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Logo Icon Asbestos Litigation: Proposed EPA Regulations Poised to Revive Use of Asbestos

Under the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) is proposing a significant new use rule (SNUR) for asbestos. The rule would require manufacturers to receive EPA approval before importing or manufacturing asbestos for the following 15 products: adhesives, sealants, and roof and non-roof coatings; arc chutes; beater-add gaskets; extruded sealant tape and other tape; filler for acetylene cylinders; high-grade electrical paper; millboard; missile liner; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; and any other building material (other than cement). Those subject to the SNUR would be required to notify the EPA at least 90 days before commencing any manufacturing or processing of asbestos for a significant new use. Once notified, the EPA will evaluate the use and restrict or ban the product, if necessary.

Asbestos, a naturally occurring mineral and known carcinogen, was commonly used in insulation and fireproofing materials. High exposure to asbestos has been linked to lung cancer, lung scarring, and tumors in the linings of internal organs (e.g., mesothelioma). Asbestos fibers affecting human health are tiny particles that get in and stick to the lungs forever.

In 1975, the EPA began banning asbestos, and by 1989, the agency issued a final rule for the near-total ban of the mineral under the authority of the TSCA. In 1991, however, the 5th U.S. Circuit Court of Appeals vacated the EPA’s rule, allowing for the import and manufacture of asbestos-containing products.

Since the EPA began regulating asbestos, many sellers and manufacturers of asbestos-containing products voluntarily phased out such products and replaced them with non-asbestos-containing products. However, nothing prevents the return of these products on the market.

Today, asbestos is still found in brake liners, potting soil, chlorine factories, firefighters’ clothing, flame retardant, wall insulation, liner for cement pipes, and even crayons and school supplies. The continued, pervasive use of asbestos has led many in the health community to suggest that all persons have asbestos fibers in their lungs from various exposures, including subway stations, brakes from cars, and from the historical use of asbestos to insulate pipes in our grade schools.

However, the U.S. no longer mines or manufactures asbestos. In 2016, Brazil supplied 95% of all asbestos used in America, while the rest originated in Russia. Those numbers will drastically change going forward, given that Brazil banned the manufacture and sale of asbestos last December. Russia is now poised to become the most significant exporter of asbestos to the United States. Russian manufacturers see an opportunity to expand their markets with Trump as president, given his past support for asbestos, with one company going as far as stamping an image of his face on their packaging.

The official EPA position is that it is toughening oversight and claims the new rule will create a disincentive for manufacturers and distributors who want to bring these products to market because they cannot immediately do so. Given that there is no regulatory process preventing asbestos-containing products from being the market, SNUR would force companies intending to import or manufacture the 15 identified products to notify the EPA and face an evaluation of its risks. The EPA is confident it has covered all possible uses in only identifying 15 products.

However, some within the EPA are worried it will actually make it easier for asbestos to come back into more widespread use. EPA staffers are worried about the new rule and argue that there are many uses of asbestos beyond the 15 identified, leaving the potential for other uses that would avoid examination.

Even if SNUR is adopted, it is not clear whether it will spark the return of asbestos to its former prominence. While asbestos remains legal, it has fallen out of use for most of its former applications due years of litigation and billions paid to those exposed.