On July 12, attorneys general from 18 states signed a letter asking lawmakers to pass a bill that would fully ban asbestos in the United States. The letter was sent to the House Committee on Energy and Commerce, as well as the House Subcommittee on Environment and Climate Change.
The group argued that the Environmental Protection Agency (EPA) has fallen short of its congressionally mandated responsibilities concerning asbestos and that the resulting policies will undoubtedly put Americans at risk for mesothelioma and other preventable diseases.
California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healy led the multistate coalition. In a press release accompanying the letter, Becerra said that:
“EPA’s recent actions demonstrate that the agency cannot be relied on to take the necessary steps to address the unthinkable risks asbestos poses to our health and environment.”
The Alan Reinstein Ban Asbestos Now Act of 2019, or Reinstein Act, has been introduced in both houses, but not yet brought to a vote. It would accomplish what the EPA has left undone.
The Reinstein Act would prohibit the manufacture, processing, and distribution of all types of asbestos in the U.S. within one year. It would also establish a Right-to-Know program to help federal agencies study the risks of legacy asbestos, which already exists in homes, workplaces, and schools across the country.
“Each year, tens of thousands of people die from mesothelioma and other diseases caused by exposure to asbestos,” said Healey in a statement about her support of the Reinstein Act. “We need Congress to ban this toxic chemical and save the lives of workers and children in Massachusetts and across the country.”
Becerra and Healy were joined by attorneys general from Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington State, and the District of Columbia.
Why Isn’t Asbestos Banned Already?
Asbestos was banned more than 30 years ago by the EPA, but that policy was quickly overturned by a 1991 decision made by the 5th U.S. Circuit Court of Appeals. Viewed as a gift to the industry by many in the asbestos-prevention community, this ruling has been nothing but poison to the public.
Since the ban was vacated, more than 1 million Americans have died as a result of asbestos exposure, according to the Asbestos Disease Awareness Organization (ADAO).
In 2016, Congress passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The Lautenberg Act was a bipartisan achievement that substantively amended the Toxic Substances Control Act (TSCA) for the first time in 40 years. The much-needed overhaul of how America polices harmful substances was headlined by 10 substances that warranted immediate attention.
Asbestos was one of those 10 substances. The risks of asbestos are incredibly well-documented, and the damage caused by legacy asbestos is undebatable. In the eyes of lawmakers on both sides, the toxic mineral needed to be addressed. Many were hopeful that the EPA, armed with the new tools by the passage of Lautenberg, would close the door on asbestos.
Unbelievably, the opposite has happened. Through a combination of contradictory rule-making and non-sensical policy choices, the EPA has crafted an asbestos policy that promises to leave regulators in the dark and the public at risk. In the words of the attorneys general:
“We believe that a ban at the federal level is the appropriate governmental response to the dire risks that asbestos poses to human health, and we support Congress’ efforts to accomplish this, particularly in light of EPA’s failure to take appropriate actions to address asbestos risks since TSCA was amended in 2016.”
In a time of constant congressional friction, it’s hard to imagine a bill that would be easier to pass than one that keeps Americans safe from an incurable cancer.
What Is the EPA Doing Wrong with Asbestos?
Becerra, Healy and their colleagues divided the EPA’s problematic response to asbestos into three general categories.
First, the EPA has inexplicably excluded legacy asbestos from their risk evaluation. This makes no sense whatsoever. According to the letter, 661,387 pounds of asbestos was imported in 2017. Compare that to the more than 25 million pounds of asbestos-containing materials that were disposed of in 2015.
The truth is that most of the asbestos in America exists in buildings and products. Its disposal presents an obvious pathway for exposure — not just for workers involved with asbestos abatement, but those who live in proximity to landfills where asbestos is going. Earthquakes, hurricanes, and wildfires spread asbestos in unpredictable ways.
“Without considering all such exposure pathways,” said the letter, “EPA is poised to underestimate the cumulative risk associated with the ongoing manufacturing, processing, and distribution of asbestos in the U.S.”
Second, the EPA’s asbestos Chemical Data Reporting rule (CDR) is set up for failure. The CDR ensures that regulators have access to the data about asbestos they need in order to make informed decisions about the risks posed to Americans.
They identified several significant limitations to the CDR, including loopholes that exempt reporting asbestos as an impurity. In the last few years, asbestos contamination has been found in consumer products, such as children’s make-up, making the reason for this exemption impossible to understand.
In effect, the attorneys general wrote, “EPA will rely on information that it acknowledges presents an incomplete picture of the potential exposures.”
Third, the letter rallied against the EPA’s Significant New Use Rule (SNUR) on asbestos, which they and others have argued “opens the door” to new uses of asbestos on U.S. soil.
When EPA issued the new rule in April, they argued that it closed important loopholes by prohibiting discontinued uses of asbestos. Unfortunately, the SNUR also provides a pathway for new uses of asbestos to be cleared by the agency. Instead of banning the toxic substance like 60 other countries, the EPA has contributed to a perception that asbestos has a future.
The letter quoted from Rebecca Reindel, Senior Safety and Health Specialist for the AFL-CIO, who testified at a hearing on the Reinstein Act, explained that the SNUR sends an incredibly dangerous message from the federal agency tasked with maintaining the health of the nation’s environment. She said:
“The very issuance of this rule is a declaration by the agency that some uses of asbestos are safe, as well as an indication the agency refuses to use its authority to ban this dangerous substance.”
Asbestos continues to take lives and destroy families. One would have hoped that the EPA learned its lesson after the World Trade Center cough came to symbolize the lingering dangers of asbestos that the agency failed to acknowledge. Unfortunately, the EPA has chosen to delay meaningful asbestos reform once again.
Industry Profits or American Lives — It’s Up to Congress Now
The letter concluded by noting that the continued importation of asbestos is unreasonable. Virtually all asbestos imports into the United States are made by chlor-alkali plants to be used as diaphragms in the production of chlorine. While this industry is important, switching to non-asbestos diaphragms is economically feasible.
Already, two-thirds of chlor-alkali producers are running profitable businesses without asbestos. Moreover, non-asbestos diaphragms last longer and use less energy than asbestos diaphragms, which would mitigate costs associated with updating their equipment.
In weighing the passage of the Reinstein Act, members of Congress will have to decide which side of the scales they want to add their vote.
On one side is a single industry with easy options to make a change — on the other are school children, teachers, pipefitters, nurses, and everyday residents surrounded by poisonous products that are degrading daily. Once they get sick, they won’t have any options, because mesothelioma is incurable.
Forgive us at Sokolove Law for wondering what’s taking so long to pass this bill.