EPA tries for long-awaited ban on asbestos under 2016 measure
More than 30 years after the Environmental Protection Agency first tried to ban asbestos — and failed under court challenge — the agency is trying again. Industry is still fighting it. This time President Joe Biden’s administration is working with greater authority from Congress to go after asbestos and 20 of the most toxic chemicals. But this new effort, too, has been hampered by legal questions, political fights, funding shortfalls and other bureaucratic delays.
Though Congress passed an overhaul of the Toxic Substances Control Act in 2016 with bipartisan support, the EPA has yet to finish one new rule under the law. The move to ban one of the last actively used forms of asbestos is the only proposal that could become a final rule by late this year.
The grinding process has left health and safety advocates upset with how long the EPA is taking to carry out Congress’s effort to fix long-standing shortfalls in the country’s chemical regulations, itself a deal that took years of fighting to pass.
“It’s been seven years since we delivered landmark legislation to protect our kids and communities from toxic chemicals, and these regulations are still not on the books,” Sen. Edward Markey, D-Mass., who helped forge the 2016 law, said in a statement that called for more funds and staff to do the work. “The clock is ticking.”
Asbestos was one of the key drivers of the 2016 law, with decades of research backing a scientific consensus that it is a deadly carcinogen linked to about 40,000 U.S. deaths each year. Its fibers can stick to skin and clothing, and then nestle into lungs after getting inhaled by workers and their families at home, ravaging the organ with the chronic disease “as
bestosis” or the aggressive cancer mesothelioma.
While most companies have stopped using asbestos in recent decades, some of the largest business groups in Washington are defending the continued use of some forms of the chemical.
Chrysotile asbestos, which the EPA proposal would ban, is a flexible material that can separate molecules and is central to about a third of the country’s chlorine manufacturing capacity. The U.S. Chamber of Commerce, the chemical manufacturers’ American Chemistry Council and the oil industry’s American Petroleum Institute say that banning the substance as quickly as EPA has proposed could hurt the country’s chlorine supply, leading to shortages of clean drinking water or skyrocketing prices.
The fight illustrates the tough choices and thorny disputes that keep the government struggling to deliver on its promise to limit Americans’ exposure to chemicals that are both harmful and essential to modern life. The EPA will have to go through this process over and over as it applies the 2016 legal overhaul to more chemicals that are used in thousands of products as common as tires and medicine.
Years of staffing cuts and political fights have caused these — and several other delays — at the agency. And now amid a host of other new priorities and legal mandates to deal with climate change, the chemical law has become a test of the Biden administration’s ability to balance environmental priorities and implement sweeping new programs created by Congress.
Biden administration officials say they have been reviewing scientific determinations from President Donald Trump’s administration that are required under the law to judge the risk of these chemicals. The agency has been adding staff, upgrading computer systems and is likely to ask Congress for more money in a budget request later this spring, one that could face heavy resistance with new Republican leadership in the House pushing for widespread spending cuts.
“I also truly believe the program will be better off in the long run,” said Michal Freedhoff, head of the EPA’s chemical safety and pollution prevention. “We’re about to demonstrate progress and start to realize that promise that the 2016 law gave us.”
Lawmakers touted the 2016 law — the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” — as a groundbreaking compromise, one that came in part because of EPA’s long struggle to deal with asbestos. The EPA had first tried to block most uses of asbestos in 1989, only for federal courts to overturn that decision under an industry challenge.
Struck by those limitations, Congress gave the EPA clearer authority to act. The agency used the law to put asbestos, along with Trichloroethylene, other solvents and a flame retardant, on its initial list of 10 toxic chemicals to review under the new provisions. Chemical companies supported the changes because they included moves to streamline regulatory oversight, potentially expediting new chemicals’ entrance onto markets.
But government officials, lobbyists and activists agree that problems arose quickly after the Trump administration took power the following year. According to the EPA, the administration never sought or received more funding to do the new scientific assessments required under the law.
Trump won the presidency with an agenda to cut regulation, and he appointed leaders eager to shrink the staff at the EPA. By the end of Trump’s term, the EPA had just two toxicologists in place nationwide to do assessments of new chemicals also required by the program, with hundreds of submissions every year.
Upon taking office as a Biden appointee, Freedhoff ordered staff to review several determinations on chemical analyses done by the Trump administration. Its asbestos review had been ruled unlawful in federal appeals court; more reviews had not been finished by deadlines set by the law. Freedhoff had helped draft the 2016 law’s language as a congressional aide to Markey, and said she believed Trump administration officials had ignored considerations required in the law.
That helped set the stage for the ongoing fight over asbestos. Industry officials say asbestos in chlorine plants is contained during operations and that workers handle it during installation only in full hazmat suits. Freedhoff says safety determinations still must include consideration about the risks to workers who might get exposed if they aren’t wearing protective gear.
The law also requires broader assessments, Freedhoff said, and she rejected a Trump-era decision that the agency didn’t need to assess the risks of a chemical used in a way that might also be governed under another law. Industry officials disagreed with these changes and said they fed avoidable delays.
“The agency definitely needs additional resources. But they also … need to do a better job of utilizing the resources they have,” said Kimberly Wise White, who oversees regulatory and scientific affairs at the American Chemistry Council, the Washington trade group that represents nearly 200 chemical companies. “There are areas where they can just be more efficient … and transparent.”
The EPA now expects the rule on chrysotile asbestos, also known as “white asbestos,” in the fall. It has been planning for a rule on other types of asbestos much later, probably no earlier than 2025.
Asbestos is a group of six naturally occurring fibrous minerals that are resistant to heat and fire. Once used in products as varied and common as home construction material, toys and automotive parts, their biggest threat today is to firefighters, maintenance workers and others who spend a lot of time in old buildings. Their use today is limited to more niche applications, including the chlorine industry’s asbestos diaphragms, or sheet gaskets or parts used to make vehicle braking systems.
Nearly 70 other countries already have banned asbestos. But some have also taken a decade or more to cost-effectively phase out the products made with them, industry officials said. They want the EPA to loosen its much shorter time table of just two years.
Environmentalists and safety advocates say that industry already has had years to adjust because scientific consensus about the harms from asbestos have been widely known for decades. And they say industry is overemphasizing the country’s reliance on it.
The EPA estimates that less than 7% of the chlorine in the public drinking water supply comes from facilities using asbestos technology. The number of chlorine manufacturing plants using asbestos has been in decline in the United States, down now to eight nationwide — most owned by the chemical arm of Occidental Petroleum — with three of them already in the process of shifting to another technology.
In a statement, a spokeswoman for Occidental said it was already converting most of its plants away from asbestos — before the EPA proposal — to avoid reliance on imports from Russia and Brazil, the only asbestos suppliers. It takes four to five years to complete each conversion to avoid supply disruptions, she said.
Activists point out the EPA’s intent to ban it has also been clear since the 1980s. And they are frustrated that broad scientific consensus hasn’t led to faster action from the EPA itself.
“The evidence about the danger of these chemicals is vast,” said Eve Gartner, a managing attorney at the environmental law firm Earthjustice. “One could make this a complicated process, but it’s EPA’s job to cut through that.”
The EPA’s Freedhoff said she shares frustration over the delays, but that the agency also must work to ensure its proposals can withstand legal challenges.
“At the agency we all feel a strong sense of urgency to get these rules on the books,” she added. “But it also doesn’t help any one of those families if we don’t put a legally and scientifically defensible standard on the books. Because we will be sued.”
In addition to the new rules, industry is pushing the EPA to speed up its approval for new chemicals it wants to sell, a program that was a key reason the industry supported the 2016 update from Congress. The compromise was supposed to streamline rules for industry, in hopes of spurring innovation.
Instead new chemical approvals have slowed dramatically. The agency approved fewer than 150 new chemicals in each of the last two years, down by more than half of what was approved each year between 2018 and 2020, according to an industry tally of EPA figures.
Faster approvals have become an imperative for industry executives. They want to capitalize on business and government investments in cleaner energy and sustainability by feeding rising demand for safer and more environmentally friendly chemicals.
Some executives are so frustrated by delays they have pushed to go on an attack against the administration. Several lobbyists have advised against it for now to avoid the risk that antagonizing EPA officials might lead to even stiffer rules and prohibitions.
Freedhoff said the pace will pick up this year.
And on the programs for legacy chemicals, the agency now expects as many as eight new rule proposals to come this year, spread from the spring through fall. Lobbyists said it could be fewer, just five or six.
The ongoing fight over asbestos suggests it could be a slog for the EPA to fulfill the law and issue all these new rules, said Bob Sussman, a lawyer and former EPA deputy administrator during President Bill Clinton’s administration. The law was a compromise that works effectively only if industry can accept some restrictions on commercially important chemicals, he added.
“Industry’s game plan has been to attack EPA for overreaching even while working to assure that EPA accomplishes far less than the public and many in Congress expected,” said Sussman, who now represents the Asbestos Disease Awareness Organization. “It’s a strategy calculated to make a struggling agency even weaker and more paralyzed by making every decision contentious and contested.”
The fight illustrates the tough choices and thorny disputes that keep the government struggling to deliver on its promise to limit Americans’ exposure to chemicals that are both harmful and essential to modern life. The EPA will have to go through this process over and over as it applies the 2016 legal overhaul to more chemicals that are used in thousands of products as common as tires and medicine.