The Environmental Protection Agency (EPA) in the United States announced a proposed new rule, called a Significant New Use Rule (SNUR), regarding asbestos in June.

The EPA claimed that the rule would increase restrictions, while critics – including some current and former EPA employees – worried it could open up loopholes. Others say it doesn’t go far enough. The reality of what effect the law will have remains a little uncertain.

Asbestos is a type of naturally occurring mineral that was used widely in the United States and Europe until the 1970s, especially in the construction and automotive sectors.

Earlier rules

The material is resistant to fire and chemical corrosion and does not conduct electricity. It has been used in the production of cement, plastics, insulation, roofing shingles, floor tiles, paints and elsewhere.

Since the 1970s, however, the use of asbestos has declined significantly due to concerns about its health impacts. It is classified as a known human carcinogen and has been shown to cause mesothelioma and other forms of cancer.

The use of asbestos is banned in more than 60 countries, and the substance kills nearly 40,000 Americans a year, according to the Asbestos Disease Awareness Organization. It seems strange then that the EPA is proposing a rule that, if its critics are right, could bring more asbestos into the US. Here’s the explanation.

There’s room for such a rule because although the use of asbestos is restricted in the United States, it is not entirely banned.

Between 1970 and 1989, the US banned several specific uses of asbestos. In 1989, the EPA attempted to ban all new applications, meaning those developed before 1989 were exempt from the ban, except for those singled out and prohibited by earlier rules.

Boost asbestos

However, the US Circuit Court of Appeals overturned most of this ban in 1991. As a result, the only applications of asbestos the 1989 rules bans are new uses and five that the court did not overturn, which were already obsolete.

The new SNUR would require that certain non-banned uses of asbestos are subject to review by the EPA. Under the rule, companies wanting to use asbestos for these applications would have to notify the EPA, and the agency could decide to allow, regulate or prohibit the usage.

Specifically, the rule applies to what the EPA calls “currently unregulated former uses”. These applications include those that had not been banned and were active at the time of the 1991 court ruling but are no longer in use.

Health concerns are the primary reasons these uses are no longer active. In the rule, the EPA lists 15 of these market uses. The EPA has noted that, without the new rule, companies could start using asbestos for these applications without notifying the EPA.

So, if the rule involves EPA reviews of asbestos uses, why do some believe it could boost asbestos use? The problems that critics point to include the language with which the agency wrote the SNUR and the way it plans to evaluate these applications. Some also believe that the proposal does not go far enough.

Stringent

According to internal EPA emails, some agency staff are worried that the language of the SNUR would allow some uses of asbestos to avoid review. Because the rule only lists 15 applications, currently unregulated uses that the EPA did not list could potentially avoid regulation.

Another concern is related to how the agency has indicated it will review the risks associated with asbestos. According to recently released EPA documents about how the agency plans to review potentially toxic chemicals, it will not consider the impacts of potential exposure due to a chemical’s presence in the air, ground or water. It will instead look at risks associated with direct contact.

Critics say that this severely limits the scope of the review and would exclude the impacts of things like improper disposal.

The documents also narrow the definition of asbestos, meaning the EPA will not assess some asbestos-like fibers. It also will not review existing uses of asbestos or the disposal of asbestos and products containing it.

This limited scope suggests that any potential reviews of unregulated uses of asbestos likely won’t be very stringent, according to critics.

Potentially harmful

The recent EPA actions, critics point out, represent a drastic change from the original intent of the Toxic Substances Control Act (TSCA), a law directing the EPA to review potentially harmful chemicals including asbestos.

When Congress strengthened the TSCA in 2016, some lawmakers saw it as a chance to try again to ban asbestos broadly. The recent EPA actions do not seem to support this notion.

The impact of these actions, especially regarding asbestos, is somewhat uncertain. There’s reason to believe, though, they will change little for the average American.

The SNUR deals mostly with market uses of asbestos that are already obsolete, primarily due to their associated health concerns. These applications have been unregulated for decades, but businesses have still opted not to use them.

Using them is not only a health risk, it would also be a tremendous financial risk for the companies due to potential lawsuits. An estimated 100 companies have been forced into bankruptcy proceedings due to asbestos liabilities.

What’s really at stake is the larger role that the EPA will play in regulating chemicals, as the way that the agency handles asbestos may be an indication of how it will treat other potentially harmful substances.

This Author

Emily Folk is a conservation and sustainability writer and the editor of Conservation Folks.