Posted on April 21, 2024

As ADAO begins another legal battle against the Environmental Protection Agency (EPA), we wanted to explain how we got to where we are today. 

Here is a brief run-through of the history of asbestos regulations in the U.S. and how ADAO got involved in trying to create policy that better protects Americans from asbestos exposure. 

Historical Asbestos Regulation (1989 – 1991)

  1. 1989 Asbestos Ban and Phase Out Rule (Remanded): In 1989, the EPA issued a final rule banning most asbestos-containing products. 
  2. However, this regulation was overturned by the Fifth Circuit Court of Appeals in 1991, leaving only a few asbestos-containing products banned.

Recent Asbestos Regulations (2016 – 2024)

  1. Toxic Substances Control Act (TSCA) Reform in 2016: The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Chemical Safety Act) was signed into law. The Lautenberg Chemical Safety Act amends the Toxic Substances Control Act (TSCA), the nation’s primary chemicals management law.
  2. In 2019, the EPA promulgated a final Significant New Use Rule (SNUR) for asbestos, using the definition in TSCA Title II, section 202. This definition defines asbestos as the “asbestiform varieties of six fiber types—chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite or actinolite.” The significant new use of asbestos (including as part of an article) is manufacturing (including importing) or processing for ongoing or prohibited uses under TSCA. 
  3. In 2020, the EPA completed its final risk evaluation for asbestos, finding unreasonable risks to public health due to the ongoing use of chrysotile asbestos.
  4. 2024 TSCA Section 8(a)(1) Asbestos Reporting Rule: In February 2024, the EPA rule was announced and requires certain persons who manufactured, imported, or processed asbestos and asbestos-containing articles (including as an impurity) in the last four years to report certain exposure-related information, including quantities of asbestos manufactured or processed, types of use, and employee data. Reporting takes place from February 24 to May 24, 2024. 
  5. 2024 EPA Part 1 Chrysotile Asbestos Risk Management Rule: In March 2024, the EPA finalized a risk management rule to prohibit the ongoing uses of chrysotile asbestos, the only form of asbestos currently imported into the U.S. This rule addresses the unreasonable risks identified for chrysotile asbestos in the 2020 Part 1 risk evaluation.
  6. 2024 EPA Part 2 Asbestos Risk Evaluation (Legacy Uses and Disposals): In April 2024, the EPA published Part 2 of the Risk Evaluation for Asbestos, which will assess legacy uses, associated disposals, and all types of asbestos fibers, including those beyond just chrysotile. The EPA released a white paper in August 2023 outlining its approach for this supplemental evaluation.

ADAO Legal Challenges 

  1. Safer Chemicals, Healthy Families v. EPA (2019): In 2017, ADAO and other public health organizations filed a petition in the U.S. Court of Appeals for the Ninth Circuit to challenge the EPA’s “framework rule” for risk evaluations under the 2016 TSCA amendments. The key issue was the EPA’s interpretation that “legacy uses” and “associated disposals” of asbestos were not considered “conditions of use” under TSCA and, therefore, could be excluded from the agency’s risk evaluation.

In November 2019, the Ninth Circuit Court of Appeals ruled in favor of the plaintiffs, holding that the EPA’s exclusion of legacy uses and associated disposals from its risk evaluation “contradicts TSCA’s plain language.”[1] This landmark decision ensured that the EPA must consider the risks posed by the presence of asbestos in existing buildings, products, and waste when conducting its evaluations. (Case: 17-72260)

  1. ADAO v. EPA (2019): In September 2018, ADAO and several public health organizations petitioned the EPA to increase reporting requirements for companies importing and using asbestos under the Chemical Data Reporting (CDR) rule. The EPA denied the petition, stating that the petitioners had not demonstrated the need to amend the CDR rule. 

In February 2019, ADAO and its co-petitioners filed a lawsuit against the EPA in the U.S. District Court for the Northern District of California, challenging the agency’s denial. In December 2019, the court granted summary judgment for the plaintiffs, ruling that the EPA’s decision was “arbitrary and capricious” and that the agency must amend the CDR rule to address the identified information-gathering deficiencies. (Case: C19-cv-0871-EMC)

  1. ADAO v. EPA (2021): In January 2021, ADAO and other public health organizations filed a petition with the Ninth Circuit Court of Appeals to review the EPA’s Final Risk Evaluation (FRE) for Asbestos, which was released in December 2020. The petitioners argued that the FRE had significant gaps and omissions, failing to consider all asbestos fibers, known health effects, and current uses and ignoring asbestos-contaminated talc and environmental pathways of exposure.

Additionally, ADAO and its partners sent the EPA a 60-day notice letter, informing the agency of their intent to file suit under TSCA Section 20 to compel the EPA to evaluate the risks of “legacy” asbestos found in millions of buildings across the United States. In May 2021, ADAO filed this lawsuit in the U.S. District Court for the Northern District of California. (Case 3:21-cv-03716)

  1. On April 19, 2024, ADAO filed a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit to strengthen the Environmental Protection Agency’s (EPA) “Part 1 Chrysotile Asbestos: Regulation of Certain Conditions of Use Under the Toxic Substances Control Act.”
    1. The petition underscores several significant concerns: prolonged transitions for asbestos technology changes, insufficient controls over existing asbestos materials, and inadequate coverage of environmental release pathways.
    2. ADAO and its co-petitioners are calling for immediate action to revise and strengthen the rule to ensure comprehensive protection against one of the most notorious industrial hazards. The organization remains committed to its dual-track strategy with the EPA and Congress to eliminate all asbestos-related diseases and safeguard public health. (Case: 24-1090)

Forthcoming Asbestos Regulations

  1. FDA Modernization of Cosmetics Regulation Act (MoCRA): In April, the FDA is expected to finalize the MoCRA rule, which establishes and mandates standardized testing methods for detecting and identifying asbestos in talc-containing cosmetic products.
  2. On April 19, 2024, ADAO filed a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit to strengthen the Environmental Protection Agency’s (EPA) “Part 1 Chrysotile Asbestos: Regulation of Certain Conditions of Use Under the Toxic Substances Control Act.”
    1. The petition underscores several significant concerns: prolonged transitions for asbestos technology changes, insufficient controls over existing asbestos materials, and inadequate coverage of environmental release pathways.
    2. ADAO and its co-petitioners are calling for immediate action to revise and strengthen the rule to ensure comprehensive protection against one of the most notorious industrial hazards. The organization remains committed to its dual-track strategy with the EPA and Congress to eliminate all asbestos-related diseases and safeguard public health.
    3. Since the Part 1 Rule was published, the Rule has been challenged in at least five separate actions by industry, labor, and environmental stakeholders. As a standard practice, the federal Judicial Panel on Multidistrict Litigation consolidated the pending cases in a court chosen by random drawing. The Panel randomly selected the 5th Circuit to review the consolidated petitions.