November 15, 2017
Eight Senate Democrats have introduced a bill seeking to ban asbestos — even as EPA is working on a precedential risk evaluation of the substance under new responsibilities in the reformed Toxic Substances Control Act (TSCA) — in part because of concerns that President Donald Trump’s nominee to lead the agency’s toxics office wouldn’t ban its use. “The main context is the [Michael] Dourson nomination” to be the assistant administrator of EPA’s Office of Chemical Safety and Pollution Prevention, “the way that’s impacting our view of the situation,” a Democratic Senate staffer tells Inside EPA. “When we passed the bipartisan [TSCA reform] bill last year, there was the feeling that any potential EPA official working in good faith would ban asbestos as part of the first 10 high priority cases” that EPA elected for risk evaluation as directed in the reformed statute.
As expected, EPA shortly before the end of the Obama administration selected asbestos among the first 10 existing chemicals — those on the market when the original TSCA took effect in 1976 and largely grandfathered under the original law — to be prioritized for risk evaluation and potentially regulation. EPA has a statutory deadline of three years to complete evaluations of the 10 chemicals, after which any uses of the chemicals deemed not to meet TSCA’s unreasonable risk standard must be regulated. “But there’s really a high degree of alarm about Dourson,” the staffer says. “And in a wide variety of instances he may recommend controls on chemicals that are much weaker than we would like to see and those could get locked in for a long period of time.”
As a result, Democrats recently introduced their legislation to require EPA to ban asbestos in case Dourson opts against pursuing any prohibition on the substance. Democrats, environmentalists and some public health advocates have stridently opposed Dourson’s nomination, arguing the former EPA toxicologist’s non-profit risk assessment consulting group is too close with myriad chemical industry clients. They have pointed to numerous chemicals where Dourson proposed risk standards that are weaker than those EPA or state agencies ultimately adopted. Senate Democrats on the Environment and Public Works Committee vowed to oppose Dourson’s confirmation, even as the committee voted along party lines to advance his nomination to the floor.
Dourson’s nomination seems to have stalled, however. Majority Leader Mitch McConnell (R-KY) moved a Nov. 9 party-line confirmation vote of another controversial EPA appointment, that of William Wehrum to lead the air office. But McConnell did not advance Dourson’s nomination, signaling that there may by dissension in the Republican ranks. With the GOP holding a slim three-vote majority, Republicans cannot lose more than two votes if Democrats vote as a block. The two Republican senators from North Carolina have recently told reporters that they have concerns about Dourson, linked to his past work on perfluorinated chemicals — which are currently contaminating North Carolina’s Cape Fear near a Fayetteville facility — and his past work on trichloroethylene, a solvent that contaminated the drinking water supply at Camp Lejeune, NC.
“I think the real question is if McConnell is willing to burn floor time on [Dourson]. But he did today with Wehrum,” the staffer says. “If they actually have a tax thing to move, that’s going to take up a lot of their floor time. But if they get stalled on that they may move to nominees.”
Eight Democrats, led by Sen. Jeff Merkley (D-OR), introduced S. 2072 Nov. 2. The bill reintroduces legislation proposed in the last Congress by former California Sen. Barbara Boxer (D), as she was negotiating reform of TSCA with Republicans and more moderate Democrats. Merkley is joined by cosponsoring Sens. Cory Booker (NJ), Richard Durbin (IL), Dianne Feinstein (CA), Edward Markey (MA), Bernie Sanders (I-VT), Jon Tester (MT) and Sheldon Whitehouse (RI).
If signed into law, the bill would require EPA within 18 months of enactment to “impose, by rule, prohibitions, restrictions, and other conditions, including prohibitions on the manufacture, processing, use, distribution in commerce, and disposal of asbestos and mixtures and articles containing asbestos, that the Administrator determines to be necessary to eliminate human or environmental exposure to asbestos.”
The bill seeks to amend TSCA Title VII and revise TSCA’s definition of asbestos, which generally refers to various types of mineral fibers that are harmful to the lungs. TSCA strictly defines “asbestos” as consisting of six fiber types, but the bill would expand the definition to include “all forms of asbestos.”
EPA, however, is restricting its ongoing risk evaluation to the existing TSCA definition of those six fiber types. This application of the narrow definition of asbestos and other changes further restricting the ongoing risk evaluation is another driver for the introduction of the new asbestos bill, says Linda Reinstein, CEO and co-founder of the Asbestos Disease Awareness Organization. The new bill and its predecessor are named for Reinstein’s husband Alan, who died of asbestos-related mesothelioma. Reinstein pointed to changes the Trump EPA made to the final rules implementing TSCA reform, and in particular changes to how conditions of use will be evaluated in TSCA risk evaluations as a major concern — particularly as applied in the scoping document that EPA released describing how it plans to evaluate asbestos
“The conditions of use being changed in the scoping document was for me alarming and deeply concerning,” Reinstein told Inside EPA in a Nov. 9 interview. “To change the conditions of use, to exclude legacy uses and [some types of asbestos, such as] Libby amphibole — by altering the conditions of use to strongly favor the chlor alkali industry equals no ban.”
Reinstein remains concerned that the chlor alkali industry, the major remaining ongoing use of asbestos, will successfully lobby EPA to exempt the industry from any ban that EPA might propose for asbestos upon completion of the risk evaluation. Reinstein notes that the chlor alkali industry successfully lobbied for an exemption when EPA last proposed banning many uses of asbestos in 1989, and that the industry has made similar arguments in comments to EPA on its ongoing risk evaluation. Reinstein said that after reviewing the asbestos evaluation scoping document that the Trump EPA released last June, “it was abundantly clear to me that we would never have a ban if we relied on the existing EPA to evaluate the risk.” — Maria Hegstad