Much to the mesothelioma community’s dismay, asbestos is not banned in the United States. But the Toxic Substances Control Act (TSCA) does limit how asbestos is used. Asbestos victim advocates have long supported strengthening the TSCA. Now, for the first time since it took effect, the U.S. Senate is considering major changes to the law.
But asbestos victim advocates worry that the proposed changes would make the TSCA less effective.
What Is the Toxic Substances Control Act?
Congress passed the Toxic Substances Control Act in 1976 to regulate the manufacturing and use of toxic substances. Specifically, the law gives the U.S. Environmental Protection Agency (EPA) authority to collect safety data and issue regulations for a variety of toxic substances, including asbestos. The EPA’s regulatory authority is broad and ranges from imposing testing and labeling requirements to banning substances.
According to the EPA, it has used its authority to establish standards “to prevent chemicals from posing unreasonable risk.” But asbestos victim advocates and other critics argue that those standards don’t do enough to prevent the unreasonable risks posed by asbestos.
What’s Wrong with the TSCA?
Perhaps a more accurate question is: What went wrong when the EPA tried to use its powers under the TSCA?
To the EPA’s credit, it attempted to ban most asbestos-containing products in 1989, following a decade of research and public hearings. But after a group of corporations filed suit to block the EPA’s “Asbestos Ban and Phaseout Rule,” a federal appeals court rejected key portions of the rule that would have protected the public from the dangers of asbestos. Although the court agreed with the EPA’s finding that asbestos is a hazardous substance that presents serious risks in a variety of industries, it held that the EPA lacked substantial evidence to support a ban.
With its hands tied by the 1991 court decision, the EPA abandoned its plans to ban a variety of asbestos uses, including its use in gaskets, roof coating, clothing, floor tile and disc brake pads. But the decision did leave the EPA room to ban the use of asbestos in a few products such as corrugated paper, flooring felt and rollboard. It also left the EPA free to ban new uses of asbestos after 1989.
Critics argue that the court’s decision slowed down the EPA’s efforts to restrict the production and use of toxic substances. According to a GAO report, the EPA had only restricted five chemicals by 1994. That number includes the asbestos regulations which were scaled down. Critics widely consider the EPA timid when comes to its willingness to exercise power under the TSCA.
Will Amending the TSCA Help?
In May, Sen. Frank Lautenburg of New Jersey introduced a bill to amend the TSCA. The bill, known as the Chemical Safety Improvement Act (S. 1009), purports to “improve the safety of consumers” and “ensure that risks from chemical substances are adequately understood and managed by modernizing title I of the [TSCA].” But critics and asbestos victims and advocates are skeptical that the bill would actually fulfill those purposes.
Among other things, Title I of the TSCA governs:
- the testing of chemicals;
- the 90-day notice manufacturers are required to give the EPA before producing or introducing a new chemical product into the United States ;
- the EPA’s regulatory controls for hazardous chemicals;
- procedures regarding how the EPA gathers information and handles confidential business information;
- the extent to which parties can challenge the EPA’s rules in court; and
- the extent to which EPA rules take priority over state laws (known as “preemption”).
Bill sponsors say S. 1009’s amendments to the TSCA would include:
- requiring safety evaluations for all chemicals and labeling of health and environmental risks (e.g., from “low” to “high” risk);
- giving the EPA authority to take action against unsafe chemicals;
- requiring the EPA to conduct transparent reviews and measures to manage risks;
- requiring safety screening for new chemicals;
- allowing the EPA to get health and safety information from manufacturers, but also requiring it to avoid duplicative testing by relying on existing safety information from manufacturers first;
- encouraging scientific innovation; and
- amending TSCA’s preemption and judicial review provisions.
But S. 1009 reportedly has no support from environmental and public health advocates. The lack of support is due in part to Sen. Lautenburg poor reputation among environmental advocates. But critics also say that the proposed legislation is an industry-backed measure that sacrifices safety for profits.
In July, the Senate Committee on Environment and Public Works held a hearing on the bill. Witnesses included environmental and toxic tort attorney Robin Greenwald of Weitz & Luxenberg, who made the following observations about S. 1009:
- The bill assumes that chemical manufacturers put public safety first. But history shows a pattern of deceit in the industry when it comes to dangerous substances like vinyl chloride, polychlorinated biphenyls (PCBs) and asbestos.
- S. 1009 could effectively prevent people from filing lawsuits caused by exposure to approved chemicals. It also makes it difficult to challenge the EPA’s labeling of a substance’s risk.
- The bill would set the bar and costs high for the EPA to impose restrictions on a chemical substance.
- S. 1009 makes it easy for manufacturers to label information it gives the EPA confidential. This could effectively block public review and comment. At the same time, the bill makes it harder to question the validity of any decision to label a substance low priority.
The hearing testimony and criticism by victim, health and environmental advocates seem to echo the same sentiment: S. 1009 is a missed opportunity. After decades of continued abuses and cover-ups, lawmakers are considering a measure that seemingly offers more protection to the manufacturers than to public. If passed, the bill will likely have the same dampening effect on EPA willingness to ban toxic substances as the 1991 court decision to reject the Asbestos Ban and Phaseout rule.
But there is hope that the bill won’t make it far, at least not in its current form. Committee Chair Barbara Boxer’s hearing statement noted the need to strengthen EPA’s regulation of toxic substances and listen to asbestos victims and others who have called for better product safety. Senator Boxer is widely considered the strongest advocate for environmental and health protection to occupy the chair in many years.
S. 1009 is still sitting in committee. We’ll keep you updated on its progress.