The EPA's March to Ban Asbestos: 2020 Draft Risk Evaluation
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The EPA’s March to Ban Asbestos:
2020 Draft Risk Evaluation
By: Claire C. Weglarz, Eric T. Hawkins and
Evelyn Fletcher Davis
Claire C. Weglarz is a first-chair trial attorney with
Hawkins Parnell & Young, LLP in Los Angeles. She
represents public and private entities in high-risk litigation
nationwide in a broad range of industries, from energy
and chemicals to manufacturing, automotive and
consumer goods. She has extensive experience in
product liability, environmental claims and toxic
exposures to asbestos, talc and various chemicals. She is also a
registered patent and trademark attorney.
Eric T. Hawkins is a partner in the Atlanta office of
Hawkins Parnell & Young, LLP, and his practice focuses
on product liability, toxic tort, environmental and related
claims. He defends a wide variety of complex claims
involving asbestos, talc, silica, benzene, premises liability
and personal injuries. He works in roles as national and
local counsel for corporate clients where he develops and
outlines strategy in numerous jurisdictions.
Evelyn Fletcher Davis is a senior partner at Hawkins
Parnell & Young, LLP. As one of the leading toxic tort and
product liability defense lawyers in the U.S., she has tried,
managed and settled thousands of complex cases. She
has litigated cases involving exposures to asbestos, silica,
mold, benzene and other chemicals, in addition to
personal and commercial insurance liability. She serves
over 40 corporations as national, regional or local counsel with emphasis
on Florida, Georgia and Alabama.
2 DEFENSE COUNSEL JOURNAL | JULY 2020
I
N MARCH 2020, the U.S. vehicle friction products, and other
Environmental Protection asbestos containing gaskets.”2
Agency released a Draft Risk Since the draft report’s
Evaluation for Asbestos, coinciding publication, over seventy
with the agency’s fiftieth individuals or trade associations
anniversary. This article looks at submitted comments to EPA,
why the EPA was created and how including defense experts Charlie
the agency’s work has evolved from Blake, John Spencer, and Drs.
policing against widespread Michele Carbone, Bruce Case, David
environmental pollutants in its Garabrant, Bryan Hardin, Art
early years to devoting significant Langer, Suresh Moolgavkar, Brooke
resources in 2020 on a reevaluation Mossman, Dennis Paustenbach,
of asbestos, a mineral that is rarely Bertram Price, Coreen Robbins,
used and highly regulated in the U.S. Victor Roggli, Jennifer Sahmel, and
EPA’s Draft Risk Evaluation will Thomas Sporn. On June 8-10, 2020,
be used by asbestos personal injury EPA conducted a peer review
attorneys to bolster their chrysotile meeting at which Drs. Garabrant,
product cases and undermine the Paustenbach, Roggli, and
opinions of defense experts if the Moolgavkar offered additional
report is published in its current comments.
form. The draft report states, “EPA The draft report is
identified cancer risks from controversial with respect to its
inhalation exposure to chrysotile conclusion as to the cancer risk of
asbestos.”1 Areas where EPA’s draft chrysotile asbestos products and
report finds an “unreasonable risk because of the one-sided inclusion
to workers” from chrysotile of paid experts for asbestos
asbestos exposure include plaintiffs’ law firms on key peer
“processing and industrial use of review committees that are
asbestos-containing diaphragms, reviewing the draft report: the
processing and industrial use of Toxic Substances Control Act (TSCA)
asbestos-containing sheet gaskets Science Advisory Committee on
and industrial use of asbestos- Chemicals (SACC) and TSCA SACC
containing brake blocks, Ad Hoc Peer Reviewers. The peer
aftermarket automotive asbestos- reviewers include three testifying
containing brakes/linings, other experts for asbestos plaintiffs: Drs.
Henry Anderson, Steven Markowitz,
1 UNITED STATES ENVTL. PROT. AGENCY, DRAFT asbestos_pub.pdf [hereinafter “Draft Risk
RISK EVALUATION FOR ASBESTOS 20 (Mar. Evaluation for Asbestos”].
2020), available at https://www.epa.gov/ 2 Id. at 25.
sites/production/files/2020-03/
documents/1_draft_risk_evaluation_for_
The EPA’s March to Ban Asbestos 3
and Marty Kanarek. There are no Experts who receive significant
experts who testify for asbestos fees testifying on behalf of asbestos
defendants or both defendants and plaintiffs have been involved in the
plaintiffs on the peer review groups. EPA’s asbestos risk evaluation since
The International Association of at least 2017. For example, in March
Defense Counsel joined a June 2020 2017, Dr. Arthur Frank, a frequent
comment submitted by the U.S. expert for asbestos plaintiffs, sent
Chamber of Commerce, U.S. the EPA a 216-page document that
Chamber Institute for Legal Reform, he admittedly put together with the
National Federation of Independent assistance of a plaintiff attorney
Business Small Business Legal with whom he works in asbestos
Center, American Property Casualty litigation matters. 4 Dr. Frank
Insurance Association, Coalition for regularly uses this same document
Litigation Justice, Inc., American as his report in asbestos litigation.
Tort Reform Association, In another instance, Dr. Frank and
Aerospace Industries Association, another asbestos plaintiffs’ expert,
Product Liability Advisory Council, Dr. Barry Castleman, met with an
Inc., and Washington Legal EPA deputy administrator to
Foundation to object to the lack of promote the selection of asbestos
balance on the EPA’s peer review for this type of evaluation and share
committees for the draft report. 3 their view on the risks of asbestos.5
The comment noted that EPA’s The Asbestos Disease Awareness
decision to include experts who Organization (ADAO), a lobbying
only testify on behalf of plaintiffs group that advocates for the “need
may lead the committee to stray for a global asbestos ban,” 6 and
from objective science and limit plaintiff experts Drs. John Dement,
discussion on divergent opinions. Richard Lemen, Jacqueline Moline,
and Christine Oliver submitted
3 See Letter from U.S. Chamber of 4 Letter from Dr. Arthur Frank to United
Commerce et al. to United States Envtl. Prot. States Envtl. Prot. Agency Administrator
Agency Administrator Wheeler and Drs. Scott Pruitt (Mar. 13, 2017).
Diana Wong (EPA Office of Science 5 Deposition transcript of Arthur Frank,
Coordination and Policy), Stanley Barone, Jr. May 12, 2020, in DeVries v. Allen Bradley
(EPA Office of Pollution Prevention and Co., Nos. 5-13-cv-00474, 5-13-cv-06856, 2-
Toxics), and Todd Peterson (EPA Office of 01-md-00875, at 140-141 (E.D. Pa.);
Science Coordination and Policy) (June 2, Deposition transcript of Barry Castleman,
2020), available at https://www. May 16, 2020, in Arditto v. Autozone, Inc.,
regulations.gov/document?D=EPA-HQ- No. RG19034481 (Alameda Cty. Cal. Super
OPPT-2019-0501-0070. Ct.).
6 See Asbestos Disease Awareness
Organization, Who We Are, available at
https://www.asbestosdiseaseawareness.o
rg/about-adao/leadership/.4 DEFENSE COUNSEL JOURNAL | JULY 2020
written statements outlining these conduct risk evaluations “to
issues during the comment period. determine whether a chemical
Drs. Frank, Moline, Castleman, substance presents an
Compton, and Lemen gave oral unreasonable risk of injury to
testimony at the EPA’s June 2020 health or the environment, without
hearing. consideration of costs or other
EPA performed the asbestos nonrisk factors.”8 This requirement
risk evaluation in accordance with is contrary to Congress’s express
the Frank R. Lautenberg Chemical intent that the EPA “shall consider
Safety for the 21st Century Act of the environmental, economic, and
2016, which amended the Toxic social impact of any action [it] takes
Substances Control Act (TSCA). or proposes” under TSCA.9
Prior to this amendment, the EPA The Draft Risk Evaluation for
performed a similar risk evaluation Asbestos is EPA’s first
of asbestos under TSCA in the reassessment of the risks of
1980s. The first risk evaluation asbestos in decades. A peer review
resulted in a 1989 ban of many meeting on the evaluation
asbestos-containing products. That originally scheduled for April 2020
ban was largely overturned in the was temporarily postponed due to
courts. Since the 1989 ban was COVID-19 closures. The agency set
overturned, the EPA has failed to a public comment deadline of June
regulate any existing chemicals 2, 202010 and conducted a public
using TSCA. When the Lautenberg meeting on June 8–10, 2020.
Chemical Safety Act was signed into Because the comment period and
law, President Barack Obama public meeting occurred during a
remarked the legislation was “shutdown” phase of the COVID-19
necessary, saying, “The [old] pandemic, affected entities are
system was so complex, it was so operating at less than normal
burdensome that our country capacity and on strained budgets.
hasn’t even been able to uphold a The timing of the public comment
ban on asbestos.”7 and peer review periods has
The Lautenberg Chemical created due process issues,
Safety Act requires the EPA to including the inability to obtain
7 The White House, Remarks by the 8 15 U.S.C § 2605(b)(4)(a).
President at Bill Signing of the Frank R. 9 15 U.S.C. § 2601(c).
Lautenberg Chemical Safety for the 21st 10 Comments submitted to United States
Century Act, June 22, 2016, available at Envtl. Prot. Agency, available at
https://obamawhitehouse.archives.gov/th https://www.regulations.gov/docketBrow
e-press-office/2016/06/22/remarks- ser?rpp=25&so=DESC&sb=commentDueD
president-bill-signing-frank-r-lautenberg- ate&po=0&dct=PS&D=EPA-HQ-OPPT-
chemical-safety-2st. 2019-0501.The EPA’s March to Ban Asbestos 5
information and documents small, but unknown, quantity of
necessary to adequately comment asbestos was imported within
because of long processing times manufactured products, including
for Freedom of Information Act brake blocks for use in the oil
requests and the denial of industry, rubber sheets for gaskets
expedited processing on those used to create a chemical
requests. containment seal in the production
The use of asbestos in the of titanium dioxide, certain other
United States is very limited and types of preformed gaskets, and
highly regulated, so the utility of the some vehicle friction products.”16
new risk evaluation is questionable. During the peer review hearing, the
The EPA admits that the risk EPA discovered that some samples
evaluation only addresses “a from the chlorine industry were
handful of very limited, still ongoing double-counted, which may affect
uses of asbestos.”11 Asbestos has the EPA’s final risk estimates.17
not been mined or otherwise Asbestos is presently subject to
produced in the U.S. since 2002, and extensive federal and state
asbestos consumption has regulations and reporting
decreased from a record high of requirements. The federal
803,000 tons in 1973 to an Occupational Safety and Health
estimated 100 tons in 2019.12 From Administration (OSHA) oversees
2013-2018, U.S. asbestos working conditions for United
consumption was “less than 0.1% of States workers by implementing
peak consumption in the 1970s.”13 and managing occupational safety
The chloralkali industry and health standards, including
accounted for nearly 100% of the regulations that pertain to handling
nation’s asbestos mineral asbestos in the workplace. In the
consumption in 2019. Specifically,
14 consumer context, the Consumer
asbestos diaphragms are used in Product Safety Commission (CPSC)
eleven chloralkali plants which protects consumers and families
account for about one-third of U.S. from consumer products that pose
chlorine production. 15 In 2019, “a hazards. The CPSC has instituted
11 United States Envtl. Prot. Agency, EPA 14 Id.
Actions to Protect the Public from Exposure 15 Id.
to Asbestos, available at https://www.epa. 16 Id.
gov/asbestos/epa-actions-protect-public- 17 Pat Rizzuto, EPA to Correct Error Made
exposure-asbestos. with Industry’s Asbestos Data, BLOOMBERG L.
12 United States Geological Survey, Mineral (June 8, 2020), available at
Commodity Summaries 2020 26 (Jan. 31, https://news.bloomberglaw.com/environ
2020), available at https://pubs.usgs.gov/ ment-and-energy/epa-to-correct-error-it-
periodicals/mcs2020/mcs2020.pdf. made-using-industrys-asbestos-data.
13 Id.6 DEFENSE COUNSEL JOURNAL | JULY 2020
bans and restrictions on asbestos- Evaluation for Asbestos does not
containing patching compounds, evaluate hazards or exposures to
garments, and fireplace materials. the general population. General
The EPA has successfully banned population exposures to chrysotile
new uses of asbestos in products asbestos may occur from industrial
such as asbestos-containing or commercial uses, industrial
insulation and fireproofing releases to air, water, or land, and
materials. other conditions of use. The EPA
The EPA has also addressed all acknowledges that those types of
asbestos-products not currently in exposures are already covered by
use in the United States, sometimes environmental statutes ad-
described as “legacy uses.” In April ministered by the agency. 18
2019, the EPA finalized an Asbestos Instead, the current risk evaluation
Significant New Use Rule (SNUR) may affect only 10 to 100 persons
under TSCA. The Asbestos SNUR annually.19
prohibits the future manufacture Although there are several
(including import) or processing of types of asbestos, the only form of
discontinued uses of asbestos asbestos currently known to be
before the EPA has the opportunity imported, processed, or distributed
to evaluate each intended use for for use in the U.S. is chrysotile. Thus,
risks to health and the environment the EPA only evaluated the
and to take any necessary following conditions of use of
regulatory action, which may chrysotile asbestos in its risk
include a prohibition. evaluation: use of diaphragms in
the chloralkali industry, sheet
I. EPA’s 2020 Draft Risk gaskets in chemical production
Evaluation for Asbestos facilities, oilfield brake blocks,
aftermarket automotive
In stark contrast to the
brakes/linings, other vehicle
purposes for which the EPA was
friction products, and other
created, the EPA’s 2020 Draft Risk
gaskets.20 As pointed out by defense
18 EPA Draft Risk Evaluation for Asbestos,
supra note 1, at 2.
19 Dennis Paustenbach, Comments to the
United States Envtl. Prot. Agency Regarding
March 2020 Draft Risk Evaluation for
Asbestos, 3 (May 22, 2020), available at
https://www.regulations.
gov/document?D=EPA-HQ-OPPT-2019-
0501-0095 [hereinafter “Paustenbach May
22 EPA Comment”].
20 EPA Draft Risk Evaluation for Asbestos,
supra note 1, at 18.The EPA’s March to Ban Asbestos 7
expert Dennis Paustenbach, “the concluded that chrysotile
available data presented by the may not cause mesothelioma
Agency does not seem to identify or lung cancer unless very
any cohorts which might be high cumulative doses
routinely exposed above about and/or long fibers are
1/10 to 1/2 the current OSHA involved.24
Permissible Exposure Limit for
• The drafters missed
asbestos (and the number of
more than 90 crucial papers
plausible workers is low).” 21
in their search.
Moreover, “if chrysotile could
produce mesothelioma (which • The draft incorrectly
remains in dispute), it may do so assumed that there is no
only at doses that are in the vicinity background rate of pleural
that cause asbestosis. . . .”22 The EPA or peritoneal mesothelioma
nonetheless concluded that the in persons not exposed to
processing and use of these asbestos, but studies show
products presents an unreasonable that a significant percentage
risk to workers, regardless of the of mesotheliomas,
nature, duration, or frequency of particularly peritoneal
the exposure.23 mesotheliomas, are
Public comments identified unrelated to asbestos
other issues with the draft risk exposure.
evaluation, including:
• The draft relied heavily
on asbestos textile cohorts
• The draft failed to cite
exposed to high levels of raw
EPA peer review panels
asbestos for a number of
convened in the past which
years in factories that
21 Paustenbach May 22 EPA Comment, x=2006+Thru+2010&Docs=&Query=&Tim
supra note 19, at 7. e=&EndTime=&SearchMethod=1&TocRest
22 Id. at 5. rict=n&Toc=&TocEntry=&QField=&QField
23 EPA Draft Risk Evaluation for Asbestos, Year=&QFieldMonth=&QFieldDay=&IntQFi
supra note 1, at 26. eldOp=0&ExtQFieldOp=0&XmlQuery=&Fil
24 See Letter from Dr. Agnes Kane, Chair of e=D%3A%5Czyfiles%5CIndex%20Data%5
United States Envtl. Prot. Agency Science C06thru10%5CTxt%5C00000005%5CP10
Advisory Board Asbestos Comm., to United 02EAG.txt&User=ANONYMOUS&Password
States Envtl. Prot. Agency Administrator =anonymous&SortMethod=h%7C-
Stephen Johnson regarding SAB &MaximumDocuments=1&FuzzyDegree=0
Consultation on EPA’s Proposed Approach &ImageQuality=r75g8/r75g8/x150y150g1
for Estimation of Bin-Specific Cancer Potency 6/i425&Display=hpfr&DefSeekPage=x&Se
Factors for Inhalation Exposure to Asbestos archBack=ZyActionL&Back=ZyActionS&Ba
(Nov. 14, 2008), available at https://nepis. ckDesc=Results%20page&MaximumPages
epa.gov/Exe/ZyNET.exe/P1002EAG.TXT?Z =1&ZyEntry=1&SeekPage=x&ZyPURL.
yActionD=ZyDocument&Client=EPA&Inde8 DEFENSE COUNSEL JOURNAL | JULY 2020
utilized long-fiber chrysotile impartiality and independence, and
asbestos and amphibole demonstrate a bias that should
asbestos. The findings based result in their disqualification.25
on those cohorts were Specifically, as stated, Drs. Steven
extrapolated to the de Markowitz, Marty Kanarek, and
minimus chrysotile-only Henry Anderson testify regularly on
exposures examined in the behalf of asbestos plaintiffs and
risk assessment. Relatedly, have made a lot of money doing so.
the draft failed to account for Drs. Markowitz and Anderson
toxicological difference in have documented ties to the ADAO.
long- and short-fiber Many sponsors of the ADAO’s
chrysotile. annual conferences are asbestos
plaintiffs’ law firms. The ADAO’s
• The draft utilized an
comment to EPA on the 2020 Draft
absolute risk model of
Risk Evaluation on Asbestos are in
mesothelioma mortality
line with ADAO’s strong advocacy
which assumes there is only
towards a comprehensive ban on
no risk at zero exposure. This
asbestos.
“no safe dose” claim is a
Dr. Markowitz is a member of
theoretical concept
the ADAO’s Science Advisory
unsupported by the
Board. 26 His position at ADAO is
literature.
prominently displayed on ADAO’s
The new risk evalulation for cover letter to its comments to the
asbestos also lacks integrity, Draft Risk Evaluation. Dr.
fairness, and legality because some Markowitz is also recognized on the
peer reviewers have financial ADAO website as a 2019 and 2020
conflicts of interest, appear to lack Emerald Donor.27 He has signed on
25 See UNITED STATES ENVTL. PROT. AGENCY
SCIENCE & TECH. POL’Y COUNCIL, PEER REVIEW
HANDBOOK § 1.2.1 (4th ed. 2015)
[hereinafter “EPA Peer Review
Handbook”].
26 See ADAO, supra note 6.
27 See Asbestos Disease Awareness
Organization, 2019 ADAO Conference
Sponsors and Donors, available at
https://www.asbestosdiseaseawareness.o
rg/newsroom/blogs/2019-adao-
conference-sponsors/; https://www.
asbestosdiseaseawareness.org/newsroom
/blogs/2020-adao-conference-sponsors-
and-donors/.The EPA’s March to Ban Asbestos 9
in support of ADAO’s statements to more than 22,000 photographs
Congress.28 documenting these environmental
Dr. Anderson is a signatory to a problems. The earliest assignments
letter sent by the ADAO urging the were closely aligned to the EPA’s
EPA “to prioritize asbestos as one of proposed areas of concern: air and
the 2016 top ten high-risk water pollution, management of
chemicals for evaluation under solid waste, radiation and
TSCA, leading toward the pesticides, and noise abatement.31
prohibition of asbestos in
manufacturing, processing, use,
distribution in commerce, and
disposal.”29
The inclusion of Drs. Markowitz,
Kanarek, and Anderson among the
peer reviewer for the draft asbestos
risk evaluation defies the EPA’s
own policies.30
II. The Birth of EPA: Controlling
Air Pollution
The road to the EPA’s 2020
Draft Asbestos Risk Evaluation
started decades ago. The EPA was
created in response to widespread
public concern about decades of
rampant and highly visible
environmental pollution. The EPA’s
photodocumentary project,
DOCUMERICA (1971-1977),
resulted in an archived collection of
28 Examining the Human Health Effects of content/uploads/2016/11/ADAO-
Asbestos and the Methods of Mitigating Administrator-Gina-McCarthy-Sign-on-
Such Impacts: Hearing before the letter-FINAL.pdf.
Committee on Environment & Public Works, 30 EPA Peer Review Handbook, supra note
U.S. Senate, 119th Cong. 170, 177, 192 (June 25, at §§ 1.2.1, 5.1, 5.2.1, and 5.3.6.
12, 2007). 31 GISELA PARAK, PHOTOGRAPHS OF
29 Letter to United States Envtl. Prot. Agency ENVIRONMENTAL PHENOMENA: SCIENTIFIC IMAGES
Administrator Gina McCarthy regarding IN THE WAKE OF ENVIRONMENTAL AWARENESS,
EPA Prioritization of Asbestos (Nov. 9, USA 1860S-1970S, 146 (Transcript-Verlag,
2016), available at https://www. 2015).
asbestosdiseaseawareness.org/wp-10 DEFENSE COUNSEL JOURNAL | JULY 2020 Toxic asbestos tailings swirl through Cleveland obsured by industrial smog in the western arm of Lake Superior. July 1973. Donald Emmerich/NARA Frank J. Alexsandrowice/NARA Sulfur-dusting of grapevines, May 1972. Heavy smog in Los Angeles, 1973. Gene Daniels/NARA Gene Daniels/NARA
The EPA’s March to Ban Asbestos 11
Environmentalists credit environment and support for a
Rachel Carlson’s Silent Spring as the decade of profound change.”36
catalyst of the modern Before the Exxon Valdez oil spill off
environmental movement. 32 Pub- the coast of Alaska in 1989, the
lished in 1962, Silent Spring Santa Barbara event was the worst
documents the adverse oil spill in the nation’s history.
environmental effects of the Across the nation, households
indiscriminate use of pesticides – watched television images of “oil-
DDT was the prime example. After drenched birds that couldn’t fly, sea
reading her book, President John F. otters that couldn’t swim, and tides
Kennedy established a committee that brought in the corpses of dead
to investigate pesticides.33 In 1972, seals and dolphins.”37 President
the U.S. banned the domestic sale of Richard Nixon remarked that the
DDT except where public health “incident has frankly touched the
concerns warrant its use. 34 In the conscience of the American
EPA Journal’s November 1985 people.”38 In the aftermath of the
Special Anniversary Issue, Jack spill, he signed the National
Lewis writes that the EPA is Environmental Policy Act on New
“without exaggeration to be the Year’s Day of 1970, making the
extended shadow of Rachel signing his first official act of the
Carson.”35 decade.
Beyond the impact of Silent
In his January 1970 State of the
Spring, a January 1969 oil leak from
Union Address, President Nixon
an offshore drilling site near Santa
proclaimed the new decade a
Barbara, California, “galvanized
period of environmental
public awareness of the
32 Current regulatory practices for chemical https://www.nytimes.com/2012/09/23/
carcinogens were established when magazine/how-silent-spring-ignited-the-
scientific understanding of the molecular environmental-movement.html.
mechanisms of chemical carcinogenesis 34 Id.
was in its infancy. In Silent Spring, Carson 35 Jack Lewis, The Birth of EPA, EPA J. (Nov.
presents a “no safe dose” argument about 1985), available at https://archive.
cancer. This zero-dose exposure argument epa.gov/epa/aboutepa/birth-epa.html.
is now known as the linear no-threshold 36 Martin Miller, The Oil Spill That Sparked
theory. Despite scientific consensus that the Green Revolution, L.A. TIMES (Nov. 3,
safe thresholds for carcinogens exist, the 1999), available at https://www.latimes.
EPA remains closely wedded to Ms. Carson com/archives/la-xpm-1999-nov-30-me-
and the precautionary principle. See Cato 38862-story.html; see also United States
Inst., Silent Spring at 50: The False Crises of Envtl. Prot. Agency, The Origins of EPA,
Rachel Carson 260 (Roger Meiners et al. eds. available at https://www.epa.gov/history/
Sept. 18, 2012). origins-epa.
33 Eliza Griswold, How ‘Silent Spring’ Ignited 37 Miller, supra note 36.
the Environmental Movement, N.Y. TIMES 38 Id.
(Sept. 21, 2012), available at12 DEFENSE COUNSEL JOURNAL | JULY 2020
transformation.39 In February 1970, and the use of this
the President outlined a information in strengthening
comprehensive, thirty-seven point environmental protection
program embracing twenty-three programs and
major legislative proposals and recommending policy
fourteen new measures to be taken changes.
by administrative action or
• Assisting others, through
Executive Order in five major
grants, technical assistance
categories (water pollution control,
and other means in arresting
air pollution control, solid waste
pollution of the environment.
management, parklands and public
recreation, and organizing for • Assisting the Council on
action). 40 In July 1970, President Environmental Quality in
Nixon sent Reorganization Plan No. developing and
3 to Congress to establish the EPA. recommending to the
Under the plan, “The principal roles President new policies for
and functions of the EPA would the protection of the
include: environment.”41
• The establishment and EPA opened its doors in
enforcement of December 1970 “to protect and
environmental protection enhance the environment.”42 To
standards consistent with fulfill its mission, the EPA had
national environmental “broad responsibility for research,
goals. standard-setting, monitoring and
enforcement with regard to five
• Research on the adverse
environmental hazards: air and
effects of pollution and on
water pollution, solid waste
methods and equipment for
disposal, radiation, and
controlling it, the gathering
pesticides.”43
of information on pollution,
39 Hon. Richard M. Nixon, Annual Message to 41 Hon. Richard M. Nixon, “Message of the
the Congress on the State of the Union, Jan. President” in Reorganization Plan No. 3 of
22, 1970, available at https://www. 1970, 35 Fed. Reg. 15,623 (1970), available
presidency.ucsb.edu/node/241063. at https://www.govinfo.gov/content/pkg/
40 Hon. Richard M. Nixon, Special Message to USCODE-2017-title42/html/USCODE-
the Congress on Environmental Quality. Feb. 2017-title42-chap55-sec4321.htm.
10, 1970, available at https://www.epa 42 William D. Ruckelshaus, EPA’s First
alumni.org/userdata/pdf/354_First_Presid Administrator on the Establishment of EPA
ential_Messag.pdf. (Dec. 16, 1970), available at
https://archive.epa.gov/epa/aboutepa/ep
as-first-administrator-establishment-
epa.html.
43 Id.The EPA’s March to Ban Asbestos 13
III. The EPA and Asbestos: Going In December 1970, President
Beyond the Environmental Nixon signed amendments to the
Pollution Problem Clean Air Act (“CAA”) which
established National Emission
During the same time period Standards for Hazardous Air
that the Nixon Administration was Pollutants (NESHAPs). The 1970
constructing the EPA, the World CAA required the EPA to publish a
Trade Center was being built in list of air pollutants that might
Lower Manhattan. Dr. William increase either mortality, serious
Nicholson of Mount Sinai's School irreversible illness, or
of Medicine estimated that 1,000 incapacitating illness. 48 On March
tons of asbestos would be used in 1971, the EPA’s first Administrator,
insulating the buildings, and that as William Ruckelshaus, designated
much as 20% of that would escape asbestos a hazardous air
into the air. 44 Drs. Nicholson and pollutant.49 The EPA then proposed
Arthur Rohl expressed particular emission standards for listed air
concern with the fireproofing of pollutants in December 1971 –
high rise buildings by a fibrous three months behind schedule
spray mixture containing 12-30% because of the “complexity” of the
asbestos. 45 They write that in the problem presented by the fact that
1960s “it was not uncommon to see there were no “standardized
extensive snowfalls of asbestos- methods” for measuring emission
containing material over areas of levels of asbestos.50 As a result, the
New York and other metropolitan Asbestos NESHAP the EPA
centers.”46 Called a “growing promulgated in April 1973 is
pollution danger,” in April 1970, phrased “not in terms of numerical
New York passed the first emission values” but in “control
regulations in the nation requiring
certain work practices to control
and contain asbestos sprayed onto
building structures.47
44 David Bird, Long Battle Seen to End 48 42 U.S.C. § 7408(a)(1).
Pollution, N.Y. TIMES, at 55 (Feb. 1, 1970). 49 E.W. Kenworthy. Industrial Emission
45 William J. Nicholson, Arthur N. Rohl, and Standards For 3 Air Pollutants Proposed.
E.F. Ferrand, Asbestos Air Pollution in New N.Y. TIMES, at 34 (Dec. 4, 1971), available at
York City, in H.M. Englund and W.T. Beery https://www.nytimes.com/1971/12/04/a
eds., PROCEEDINGS OF THE SECOND rchives/industrial-emission-standards-for-
INTERNATIONAL CLEAN AIR CONGRESS (1971) 3-air-pollutants-proposed.html; see also
136-139. United States Envtl. Prot. Agency, Office of
46 Id. Air and Water Programs, Standards
47 City Swears in Two to Act on Asbestos, Package for Hazardous Air Pollutants (Dec.
N.Y. TIMES, at 26 (Apr. 10, 1970). 1972).
50 Kenworthy, supra note 49.14 DEFENSE COUNSEL JOURNAL | JULY 2020
practices that will limit emissions to purposes not already
an acceptable level.”51 banned;54
The 1973 Asbestos NESHAP
• 1990: spray-on
covered work practices related to
application of materials
asbestos insulation and
containing more than 1%
fireproofing materials and
asbestos to buildings,
prohibited spray applications of
structures, pipes, and
those materials if they contained
conduits unless the material
more than 1% asbestos. 52 This was
is encapsulated with a
the EPA’s first ban on the use of
bituminous or resinous
asbestos-containing products.
binder during spraying and
Other bans pursuant to the
the materials are not friable
Asbestos NESHAP followed:
after drying.55
• 1975: installation of
In October 1979, the EPA issued
asbestos pipe insulation and
an advanced notice of proposed
asbestos block insulation on
rulemaking announcing its intent to
facility components like
explore the use of TSCA to ban
boilers and hot water tanks,
asbestos. 56 That year the total U.S.
if the materials are either
consumption of asbestos was
pre-formed (molded) and
560,000 tons, 6.6% of which was
friable or wet-applied and
highly toxic amosite asbestos and
friable after drying;53
crocidolite asbestos.57 An EPA-
• 1978: spray-applied appointed panel reviewed over 100
surfacing materials for studies of asbestos and conducted
51 Id. e+of+Proposed+Rulemaking,%E2%80%9D
52 See National Emission Standards for +44+Fed.+Reg.+60,061+(Oct.+17,+1979&s
Hazardous Air Pollutants (NESHAP), 40 ource=bl&ots=e2MUgWyD1e&sig=ACfU3U
CFR Part 61, Subpart M. 3nhGNjBOgWr_IHPR4fmoW5YDtI7g&hl=e
53 See id. at 40 C.F.R. § 61.148. n&sa=X&ved=2ahUKEwjn8YDs4Z_qAhWqc
54 See id. at 40 C.F.R. § 61.146. t8KHXJYCL8Q6AEwAHoECAIQAQ#v=onep
55 See id. age&q=United%20States%20Envtl.%20Pr
56 United States Envtl. Prot. Agency, ot.%20Agency%2C%20Advance%20Notic
Advance Notice of Proposed Rulemaking: e%20of%20Proposed%20Rulemaking%3
“Commercial and Industrial Use of A%20%E2%80%9CCommercial%20and%
Asbestos Fibers; Advance Notice of 20Industrial%20Use%20of%20Asbestos%
Proposed Rulemaking,” 44 Fed. Reg. 20Fibers%3B%20Advance%20Notice%20
60,061 (Oct. 17, 1979), available at of%20Proposed%20Rulemaking%2C%E2
https://books.google.com/books?id=cqvt %80%9D%2044%20Fed.%20Reg.%2060
MezJ11EC&pg=PA60061&lpg=PA60061&d %2C061%20(Oct.%2017%2C%201979&f
q=United+States+Envtl.+Prot.+Agency,+Ad =false.
vance+Notice+of+Proposed+Rulemaking:+ 57 Asbestos: Still Lethal/Still Legal: The
%E2%80%9CCommercial+and+Industrial Need to Better Protect the Health of
+Use+of+Asbestos+Fibers;+Advance+Notic American Workers and Their Families:The EPA’s March to Ban Asbestos 15
several public meetings. Based had barely begun to discover the
upon its studies and the public processes governing DNA damage,
comments, the EPA concluded in DNA repair, prevention of heritable
1986 that exposure to asbestos mutations, and organism level
poses an “unreasonable risk to responses to cancer.62
human health” and proposed at Interestingly, in February 1985,
least four regulatory options for the EPA announced that it planned
prohibiting or restricting its use. 58 to transfer regulatory authority
Admittedly, prior to 1986, the “EPA over asbestos to two other agencies
[had] focused its attention after the budget office withheld
primarily on asbestos in buildings, a approval of proposed EPA rules to
major source of asbestos release ban asbestos. 63 The EPA
into the ambient environment.”59 interpreted the TSCA as requiring
the agency to defer to OSHA and the
The EPA’s conclusion in 1986
CPSC because they were better able
that asbestos poses an
to assess and regulate the risks
“unreasonable risk to human health”
from hazardous substances. OSHA
was based on the linear non-
would be responsible for asbestos
threshold dose/response model
because the most exposed citizens
(LNT model). This model assumes
are workers. Where consumers are
that any exposure increases risk. 60
directly affected, the CPSC would
The LNT model was developed in
have jurisdiction. 64 The CPSC had
the 1970s based on studies of
banned the use of asbestos in
cancer induced by high doses of
artificial fireplace embers and wall
ionizing radiation and a relatively
patching compounds in 1977.65 The
new understanding that chemicals
EPA, however, pulled back from its
cause cancer through interaction
with DNA.61 At that time, scientists
Hearing Before the Subcomm. on 61 Rebecca A. Clewell et al., Dose-
Employment and Workplace Safety, United dependence of Chemical Carcinogenicity:
States Senate, 110th Cong., S. Hrg. 110-22, Biological Mechanisms for Thresholds and
17 (Mar. 1, 2007) (statement of Richard Implications for Risk Assessment, 301 CHEM.
Wilson), available at https://www.govinfo. BIOL. INTERACT. 112 (2019), available at
gov/content/pkg/CHRG-110shrg34334/ https://www.sciencedirect.com/science/a
pdf/CHRG-110shrg34334.pdf. rticle/pii/S0009279718314467.
58 United States Envtl. Prot. Agency, 62 Id.
Proposed Rule: “Asbestos; Proposed 63 Phillip Shabecoff, E.P.A. to Transfer
Mining and Import Restrictions and Authority Over Asbestos to 2 Agencies, N.Y.
Proposed Manufacturing, Importation, and TIMES (Feb. 1, 1985) available at https://
Processing Prohibitions,” 51 Fed. Reg. www.nytimes.com/1985/02/01/us/epa-
3738, 3751 (Jan. 29, 1986), available at to-transfer-authority-over-asbestos-to-2-
https://www.loc.gov/item/fr051019/. agencies.html.
59 Id. at 3739. 64 Id.
60 Id. at 3751. 65 16 C.F.R. Part 1305; 16 C.F.R. 1304.16 DEFENSE COUNSEL JOURNAL | JULY 2020
decision to turn over the regulation or 148 lives, depending upon
of asbestos to OSHA and CSPC.66 whether the benefits are
Finally, in 1989 the EPA issued discounted, at a cost of
a final rule prohibiting most approximately $450-800 million,
asbestos - containing products. 67 depending upon the price of
This is commonly known as the substitutes.70
“Asbestos Ban and Phaseout Rule.” In 1991, the U.S. Court of
By that time, the nation’s Appeals for the Fifth Circuit
consumption of asbestos had overturned most elements of the
drastically declined, and exposure ban on the manufacture,
limits were much lower than when importation, processing, or
the rulemaking process began in distribution in commerce relating
1979 (OSHA’s permissible to the majority of the asbestos-
exposure limit for asbestos was containing products originally
lowered from 2 in 1976 to 0.2 in covered in the EPA’s 1989 final
1986). The EPA’s action affected an rule. 71 The ruling upheld the
estimated 84% of asbestos provisions of the agency's 1989
products made in the U.S., including phase-out of asbestos use that were
brake linings, roofing, pipe, tile, and already in effect, but sent
insulation. 68 The final rule did not provisions that would have taken
affect asbestos materials in existing effect in 1993 and 1996 back to the
buildings. “This is pollution agency for more proceedings. As a
prevention,” EPA Administrator result, the 1989 asbestos regulation
William K. Reilly said at the time. He only bans new uses of asbestos in
also said that the EPA’s action products that would be initiated for
“should not be seen as a signal to the first time after 1989 and bans
other nations, especially five other specific product types:
developing nations, that use of corrugated paper, rollboard,
these products should be commercial paper, specialty paper,
discontinued.”69 The EPA estimated and flooring felt.
that this rule would save either 202
66 U.S. Agency Renews Its Request for Curbs sites/production/files/documents/nps57f.
on Use of Asbestos, N.Y. TIMES (Dec. 25, pdf.
1985) available at https://www.nytimes. 68 Phillip Shabecoff, E.P.A. to Ban Virtually
com/1985/12/25/us/us-agency-renews- All Asbestos Products by '96, N.Y. TIMES,
its-request-for-curbs-on-use-of- (July 7, 1989), available at https://www.
asbestos.html. nytimes.com/1989/07/07/us/epa-to-ban-
67 United States Envtl. Prot. Agency, Final virtually-all-asbestos-products-by-96.html.
Rule: “Asbestos; Manufacture, Importation, 69 Id.
Processing, and Distribution in Commerce 70 Corrosion Proof Fittings v. U.S. Envtl.
Prohibitions”, 54 Fed. Reg. 29460 (July 12, Prot. Agency, 947 F. 2d 1201, 1208 (5th
1989), available at https://www.epa.gov/ Cir. 1991).
71 Id. at 1207-1208.The EPA’s March to Ban Asbestos 17
The Fifth Circuit stated the EPA using TSCA. In the decades
had violated procedures of the following TSCA’s passage, Congress
TSCA when it drafted the 1989 found that “effective
asbestos ban by failing to evaluate implementation of TSCA by [EPA]
and reject less burdensome ha[d] been challenged by
alternatives.72 The court wrote, “the shortcomings in the statute itself,
EPA, in its zeal to ban any and all and by several key decisions of
asbestos products, basically Federal Courts and the Agency’s
ignored the cost side of the TSCA interpretation of those decisions.”74
equation” it is required to consider There had “been persistent
pursuant to statue and prior court concerns about the pace of EPA’s
decisions. Specifically, the court work under TSCA, the ability of the
also held in the OSHA context that Agency to use its existing authority,
until an agency “can provide and whether the statute prevent[ed]
substantial evidence that the certain regulatory efforts.” 75 Thus,
benefits to be achieved by [a Congress amended TSCA with the
regulation] bear a reasonable Lautenberg Chemical Safety Act in
relationship to the costs imposed 2016. 76 Importantly, the 2016
by the reduction, it cannot show amendments created a mandatory
that the standard is reasonably duty on the EPA to evaluate existing
necessary to provide safe or chemicals with clear and
healthful workplaces.”73 enforceable deadlines, and
Since the overturning of the eliminated the costs considerations
1989 ban, the EPA has failed to
regulate any existing chemicals
72 Warren A. Leary, Appeals Court Strikes 74 Committee on Environment and Public
Down Major Parts of Federal Asbestos Ban, Works. Frank R. Lautenberg Chemical
N.Y TIMES, (Oct. 22, 1991) available at Safety for the 21st Century Act Report,
https://www.nytimes.com/1991/10/22/u United States Senate, 114th Cong., S. Rept.
s/appeals-court-strikes-down-major- 114-67, at 2 (June 18, 2015), available at
parts-of-federal-asbestos-ban.html. https://www.congress.gov/congressional-
73 American Petroleum Inst. v. OSHA, 581 report/114th-congress/senate-
F.2d 493, 504 (5th Cir. 1978). report/67/1.
75 TSCA Modernization Act of 2015, H.R.
Rep. No. 114-176, 12-13 (June 23, 2015),
available at https://www.congress.gov/
congressional-report/114th-congress/
house-report/176/1.
76 See Frank R. Lautenberg Chemical Safety
for the 21st Century Act, Pub. L. No. 114-
182, 130 Stat. 448 (2016) (codified at 15
U.S.C. § 2601 et seq.), available at
https://www.congress.gov/114/plaws/pu
bl182/PLAW-114publ182.pdf.18 DEFENSE COUNSEL JOURNAL | JULY 2020
in the evaluation of an reinforced plastics; roofing felt;
“unreasonable risk.”77 separators in fuel cells and
The EPA was required to select batteries; vinyl-asbestos floor tile;
the first ten chemicals to undergo woven products; any other building
risk evaluations. These chemicals material; and “any other use of
were announced in December 2016. asbestos that is neither ongoing nor
Asbestos is one of those chemicals. already prohibited under TSCA.”78
By the end of 2019, the EPA was While the SNUR does not
required to have at least twenty actually prohibit these uses, none of
chemical risk evaluations ongoing them may return to the
for chemicals it designates High- marketplace without EPA review of
Priority Substances. The EPA their potential risks to health and
started releasing draft risk the environment. The SNUR
evaluations for the chemicals, essentially removed the uses from
beginning with pigment violet 29, in the EPA’s risk evaluation of
November 2018. In March 2020, asbestos.
asbestos became the ninth draft
risk evaluation released by EPA. IV. Conclusion
In April 2019, the EPA issued a
final Significant New Use Rule In 1979 when the EPA
(SNUR) under TSCA to prevent performed its first risk evaluation
certain discontinued uses of for asbestos, asbestos pollution was
asbestos from re-entering the a relatively significant issue. That is
marketplace without EPA review. not the case anymore. But, if history
The SNUR covers a number of repeats itself, we are near the
target uses for which the EPA “has beginning of another long and
found no information” indicating bumpy road that the last time took
that they are ongoing: adhesives, the EPA years to complete and
sealants, and roof and non-roof spawned litigation. The Ninth
coatings; arc chutes; beater-add Circuit has already weighed in,
gaskets; cement products; extruded ruling in November 2019 that the
sealant tape and other tape; filler EPA violated TSCA by excluding
for acetylene cylinders; certain legacy uses of chemicals, like
friction materials; high-grade asbestos, from consideration in its
electrical paper; millboard; missile current round of TSCA risk
liner; packings; pipeline wrap;
77 See Safer Chemicals, Healthy Families v. Asbestos; Significant New Use Rule,” 84
U.S. Envtl. Prot. Agency, 943 F.3d 397 (9th Fed. Reg. 17346 (Apr. 25, 2019), available
2019). at https://www.govinfo.gov/content/pkg
78 United States Envtl. Prot. Agency, FR-2019-04-25/pdf/2019-08154.pdf.
“Restrictions on Discontinued Uses ofThe EPA’s March to Ban Asbestos 19 evaluations. 79 The ADAO, men- tioned above, was a petitioner in that lawsuit. The March 2020 draft risk evaluation does not address legacy uses of asbestos at this time. This is just one early indication that the EPA’s risk evaluation of asbestos will be fodder for many more articles (and much litigation) to come. 79See Safer Chemicals, Healthy Families, 943 F.3d at 425.
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