Hunton Retail Law Resource

On March 30, 2020, the United States Environment Protection Agency (EPA) issued its long-awaited draft risk evaluation for asbestos. In it, EPA preliminarily concludes that certain uses of asbestos pose unreasonable risks to human health. If those conclusions are made final, EPA will issue regulations addressing those risks in what would arguably be the most significant action the agency has taken to regulate asbestos since its 1989 ban was successfully challenged by industry groups.

In the draft asbestos risk evaluation, EPA analyzed the following “conditions of use” of asbestos:

• imported raw bulk chrysotile asbestos for the fabrication of diaphragms (used in chlorine and sodium hydroxide production);
• sheet gaskets (used in chemical production, e.g., titanium dioxide production);
• oilfield brake blocks;
• aftermarket automotive brakes/linings and other vehicle friction products; and
• other gaskets.

As to those conditions of uses, EPA has preliminarily concluded as follows:

The following occupational uses do present an unreasonable risk to human health:

• Processing and industrial uses of asbestos diaphragms in the chlor-alkali industry
• Processing and industrial use of asbestos-containing sheet gaskets in chemical production
• Industrial use and disposal of asbestos-containing brake blocks in oil industry
• Commercial use and disposal of aftermarket automotive asbestos-containing brakes/linings
• Commercial use and disposal of other vehicle friction products
• Commercial use and disposal of other asbestos-containing gaskets

The following consumer uses do present an unreasonable risk to human health:

• Aftermarket automotive asbestos-containing brakes/linings
• Other asbestos-containing gaskets

The following conditions of use do not present an unreasonable risk to human health:

• Import of asbestos and asbestos-containing products
• Distribution of asbestos-containing products
• Disposal of asbestos-containing sheet gaskets processed and/or used in chemical production
• Import, use, distribution and disposal of asbestos-containing brakes for the specialized and large National Aeronautics and Space Administration (NASA) transport phase (Super Guppy)

EPA did not find any unreasonable risks to the environment under any condition of use.

Notably, EPA omitted from the risk evaluation “legacy uses”—or uses that are no longer ongoing, like asbestos-containing insulation—and disposals associated with those uses. In November 2019, the Ninth Circuit Court of Appeals ordered EPA to analyze those uses after a coalition of consumer advocacy groups challenged EPA’s decision to exclude them. Citing concerns about the quality of any analysis conducted in the span of just a few months, EPA committed to conducting a supplemental risk evaluation addressing those uses rather than including them in the current draft risk evaluation. EPA did not, however, specify when it expects to move forward with the supplemental risk evaluation.

Peer Review of Asbestos Risk Evaluation to be Conducted Virtually

EPA also announced plans to convene a three-day public meeting of its Science Advisory Committee on Chemicals (SACC) from April 27-30, 2020. During the meeting, members of the SACC will comment on the draft risk evaluation’s conclusions, which must be finalized no later than TSCA’s statutory deadline of June 19, 2020. Although the agency plans to conduct the meeting virtually in light of the ongoing COVID-19 pandemic, the Asbestos Disease Awareness Organization (ADAO), a prominent plaintiff advocacy group, has already asked EPA to postpone it indefinitely out of concern about the ability of SACC members (particularly those who are practicing physicians) to meaningfully participate in a review.

Comments on the draft asbestos risk evaluation should be submitted no later than April 22, 2020 to be considered by the SACC ahead of the peer review meeting. All other comments must be submitted no later than 60 days after EPA formally publishes the draft risk evaluation in the Federal Register.

Looking Forward

Assuming that EPA finalizes its findings of “unreasonable risk,” it will issue regulations. Both consumer advocacy and industry groups will closely follow that process, challenging proposed regulations they view to be inappropriate in light of the risks (or lack thereof) identified by EPA. Litigation challenging regulations creates significant compliance uncertainty for companies—for example, EPA’s 1989 asbestos ban was litigated for two years before it was partially overturned in 1991.

Companies whose products may contain traces of asbestos should also keep a close eye on EPA’s activities in the coming months. EPA has previously indicated that it would not analyze any uses associated with “de minimis” uses of asbestos or where asbestos was present only as an impurity. That decision was preemptively challenged by the consumer group coalition in the Ninth Circuit litigation, but the court declined to rule on the challenge on the grounds that it was premature.

Although EPA’s description of its supplemental risk evaluation suggests that the agency intends to continue excluding de minimis and impurity uses from its analysis, it may nevertheless include them in its supplemental risk evaluation—whether of its own volition or in response to consumer group pressure and/or court action. We expect consumer groups to mount aggressive challenges to any perceived deficiencies in EPA’s analysis, starting with the agency’s decision to postpone its compliance with the Ninth Circuit’s order beyond the June 2020 deadline mandated by TSCA and continuing throughout the supplemental evaluation process. Those challenges will not only raise companies’ litigation risk, but could also eventually require EPA to issue regulations that would significantly affect their businesses.

EPA’s draft asbestos risk evaluation and supporting documents can be found here. For more information on the Ninth Circuit’s decision in Safer Chemicals Healthy Families, et al. v. EPA, No. 17-72260 (9th Cir. Nov. 14, 2019) and its impact on the TSCA risk evaluation process, see our prior analysis here.