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New Turn for Asbestos Reporting Under TSCA

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A court ruling in the final days of 2020 for asbestos reporting under the Toxic Substance Control Act (TSCA) may finally steer the EPA’s review of asbestos back in the right direction.

How the incoming Biden Administration responds to these developments will impact whether asbestos is finally labeled a toxin under TSCA and the extent of new asbestos reporting requirements for continued industry use of asbestos.

Background

A 2016 bipartisan amendment to TSCA created an agency review standard that seemed likely to result in asbestos finally being identified by the EPA as a toxin.  However, the EPA under the Trump Administration created a very narrow analysis based on too little information.  Legal challenges to that approach, coupled with the COVID-19 pandemic, slowed the final scope and status of the EPA’s asbestos risk analysis. Though the EPA released the first part of its risk evaluation on December 30, 2020, a federal district court decision handed down on December 22, 2020 could force the EPA to drastically change its assessment.    

Court ruling involving asbestos reporting

The federal district court ruling involved two cases – one brought by the Asbestos Disease Awareness Organization (ADAO) and a second filed by several states attorney generals.  Judge Edward Chen, in his 36-page ruling, found that the asbestos-containing products identified by the agency during the rule making process “appear to be only the tip of the iceberg.” Chen also held that gaps in the agency’s information create risk evaluation models which don’t have the ability to “make accurate assessments that capture all ‘reasonably available’ data.”

The Court ordered the EPA to make significant changes to its TSCA Chemical Data Reporting (CDR) Rule to close several loopholes. These include considering more in-depth information about potential uses of asbestos for its risk evaluation.  Judge Chen’s order also addressed closing two additional loopholes:  ending the reporting exemption for products with “impurities” (like asbestos contaminated talc products) and requiring current processors of asbestos products to report those uses. 

What happens next?

Assuming the Biden Administration chooses not to appeal Judge Chen’s order,  the district court’s opinion will require EPA to amend its TSCA Chemical Data Reporting (CDR) Rule to require additional asbestos reporting from companies using asbestos and raw material that may be contaminated with asbestos – such as talc-based cosmetics. The data gathered through additional reporting may require the EPA to revise its conclusions or conduct yet another evaluation.  

This will impact not only the EPA’s Part 1 – risk evaluation of current asbestos uses, but Part 2 as well – risk evaluation for legacy uses of asbestos. Safer consumer products and cosmetics could also be the upshot of more stringent asbestos reporting requirements.

Two Decades After Ban, Asbestos Still Kills 5,000 Britons Each Year

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Not surprisingly, two decades after the ban, asbestos still kills 5,000 Britons each year. That’s because symptoms of disease often don’t show up until 20 to 40 years – or more – after exposure. This long exposure time is one of the reasons it is often not recognized as an imminent danger, yet the fibers inhaled many years in the past are poised to show up as lung cancer, asbestosis, or the deadly mesothelioma after the initial exposure is just a memory.

Asbestos still kills 5,000 Britons each year

The long exposure time is only one reason it is still killing after all these years. Though the mineral was outlawed 20 years ago in Britain, asbestos still exists in government, commercial, and residential buildings built before 1999. While not a threat when undisturbed, these buildings often are at an age when renovation, or even demolition, is required. If this work is not done by an authorized abatement company, the possibility of exposure from the dust created is high. To cut corners, renovators and do-it-yourself handymen often skip this critical step and the countdown to possible diseases in the distant future starts again.

The report from the Institution of Occupational Safety and Health (IOSH) verified that people today are still being exposed – often because of non-compliance with regulations. In the past year, over 130 British companies or individuals were ordered to stop work because of rule-breaking.

As Bev Bessinger, IOSH chief executive said, “It is unacceptable that 20 years on from asbestos being banned in Britain, organisations are still potentially putting at risk the lives of employees, their families, and other members of the public. Thousands die in Britain every year from cancers like mesothelioma, while many more are diagnosed with it. All this is preventable through good occupational safety and health. It is time for organisations to wake up and realise how dangerous asbestos is. There are no excuses.”

Dr. Nick Hopkinson, medical director at the British Lung Foundation, reinforced this message by confirming, “Currently the only treatments available are aimed at slowing the progression of the disease and improving quality of life. This devastating disease is preventable, and the dangers of asbestos are well known. It’s vital companies are vigilant and take the proper precautions to protect people from the life-threatening dangers of asbestos, and take urgent action if asbestos has been found.”

Asbestos still kills 15,000 Americans each year

This number of deaths is not acceptable. The United States has not taken the necessary steps to ban asbestos, even though it has been banned in 55 countries. Though some uses are no longer allowed in the US, others are – especially in commercial applications. We know homes and other buildings constructed before the 1980s have a high likelihood of asbestos in areas such as drywall, insulation, siding, roofing, tile mastic, and insulation around pipes. When will the US stop new uses of this deadly mineral?

Brakes on the Toxic Substances Control Act

This act showed promise to finally ban, or strictly control, asbestos as it was identified as one of the ten high risk chemicals set for EPA evaluation. Unfortunately, the ground rules for the EPA’s evaluation under the Trump administration has softened the likelihood of a ban and shockingly, may perhaps even allow new uses of the fiber.

A legacy of death for the future

Like those in the U.K. who work on demolition or renovation of pre-1980 era buildings, workers and their families can be exposed to asbestos if not careful to have suspicious areas checked by an abatement professional. Click here to see a comprehensive FAQ checklist of asbestos products, reporting information, and testing guidelines. Since there is no outright ban, new asbestos-containing materials can still be imported into the US. As seen in the British report, once a ban is in place, people contracting asbestos-related diseases continue for decades into the future. Until importation and new uses are stopped completely, there is no end in sight for the victims of asbestos.

Royal Renovations to Remove Asbestos

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150px-Kensington_PalaceAnyone renovating a home built before the 1980s should be aware of the possibility of asbestos in many of the building materials.  If there is a doubt, the suspect materials should be tested and, if found, removed by a certified abatement company.

The royal family of Prince William and Kate have been going through the asbestos abatement process for many months leading up to their move to Kensington Palace this Fall.  Their 21-room apartment at Kensington Palace was gutted for a number of updates including replacement of plumbing and boilers, re-wiring of all the electrical, and the removal of asbestos.  In addition to asbestos found in those utility areas, the mineral was also removed from the voids between floors and in the basement floor ducts.  There had been no work on the palace since a refurbishment in the early 1960s.

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With a new baby arriving at any time, the royal couple is wise in removing the hazardous material from their home and offices.  Since asbestos was used in such a variety of materials, it’s likely to be found someplace in most homes built from the 1940s through the 1970s.  Generally while undisturbed it poses no threat, but in a remodeling situation fibers can be released which can be inhaled and create a threat for lung cancer and mesothelioma – even 50 years after the event.

This is a caution for all DIY homeowners.  Be alert to possible dangers.  If asbestos is found, do not try to remove it yourself – this is a job for abatement professionals.  Be smart and protect your health and the health of those around you.