By Linda Reinstein, co-founder and CEO, Asbestos Disease Awareness Organization and Alex Formuzis, VP Strategic Campaigns, EWG Action Fund
An Environmental Protection Agency (EPA) decision on which 10 chemicals it will prioritize reviewing under the recently overhauled Toxic Substances Control Act is expected by the end of this year.
One chemical under consideration: asbestos.
The question on many minds, as we near the 25th anniversary of a court decision that struck down most of an EPA rule banning asbestos use, is what will the EPA do now that it finally has the power to act under the new law?
Those who are watching these deliberations closely believe asbestos will make the list, but the EPA could still bend to the will of the chemical industry and its lobbyists.
This year, Congress finally passed legislation to overhaul the Toxic Substances Control Act (TSCA), which President Obama signed into law. Under the new Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after the late New Jersey senator who spearheaded the push to modernize TSCA, the EPA finally possesses the authority to make the use and importation of asbestos illegal.
Sen. Barbara Boxer, D-Calif., the ranking member of the Senate’s Environment and Public Works Committee, who took on the issue after Lautenberg’s death, has fought hard to have asbestos top the list of chemicals for the EPA’s review under the new law. Boxer recently introduced the Alan Reinstein Ban Asbestos Now Act of 2016, which would expedite the ban of asbestos by amending the new TSCA law, requiring the EPA to prohibit all uses, distribution and disposal of asbestos within 18 months of the bill becoming law.
But asbestos was supposed to have been banned more than two decades ago.
In the summer of 1989, George H.W. Bush’s administration announced plans to finally ban the notorious carcinogen asbestos, which is responsible for more than 107,000 deaths worldwide each year, according to the World Health Organization.
The EPA, using the authority it believed it had under the old version of TSCA, issued a rule to “prohibit, at staged intervals, the future manufacture, importation, processing, and distribution in commerce of asbestos in almost all products,” on July 12 of the same year. The agency stated that asbestos exposure presented “unreasonable risks” to human health.
The federal government was poised to ban one of the most lethal and widely used materials that industries had relied on for decades.
“Asbestos is a human carcinogen and one of the most hazardous substances to which humans are exposed,” the EPA wrote in the rule.
This action on behalf of public health, of course, did not sit well with the asbestos industry and the downstream manufacturers that used the deadly mineral.
The industry went to court to overturn the ban, claiming that it was too costly and that alternatives were neither safer nor more effective than asbestos. Twenty-five years ago today, on Oct. 25, 1991, the U.S. Court of Appeals for the Fifth Circuit threw out most parts of the EPA’s rule. The court acknowledged that asbestos exposure in any amount caused cancer, but said the agency failed to prove that a ban was the “least burdensome alternative” for controlling the public’s exposure.
This disastrous decision not only overturned the EPA’s ban, but also established a precedent that has made it almost impossible for the agency to ban any dangerous chemical. President George H.W. Bush’s administration chose not to appeal the Fifth Circuit’s decision. Even though new evidence of asbestos’ hazards continues to crop up, the EPA’s hands have largely remained tied – until now.
The risks of a federal court rolling back a ban on asbestos this time around are considered unlikely under the new, more robust chemical law. So, the fate of asbestos, and whether it remains legal and continues to put Americans at risk, is now largely within the EPA’s power.