Whether the EPA, under the Trump administration, will ultimately issue an asbestos ban is a question many scientists, consumer health advocates, and families of asbestos victims are closely watching. Just last summer, a bipartisan amendment to the Toxic Substance Control Act (TSCA) was heralded as giving the EPA the enforcement teeth to finally ban asbestos. Now, with a different administration and new EPA head the future is less certain.
New administration views on asbestos and the environment
If President Trump’s past comments on asbestos are any indication, asbestos safety regulations will be a low priority for the new administration. In his 1997 book, The Art of the Comeback, Trump informed his readers that asbestos is “100% safe, once applied”. He stated further that, “the movement against asbestos was led by the mob, because it was often mob-related companies that would do the asbestos removal. Great pressure was put on politicians, and as usual, the politicians relented.” This, of course, ignores the reality that OSHA and EPA asbestos regulations of the 1970s and 80s resulted from years of work by scientists, health advocates and the American public, not to mention the overwhelming scientific proof that asbestos exposure is deadly.
Moreover, the Trump administration’s proposed budget for the EPA makes federal environmental protection a lower priority over the next four years. The budget calls for $2.6 billion in cuts to the EPA coupled with a reduction of 3,200 EPA employees – the largest setback to the agency in its 47-year history.
The recent confirmation of Scott Pruitt to head the EPA also didn’t improve the odds of an asbestos ban. As Attorney General in Oklahoma, Pruitt angered environmental groups by defending corporate polluters and suing the EPA on 13 separate occasions. Just last week, Pruitt denied carbon emissions can be identified as the primary cause of global warming and has made other statements at odds with scientific findings.
Now he leads the federal agency charged with protecting human health and the environment. As the agency’s head administrator, Pruitt is tasked with promulgating environmental regulations as well as enforcing existing regulations and laws such as the Clean Air Act and the Clean Water Act. One of the tools at his disposal is the Toxic Substance Control Act (TSCA).
What is the TSCA?
The Toxic Substances Control Act (TSCA) was enacted in 1976 to protect the public and the environment. While a good start, the law was flawed in that it allowed thousands of chemicals to remain in consumer goods without a preliminary finding of safety. The ability to actually ban the use of toxic substances under the Act, as discussed later, would also prove ellusive.
After 40 years, an update was long overdue. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) contained needed changes. With bi-partisan support, President Obama signed the act into law on June 22, 2016.
Key features of the new TSCA
• Mandates safety reviews for chemicals in active commerce
• Requires a safety finding for new chemicals before they can enter the market
• Replaces TSCA’s burdensome cost-benefit safety standard—which prevented EPA from banning asbestos—with a pure, health-based safety standard
• Explicitly requires protection of vulnerable populations like children and pregnant women
• Gives EPA enhanced authority to require testing of both new and existing chemicals
• Sets aggressive, judicially enforceable deadlines for EPA decisions
• Makes more information about chemicals available, by limiting companies’ ability to claim information as confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs.
Isn’t Asbestos Already Banned?
No. Despite asbestos bans in all of Western Europe and most of the developed world, there still is no nation-wide ban on asbestos use in the United States.
Work place safety standards issued by OSHA and the EPA in the early 1970s dramatically reduced the use of asbestos and saved lives. Those standards were strengthened over the years, but there has never been a permanent ban on the use of asbestos in the U.S.
In 1989, the EPA, under authority from the original TSCA, attempted a ban of virtually all asbestos products in the United States. The EPA’s stated rationale was simple: “asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.” An industry led federal appeal ensued.
Ultimately, a landmark 1991 ruling by the U.S. Court of Appeals for the 5th Circuit knocked down the EPA asbestos ban. The decision turned on the cost-benefit analysis of the old TSCA (rather than a purely health-based decision). The ruling led many to ask, “If the EPA can’t ban a known carcinogen, at which no level of exposure is safe, how can the EPA ban any toxic substance?”
Why Recent Hope of an Asbestos Ban?
Passage of the Lautenberg Act (the new TSCA) last summer eliminated the cost benefit analysis prong of the EPA’s risk assessment (the linchpin of the 5th Circuit ruling). Hopes for an asbestos ban were rekindled.
By December 2016, the EPA listed asbestos as one the first 10 chemicals to be examined in the risk evaluation process outlined by the new TSCA.
Pruitt made reference to this process during his confirmation hearing. When directly asked whether he would support a full EPA ban of asbestos under the TSCA, Pruitt demurred citing the risk evaluation process already underway for asbestos, which he did not want to prejudice with a direct comment. Pruitt, however, did agree that, “implementing the amended Toxic Substances Control Act is absolutely a priority.”
Despite the political preferences of EPA Administrator Pruitt or the Trump administration, the TSCA risk evaluation process began in December and is now underway. By statute, the review must be completed within three years. That review process is insulated, at least to some degree, from politics by the scientific, medical, and public input that will occur as part of the risk analysis. At the end, if the EPA finds that a chemical poses an unreasonable risk to human health and the environment, it must act within two years to mitigate the risk.
However, Pruitt, in one of his first major decisions as the new EPA chief, rejected his agency’s own scientific findings and chose not to ban chlorpyrifos – an insecticide proven to cause harm to human health even in small doses.
The devil will be in the details – does the Trump administration water down the mitigation remedy to be less than a full ban? Will the proposed EPA budget cuts hamper the agency’s ability to complete the assessment risk? Will EPA head Scott Pruitt reject whatever his agency’s own risk analysis concludes? Only time will tell, but recent actions by the administration are not encouraging.
The overwhelming weight of decades of scientific evidence establishes that all forms of asbestos cause cancer, disease, and death. Hopefully, at the end of the EPA’s risk analysis, science and data will still carry the day and allow the United States to join the rest of the developed world in finally banning this deadly substance.
For more information on the EPA asbestos risk assessment under the TSCA, click here.
