EPA Proposes Asbestos Reporting Rule
In May, the U.S. Environmental Protection Agency announced a proposed rule to require more comprehensive reporting on asbestos as the Agency continues to protect the public from exposure.
The proposed rule under section 8(a) of the Toxic Substances Control Act (TSCA) would also require asbestos manufacturers and processors to report certain use and exposure information, including information pertaining to asbestos-containing articles (including as an impurity).
The EPA’s proposal arrives just weeks after it proposed a rule to prohibit ongoing uses of chrysotile asbestos—the only known form of asbestos currently imported into the United States.
Toxic Substances, Asbestos Review Background
In June 2016, the EPA named asbestos as one the first ten chemicals to undergo risk evaluation under TSCA. At the time, the Obama Administration only planned to focus on asbestos on chrysotile asbestos as it was the only asbestos fiber type imported, processed and distributed in the United States.
The following year, the EPA released the scope document for the risk evaluation for asbestos part 1, which included the hazards, exposures, conditions of use and the potentially exposed or susceptible subpopulations EPA expected to consider in its risk evaluation of asbestos conducted pursuant to TSCA section 6(b).
Some months later, in October, it was announced under the Trump Administration that the EPA would only focus on toxins entering commerce and would not consider whether new handling or disposal rules are needed for previously existing materials.
For asbestos, that meant that the few hundred tons that were imported annually would be reviewed, but the estimated 8.9 million tons of asbestos-containing products that entered the marketplace between 1970-2016 would not, according to The Associated Press.
Despite these issues, in June 2018, the EPA released the problem formulation for the risk evaluation for asbestos part 1. According to the Agency, the formulation was updated to clarify chemical conditions of use and better described how the EPA planned to conduct the evaluation.
In November of the following year, the EPA was pushed to further evaluate legacy uses and associated disposals, other types of asbestos fibers in addition to chrysotile, and conditions of use of asbestos in talc and talc-containing products in a supplemental effort. The push was the result of the decision of the U.S. Court of Appeals for the Ninth Circuit in Safer Chemicals Healthy Families v. EPA and is the focus of part 2 of the risk evaluation for asbestos.
In December 2020, EPA released part 1 of the final risk evaluation for asbestos finding that there were unreasonable risks to workers, occupational non-users, consumers and bystanders from 16 out of 32 conditions of use. While the EPA strongly recommended that users carefully follow all instructions on an associated product’s label, it found no reasonable risks to the environment.
In March, the EPA released the draft risk evaluation for asbestos, part 1 for public comment and peer review. The draft risk evaluation can be read here.
By June 2021, the EPA announced important policy changes surrounding risk evaluations issued under the TSCA by the previous administration and the path forward for the first 10 chemicals to undergo risk evaluation. This review was done in accordance with the Biden-Harris Administration’s Executive Orders and other directives, including those on environmental justice, scientific integrity, and regulatory review.
At the end of December, the EPA requested public input on its draft scope document for the TSCA Risk Evaluation for Asbestos Part 2: Supplemental Evaluation Including Legacy Uses and Associated Disposals of Asbestos.
According to the EPA, for the second part of the asbestos risk evaluation the Agency adopted the definition of asbestos as defined by TSCA Title II Section 202 as the “asbestiform varieties of six fiber types – chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite or actinolite.”
Additionally, the EPA plans to consider Libby Amphibole Asbestos (and its tremolite, winchite and richterite constituents) and relevant conditions of use of asbestos in talc or talc-containing products in part 2 of the risk evaluation. The draft scope also plans to reflect the Agency’s recent policy changes, which include the consideration of exposures from air and water, and potential exposure to fenceline communities.
The EPA accepted comments in docket EPA-HQ-OPPT-2021-0254 for 45 days following its December publication. The EPA intends to publish the final risk evaluation for asbestos, part 2 by Dec. 1, 2024, as required by court order.
More recently, at the beginning of April, the EPA proposed a ban on chrysotile asbestos under section 6(a) of the TSCA. According to the American Public Health Association, the deadly carcinogen has been linked to about 40,000 deaths in America each year.
While most consumer products that historically contained chrysotile asbestos have been discontinued, chrysotile asbestos remains the only form known to be currently imported, processed or distributed for use in the U.S. and is used exclusively by the chlor-alkali industry and electricity generation.
If passed, the EPA believes that there will also be a result in health benefits from reduced air pollution associated with energy-intensive industrial operations.
To address the unreasonable risks, the proposed rule would prohibit manufacture (including import), processing, distribution in commerce and commercial use of chrysotile asbestos for six categories of chrysotile asbestos-containing products: asbestos diaphragms, sheet gaskets, oilfield brake blocks, aftermarket automotive brakes and linings, other vehicle friction products and other gaskets.
The proposed prohibition on the manufacture, processing and distribution in commerce also plans to address consumer exposure to chrysotile asbestos.
In addition, the EPA is also proposing targeted disposal and recordkeeping requirements in line with industry standards, Occupational Safety and Health Administration requirements and the Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP).
The proposed disposal and recordkeeping requirements would take effect 180 days after the effective date of the final rule. The EPA accepted public comments on the proposed rule for chrysotile asbestos for 60 days following publication in The Federal Register via docket EPA-HQ-OPPT-2021-0057.
The EPA has recently proposed a rule to require more comprehensive reporting on asbestos while the Agency continues its work to address carcinogen exposure. The reporting rule is just one component of the suite of the EPA’s actions to address the risks to public health from asbestos.
In its proposal, EPA defines “Asbestos” as the following:
The proposed rule would require manufacturers and producers of certain types of asbestos and asbestos-containing articles (including as an impurity) in the last four years to report certain exposure-related information, including quantities of asbestos manufactured or processed, types of use and employee data.
The rule also covers asbestos-containing articles (including as an impurity) and asbestos that is present as a component of a mixture. As proposed, manufacturers and processors would have up to nine months following the effective date of the final rule to collect and submit all required information to EPA.
According to the American Coatings Association, small manufacturers would be exempt from requirements related to Libby Amphibole Asbestos only, but not other identified asbestos types, based on EPA’s interpretation of the small business exemption under the TSCA Section 8(a)(1) and (a)(3).
Reportable information includes company and site size, quantities of asbestos mined, handled or in products, products produced, numbers of employees affected, relevant PPE and exposure information. EPA proposes varying reportable data elements related to asbestos-related activities for:
EPA proposes companies maintain supporting documentation for a period of five years after reporting to EPA.
Outlined in the Agency's news release, the EPA plans to use the collected data through the proposed rule to help inform future actions involving asbestos, including the ongoing risk evaluation for “legacy uses” of asbestos (part two) and potential future risk management activities resulting from that risk evaluation.
In addition, the proposed reporting rule would help identify if there are articles that contain different types of asbestos, like the Agency’s completed risk evaluation of ongoing asbestos uses (part one).
“Strong data and the best available science are the foundation of our work to protect communities from hazardous chemicals like asbestos,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention, Michal Freedhoff. “Getting a more comprehensive and complete set of data on how and where this chemical is used is part of EPA’s broader effort to evaluate the health risks from asbestos and, when needed, put protections in place.”
Upon publication in The Federal Register, EPA will accept comments on the proposed rule for 60 days via docket EPA-HQ-OPPT-2021-0357, or until July 5, at www.regulations.gov.