Lynn L . Bergeson , managing partner at Bergeson & Campbell , looks at the wider implications of a recent EPA action
What the EPA ’ s ban on ongoing uses of asbestos tells us
Lynn L . Bergeson , managing partner at Bergeson & Campbell , looks at the wider implications of a recent EPA action
On 28 March , the Environmental Protection Agency ( EPA ) issued its long-awaited first final risk management rule under the Toxic Substances Control Act ( TSCA ), banning the import and eventual use of chrysotile asbestos . This is the only form of asbestos known to be used in the US .
You may be thinking now that because your company does not import or use asbestos , this does not affect you . You should care about it because the EPA ’ s approach to the risk management of chrysotile asbestos has much broader implications . This article explains why .
Background on review
Chemical stakeholders know that asbestos occupies a unique place in TSCA ’ s history . For decades , exposure to asbestos fibres has been recognised as a source of adverse human health effects and is subject to global restriction . The EPA issued 35 years ago a final TSCA rule in 1989 , prohibiting the manufacture , importation , processing and distribution in commerce of most asbestos-containing products based on its legal finding that asbestos constituted an “ unreasonable risk ” to health and the environment .
Unsurprisingly , the rule was judicially challenged . A federal appellate court vacated it and remanded it to the EPA for further review . 1 The court concluded that agency had failed to consider adequately potential regulatory measures less burdensome than a ban to abate unreasonable risks . It thus effectively gutted the EPA ’ s authority under TSCA Section 6 to ban a
The EPA building in Washington , DC
chemical , even one as notoriously hazardous as asbestos .
The EPA ’ s inability to ban asbestos became the rallying cry and poster child for TSCA reform . This came 25 years later in the form of the Frank R . Lautenberg Chemical Safety for the 21st Century Act , a law that significantly revises and strengthens the EPA ’ s authority to regulate chemicals , especially existing chemicals like asbestos .
In implementing TSCA , it came as a surprise to no one that among the first ten ‘ high priority ’ existing chemicals the EPA selected for risk evaluation immediately after Lautenberg was enacted was asbestos . In 2020 , it prepared an elaborate risk evaluation of conditions of use ( COUs ) of chrysotile asbestos and issued a proposed risk management rule in 2022 .
These administrative initiatives , and many more , were themselves cases of first impression for an EPA struggling
to implement a complicated new law with too few resources . This bare-bones overview in no way captures the extensive scientific analyses , administrative process , and challenging legal and science policy issues EPA and others encountered , and to which the regulated community had to respond , during the lengthy rulemaking process .
The ban
Chemical stakeholders of all stripes waited a long , long time for the chemical ban drought to end . Since the chrysotile asbestos rule is the first final risk management rule , its foundational contours and the EPA ’ s legal rationale for banning it are important indicators of risk management decisions yet to come . This is why review of the ban is essential reading for chemical companies in general .
As we predicted , multiple parties in four different federal appellate circuits have judicially challenged
30 SPECIALITY CHEMICALS MAGAZINE ESTABLISHED 1981