Will the New EPA Head Halt Attempts to Ban Asbestos?

United States Environmental Protection Agency sign

Retired Assistant U.S. Surgeon General Richard Lemen has devoted his life to documenting the dangers of asbestos and bringing about an end to asbestos-related diseases, so he was understandably elated by two recent events.

The first was the passage of a landmark reform safety law, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which gave the U.S. Environmental Protection Agency (EPA) new authority to ban dangerous chemicals. The second was EPA’s decision late last month to name asbestos as one of 10 high-priority chemicals to be evaluated under the new law, a development which could eventually lead to asbestos being banned in the United States.

“It’s a fantastic step forward to get asbestos listed by the EPA,” Lemen told Mesothelioma Cancer Alliance. He continued, “Time will tell what direction the new Trump administration will take. If it goes the way Congress intended this reform act to work, we will be on the road to a ban of asbestos in the United States. I’m cautiously optimistic.”

Mesothelioma widow Susan Vento was also encouraged by the EPA’s action. “It’s great,” she said. “It’s a symbol of a much-needed move forward for those of us addressing the issues related to asbestos.” Vento’s husband, longtime congressman Bruce Vento from Minnesota, died of mesothelioma in 2000. Since then, Susan Vento has worked to ensure the rights of asbestos-related disease victims and their families, and to push for a ban on asbestos.

But, Susan Vento added: “Given President-elect Donald Trump’s comments about asbestos and regulation, I am nervous.”

Optimism and Uncertainty

As Susan Vento and Richard Lemen both know, this is a time of both great optimism and great concern for people who have been working for decades to document the dangers of asbestos for people and the environment, and bring about a ban in the United States.

The reason for the optimism is the landmark Lautenberg Act, which gave the EPA new authority to ban dangerous chemicals, and the EPA’s recent decision to name asbestos as one of 10 high-risk chemicals to be first evaluated. The reason for the concern is President-elect Trump’s previous statements lauding asbestos and his threat to rein in or dismantle the EPA, which is responsible for protecting human health and the environment.

Contrary to longstanding scientific evidence, Trump has stated that asbestos is “100 percent safe, once applied,” and he has threatened to dismantle the Environmental Protection Agency (EPA), which is responsible for protecting human health and the environment.

Those concerns were exacerbated last week after Trump selected Oklahoma Attorney General Scott Pruitt to be the next EPA Administrator. Pruitt is a close ally of the fossil fuel industry and an outspoken climate change skeptic, and he has brought numerous lawsuits challenging federal environmental regulations. Pruitt’s selection, environmentalists and advocates for asbestos-related disease victims said, was a clear indication that Trump is determined to rein in the EPA.

“Over the past five years Pruitt used his position as Oklahoma’s top prosecutor to sue the EPA in a series of attempts to deny Americans the benefits of reducing mercury, arsenic and other toxins from the air we breathe; cutting smog that can cause asthma attacks, and protecting our wetlands and streams,” Rhea Suh, president of the National Resources Defense Council (NRDC), recently stated.

While it isn’t clear exactly where Pruitt stands on the issue of banning asbestos, advocates for victims of asbestos-related diseases were clearly worried. “I’m outraged that President-elect Trump nominated Scott Pruitt, the attorney general of the oil and gas intensive state of Oklahoma, to head the Environmental Protection Agency,” said Linda Reinstein, president of the Asbestos Disease Awareness Organization (ADAO). Pruitt’s disdain for the EPA and lack of public health and environmental knowledge and experience puts Americans in peril.”

Susan Vento agreed. “I am at a loss for words,” she said. “I continue to be concerned that the EPA will not enforce the regulations to protect the health and safety of all Americans. Clean air, clean water, reducing exposure to asbestos and lethal toxins are worth fighting for – we all need to speak up loud, clear and often.”

Trump’s selection of Pruitt to head the EPA came eight days after the agency named asbestos as one of 10 high-risk chemicals to be evaluated under the Lautenberg Act. The Act, which was passed by Congress with widespread bipartisan support in June and signed into law by President Barack Obama, reformed the badly-flawed Toxic Substances Control Act (TSCA) of 1976. By virtually all accounts, the 1976 law had long failed to protect the public from dangerous substances and allowed asbestos to remain legal for decades after it was proved to be a carcinogen.

Obstacles Going Forward

While EPA’s decision to name asbestos as a high-risk chemical was a significant step, environmentalists and others say, there are significant potential obstacles going forward. The EPA must first do a risk-evaluation for each of the 10 high-risk chemicals, including asbestos, to determine if each chemical presents an “unreasonable risk to humans and the environment.”

If the EPA determines that a chemical presents an unreasonable risk, the agency must mitigate the risk within two years, through new regulations – or it could move to ban a substance such as asbestos altogether.

“Some of the challenges will be interpreting the safety standard, taking into account both conditions of use and reasonably foreseeable uses, and ensuring there is enough safety data,” said Alex Formuzis of the Environmental Working Group (EWG). “Also, EPA must take alternatives and costs into consideration when crafting a regulation.”

He and other environmentalists have concerns over whether the Trump administration will give EPA the needed time, resources and staffing to complete risk evaluations of asbestos and other high-risk chemicals; whether the agency will write rules to implement the new law; whether EPA will recommend only mild restrictions against asbestos that stop short of a ban and fails to protect the public, and how much influence industry lobbying groups wield in their continuing battle to stop any ban of asbestos.

Last August, for instance, the American Chemistry Council, an industry trade group, sent a letter to EPA in support of continuing asbestos use. “No one should think the chemical industry won’t try to slow down, if not stop, the eventual ban of asbestos,” Formuzis said.

Bipartisan Support to Ban Dangerous Chemicals

Despite the uncertainty, there are signs that implementing the Lautenberg Act continues to have broad bipartisan support. On Nov. 30, the day after the EPA announced its list of 10 high-risk chemicals, nine U.S. Senators, including 6 Democrats and 3 Republicans, sent a letter to the Trump transition team urging it to ensure continuity in implementing the Lautenberg Act. In a letter to Vice President-Elect Mike Pence, the Senators noted that the Toxic Substances Control Act of 1976 “failed to provide basic health and safety protections for the American public.”

“Having worked to strengthen and pass the Lautenberg Act in order to help protect children and communities from dangerous chemicals, we are now looking to EPA to vigorously implement the new law,” the letter stated. “This includes moving expeditiously to identify and address chemicals with the greatest potential impact on public health, especially those affecting vulnerable populations expressly required to be protected in the Act, including pregnant women, children, workers and others at-risk communities.”

The letter was signed by Republican Senators James Inhofe of Oklahoma, Shelley Moore Capito of West Virginia and Mike Crapo of Indiana and Democratic Senators Tom Udall of New Mexico, Cory Booker of New Jersey, Tom Carper of Delaware, Edward Markey of Massachusetts, Jeff Merkley of Oregon and Sheldon Whitehouse of Rhode Island.

Separately, Sen. Barbara Boxer (D-Ca.) introduced a bill in September which would significantly expedite a ban on asbestos in the United States. The bill, which was co-sponsored by Sen. Jon Tester (D-Mt.) would prohibit the manufacturing, processing, use, distribution in commerce, and disposal of asbestos within 18 months of the bill’s enactment. The bill, the Alan Reinstein Ban Asbestos Now Act of 2016, is named after Linda Reinstein’s husband, who died of mesothelioma in 2006.

Though the Boxer bill would greatly speed up any ban on asbestos, its passage is highly uncertain and it would have to be re-introduced in the next Congress. Boxer, who has been the strongest advocate for asbestos victims in Congress, is retiring at the end of the year.

An Imminent Canadian Ban on Asbestos?

Scientists and government agencies have warned that any exposure to asbestos carries risks. Though asbestos is now banned in 58 nations, dozens of countries still use, import and export asbestos and asbestos-containing products. In addition to the United States, those countries where asbestos is still legal are primarily developing nations in Asia and Eastern Europe that are desperate for industrial growth and often turn a blind eye to the health and environmental consequences of asbestos exposure.

The most recent developed nation to ban asbestos was New Zealand, which has prohibited importation of all asbestos-containing products as of October 1. Also Canada – whose asbestos interests long led and enabled the thriving worldwide trade in asbestos — is now on the verge of banning it. Asbestos is the biggest cause of worker death in Canada, and the government of Prime Minister Justin Trudeau has committed to banning it.

“Now, decades later than we should have done, Canada is about to ban asbestos,” said Kathleen Ruff, who has been fighting for years to stop Canada’s asbestos trade. “The lesson to be learned, I think is we need to ensure that public policy is based on independent evidence and serves the public interest and to not allow industry lobby groups to kidnap government policy. Asbestos provides a clear example that the scientific evidence has been clear for decades that it should be banned, but because of the asbestos lobby, it was not banned in the United States or in Canada. The asbestos industry waltzed off with the profits, leaving citizens and government to bear the huge human and economic costs.”

Ruff added that an announcement about a Canadian ban is likely before the current session of Parliament closes on December 20. If Canada bans asbestos this year, as anticipated, it could put additional pressure on the United States to do so. But any U.S. ban, which was first attempted decades ago, will certainty take much longer.

Nearly three decades ago, the administration of former president George H.W. Bush attempted to ban asbestos. In 1989, the EPA issued a final rule banning most asbestos-containing products under the authority of the Toxic Substances Control Act (TSCA). But two years later, the EPA ban was overturned by the U.S. Court of Appeals for the Fifth Circuit, a decision that established a precedent that has made it extremely difficult for EPA to ban any dangerous chemical. The Lautenberg Act passed earlier this year amended TSCA and gave EPA new authority to eventually ban asbestos.

Although asbestos hasn’t been mined in the United States since 2002 and its use has declined significantly, American businesses still legally import, use and sell both raw asbestos and products made with it. Between 2006 and 2014, more than 8.2 million pounds of asbestos were imported to the United States, including raw asbestos, products containing asbestos and hazardous waste, according to an analysis from the Environmental Working Group Action Fund.

Advocates for asbestos-related disease victims around the world stressed that a U.S. ban of asbestos would not only protect American workers and consumers but would also send a clear signal to the rest of the world that asbestos is unsafe.

“The first argument of the international mafia of asbestos merchants is, ‘Look, USA has not banned asbestos – is that not proof that innocuous?’” Marc Hindry of the French National Association of Asbestos Victims (ANDEVA) told Mesothelioma Cancer Alliance. He continued, “The United States is clearly a worldwide leader and a ban in the U.S. would have an immediate impact on big asbestos producer countries like Brazil and big consumer countries like India and Indonesia.”

Laurie Kazan-Allen, Coordinator of the International Ban Asbestos Secretariat (IBAS), agreed. “The lack of a U.S. ban is used by the asbestos industry propagandists as evidence that asbestos can be used safety and that banning asbestos is unnecessary,” she said.

Richard Lemen’s Quest to Ban Asbestos

But perhaps nobody is more qualified to speak about the importance of banning asbestos than Lemen, the retired Assistant U.S. Surgeon General. He’s worked for over 50 years as an epidemiologist and leader in occupational and environmental health. He’s conducted pioneering work on asbestos, carrying out field studies of asbestos workers in the 1970s, helping to write a 1976 report by the National Institute for Occupational Safety and Health (NIOSH) that only a ban could assure worker protection against the carcinogenic effects of asbestos and testifying on numerous occasions before Congress on the dangers of asbestos.

He’s also taught graduate courses on environmental and health issues at the Rollins School of Public Health at Emory University and serves as co-chair of the science advisory panel for the Asbestos Disease Awareness Organization (ADAO).

Asked why asbestos hasn’t been banned in the United States despite clear the scientific consensus that it is a carcinogen, Lemen said that “political and industry opposition to a ban is what has stopped it up until this point. The simple answer is that lobbying by the industry that uses asbestos has prohibited that from happening – and they have been very successful with Congress. That’s why I’m so hopeful that with this new revision of TSCA, if allowed to follow through as intended, we might get a ban.”

In October, Lemen received the prestigious Collegium Ramazzini’s Irving J. Selikoff Award for his lifetime of working in promoting worker safety and health throughout the world. The award is named after the man who established the relationship between asbestos and lung diseases and is widely credited with the regulation of asbestos. Lemen worked closely with Selikoff on his early efforts to eliminate asbestos-related diseases, and has continued the fight to this day.

“It’s been my life goal to stop asbestos-related diseases, not just in the United States but around the world,” Lemen said.