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The Insider

Frustrated With EPA, Lawmakers Seek Bipartisan Approach On Asbestos

House lawmakers frustrated with EPA’s handling of asbestos under the revised Toxic Substances Control Act (TSCA) are signaling openness to pursuing bipartisan negotiations on a Democratic bill that would outright ban the import and use of the substance.

EPA’s plan to regulate rather than ban certain uses of asbestos through a significant new use rule (SNUR) has become a target for environmentalists and public health advocates who say the Trump administration is failing to adequately implement the 2016 revised TSCA.

The U.S. Court of Appeals for the 5th Circuit blocked EPA's 1989 attempt to ban asbestos using its authority in section 6 of the original 1976 TSCA, and the agency rarely attempted to use the authority thereafter. The 1991 ruling became a rallying cry to give EPA greater authority to regulate toxic chemicals beyond what the toxics law authorized.

In remarks to reporters this week, Rep. John Shimkus (R-IL), the ranking member on the Energy and Commerce Committee's environment panel, suggested a willingness to pursue bipartisan compromise on H.R. 1603, Democrats’ bill seeking to require EPA to ban importation and uses of asbestos within one year of enactment.

Republicans See Possibility Of Compromise On Bill Restricting Asbestos
Top House Republicans say they could agree to a compromise with Democrats on a bill to limit asbestos risks, though they say any deal will have to address concerns that a bill does not unduly limit production of chlorine used to treat drinking water and does not impose infeasible testing and other requirements on EPA.

“I think there's definitely stomach to try to do something,” Shimkus told reporters following a May 8 hearing, where GOP lawmakers agreed that certain forms and uses of asbestos pose significant health risks. “We'll go from here. We’ll see where is that ground, I know that they would like to see a strong bipartisan bill."

While suggesting compromise, GOP lawmakers also said at the hearing that any bill should take a common-sense approach and raised concerns about limiting the production of chlorine used for drinking water treatment. And in questioning of Alexandra Dunn, EPA’s toxics chief, they expressed frustration over continued uses.

For example, Rep. David McKinley (R-WV) noted that the construction industry has found alternatives for its former uses of asbestos and asked Dunn why other industries haven't replaced asbestos in other kinds of products. “Why in god's name do we still use this?”

House Democrats grilled Dunn over the agency's narrow approach to addressing risks of asbestos, though Dunn declined comment on a pair of leaked internal memos regional staff wrote raising concerns about the agency's approaches and underscoring concerns raised by environmentalists and others.

Democrats Grill Toxics Chief Over EPA's Narrowed TSCA Review Of Asbestos
In response to questions from Democrats, Dunn defended EPA’s approach to addressing legacy uses of asbestos. “We are not ignoring the legacy asbestos problem. We do believe there are extensive federal, local and state requirements that address legacy asbestos if it is to be disturbed and disposed of,” she said.

Dunn was asked again about EPA's treatment of legacy uses of chemicals in its asbestos evaluation and the analyses of the other nine chemicals first selected for review during a May 9 meeting of EPA's Children's Health Protection Advisory Committee.

“With 43,000 chemicals [on the TSCA inventory] we are trying to focus on where we can make a difference,” Dunn replied. “When we got to the legacy uses, it's harder to see how we go there and use [TSCA]. . . . We've thought a lot about it. With asbestos, if it's not disturbed, it's not a health risk. . . . With past uses there are other ways that the public can be protected. Again, we've been sued over it; my answer may not be satisfying.”

Dunn’s remarks follow EPA’s issuance last month of an expanded final SNUR that makes at least two new categories of asbestos uses subject to the regulation. The change includes a broad category of “all other uses of asbestos that are no longer ongoing and not already prohibited under TSCA,” as well as a category covering “friction materials."

EPA Expands Asbestos SNUR While Curbing Risk Evaluation, Irking Critics
EPA's recently finalized rule regulating renewed uses of asbestos expanded the number of applications subject to regulation but cut some of those applications from a related risk evaluation of existing uses, angering critics who say the agency is further narrowing any future toxics rule on existing uses and shows why a total ban on asbestos is needed.

Robert Sussman, a former EPA deputy administrator who is now counsel to the Asbestos Disease Awareness Organization (ADAO), describes EPA's risk evaluation as “shrinking” because of EPA's efforts to limit the uses of asbestos included.

Such criticism intensifies long-standing concerns that EPA is using its framework TSCA rules to limit the categories of uses it will consider in risk evaluations of existing chemicals. The rules generally exempt legacy uses and those that are already regulated by other EPA programs or other agencies. For example, firefighters are concerned that without evaluation of legacy uses of asbestos, they could face greater risks.

EPA Drops Plan To Weigh First Responders' Asbestos Risk, Citing Legacy Use
EPA has dropped an early plan to consider risks of asbestos exposures to firefighters and other first responders due to its policy of excluding legacy uses from consideration for possible regulation under the revised toxics law, a move that is drawing protest from a group representing the workers and highlights the controversy around the policy decision.

EPA's recently finalized SNUR, issued under TSCA section 5(e), generally requires manufacturers and others who want to revive abandoned uses of asbestos to inform the agency in advance so it can review those uses and impose any restrictions needed to meet the risk standard.

Industry Raises Fears Over EPA's Asbestos Shift But Largely Backs SNUR
Industry lawyers who represent chemical and other industries are generally backing EPA's recently expanded SNUR governing legacy uses of asbestos, though like environmentalists, some industry attorneys are raising concerns that EPA has shifted certain uses from a related evaluation of ongoing uses to the SNUR.

Also, this month EPA issued a notice in the Federal Register giving reasons for its recent denial of a January petition from more than a dozen states, including Maryland, Maine, California and Hawaii. Following an earlier, nearly identical petition from ADAO and others, the states asked EPA to pursue a TSCA section 8(a) reporting rule on the processing and manufacture of asbestos to gather more information about ongoing uses of the minerals.