The U.S. Environmental Protection Agency (EPA) announced today that the first rule to be finalized under the Toxic Substance Control Act is a ban on all remaining imports and uses of asbestos. Asbestos is a carcinogen causing mesothelioma and other cancers.
While many Americans believe that asbestos was banned decades ago, that’s actually not quite accurate. In 1989, the EPA attempted a full ban on asbestos under Section 6 of the Toxic Substances Control Act (TSCA). That decision was overturned by the Fifth Circuit Court of Appeals in 1991, thus transforming the 1989 final rule into a partial ban on five specific uses of asbestos and prohibiting any new commercial uses of asbestos after August 25, 1989.
In 2019, the EPA issued a final rule that once again strengthened its ability to regulate asbestos. However, that rule stopped short of banning asbestos outright or addressing issues posed by asbestos already in the environment (in buildings, homes, old construction materials, automotive parts, etc.) as the result of decades of heavy use. Read more about the 2019 rule here.
While five other asbestos fibers have been banned since 1989, chrysotile asbestos continued to be imported for select uses. Today’s rule addresses the remaining importation and uses of chrysotile asbestos which include:
- Industrial diaphragms in eight remaining chlor-alkali plants (manufacturing chlorine for water treatment)
- Gaskets in nuclear power plant applications
- Oilfield break blocks, automotive brakes and linings, other vehicle friction products and gaskets
Part 2 of EPA’s asbestos risk evaluation will review legacy asbestos uses (asbestos already in our environment from past uses which poses danger when disturbed), as well as asbestos-containing talc and disposal of chrysotile asbestos from above mentioned applications.
The Mesothelioma Applied Research Foundation has advocated in Congress for a ban on asbestos since the early 2000s. In 2018, the Foundation wrote a letter to the EPA administrator urging the agency to evaluate legacy asbestos impacts. Read the letter here.
Finally, in 2019, the 9th U.S. Circuit Court of Appeals delivered a ruling addressing certain issues with the Environmental Protection Agency’s (EPA) approach to assessing risk by a substance or chemical, including asbestos. The court was tasked with deciding three specific issues:
- Whether The Toxic Substances Control Act (TSCA) required the EPA to evaluate risks associated with a chemical’s uses collectively before determining that the chemical is safe.
- Whether the EPA must consider all of a chemical’s conditions of use in that evaluation.
- Whether the EPA must evaluate past disposals of all chemicals, as well as the use and subsequent disposal of chemicals not currently or prospectively manufactured or distributed in commerce for that use.
On point (3), the court ruled that the EPA must evaluate the legacy uses of a substance, even if that substance is no longer manufactured. In the case of asbestos, this would mean that the EPA is required to consider the legacy asbestos use as it formulates its risk assessment for asbestos. For nearly a century, approximately 31 million tons of asbestos were used in the United States, much of it in construction, shipbuilding, military, industry (such as chemical and automotive).
This final evaluation is expected to be published by December 1, 2024.
The Mesothelioma Applied Research Foundation is a 501(c)(3) nonprofit organization working to eradicate mesothelioma. Its programs include the funding of promising and peer-reviewed research, education, support and advocacy. The organization strives to bring together thought-leaders in the field to identify and support the most direct path to a cure.
