This past summer, the EPA proposed the first-ever Significant New Use Rule (SNUR) for asbestos under the 2016 amendments to the Toxic Substances Control Act (TSCA). The proposed SNUR appeared in the June 11, 2018, Federal Register.
The proposal listed 14 uses of asbestos that the Agency says are not currently occurring—under the proposal, any person who intends to manufacture (this term includes importing) or process asbestos for any of these uses would be required to notify the EPA 90 days before doing so. The notification would initiate EPA’s review of the new use, and should the review indicate that the new use presents an unreasonable risk of injury to health, safety, or the environment, the Agency is empowered under TSCA to initiate actions to restrict or even ban that use.
A Little Asbestos History
Despite being a known carcinogen for years, regulations surrounding asbestos can be confusing to say the least. In fact, many people in the United States believe asbestos is banned. The EPA did take action with the 1989 Asbestos Ban and Phase-Out Rule, but much of that particular rule was overturned, and only a few specific asbestos products remain banned. Asbestos usage has declined significantly worldwide, and many countries have banned it altogether—but the United States is not among them.
Asbestos has not been mined (or otherwise produced) in the United States since 2002, which means that any new raw bulk asbestos used in the U.S. is imported. According to the U.S. Geological Survey, approximately 300 metric tons of raw bulk asbestos was imported into the United States in 2017. Chrysotile is the only form of raw bulk asbestos currently imported, and the chlor-alkali industry is the only known importer. This industry uses chrysotile asbestos to fabricate diaphragms for use in chlorine and sodium hydroxide production.
Before SNUR was issued, several consumer products were found to contain asbestos this year. Now, this is not technically illegal, as U.S. rules currently allow asbestos in amounts of 1% or lower in products sold today. However, these instances are alarming from a consumer safety standpoint.
When Must the EPA Act?
So, what are the EPA’s responsibilities under SNUR? TSCA Section 5 authorizes the Agency to take action to protect the public and the environment from a significant new use of a chemical such as asbestos when:
The Reaction? Almost Universally Negative
The SNUR essentially allows asbestos back into manufacturing on a case-by-case basis, and advocates for the rule maintain that if used safely in products that are unlikely to break down and come into contact with human airways, asbestos can be a valuable material.
However, most individuals and businesses are not demanding more asbestos—opponents of the rule firmly assert that there is no safe level of asbestos exposure or usage, and the SNUR has generated strong and almost totally negative reactions, many of which can be viewed in the Agency’s rulemaking docket.
Objections to the proposal were even voiced by EPA staff members in internal Agency e-mails that were obtained by and made public by The New York Times. Health advocacy groups have also spoken out against the proposal. To date, the regulated sectors have had little to say, but one comment by the American Institute of Architects (AIA) agreed that the proposal is the wrong step, and the Agency “should use its existing regulatory authority to establish a blanket ban on the use of asbestos.”
Future Uses of Asbestos
The 2016 TSCA amendments substantially increased the EPA’s authority to institute a total ban on asbestos, and the public and other stakeholders have called for the Agency to do so. Instead, in the June 2018 proposal, the EPA decided to place requirements on any future use of asbestos in 14 product categories (see the list at the end of this section) wherein asbestos is currently not used. Specifically, persons subject to SNUR would be required to notify the Agency at least 90 days before commencing any manufacturing (including importing) or processing of asbestos (including as part of an article) for a significant new use related to these products.
The EPA has pointed out that the proposal would not authorize the use of asbestos in these products; rather, under SNUR regulations, the Agency can take any number of actions regarding a significant new use, including prohibiting the manufacturing, processing, and import of the substance. The SNUR proposal covers adhesives, sealants, and roof and nonroof 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).
No Safe Exposure
But SNUR authorities do not eliminate the possibility that asbestos could be reintroduced into the listed product if the Agency determines that it can be done safely. That would not be possible, say those who oppose the proposal. They note that there is no safe level of exposure for any type of asbestos. While the body can expel some asbestos, other fibers can become lodged in the lungs for many years or may never be removed.
“This risk is especially acute for those who mine the vermiculite and those who work in demolition construction, but it is also significant for anyone who disturbs the materials once installed, whether homeowners, contractors, facilities staff, or others,” wrote Sarah Dodge, the AIA’s senior vice president of Advocacy & Relationships. “This risk far outweighs any benefits that could be considered within the use of asbestos. As part of the Significant New Use Rule, the AIA urges the EPA to rule against the use of asbestos in all cases.”
Will the Agency make such rulings? Only time will tell.