The U.S. Environmental Protection Agency (“EPA”) promulgated a new rule in April of 2019, under the Toxic Substances Control Act (“TSCA”), requiring EPA review before any discontinued uses of asbestos can be reintroduced into the marketplace.  This new rule restricts reintroduction of significant new uses of asbestos, including manufacturing and processing.  Significant new uses do not include currently ongoing uses or uses previously prohibited under the TSCA.  The following uses are just a few of the total list that require such EPA review under the new rule:  beater-add gaskets; arc chutes; cement products; high-grade electrical paper; missile liner; pipeline wrap; roofing felt; vinyl-asbestos floor tile; certain friction materials; and any other building materials.

This new rule allows the EPA to evaluate each proposed intended use for potential health and environmental risks before reintroduction into the market and to take regulatory action, including prohibition, if necessary.  A previous 1989 rule, “Asbestos: Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions”, banned asbestos use in corrugated paper, rollboard, commercial paper, specialty paper, flooring felt, and all new commercial uses introduced after August 25, 1989 in the United States.  The April 2019 rule does not disturb these previously enacted asbestos prohibitions.

Those interested in reintroducing asbestos products into the marketplace must notify the EPA at least 90 days before the start of manufacturing (including importing) or processing of asbestos for its intended significant new use.  The EPA is then afforded the opportunity to review the proposed use.  During the review process, the EPA will consider “[t]he projected volume of manufacturing and processing of a chemical substance”; “[t]he extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance”; “[t]he extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance”; “[t]he reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance”; and any other factors the EPA deems relevant.  After review, the EPA will make a determination on the notice and take all necessary actions with that determination.  If the EPA finds unreasonable risk associated with reintroduction of the use into the marketplace, the EPA may prohibit such use or place restrictions on the use to protect public health.  For each significant new use notice submission, there is an estimated cost of about $23,000 for large businesses and about $10,000 for small businesses.

This new rule subjects all manufacturing and processing of asbestos for significant new uses to EPA approval through this notice and review process before reintroduction into the marketplace.

CMBG3 Law LLC has represented clients in toxic torts matters, especially with respect to asbestos, for many years. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information about the EPA’s new rule, please contact Alexandra Fraher (email her or 617-279-8228).