EPA to Investigate the Possibility of Banning Asbestos

On November 29, the U.S. Environmental Protection Agency (EPA) released its list of the ten chemicals that the agency is going to be investigating with the new powers afforded to it under a new law signed by President Barack Obama over this past summer. One of the chemicals on that list was asbestos.

This is excellent news for those who have been working for decades to have asbestos banned. While the action taken by the EPA is not a ban, by listing asbestos with these other nine dangerous substances, it is clear that the agency believes there is some reason worth at least considering such a ban.

According to the new informational page on the EPA’s website, the current list was whittled down from a much larger list of 90 hazardous chemicals created as part of the agency’s previous work under the Toxic Substances Control Act (TSCA) before the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act earlier this year. The Lautenberg act amended the TSCA to give the EPA new regulatory powers with broad authority to evaluate the risk of allowing these chemicals to continue to be used in consumer goods and services.

The final list of ten chemicals to be investigated came about through a process of extensive comment and recommendations from various individuals, including public health, environmental, and industry groups, as well as members of Congress. The first comment period was held back in August, and the final list was not expected to be released until later this month.

It’s worth noting that the EPA has tried to ban asbestos before. In the 1980s, the agency had imposed a complete ban on the dangerous material, only to have that ban lifted when industry groups took the agency to court, arguing that the EPA did not have the authority to implement such a ban. The Supreme Court agreed with the asbestos industry, and since then there has been no ban on asbestos, although its use is still regulated to some extent. The passage of the Lautenberg Act was in part an attempt to fix the deficient authority that led to the previous ban being overturned.

Moving Toward an Asbestos Ban

There is still some way to go before we can expect to see a ban on asbestos. Over the next six months, the EPA will begin the expedited risk evaluation process for asbestos and the other nine chemicals on the initial list. Within that six-month period, the agency will create scoping documents for each of the chemicals that includes information about:

• Hazards associated with the chemical
• How individuals are exposed and the extent of exposure
• Ways in which the chemical is currently used
• Who is most susceptible to exposure

However, the full assessment of these chemicals can take up to three years. If at the end of that period the EPA believes that one or more of the chemicals poses “an unreasonable risk,” the agency will have two more years to mitigate the risk – which could mean anything up to and including a full ban.

What this all means is that if the EPA does ban asbestos, it still may not do so until at least 2021 or 2022. Nevertheless, even if it takes the full five years to get there, it is good to get the process started now.