DEPARTMENTS
LETTERS
The opinions expressed in letters to the editor are those of the authors and do not necessarily reflect the views of AIHA® or The Synergist®. Letters are published at the discretion of the editor and may be edited for clarity.
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EPA’s Chrysotile Ban
In its coverage of the new rule under the Toxic Substances Control Act (TSCA) governing new uses of chrysotile asbestos, The Synergist does an outstanding job of simplifying a fairly complex issue (“EPA Finalizes Chrysotile Ban,” May issue, page 14). There is one aspect of the final rule that merits a clarification because it reflects a critical modification to the proposed rule and demonstrates that EPA does seriously consider industry comments even when it does not always resolve them in a way we believe is appropriate.
EPA’s proposed rule generally would have banned all manufacture, processing, distribution, and commercial use of chrysotile asbestos for certain conditions of use in which the installation of new asbestos materials had been permitted. Subsequent industry input informed EPA that the number and locations of installed asbestos sheet gaskets still in service were unknown but estimated to be in the millions. The only way to ensure compliance with a ban on commercial use of chrysotile asbestos in sheet gaskets would have been to break open and inspect the pipe and equipment joints at every facility in the U.S. where they might have been installed, including every oil refinery and most chemical manufacturing facilities, and then replace every one of those no-longer-functional gaskets—all within two years. That task would have been impossible, and the attempt to accomplish it would have led to an economic disaster and huge, entirely avoidable environmental, health, and safety risks, including significantly greater workplace exposures to asbestos. Recognizing the potential consequences of the proposal, EPA issued a final rule that permits installed (and undisturbed) sheet gaskets to remain in place for their useful lives. The agency also adopted the same approach for the other products, such as brake shoes, covered by the rule.
EPA does seriously consider industry comments even when it does not always resolve them in a way we believe is appropriate.
In contrast, EPA was not receptive to industry comments asserting that, rather than promulgating overinclusive and inflexible bans on broad conditions of use, for asbestos and other chemicals, EPA should simply adopt an existing chemical exposure limit (ECEL) and require covered facilities to either comply with that ECEL or shut down by a specified deadline. EPA rejected that approach based on its assertion that, despite the potential for enormous fines and criminal sanctions under TSCA, facilities that could not comply with the ECEL would remain in operation (in violation of TSCA) and continue to try to comply with the ECEL rather than shut down.
EPA asserted that its position on this point was based on the historical evidence of some noncompliance under the OSHA permissible exposure limit of 0.1 fibers per cubic centimeter (f/cc), which is more than an order of magnitude higher than the ECEL of 0.005 f/cc. In taking that position, EPA failed to acknowledge the fundamental difference between the OSHA regulatory scheme (based on feasibility of compliance) and the TSCA regulatory scheme (based on elimination of unreasonable risk) or the enormous difference in the potential enforcement sanctions under the two laws, and seemed to suggest that its selection of a regulatory approach was driven by a lack of resources to enforce the rule it had just adopted.
A reasonable compromise would have been for EPA to include a provision in the rule that provides for exemptions from the prohibition if a facility is able to demonstrate, with test data, that it operates or would operate in compliance with the ECEL. Instead, it appears relief from a ban would be possible only through an amendment to the rule, which probably would not be a high priority for EPA.
Lawrence P. Halprin, Partner, Keller & Heckman LLP