Proposed TSCA Changes May Allow EPA to Ban Asbestos
Contrary to popular belief, asbestos continues to be a material used in the manufacture of various products across a number of industries, including friction products, cement, gaskets and roofing materials, to name a few. While there is no law that completely bans the use of asbestos in the United States, both the House and Senate are considering new legislation that would amend the Toxic Substances Control Act ("TSCA"), which could permit the Environmental Protection Agency ("EPA") to completely ban the use of asbestos and asbestos-containing products.
TSCA, enacted in 1976, is the law by which EPA aims to prevent unreasonable risk to human health and the environment from chemicals. It has never been updated.
Currently, the use of asbestos is limited by way of various federal and state statutes, none of which grant any administrative agency the broad power to regulate or completely ban the substance.(1) The EPA previously tried to ban asbestos in 1989 through a regulation that was overturned by the U.S. Court of Appeals in 1991. At that time, the court held that TSCA was not the appropriate or least burdensome means of regulating the use of asbestos and that EPA failed to justify a total ban.
One aspect of the proposed Senate bill eliminates the need for EPA to demonstrate that there are less burdensome ways of regulating asbestos than a complete ban under the TSCA. EPA would still be required to provide substantial evidence to overcome a court challenge.
If you are a manufacturer, distributor or end-user of asbestos or other chemicals, please contact us if you have questions about how TSCA in its current form or TSCA reform applies to you.
(1) See Asbestos Hazard Emergency Response Act (“AHERA”) (authority to regulate asbestos-containing materials in schools); Asbestos Information Act (identification of companies manufacturing asbestos-containing products); National Emission Standards for Hazardous Air Pollutants (“NESHAP”) (specifies work practices for asbestos to be followed during building demolitions and renovations); and Occupational Safety and Health Administration (“OSHA”) (oversees working conditions and specifies permissible exposure limits to those working near asbestos).