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Dec. 10, 2019 Update: The regulations discussed in this fact check went into effect on June 24, 2019. For more information on why we dispute the EPA's characterization of their Significant New Use Rule for asbestos, please read this additional September 2018 article on the topic. On 1 June 2018, the Environmental Protection Agency (EPA) Office of Pollution Prevention and Toxics announced a proposed Significant New Use Rule (SNUR) for asbestos, a mineral once widely used in the construction of buildings due to its flame-retardant properties but now uncontroversially considered a carcinogen. The necessity for such a rule, in general, stems from the fact that not all uses of asbestos are currently banned; some of them remain unregulated thanks to a 1991 court ruling. The asbestos uses the 2018 SNUR applies to are ones that had not been banned by earlier regulations and remained in active use at the time of the 1991 court ruling, but are no longer in use due to users' desires to avoid contracting cancer or liability for causing cancer in others. The EPA refers to these uses as currently unregulated former uses. SNURs are a mechanism within the Toxic Substances Control Act (TSCA) that mandate specific EPA approval when a chemical is used in a significantly new way or in a significantly new mixture that might create concerns.: The TSCA is currently undergoing a major overhaul that began under the Obama administration and was reinterpreted in radically divergent ways under the Trump administration. When former EPA Administrator Scott Pruitt (a Trump appointee who resigned amid accusations of misconduct) explained the proposed SNUR for asbestos, he described it as part of an unprecedented set of new protections against the dangers of asbestos which require manufacturers to receive EPA approval before starting or resuming manufacturing, and importing or processing of asbestos. In their correspondence with us, the EPA stated that the proposed rule serves to ensure that the manufacture, import, or processing for the currently unregulated former uses of asbestos identified in the rule are prohibited unless reviewed and approved by EPA. According to critics, the problem with this position is twofold. The first problem concerns the way in which the current EPA has written the SNUR, which EPA staffers have privately worried does not allow for the ban of all currently inactive unregulated uses but instead only concerns 15 specific uses the EPA believes to be comprehensive and thus could allow for the continued legality of some now dormant uses. The second problem concerns the way in which the EPA has proposed to evaluate the risk of these currently unregulated former uses. In May 2018, the EPA published a document known as the Problem Formulation of the Risk Evaluation for Asbestos, which establishes the scientific approach the EPA will take in evaluating these new uses. Significantly, their approach will not include information from existing (or legacy) uses of asbestos, despite the significant body of work around health risks stemming from those uses: E&E News reported that this approach may serve to severely limit the types of exposures the EPA will consider when formulating the potential risk of new uses for asbestos: According to the New York Times, the new rules will serve to narrow the ways in which asbestos itself is defined as well: Three former EPA officials, including the former supervisor of the toxic chemical program, told the New York Times that such stipulations would necessarily create flawed analyses of the threat posed by any chemical currently being re-evaluated by the EPA: Senator Tom Udall, a Democrat from New Mexico, argued that former EPA head Scott Pruitt was undermining a bipartisan push to reform the TSCA that began under President Obama. Congress worked hard in bipartisan fashion to reform our nation’s broken chemical safety laws, but Pruitt’s E.P.A. is failing to put the new law to use as intended, he said in a statement. President Trump spoke on the topic of asbestos long before his election to the White House. In his 1997 book The Art of the Comeback, Trump argued that the chemical is actually safe once applied and suggested that the link to health problems was manufactured by mob-connected companies which perform asbestos removal: I believe that the movement against asbestos was led by the mob, because it was often mob-related companies that would do the asbestos removal. Great pressure was put on politicians, and as usual, the politicians relented. While it is true that the uses of asbestos discussed in the 2018 SNUR are currently legal, their health and litigation risks have rendered them effectively dead. The current administration has established a process for some of those uses to be granted formal approval by the EPA if they pass a safety review many scientists find flawed. For these reasons, we concur with the leaked opinion of EPA lawyer Mark Seltzer, an attorney advisor to the EPA Chemical Risk and Reporting Enforcement Branch who worked on the SNUR and concluded that: This new approach allows asbestos-containing products that are not currently used to be used in the future.
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