The Nickel Report

This summer, EPA sparked public outrage with its proposed “significant new use” rule, or SNUR, addressing certain commercial uses of asbestos. Publications like Rolling Stone, Newsweek and The Daily Beast criticized EPA for loosening its regulations to pave the way for asbestos to be reintroduced to the market, allowing asbestos-containing construction materials to be used in homes and other buildings again for the first time in decades. National figures like Senator Brian Schatz and Chelsea Clinton drew attention to the proposal while condemning the Agency for increasing public exposure to this well-known carcinogen.

There’s just one issue: EPA’s proposed action does the opposite of what these critics claim. The SNUR would impose substantial new prohibitions on the listed uses of asbestos—which currently are not regulated by EPA at all—while giving EPA the necessary legal “hook” to restrict or even ban these uses outright in the unlikely event that a company actually tries to resume them.

How can news reports have gotten it so backward?

The confusion probably stems from the collision of a poorly understood statute and a high-profile chemical. The public generally isn’t familiar with the nuances of the Toxics Substances Control Act (TSCA) or the processes EPA must go through to regulate chemical substances under that statute. But people are aware of the health risks of asbestos, which are well documented and have led to discontinuation of its commercial use in all but a few niche applications, even absent any effective federal restrictions to date. At the same time, the President’s stated views on asbestos are… unorthodox. He suggested at one point that reports of asbestos’s cancer-causing effects are a hoax perpetrated by “the mob,” and one Russian asbestos producer reportedly considers him to be so supportive of their industry that they printed his face on their packaging. In this context, perhaps it’s unsurprising that a proposal with the words “asbestos” and “new use” might be greeted with reflexive skepticism.

To see why the proposed SNUR is a step toward stricter regulation of asbestos, one first has to understand how TSCA works. The law establishes separate regulatory tracks for “existing” chemicals (i.e., those listed on EPA’s inventory, which includes asbestos) and “new” chemicals—including new uses of existing chemicals. For existing chemicals, regulation proceeds in two phases under section 6 of TSCA. First, EPA must perform a risk evaluation to assess whether the chemical’s “manufacture, processing, distribution in commerce, use, or disposal” presents an unreasonable risk of injury to health or the environment, without regard for cost or other non-risk factors, under the chemical’s conditions of use. If EPA determines use under the conditions examined does not present unreasonable risks, no regulation is warranted. But if EPA finds use under any of those conditions does present an unreasonable risk, it must impose sufficient regulations to eliminate that risk. Under TSCA’s deadlines, this entire process from commencement of the risk evaluation to adoption of final restrictions may take from 5 to 7 years.

For “new” chemicals, TSCA proceeds differently. Under section 5 of TSCA, no person may manufacture, import or process a new chemical (or an existing chemical for a new use) without first giving notice to EPA. After receiving the notice, EPA reviews it to decide whether the new chemical or use presents an unreasonable risk to health or the environment. If there is such a risk, EPA must adopt regulations as necessary to prevent it—up to and including a ban on specific uses. Manufacture cannot proceed until EPA has completed its review, issued a risk determination and promulgated any restrictions necessary to address unreasonable risks. TSCA generally requires EPA to complete its review within 90 to 180 days.

So where does the asbestos SNUR fit in this process? Asbestos is considered an “existing” chemical, and the specific conditions of use addressed by the SNUR—as a component of various adhesives, sealants, coatings, floor tiles and other building materials—were fairly widespread in the past, although they have long since been discontinued in the United States. Accordingly, any restrictions on these uses would currently have to come through TSCA’s section 6 process for existing chemicals. But in the SNUR, EPA is proposing to find that these uses have been discontinued for so long that any effort to revive them would constitute a “new” use that must be reviewed under TSCA section 5 before it may resume. Effectively, then, the SNUR would establish a blanket prohibition on the listed uses of asbestos that applies until EPA receives a pre-manufacture notice and has an opportunity to take more definitive long-term action.

To see why this is meaningful, consider the alternative. Without the SNUR, the listed uses of asbestos would fall under the section 6 process for existing chemicals. Although EPA’s risk evaluation for asbestos is already underway, under TSCA’s deadlines, the Agency is not required to issue final regulations addressing any unreasonable risks it finds until the end of 2021 at the earliest. In the interim, manufacturers could resume these uses without facing any federal restrictions under TSCA. More importantly, EPA interprets section 6 to not require evaluation of risks from “legacy uses” of a chemical (that is, activities that are not ongoing) or disposal of chemicals from those uses. Because the uses of asbestos discussed in the SNUR have been discontinued for years, EPA’s recent “problem formulation” document for asbestos classifies them as “legacy uses” that will be excluded from the scope of its risk evaluation.

By contrast, the SNUR immediately would make it unlawful to manufacture, import or process asbestos for the listed uses, at least until EPA has an opportunity to review their risks after receiving a pre-manufacture notice. Critics may argue that this still leaves a window open for manufacturers to reintroduce asbestos-containing building materials to the market after they give the required notice, but, realistically, that is implausible. To avoid restrictions or an outright ban, the manufacturer would have to show that its proposed use is unlikely to present an unreasonable risk to health or the environment—yet it was the well-known and substantial health effects of these asbestos-containing materials that drove them out of the market in the first place. If nothing else, the SNUR provides greater protection than continuing to classify these as “existing” uses, which allows manufacturers to resume them at any time without giving notice and receiving clearance from EPA.

In short, EPA is not proposing to place asbestos construction materials back on the market or into your home, school or hospital as some media outlets have claimed. To the contrary, EPA is taking the necessary first steps to freeze these uses and set the stage for future restrictions if a manufacturer does attempt to reintroduce them.