In June 2016, President Obama signed into law the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” bringing about much-needed major reform to the 1976 Toxic Substances Control Act (TSCA). While the TSCA amendment gave the Environmental Protection Agency (EPA) additional authority to regulate hazardous chemicals such as asbestos, whether or not the EPA under President Donald Trump will utilize that authority is very much in doubt.
The purpose of TSCA was to give EPA authority to gather health and safety information on chemicals and to set health and safety rules. This includes imposing limits or bans on the production and use of chemicals where the EPA determined those chemicals threatened human health or the environment.
Yet, in practice, the EPA often found itself hamstrung by TSCA’s various limitations. For instance, the law gave the EPA little power to order testing of the chemicals it was tasked with regulating, particularly those chemicals that had little available health and safety information.
In a 2006 report, the Government Accountability Office (GAO) found that, because of this limited power, the EPA had managed to test fewer than 200 chemicals since 1976. To put that in perspective, in 1979, about 62,000 chemicals were in use or production in the United States. Since then, more than 20,000 new chemicals have been added to that list. Put more bluntly, TSCA gave the EPA the job of creating rules for the safe handling of chemicals, but left EPA without the tools needed to determine which chemicals posed a danger.
The GAO report also found that, “[e]ven when EPA has toxicity and exposure information on existing chemicals, … it has had difficulty demonstrating that harmful chemicals pose an unreasonable risk and that they should be banned or have limits placed on their production or use.”
In those cases where EPA did find a chemical posed a risk to health or environment, TSCA forced the EPA to do cost-benefit analyses on various options for regulating the chemical and to choose the “least burdensome alternative.”
So, rather than imposing purely health-based safety standards, TSCA forced the EPA to choose standards that imposed the lowest cost to industry. As a result, the EPA has taken action to ban or restrict the use of a grand total of nine out of more than 80,000 currently produced chemicals in the United States. Indeed, an EPA rule to ban asbestos under TSCA was overturned in an industry-supported court challenge in 1991. Consequently, the use of asbestos in the United States remains legal.
The 2016 amendment added some teeth to TSCA. First, the new law expanded the EPA’s authority to require testing of a chemical substance when adequate information on its safety does not exist. The new law also significantly reformed the process for reviewing new chemicals as they come onto the market. Production of a chemical cannot begin unless the manufacturer complies with EPA health and safety rules, or unless the EPA affirmatively determines the chemical is not likely to present an unreasonable risk.
Most importantly, the amendments allowed EPA to make determinations of whether a chemical substance presents an “unreasonable risk” without considerations of cost and removed the requirement that EPA choose the “least burdensome alternative” when deciding what types of health and safety rules to impose.
The law itself does not put health and safety rules in place; it only paves the way for the EPA to take action. Late last year, the EPA chose ten chemicals to begin reviewing under the new rules immediately. Asbestos made that list. Asbestos awareness advocates heralded the move as the first step to an asbestos ban. More than 15,000 Americans die every year from asbestos-related diseases.
Yet under the new administration, despite the desperate need for a U.S. asbestos ban to protect Americans, it is unclear what action the EPA will take to keep Americans safe, not just from asbestos, but all chemicals. The early signs are less than encouraging.
President Trump’s pick for EPA administrator, Scott Pruitt, has not announced a position on asbestos, but is a friend of the oil, gas, and power generation industries, historical users of asbestos. President Trump himself once declared that the “movement against asbestos was led by the mob,” and that asbestos just “got a bad rap.” As recently as 2012, Mr. Trump lamented that the twin towers of the “World Trade Center would never have burned down” had asbestos fireproofing been used on the buildings’ upper floors.
With the passage of the Lautenberg Act, it was hoped that the EPA would finally be able to impose an asbestos ban that would stand up to industry challenge. However, unnecessary exposure to – and death from – asbestos will continue to impact U.S. citizens unless and until the Trump administration chooses to take action.