What New EPA Rulings on Asbestos Mean for Consumers and Business

Despite the fact that asbestos has been known as a hazardous material since the 1970s, being both a known carcinogen and the cause of mesothelioma, the material has never been subject to an outright ban in the USA - unlike in around 50 other countries, including all of the European Union, where this dangerous product has been completely outlawed.

Several attempts to ban asbestos have been made in the U.S. since the 1970s, and of these Asbestos.com - an advocacy group for mesothelioma sufferers - cites the 1989 EPA-issued Asbestos Ban and Phase-Out Rule to have been the best attempt to impose a full ban. However, this was overturned by a 5th circuit court in 1991.

At the time of the court’s decision, George H. W. Bush’s EPA didn’t appeal the ruling, though a provision was granted allowing that asbestos products that were not being manufactured, processed or imported on July 12, 1989 would be subject to the ban.

One of those provisions stipulated by the EPA was that new uses of asbestos would be banned.

In June of this year, the EPA released a new proposal called the “Significant New Use Rule” (SNUR) for asbestos. NBC reports this proposal itself was subsequent to an Obama-era amendment to the 1976 Toxic Substance Control Act, which requires the EPA to reevaluate harmful toxic chemicals on an ongoing basis.

Critics of SNUR say that the proposed EPA ruling (drafted under Scott Pruitt’s tenure) should have been the opportunity to ban asbestos outright, but it instead opens up the possibility for new uses to emerge, though these must be individually approved by the EPA on a case-by-case basis. In addition, in a win for chemical industry lobbyists, as reported by NBC, the EPA now bases its toxic chemical analysis on the harm caused by direct contact in the workplace, while not taking into full account improper disposal or other means of contamination which could affect the public.

The EPA counters that SNUR tightens the law, asserting that many uses of asbestos that are still legal, would in future be outlawed under SNUR. In this CNN piece, EPA scientist, Nancy Beck, affirms that the agency took the approach of evaluating grandfathered exceptions, determined which are no longer in use, and worked to close the loophole. This fact sheet from the EPA website notes potential market uses (such as roofing felt) that will be prevented under SNUR, with a footnote indicating that these uses existed in 1989, were not previously banned, and for which the SNUR will prevent market re-entry.

From a business perspective, asbestos related lawsuits for mesothelioma sufferers has resulted in plaintiff settlements running into the millions of dollars per claim, so already the market for asbestos in the USA has contracted hugely over the last several decades.

This has compelled industry to find alternatives to asbestos in practically every application, but most notably in construction, where its fireproofing properties were highly valued. From a manufacturing perspective, the USA mines no asbestos as a raw material. The U.S. Geological Survey (USGS) states the last U.S. producer of asbestos ceased operations in 2002 as a result of the decline in domestic and international asbestos markets associated with health and liability issues.

Add to this the backlash against chemical companies selling dangerous products to consumers, it’s hard to imagine asbestos finding itself back into the consumer retail market, when the major hardware stores are finding themselves compelled to take action of their own to take harmful products off their shelves.

To provide some perspective of the material’s decline, USGS statistics show that United States consumption has fallen from 803,000 tons in 1973 to just 300 tons in 2017. They also detail that the chloralkali industry accounts for “nearly all domestic consumption” of asbestos. In this application, asbestos is used to make semi-permeable diaphragms to prevent the mixing of chemicals during the manufacture of chlorine.

So this kind of begs the question, why does the EPA need to keep the doors open for applications for new uses of asbestos? Pretty much the only good development here is that although industry has abandoned the use of the material largely due to crushing legal action, it’s good if the SNUR closes loopholes for those uses that are currently technically allowed.

But an Environmental Working Group representative quoted in the CNN report says the agency is not performing a strong enough assessment of the chemical’s hazards, and that assessment processes do not take into account legacy uses of the material, citing the existence of a lot of asbestos still being out in the environment, particularly in older buildings. At the same time, a former EPA scientist asserts that there is no way the EPA can claim to know every possible new use industry might want in the future.

Public comments on SNUR close on Friday August 10th.

Should the floodgates ever open, who might be the main beneficiary? Russia. USGS statistics show the country to be, by far, the largest extractor of asbestos at 690,000 tons per year; more than three times as much as the next largest producers, Brazil and China. And ominously (and indeed bizarrely), one Russian asbestos company is shrink-wrapping pallets of the raw material with a picture of the face of President Trump. Looking for a new export market perhaps?

Image credit: Uralasbest/Facebook