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Asbestos safety regulations

EPA Under Trump May Allow for New Asbestos Use

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After bipartisan passage to improve the Toxic Substances Control Act (TSCA) in 2016, asbestos was one of several initial chemicals that would come under review again. In the face of overwhelming scientific consensus established by more than a half century of research, it was widely anticipated that the TSCA review would finally result in a ban on the use of asbestos in the United States. Two years later, and a very different result is unfolding.

EPA proposed a “significant new use rule” for asbestos

On June 1, 2018, the Environmental Protection Agency under Scott Pruitt announced a proposed “Significant New Use Rule” (SNUR) for asbestos. SNURs are a tool under the TSCA that mandate EPA approval when a chemical is used in a significantly new way. To hear former Administrator Pruitt state it, he took an unprecedented stand by requiring importers to receive EPA approval before importing or using asbestos in the manufacture of products.

A look inside the SNUR

A closer look, however, establishes a twofold problem posed by the SNUR which may undercut the EPA’s conclusions at the end of its three year TSCA review of asbestos.

First, the EPA could have used the 2016 TSCA overhaul – which began under Obama and has continued under Trump – to ban any new uses of asbestos. Instead, with the SNUR, the EPA has laid the groundwork to expressly allow new uses of asbestos after evaluation based on “risk evaluation, select studies and use of the best available science.”

Secondly, the way in which the EPA will evaluate that risk is problematic. In May 2018 , the EPA published a “Problem Formulation of the Risk Evaluation for Asbestos” which the EPA will use in evaluating these new uses of asbestos. Importantly, the problem formulation will not include information from existing, or “legacy” uses of asbestos – all of the ways in which millions of Americans have been, and will continue to be, exposed to asbestos from existing asbestos products and asbestos in place. This approach will ignore decades of scientific research establishing an overwhelming scientific consensus about the health risks from the legacy uses of asbestos such as exposure to drywall joint compound, plaster, floor tiles, pipe covering and many other existing, in place asbestos products.

This may serve to severely limit the types of exposures the EPA will include in formulating the potential risk of new asbestos uses.

As reported by the New York Times, such limits on the EPA’s review will necessarily create a flawed analysis of the threat posed by asbestos under the EPA TSCA re-evaluation. “It is ridiculous”, said Wendy Cleland-Hamnett, former EPA scientist, speaking to the New York Times. “You can’t determine if there is an unreasonable risk without doing a comprehensive risk evaluation.”

EPA may allow new asbestos use

While the EPA’s re-review of asbestos is still in the second year of the three year process, the limitations the current administration have already placed on the review will likely result in an outcome that does not protect human health – the core mission of the agency. Instead, by not considering the existing, wide-body of scientific evidence concerning asbestos, the ultimate EPA conclusion will likely find lower levels of risk and as a result impose fewer restrictions or prohibitions. Hopes for a U.S. ban on asbestos – one of the most widely recognized human carcinogens – are sadly diminishing.

Lafayette Natural Science Museum and Planetarium Demolition Delayed Because of Asbestos

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The Lafayette Natural Science Museum and Planetarium demolition delayed because of asbestos, increased the time to tear it down from 72 days to a delay of seven months. It also added a 40 percent increase to the demolition contract, increasing it from $295,500 to $412,591.

Demolition delayed because of asbestos adds to history of the building

The building was constructed in 1969, a time when asbestos was widely used. However, by 2001 it had fallen into disrepair and was vacated in 2001. In the past 16 years, the place became a place for curiosity seekers and others who abused the abandoned structure.

By 2015, the City-Parish Council approved demolishing the building and replacing it with a green space for residents. Delays occurred in the years since as drainage improvements were added to the scope of work, followed by the asbestos discovery.

A lesson for all

This type of scenario is not unique to Lafayette, Louisiana as thousands of buildings across the country were built during the years asbestos was freely used in construction of government, commercial, and residential building.

This unfortunate surprise happened because the city’s engineering department assumed that there was no asbestos since the air-conditioning system was reported to be clear of the mineral. However, because the Louisiana Department of Environmental Quality required a DEQ permit that included an asbestos assessment before demolition, asbestos was discovered in the walls as a waterproofing material.

The lesson for anyone who intends to disturb a building built from the 1930s through the 1970s, is to check for asbestos before any work is begun. Proceeding without an inspection, and possibly abatement, can cost considerably more than expected in both money and the lives of those who may be exposed to the fibers.

There is no safe level of asbestos exposure and the result can include lung cancer, asbestosis, and the fatal disease malignant mesothelioma.

Health Risks from Baby Powder Use

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Johnson & Johnson, along with other companies, were handed a jury verdict for failing to warn consumers about possible health risks from baby powder use. The plaintiffs, a couple who alleged the wife’s pleural mesothelioma was contracted from baby powder use, were awarded $25.75 million by a California jury. As a frequent bowler, the plaintiff used the powder for years on her hands and in her shoes. She also was exposed to asbestos while watching her husband work on his car.

Mesothelioma is a deadly cancer almost always caused by exposure to asbestos.

Mining of talc

Talc and various forms of asbestos are often co-located, making the mining of talc without including asbestos in the final product, a difficult task. A study published in the “International Journal of Occupational and Environmental Health,” October, 2014 showed asbestos fibers in the cosmetic talc samples tested. The types found were in various combinations of asbestiform anthophyllite, asbestiform tremolite, and chrysotile fibers. One specific, and unnamed, brand of cosmetic talcum powder was used in all tests.

“Our findings indicate that historic talcum powder exposure is a causative factor in the development of mesotheliomas and possibly lung cancers in women.”

Johnson & Johnson’s defense

The Johnson & Johnson company continues to assert that their products do not contain asbestos and will continue to fight in court.

Carol Goodrich, spokeswoman for Johnson & Johnson said, “We are disappointed with the verdict and we will begin the appeals process. We will continue to defend the safety of our product because it does not contain asbestos or cause mesothelioma. Over the past 50 years, multiple independent, non-litigation driven scientific evaluations have been conducted by respected academic institutions and government bodies, including the U.S. Food and Drug Administration, and none have found that the talc in Johnson’s Baby Powder contains asbestos.”

Plaintiff’s response

David Greenstone, an attorney for the plaintiff stated, “We are extremely pleased that our clients have found a measure of justice, although nothing can truly compensate them for what they have lost. Our clients are hopeful that this verdict can further bring light to this unbelievable example of corporate misconduct.” Johnson & Johnson Baby Powder “has contained asbestos for decades. People need to know about this.”

Health risks from baby powder and other talc-based products

Lobbyists and employees of companies mining or using talc in their products continue to promote the safety of their products to both the government and consumers.  However, talc may be present not only in talcum powder, but in eye shadow, blush, foundation, and many other cosmetic products to this day.

For safety’s sake, look for products marked talc free because according to the Occupational Safety and Health Administration (OSHA), “There is no ‘safe’ level of asbestos exposure for any type of asbestos fiber. Asbestos exposures as short in duration as a few days have caused mesothelioma in humans.”

Effects of Cosmetics are More than Skin Deep

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In the 16th century, a Swiss physician and philosopher, Paracelsus, stated that any substance applied to or in the body can cause harm, given the right circumstances. In other words, “the dose makes the poison.” This is true especially with the wide range of chemicals, nano particles, asbestos contaminated talc, and other substances used in the manufacture of cosmetics.

Revenue from cosmetics is projected at $265 billion worldwide in 2017 for an industry that has potential for harm, but very little oversight. The FDA has an office of Cosmetics and Colors within their Center for Food Safety and Applied Nutrition. Yet, that group is seriously underfunded with a $13 million budget for fiscal year 2017 and has a very limited scope of authority.

Except for color additives, there is no legal requirement for pre-market approval of new products. There is no regulatory group that checks the safety or effectiveness of cosmetic products. In addition, there is no legal requirement for the cosmetic industry to collect or report adverse issues.

What ingredients could be harmful?

Dr. Robert M. Califf, former commissioner of the FDA, along with two other experts said, “For products that are used routinely, small effects over time within large populations can be almost impossible to detect without active surveillance. Even when health risks are substantial, as with tobacco products, the path to identifying and interpreting those safety signals clearly enough to justify regulatory action is often long and tortuous.”

However, that long scientific road has already been traveled with respect to asbestos – still an ingredient in some modern cosmetics. Decades of medical and scientific research long ago reached a consensus that asbestos is a human carcinogen. Yet, a recent investigation revealed asbestos contaminated cosmetics still being sold at a national retail chain that markets to teens. The retailer has since pulled the contaminated product from stores after one third-party found asbestos. A third-party lab hired by the retailer found none – possibly because various batches can contain different constituents. The message is that some asbestos, and other harmful ingredients, can find their way into these non-regulated cosmetics.

More about talc

Talc, a common cosmetics ingredient, is a mineral often mined in close proximity with asbestos and can be contaminated with asbestos. However, due in part to heavy lobbying in the 1970s and 80s, lax regulations allowed asbestos contaminated talc to still be utilized in cosmetics.

Are your cosmetics safe?

If you believe you have been harmed by a cosmetic, report the problem to the Center for Food Safety and Applied Nutrition’s Adverse Event Reporting System (CFSAN) an FDA database for foods, dietary supplements, and cosmetics. When they notice a number of similar reports, they can investigate. This database is also open to the public, so is available to search for adverse health events from your current cosmetics. Unlike foods, there is little ingredient information on cosmetic packaging. Even when there is, dangerous chemicals can be disguised by using scientific names. This makes knowing exactly what you’re using difficult, but there are a few sites such as www.ewg.org with information on a limited number of products.

New legislation

Sens. Dianne Feinstein, D-Calif., and Susan Collins, R-Maine recently introduced legislation creating a mandatory registration of products and facilities. The bill would also increase FDA funding using industry fees, and give other tools to the FDA as protection from risks of personal care products. Making your congressional representatives aware of your support of this bill could help give consumers visibility to dangers.

Meanwhile, check websites for your cosmetics for possible ingredient lists. If no ingredients are shown, email or call the company for more information. If enough people let these companies know that we care about what is put on our bodies, perhaps there will be more effort to using clean ingredients in their products.

Long Awaited U.S. Asbestos Ban Now Uncertain

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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.