EPA Publishes Draft Scope of Its Part 2 Risk Evaluation for Asbestos: Will the EPA Revisit Attempts to Implement a Nationwide Ban on Asbestos?

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On Wednesday, December 29, 2021, the United States Environmental Protection Agency (EPA) published the draft scope of the “Risk Evaluation for Asbestos Part 2: Supplemental Evaluation Including Legacy Uses and Associated Disposals of Asbestos”. While more than 60 nations have comprehensive asbestos bans, the United States is undergoing a lengthy asbestos “risk evaluation”. As Part 2 of the EPA’s Asbestos Risk Evaluation becomes open for public comment, the question is whether the eventual findings of the EPA’s risk evaluation will result in stronger asbestos regulations, or even a nationwide asbestos ban.

By way of background, the Clean Air Act of 1970 grants the EPA the responsibility to regulate asbestos. Moreover, the Toxic Substances Control Act (TSCA) of 1976 allows the EPA to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances including asbestos. Pursuant to the authority granted by the Clean Air Act and TSCA, the EPA published a sweeping ban on the manufacturing, importation, processing, and sale of products containing asbestos in 1989. Titled “Asbestos: Manufacture, Importation, and Distribution in Commerce Prohibitions; Final Rule”, the rule would have incrementally banned about 95% of asbestos used in the United States. However, in 1991, the United States Court of Appeals, Fifth Circuit, vacated and remanded the majority of the rule in Corrosion Proof Fittings v. EPA. In part, the Fifth Circuit held that the EPA violated the TSCA by failing to “explore in more than a cursory way” less alternative burdens to a total ban. Accordingly, the lasting impact of the 1989 rule is the ban on new uses of asbestos, rather than a comprehensive asbestos ban.

The EPA has not attempted to promulgate a rule banning asbestos since the Fifth Circuit decision in Corrosion Proof Fittings. Moreover, congressional attempts to pass asbestos bans have similarly failed. First, in 2002 the “Ban Asbestos in America Act”, or “The Murray Bill”, sought to ban six forms of asbestos. The Act unanimously passed in the Senate but failed to pass in the House of Representatives. Second, in 2008 the “Bruce Veto Asbestos and Prevent Mesothelioma Act” sought to ban more types of asbestos-containing products. The bill was never presented for a vote in Congress.

While comprehensive asbestos bans have routinely failed, Congress amended the TSCA in 2016 to grant the EPA more leverage against hazardous chemicals pursuant to a “risk evaluation” process (“Frank R. Lautenberg Chemical Safety for the 21st Act”). The EPA subsequently added asbestos to its list of “Top 10 Chemicals for Priority Action” and published a proposed asbestos risk evaluation plan. The EPA’s proposed plan was heavily criticized for only addressing risks associated with chrysotile asbestos. In fact, in 2019 the Ninth Circuit Court of Appeals ordered the EPA to evaluate legacy uses of asbestos, along with “associated disposals”, in Safer Chemicals Healthy Families v. EPA. In response to the Safer Chemicals Healthy Families decision, the EPA announced that it would expand the scope of its asbestos evaluation in a “Part 2” risk assessment. The draft scope of “Part 2” was published on Wednesday, December 29, 2021, , with public comment due by Monday, February 14, 2022. Significantly, the final draft is not due until December 2024; at that point, the EPA will move to the “risk management” stage of its asbestos review. As such, the EPA will not consider promulgating new asbestos regulations until at least 2025.

The 1991 Corrosion Provision decision placed a heavy burden on the EPA to evaluate “less burdensome means” when proposing asbestos regulations. As a result, it is highly unlikely that the EPA will promulgate a rule that matches the scope of the failed 1989 asbestos ban. While the impact of the EPA’s asbestos risk assessment will probably not result in a nationwide asbestos ban, the risk assessment might incentivize action on the state level. Notably, in 2019, New Jersey became the first state to prohibit the sale or distribution of asbestos-containing products. Connecticut followed with a similar bill. Thus, in the near future, we are more likely to see state attempts to pass comprehensive asbestos bans rather than action on the national level.