more than 1% asbestos.5252See National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR Part 61, Subpart M. This was the EPA’s first ban on the use of asbestos-containing products. Other bans pursuant to the Asbestos NESHAP followed:

  • 1975: installation of asbestos pipe insulation and asbestos block insulation on facility components like boilers and hot water tanks, if the materials are either pre-formed (molded) and friable or wet-applied and friable after drying;5353See id. at 40 C.F.R. § 61.148.
  • 1978: spray-applied surfacing materials for purposes not already banned;5454See id. at 40 C.F.R. § 61.146.
  • 1990: spray-on application of materials containing more than 1% asbestos to buildings, structures, pipes, and conduits unless the material is encapsulated with a bituminous or resinous binder during spraying and the materials are not friable after drying.5555See id.

In October 1979, the EPA issued an advanced notice of proposed rulemaking announcing its intent to explore the use of TSCA to ban asbestos.5656United States Envtl. Prot. Agency, Advance Notice of Proposed Rulemaking: “Commercial and Industrial Use of Asbestos Fibers; Advance Notice of Proposed Rulemaking,” 44 Fed. Reg. 60,061 (Oct. 17, 1979), available at https://books.google.com/books?id=cqvtMezJ11EC&pg=PA60061&lpg=PA60061&dq=United+States+Envtl.+Prot.+Agency,+Advance+Notice+of+Proposed+Rulemaking:+%E2%80%9CCommercial+and+Industrial+Use+of+Asbestos+Fibers;+Advance+Notice+of+Proposed+Rulemaking,%E2%80%9D+44+Fed.+Reg.+60,061+(Oct.+17,+1979&source=bl&ots=e2MUgWyD1e&sig=ACfU3U3nhGNjBOgWr_IHPR4fmoW5YDtI7g&hl=en&sa=X&ved=2ahUKEwjn8YDs4Z_qAhWqct8KHXJYCL8Q6AEwAHoECAIQAQ#v=onepage&q=United%20States%20Envtl.%20Prot.%20Agency%2C%20Advance%20Notice%20of%20Proposed%20Rulemaking%3A%20%E2%80%9CCommercial%20and%20Industrial%20Use%20of%20Asbestos%20Fibers%3B%20Advance%20Notice%20of%20Proposed%20Rulemaking%2C%E2%80%9D%2044%20Fed.%20Reg.%2060%2C061%20(Oct.%2017%2C%201979&f=false. That year the total U.S. consumption of asbestos was 560,000 tons, 6.6% of which was highly toxic amosite asbestos and crocidolite asbestos.5757Asbestos: Still Lethal/Still Legal: The Need to Better Protect the Health of American Workers and Their Families: Hearing Before the Subcomm. on Employment and Workplace Safety, United States Senate, 110th Cong., S. Hrg. 110-22, 17 (Mar. 1, 2007) (statement of Richard Wilson), available at https://www.govinfo.gov/content/pkg/CHRG-110shrg34334/ pdf/CHRG-110shrg34334.pdf. An EPA-appointed panel reviewed over 100 studies of asbestos and conducted several public meetings. Based upon its studies and the public comments, the EPA concluded in 1986 that exposure to asbestos poses an “unreasonable risk to human health” and proposed at least four regulatory options for prohibiting or restricting its use.5858United States Envtl. Prot. Agency, Proposed Rule: “Asbestos; Proposed Mining and Import Restrictions and Proposed Manufacturing, Importation, and Processing Prohibitions,” 51 Fed. Reg. 3738, 3751 (Jan. 29, 1986), available at https://www.loc.gov/item/fr051019/. Admittedly, prior to 1986, the “EPA [had] focused its attention primarily on asbestos in buildings, a major source of asbestos release into the ambient environment.”5959Id. at 3739.

The EPA’s conclusion in 1986 that asbestos poses an “unreasonable risk to human health” was based on the linear non-threshold dose/response model (LNT model). This model assumes that any exposure increases risk.6060Id. at 3751. The LNT model was developed in the 1970s based on studies of cancer induced by high doses of ionizing radiation and a relatively new understanding that chemicals cause cancer through interaction with DNA.6161Rebecca A. Clewell et al., Dose-dependence of Chemical Carcinogenicity: Biological Mechanisms for Thresholds and Implications for Risk Assessment, 301 Chem. Biol. Interact. 112 (2019), available at https://www.sciencedirect.com/science/article/pii/S0009279718314467. At that time, scientists had barely begun to discover the processes governing DNA damage, DNA repair, prevention of heritable mutations, and organism level responses to cancer.6262Id.

Interestingly, in February 1985, the EPA announced that it planned to transfer regulatory authority over asbestos to two other agencies after the budget office withheld approval of proposed EPA rules to ban asbestos.6363Phillip Shabecoff, E.P.A. to Transfer Authority Over Asbestos to 2 Agencies, N.Y. Times (Feb. 1, 1985) available at https://www.nytimes.com/1985/02/01/us/epa-to-transfer-authority-over-asbestos-to-2-agencies.html. The EPA interpreted the TSCA as requiring the agency to defer to OSHA and the CPSC because they were better able to assess and regulate the risks from hazardous substances. OSHA would be responsible for asbestos because the most exposed citizens are workers. Where consumers are directly affected, the CPSC would have jurisdiction.6464Id. The CPSC had banned the use of asbestos in artificial fireplace embers and wall patching compounds in 1977.656516 C.F.R. Part 1305; 16 C.F.R. 1304. The EPA, however, pulled back from its decision to turn over the regulation of asbestos to OSHA and CSPC.6666U.S. Agency Renews Its Request for Curbs on Use of Asbestos, N.Y. Times (Dec. 25, 1985) available at https://www.nytimes.com/1985/12/25/us/us-agency-renews-its-request-for-curbs-on-use-of-asbestos.html.

Finally, in 1989 the EPA issued a final rule prohibiting most asbestos - containing products.6767United States Envtl. Prot. Agency, Final Rule: “Asbestos; Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions”, 54 Fed. Reg. 29460 (July 12, 1989), available at https://www.epa.gov/sites/production/files/documents/nps57f.pdf. This is commonly known as the “Asbestos Ban and Phaseout Rule.” By that time, the nation’s consumption of asbestos had drastically declined, and exposure limits were much lower than when the rulemaking process began in 1979 (OSHA’s permissible exposure limit for asbestos was lowered from 2 in 1976 to 0.2 in 1986). The EPA’s action affected an estimated 84% of asbestos products made in the U.S., including brake linings, roofing, pipe, tile, and insulation.6868Phillip Shabecoff, E.P.A. to Ban Virtually All Asbestos Products by '96, N.Y. Times, (July 7, 1989), available at https://www.nytimes.com/1989/07/07/us/epa-to-ban-virtually-all-asbestos-products-by-96.html. The final rule did not affect asbestos materials in existing buildings. “This is pollution prevention,” EPA Administrator William K. Reilly said at the time. He also said that the EPA’s action “should not be seen as a signal to other nations, especially developing nations, that use of these products should be discontinued.”6969Id. The EPA estimated that this rule would save either 202 or 148 lives, depending upon whether the benefits are discounted, at a cost of approximately $450-800 million, depending upon the price of substitutes.7070Corrosion Proof Fittings v. U.S. Envtl. Prot. Agency, 947 F. 2d 1201, 1208 (5th Cir. 1991).

In 1991, the U.S. Court of Appeals for the Fifth Circuit overturned most elements of the ban on the manufacture, importation, processing, or distribution in commerce relating to the majority of the asbestos-containing products originally covered in the EPA’s 1989 final rule.7171Id. at 1207-1208. The ruling upheld the provisions of the agency's 1989 phase-out of asbestos use that were already in effect, but sent provisions that would have taken effect in 1993 and 1996 back to the agency for more proceedings. As a result, the 1989 asbestos regulation only bans new uses of asbestos in products that would be initiated for the first time after 1989 and bans five other specific product types: corrugated paper, rollboard, commercial paper, specialty paper, and flooring felt.

The Fifth Circuit stated the EPA had violated procedures of the TSCA when it drafted the 1989 asbestos ban by failing to evaluate and reject less burdensome alternatives.7272Warren A. Leary, Appeals Court Strikes Down Major Parts of Federal Asbestos Ban, N.Y Times, (Oct. 22, 1991) available at https://www.nytimes.com/1991/10/22/us/appeals-court-strikes-down-major-parts-of-federal-asbestos-ban.html. The court wrote, “the EPA, in its zeal to ban any and all asbestos products, basically ignored the cost side of the TSCA equation” it is required to consider pursuant to statue and prior court decisions. Specifically, the court also held in the OSHA context that until an agency “can provide substantial evidence that the benefits to be achieved by [a regulation] bear a reasonable relationship to the costs imposed by the reduction, it cannot show that the standard is reasonably necessary to provide safe or healthful workplaces.”7373American Petroleum Inst. v. OSHA, 581 F.2d 493, 504 (5th Cir. 1978).

Since the overturning of the 1989 ban, the EPA has failed to regulate any existing chemicals using TSCA. In the decades following TSCA’s passage, Congress found that “effective implementation of TSCA by [EPA] ha[d] been challenged by shortcomings in the statute itself, and by several key decisions of Federal Courts and the Agency’s interpretation of those decisions.”7474Committee on Environment and Public Works. Frank R. Lautenberg Chemical Safety for the 21st Century Act Report, United States Senate, 114th Cong., S. Rept. 114-67, at 2 (June 18, 2015), available at https://www.congress.gov/congressional-report/114th-congress/senate-report/67/1. There had “been persistent concerns about the pace of EPA’s work under TSCA, the ability of the Agency to use its existing authority, and whether the statute prevent[ed] certain regulatory efforts.”7575TSCA Modernization Act of 2015, H.R. Rep. No. 114-176, 12-13 (June 23, 2015), available at https://www.congress.gov/congressional-report/114th-congress/house-report/176/1. Thus, Congress amended TSCA with the Lautenberg Chemical Safety Act in 2016.7676See Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. No. 114-182, 130 Stat. 448 (2016) (codified at 15 U.S.C. § 2601 et seq.), available at https://www.congress.gov/114/plaws/publ182/PLAW-114publ182.pdf.  Importantly, the 2016 amendments created a mandatory duty on the EPA to evaluate existing chemicals with clear and enforceable deadlines, and eliminated the costs considerations in the evaluation of an “unreasonable risk.”7777See Safer Chemicals, Healthy Families v. U.S. Envtl. Prot. Agency, 943 F.3d 397 (9th 2019).

The EPA was required to select the first ten chemicals to undergo risk evaluations. These chemicals were announced in December 2016. Asbestos is one of those chemicals. By the end of 2019, the EPA was required to have at least twenty chemical risk evaluations ongoing for chemicals it designates High-Priority Substances. The EPA started releasing draft risk evaluations for the chemicals, beginning with pigment violet 29, in November 2018. In March 2020, asbestos became the ninth draft risk evaluation released by EPA.

In April 2019, the EPA issued a final Significant New Use Rule (SNUR) under TSCA to prevent certain discontinued uses of asbestos from re-entering the marketplace without EPA review. The SNUR covers a number of target uses for which the EPA “has found no information” indicating that they are ongoing: adhesives, sealants, and roof and non-roof coatings; arc chutes; beater-add gaskets; cement products; extruded sealant tape and other tape; filler for acetylene cylinders; certain friction materials; high-grade electrical paper; millboard; missile liner; packings; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; woven products; any other building material; and “any other use of asbestos that is neither ongoing nor already prohibited under TSCA.”7878United States Envtl. Prot. Agency, “Restrictions on Discontinued Uses of Asbestos; Significant New Use Rule,” 84 Fed. Reg. 17346 (Apr. 25, 2019), available at https://www.govinfo.gov/content/pkgFR-2019-04-25/pdf/2019-08154.pdf.

While the SNUR does not actually prohibit these uses, none of them may return to the marketplace without EPA review of their potential risks to health and the environment. The SNUR essentially removed the uses from the EPA’s risk evaluation of asbestos.

IV. Conclusion

In 1979 when the EPA performed its first risk evaluation for asbestos, asbestos pollution was a relatively significant issue. That is not the case anymore. But, if history repeats itself, we are near the beginning of another long and bumpy road that the last time took the EPA years to complete and spawned litigation. The Ninth Circuit has already weighed in, ruling in November 2019 that the EPA violated TSCA by excluding legacy uses of chemicals, like asbestos, from consideration in its current round of TSCA risk evaluations.7979See Safer Chemicals, Healthy Families, 943 F.3d at 425.  The ADAO,  men-tioned above, was a petitioner in that lawsuit. The March 2020 draft risk evaluation does not address legacy uses of asbestos at this time. This is just one early indication that the EPA’s risk evaluation of asbestos will be fodder for many more articles (and much litigation) to come.

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