On 11 June 2018, Snopes.com published a fact check titled “Is the EPA Allowing for the Approval of New Asbestos-Containing Products?” In that article, we rated the claim that “the Environmental Protection Agency will allow new asbestos products to enter the market” as “mostly true,” based on the fact that the EPA had proposed a new rule for asbestos that would (at first) block some currently unregulated but inactive uses of asbestos while (later) providing a framework for those unregulated uses’ formal approval should they pass a safety review.

Their proposed methodology for assessing that safety, many scientists have argued, may not accurately account for the health risks of those potential uses, increasing the likelihood that the safety review currently being undertaken by the EPA could end in these unregulated uses’ official approval. This logic informed our rating. On 24 August 2018, the EPA Office of Media Relations reached out to Snopes to suggest that this conclusion was in error and that the rating of “mostly true” should in fact be “false.” The agency’s objections generally center on two factual assertions:

The EPA’s plan with regard to asbestos does not concern what are known to that agency as “new uses” of asbestos. The EPA defines this term in a legal sense, based on a 1991 court ruling, as “asbestos products that were not being manufactured, processed or imported” as of 12 July 1989. That means any use that wasn’t already occurring before 1989 (a “new use”) remains banned to this day.

The uses of asbestos that the EPA’s rule concerns (i.e., uses that were active at the time of the 1991 court ruling but are no longer used) are already legal, as the ban on those uses was blocked. Therefore the EPA’s plan with regard to asbestos actually places more restrictions on asbestos than are currently on the books.

Both of these objections, which we have addressed in an update to our original post, present an incomplete view of the controversy. Instead, they mask the fact that the proposed legislation allows a pathway for certain old (and inactive) uses of asbestos to return to the market with the EPA’s blessing. The EPA, via the publication of two documents, laid out a process that allows for uses of asbestos that have been effectively dead (thanks to litigation and health risks that their use carries), to be granted official approval using a safety review that does not allow scientists to consider a considerable bulk of information demonstrating asbestos’ cancer risk.

While we have had productive discussions with the EPA over their issues with our article and have amended some supporting material, we reject their argument that the claim we examined should be properly classified as false.

A Brief History of Asbestos Regulation

Despite the incontrovertible carcinogenicity of asbestos, regulations do not currently ban all of its uses. This situation is largely thanks to a phase-out that attempted to build a path towards a complete ban of all asbestos uses but was overturned in part by the Fifth Circuit Court of Appeals in 1991 on the grounds that the EPA did not satisfy the legal requirements of Toxic Substances Control Act. At the time, this act required the EPA to prove that they had settled on the “least burdensome” approach to regulation.

The Fifth Circuit Court of Appeals, in a case brought by the company “Corrosion Proof Fittings,” held that the EPA did not adequately research alternatives to a ban that would limit asbestos exposure. That ruling created a complicated regulatory environment whereby some uses of asbestos were legally banned, while others were grandfathered in by the phase-out’s abrupt termination resulting from the 1991 ruling. The asbestos uses our discussion concerns are the ones that had not yet been banned by the initial phase-out and remained in active use at the time of court ruling but are no longer in use because of the risks of cancer and litigation stemming from their use.

In 2016, Congress passed an amendment to the Toxic Substances Control Act (TSCA) with broad bipartisan support, and it was signed into law by President Barack Obama on 22 June 2016. This amendment, named the Frank R. Lautenberg Chemical Safety for the 21st Century Act, removed the “least burdensome” requirement from the TSCA. Upon the amendment’s passage, then-EPA Administrator Gina McCarthy praised the change, stating that “Without major changes to the law, EPA couldn’t take the actions necessary to protect people from toxic chemicals.”

One month before the end of the Obama administration, the EPA, armed with this amended TSCA, announced plans to assess the safety of those currently unregulated uses of asbestos (along with a list of nine other toxic chemicals). However, once incoming EPA administrator Scott Pruitt (appointed by President Donald Trump) took charge of the agency in 2017, the process that began at the end of the Obama administration shifted courses significantly, as reported by Scientific American in August 2017:

The Obama administration had already proposed a version of the rules. The current administration took over and finalized them — but not without significantly rewriting them first. “The law is much, much less stringent” with the latest rules, says Rena Steinzor, a professor of law at the University of Maryland.

Questions about how this process would play out with regard to asbestos went largely unanswered until, in late May and early June 2018, the EPA published two proposals: A Significant New Use Rule for Asbestos” and a “Problem Formulation of the Risk Evaluation for Asbestos.” Combined, these two documents generated the media coverage that led to our fact check of the claim that the EPA might be allowing asbestos products into the market.

The Proposed Asbestos SNUR

A “Significant New Use Rule” (SNUR) is a tool given the EPA under the Toxic Substances Control Act that “can be used to require notice to EPA before chemical substances and mixtures are used in new ways that might create concerns.” In an FAQ released in response to the controversies surrounding the asbestos SNUR, acting EPA administrator Andrew Wheeler defended the rule as one that would “ensure that manufacture, import, or processing for the currently unregulated new uses identified in the SNUR are prohibited unless reviewed by EPA,” adding that the Obama administration had a chance to issue a similar rule but declined.

Wheeler’s statement was an intentionally narrow one. It is true that the rule does prevent “currently unregulated new uses identified in the SNUR,” (emphasis ours) but that does not mean it prevents all currently unregulated uses of asbestos. In fact, changes were made to the SNUR just over a month before its publication that limited the number of uses “identified” by the SNUR, leading to some controversy over how many potential uses the SNUR actually would block.

Emails obtained by the New York Times, as well as interviews conducted by Snopes with former EPA officials, demonstrate that the career, non-political staffers charged with writing the SNUR were uncomfortable with the final product because (they argued privately) it did not provide a blanket ban on all past, inactive uses, but instead limited the list to 15 specific uses. The EPA contends their list includes “all of the potential possible uses that are out there and could come back into manufacturing.” The staffers who wrote the rule, based on the emails published by the Times, likely do not agree with that assessment. (We reached out to several people involved in the chain of leaked emails but did not receive any responses.)

On 25 April 2018, just over a month before the asbestos SNUR proposal was published for public comment, an email from the associate chief of the EPA’s Fibers and Organics branch, Robert Courtnage, informed the staffers involved in writing the original draft of the SNUR that management was significantly changing the document. “After sharing a draft of the proposed SNUR, [the Office of Chemical Safety and Pollution Prevention] upper management asked us to take a different approach.”

That approach was to pick 15 specifically defined uses which the new SNUR would be applied to, rather than applying the SNUR to any conceivable “currently unregulated new use.” In an email exchange, the EPA employees working on the SNUR opposed this policy change for fear that it would allow uses not identified by their team to remain in that same unregulated state the EPA argues they are attempting to regulate.

“If [the] EPA failed to list one of the old uses that have been discontinued, or failed to correctly anticipate some other new use, then it seems to me that the manufacture of such a product would not be subject to the SNUR,” career EPA Environmental Scientist Susan Fairchild, posited in response. Several other staffers expressed similar concerns.

In their correspondence with us, the EPA disputed the view that the limitation to 15 specific uses necessarily means other uses may not be covered under the SNUR. “We designed the proposed SNUR to include all possible new uses,” a media relations officer told us during our correspondence. At least publicly, however, no explanation has been given for the change, and the EPA did not respond to our question about the motives behind it.

Betsy Southerland, a 30-year veteran of the EPA who served as Director of Science and Technology in the agency’s Office of Water before resigning in August 2017, told us via phone that the plan for asbestos following the passage of the Lautenberg Act had always been to generate a list of current and reasonably foreseeable uses for a risk evaluation, but that the process had always been intended to include provisions requiring any use not included on the list to require notification to the EPA, which would then conduct a risk evaluation of the new use prior to approval. The EPA’s proposed SNUR for asbestos, she told us, states that only the listed uses will be subject to a risk evaluation before approval.

In our view, this context makes the defense that the current EPA is placing more restrictions on asbestos than are currently on the books technically true, but — like the argument that President Obama had a chance to ban these uses and declined to — somewhat misleading or disingenuous.

The Problem Formulation of the Risk Evaluation for Asbestos

The concerns raised in the August email leaks did not inform our “mostly true” rating published in June, but they speak to arguments currently being made in defense of the SNUR that have since entered the debate. Our primary reason for that rating was, and remains, that the SNUR quite literally “allows new asbestos products to enter the market” if they pass a safety review whose methodology has been met with fierce criticism.

Our original rating, more broadly, took issue with the agency’s implied talking point that the most likely end goal of the SNUR was to effect a ban on the asbestos products it identified, because the methods the EPA plans on using to assess the safety of those necessarily excludes data derived from human exposure to old uses of asbestos that are unequivocally linked to cancer, making the review likely to understate a use’s risk. This concern stemmed from the second document published by the EPA, their problem formulation.

The EPA problem formulation “refines the conditions of use, exposures and hazards presented in the scope of the risk evaluation for asbestos and presents refined conceptual models and analysis plans that describe how EPA expects to evaluate the risk for asbestos.” Those conditions explicitly exclude most of the exposure pathways our knowledge of asbestos’ carcinogenicity stem from:

In the case of asbestos, legacy uses, associated disposals, and legacy disposals will be excluded from the problem formulation and risk evaluation … These include asbestos containing materials that remain in older buildings or are part of older products but for which manufacture, processing and distribution in commerce are not currently intended, known or reasonably foreseen.

In our original fact check, we cited the concerns of several scientists who objected to this process as illogical and unscientific. “It is ridiculous,” Wendy Cleland-Hamnett, a four decade veteran of the EPA who ran the toxic chemical unit before retiring in August 2017, told the New York Times. “You can’t determine if there is an unreasonable risk without doing a comprehensive risk evaluation,” she said. In that same article, the New York Times reported:

The most likely outcome of the changes will be that the agency finds lower levels of risks associated with many chemicals, and as a result, imposes fewer new restrictions or prohibitions, several current and former agency officials said.

Speaking to us by phone, Betsy Sutherland expressed similar concerns. “What they’ve done,” she told us, “is they’ve eliminated all the main routes of exposure to asbestos, kind of guaranteeing themselves that they’re going to not find an unreasonable risk with … any of the existing or new uses of asbestos.” While the final risk assessment for these asbestos uses has not yet been released by the EPA, Southerland is not optimistic it will be rigorous: “They haven’t made a final determination yet. We have to see their risk evaluation for asbestos [but] I would not expect that to be very rigorous at all because they’ve already said in the problem formulation [that] they’re going to not consider most of the pathways of exposure to asbestos in the country right now.”

Our original fact check was technically in error in suggesting that “new uses” (as legally defined by the EPA) were being considered for approval. We find it unlikely, however, that the average American is concerned whether something is a “new use” of asbestos as held by the Fifth Circuit Court of Appeals, or if it is, as described by Acting EPA Administrator Wheeler, a “currently unregulated new use” of asbestos. We also erred in suggesting that the uses currently under consideration were illegal under current law, when in fact they are unregulated and therefore legal.

However, we concur with the leaked opinion of EPA lawyer Mark Seltzer, an attorney advisor to the EPA’s Chemical Risk and Reporting Enforcement Branch who worked on the SNUR and concluded that: “This new approach allows asbestos-containing products that are not currently used to be used in the future.” For this reason, our rating remains unchanged.