by Kathryn Thomas
“Attention: If you or a loved one was diagnosed with Mesothelioma, you may be entitled to financial compensation. Mesothelioma is a rare cancer linked to asbestos exposure.” [1]
If you have watched TV sometime in the last ten years, chances are you have heard this infamous infomercial encouraging people with Mesothelioma to seek legal redress due to potential asbestos exposure. But what you, and many other Americans, may not know is that, despite efforts in 1989, asbestos was not banned until March 2024.[2]
Asbestos is a group of fibrous minerals commonly used in commercial materials, such as fireproofing materials, automotive brakes, and insulation.[3] It consists of small fibers that, when inhaled, become trapped in the lungs. Over time, the accumulation of asbestos can lead to serious health problems, including Mesothelioma, lung, larynx, and ovary cancers.[4] According to The Mesothelioma Center, more than 39,000 Americans die every year due to an asbestos-related disease, making it the leading cause of work-related deaths.[5] More than 50 countries banned this carcinogen before the United States.[6]
In March 2024, the Environmental Protection Agency (EPA) promulgated a rule to “prohibit ongoing uses of chrysotile asbestos.”[7]
The EPA first tried to ban asbestos in 1989 but was not successful until thirty-five years later, illuminating many of the challenges plaguing environmental regulatory structures in the United States. Whether fraught with regulatory capture, paralyzed by archaic legal language, or overburdened with other crises and inadequate budgets, it is clear that the regulatory schemes in America have been ill-equipped to protect American people from the long-term negative impacts of toxic substance exposure.
In a ProPublica report, Michal Freedhoff, assistant administrator of the office of chemical safety and pollution prevention at the EPA, “concede[d] to decades of regulatory inaction,” due to funding, staffing, and political concerns.[8]
The EPA wrote in a press release that “this action marks a major milestone for chemical safety after more than three decades of inadequate protections.”[9] According to the White House, the asbestos ban is a part of the Biden-Harris Administration’s “historic commitment to advancing environmental justice,” because asbestos is primarily used in facilities located near historically marginalized communities and primarily affects blue-collar workers.[10] We should capitalize on the momentum of the asbestos ban and continue to push for new rules and regulations limiting environmental and human exposure to harmful substances and chemicals.
“It’s been more than 50 years since EPA first sought to ban some uses of asbestos and we’re closer than ever to finishing the job,” said Environmental Working Group senior vice president Scott Faber in the EPA press release. “For too long, polluters have been allowed to make, use, and release toxics like asbestos and PFAS without regard for our health. Thanks to the leadership of the Biden EPA, those days are finally over.”[11]
After the EPA attempted to ban asbestos in 1989, companies that used asbestos sued the EPA and a federal appeals court struck down the rule two years later.[12] The court held that the EPA had not utilized the “least burdensome alternative” for firms relying on asbestos, which is what the Toxic Substances Control Act of 1976 (TSCA) required at the time. The original law, as written in 1976, failed to equip regulators with the necessary policy instruments to ensure chemicals were safe. It was also plagued by immense influence from the chemical industry.[13] The first assistant administrator for the EPA’s chemical division went so far as to say the law was “written by industry.”[14] According to the Environmental Defense Fund, the broken regulatory system surrounding chemicals left un-tested chemicals on the market, allowed companies to sell new chemicals without proving its safety, and left the federal government incapable of regulating chemicals that were known to be dangerous.[15]
In a near-unanimous bipartisan vote in 2016, Congress amended the TSCA to, among other things, implement a “new process for evaluating and addressing the safety of existing chemicals.”[16] Specifically, the “least burdensome” language was removed from the legislation, which opened the doors for the EPA to promulgate the asbestos ban, which is the first new rule under the 2016 amendments.[17]
While it is commendable that the EPA has now enacted this rule banning asbestos, we must still ask ourselves why it took until 2024 to ban a toxic chemical linked to nearly 40,000 US deaths annually.[18] Why, as a country, are we prioritizing the interests of the chemical industry over human life? Why have we politicized banning harmful chemicals and substances from coming face to face with American workers? Why did it take so long to update a chemical safety law that was limiting the ability of regulatory agencies to ensure substances are safe and non-toxic?
Under the American system of checks and balances, regulatory agencies must comply with and act within the scope of the laws set by Congress. That means representatives and senators have a responsibility to their constituents to ensure regulatory agencies have access to the appropriate policy instruments. Legislators on Capitol Hill must now appropriate sufficient funds so that the EPA is equipped with the necessary staffing and budget to carry out these regulatory processes. Still, the EPA and other federal actors must seek out proactive rulemaking that saves lives before they are lost. With the policy tools of the 2016 amendments at its disposal, the EPA is better equipped to promulgate these types of rules and regulations.
They have the way, now all they need is the will. The most vital place to start is with PFAS, a group of toxic chemicals known as “forever chemicals” that are used in a range of products and are associated with adverse health effects.[19]
[1] Mesothelioma Ad, Injury Law Associates, YouTube, August 29, 2008, https://www.youtube.com/watch?v=zIJErVlVOY8
[2] James Barron. “A Campaign to Finally Ban Asbestos,” The New York Times, February 9, 2024, https://www.nytimes.com/2024/02/09/nyregion/asbestos-campaign-ban.html
[3] National Institute of Health: National Cancer Institute, “Asbestos,” last updated December 5, 2022, https://www.cancer.gov/about-cancer/causes-prevention/risk/substances/asbestos
[4] Ibid.
[5] Michelle Whitmer, “Asbestos Facts & Statistics,” The Mesothelioma Center, last updated February 2, 2024, https://www.asbestos.com/asbestos/statistics-facts/
[6] United States Environmental Protection Agency, “Biden-Harris Administration finalizes ban on ongoing uses of asbestos to protect people from cancer,” March 18, 2024, https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-ban-ongoing-uses-asbestos-protect-people-cancer
[7] Ibid.
[8] Neil Bedi, Sharon Lerner, and Kathleen McGrory, “Why the U.S. Is Losing the Fight to Ban Toxic Chemicals,” ProPublica, December 14, 2022, https://www.propublica.org/article/toxic-chemicals-epa-regulation-failures
[9] United States Environmental Protection Agency, “Biden-Harris Administration finalizes ban on ongoing uses of asbestos to protect people from cancer,” March 18, 2024, https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-ban-ongoing-uses-asbestos-protect-people-cancer
[10] The White House, “FACT SHEET: Biden-Harris Administration Takes Historic Action to Ban Asbestos, Advancing Biden Cancer Moonshot,” March 18, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/18/fact-sheet-biden-harris-administration-takes-historic-action-to-ban-asbestos-advancing-biden-cancer-moonshot/
[11] United States Environmental Protection Agency, “Biden-Harris Administration finalizes ban on ongoing uses of asbestos to protect people from cancer,” March 18, 2024, https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-ban-ongoing-uses-asbestos-protect-people-cancer
[12] United States Environmental Protection Agency, “Biden-Harris Administration finalizes ban on ongoing uses of asbestos to protect people from cancer,” March 18, 2024, https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-ban-ongoing-uses-asbestos-protect-people-cancer; Neil Bedi, Sharon Lerner, and Kathleen McGrory, “Why the U.S. Is Losing the Fight to Ban Toxic Chemicals,” ProPublica, December 14, 2022, https://www.propublica.org/article/toxic-chemicals-epa-regulation-failures
[13] Neil Bedi, Sharon Lerner, and Kathleen McGrory, “Why the U.S. Is Losing the Fight to Ban Toxic Chemicals,” ProPublica, December 14, 2022, https://www.propublica.org/article/toxic-chemicals-epa-regulation-failures
[14] Neil Bedi, Sharon Lerner, and Kathleen McGrory, “Why the U.S. Is Losing the Fight to Ban Toxic Chemicals,” ProPublica, December 14, 2022, https://www.propublica.org/article/toxic-chemicals-epa-regulation-failures
[15] Keith Gaby, “Our updated chemical safety law: The Lautenberg Act,” Environmental Defense Fund, https://www.edf.org/impact/our-updated-chemical-safety-law-lautenberg-act
[16] United States Environmental Protection Agency, “EPA Proposes to Ban Ongoing Uses of Asbestos, Taking Historic Step to Protect People from Cancer Risk,” April 5, 2022, https://www.epa.gov/chemicals-under-tsca/epa-proposes-ban-ongoing-uses-asbestos-taking-historic-step-protect-people
[17] United States Environmental Protection Agency, “Biden-Harris Administration finalizes ban on ongoing uses of asbestos to protect people from cancer,” March 18, 2024, https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-ban-ongoing-uses-asbestos-protect-people-cancer
[18] Max Matza, “The US just announced an asbestos ban. What took so long?,” BBC, March 18, 2024, https://www.bbc.com/news/world-us-canada-68602748
[19] International Pollutants Elimination Network, “UN Expert Committee Recommends Global Bans on Highly Toxic Chemicals,” October 17, 2023, https://ipen.org/news/un-expert-committee-recommends-global-bans-highly-toxic-chemicals#:~:text=Two%20groups%20of%20toxic%20chemicals,)%20Review%20Committee%20(POPRC).
Hi Kathryn! I enjoyed reading your post about the new asbestos regulation. I hope in 7 months, this regulation will not be reversed by our new presidential administration. To expand on the points raised in your blog, I think it is important to address why environmental injustice is still so great in the United States. In our current political state, it is almost impossible to pass a bipartisan bill that has any industry pushback. Through the lens of economy protection and reduced governmental oversight, any proposed law could be framed to legislators as an overbearing government issue. From there, it is easy to get a split between liberals and conservatives in the Senate, Courts, etc. What is so alarming about this is that the EPA regulations that have the most corporate opposition are the biggest environmental equity issues. If a contaminant is harmful to the upper class (the people that generally run industries), the regulation is much more likely to be widely accepted. The regulation is beneficial to those that would appose it. But if a contaminated is harmful to marginalized communities, the regulation does not help company presidents, CEOs, etc. and only harms their business. These rulings are then barred from passing, exacerbating the environmental injustice between privileged and underprivileged communities.
This was a really interesting discussion! I didn’t realize asbestos was only recently banned by the EPA; I assumed it was no longer a problem, and that the federal government would’ve already taken action to prevent exposure to such a dangerous substance. But connecting to government action on other toxics like lead, I realize that there are more challenges in the policy sphere to protecting community health than I realized.
This past summer I worked on a remodeling construction project in an NYU health center, and was part of the asbestos abatement planning for the window bays. From what I experienced, the regulations to protect the health of the workers and hospital residents were very strict: they required that the site be completely vacated before dismantling the old asbestos-containing windows, hired specialized subcontractors, and required that the workers wear hazmat suites and PPE. The focus of these protections were on protecting workers in danger of asbestos contact, however, not community members. After looking into this, I realized that these are standards set by OSHA, not the EPA, so this brings into question how different agencies in the federal government play different roles, can reach regulatory milestones at different times, and can face varying levels of political pushback.
https://www.atsdr.cdc.gov/csem/asbestos/standards_and_regulations.html#:~:text=OSHA's%20PEL%20for%20asbestos%20in,if%20exposed%20above%20the%20PEL.
Hey Kathryn! I really like your critique of the regulatory hurdles that prevented the initial asbestos ban from taking hold is spot-on. It seems that Toxic Substances Control Act granted allowed the chemical industry to exercise undue influence, creating a system that failed to protect Americans from hazardous substances. It’s encouraging to see the bipartisan amendments made in 2016 (which ultimately enabled the EPA’s 2024 asbestos ban) but it’s also disheartening that it took so long to reach this point. I think it’s clear that regulatory agencies need the proper tools/funding/political backing to act decisively in the interest of public health. The recent amendments gives me hope that we can continue to push for proactive legislation that addresses not only asbestos but also other dangerous substances. I’m curious to see how this momentum is nurtured and built upon to ensure that the well-being of American workers and communities are paramount in regulatory efforts.