Lawyer Monthly - February 2022

32 WWW.LAWYER-MONTHLY.COM | FEB 2022 COULD THE UNITED STATES LEGALLY BAN ASBESTOS FOREVER? However, in 1991, under pressure from the asbestos industry, a federal court reversed this ruling, leaving only the portions that maintained the prohibition on all new asbestos products. Over 60 nations and territories have outlawed asbestos, but the business sector has consistently thwarted efforts to prohibit it entirely in the US. Although asbestos mining was forbidden in 2002, when the last asbestos mine in the US officially closed, it is still lawful to import and utilise tiny amounts of this toxic substance. Due to the lack of a comprehensive prohibition, certain items may legally contain up to 1% asbestos. The EPA implemented the Significant New Utilize Rule (SNUR) in 2018, enabling businesses to use new asbestoscontaining goods on an individual basis. Simultaneously, they released a new paradigm for evaluating chemical risk. However, the review method does not consider the possible consequences of exposure to chemicals in the air, ground, or water. The SNUR does not extend to new applications of asbestos, only to those that were allowed before 1989. It essentially stipulates that businesses may begin reusing asbestos in specific ways, but must first obtain clearance from the EPA. Since 2016, the EPA has conducted asbestos risk assessments under the TSCA's risk assessment methodology. Numerous legal challenges derailed the procedure, which put the status of asbestos risk evaluation in limbo for most of 2020. On 22 December 2020, a court in the Northern District of California ordered the EPA to close asbestos reporting "loopholes" in the CDR Rule and collect additional data on current asbestos usage. The future of asbestos regulation in the US Very little new legislation in this area has been enacted into law in the last decades. Unfortunately, bills to outlaw asbestos use in the US have likewise been voted down. Several provisions of the proposed legislation would have provided funds to assist persons suffering from asbestosrelated ailments and to fund scientific studies that would further look into the link between asbestos exposure and cancer. At the end of 2020, Congress appeared to be on the verge of accomplishing what the Environmental Protection Agency (EPA) had refused to do: pass the Alan Reinstein Ban Asbestos Now (ARBAN) Act, groundbreaking bipartisan legislation supported by nearly 70 co-sponsors, 18 attorneys general, and more than 30 trade unions and organisations that would have prohibited the commercial importation and use of all asbestos-containing products in the US once and for all. However, the measure was never permitted to pass through. The EPA's Final Risk Analysis for asbestos was scheduled to be completed by 2020. Still, the agency only issued the first portion, addressing 16 situations of asbestos use that include occupational or consumer exposure. This initial section does not address the issue that asbestos is still present in residential and commercial structures after decades of use. To this purpose, the EPA indicated that the second part of the preliminary study would be released in mid-2021 and will examine the problem of legacy asbestos and associated disposal. So far, only ‘Draft Scope of the Risk Evaluation for Asbestos Part 2: Supplemental Evaluation Including Legacy Uses and Associated Disposals of Asbestos’ has been made available. The EPA is required to publish a final Part 2 Risk Evaluation for Asbestos on or before 1 December 2024. Also, in 2021, a federal judge ordered the EPA to adequately gather statistics on the quantity of asbestos utilized, manufactured, and imported into the US. The EPA and its administrator, Andrew Wheeler, were sued by the Asbestos Disease Awareness Organization and the State of California, respectively over their decision back in 2017 which stated that reporting is not needed for “naturally occurring chemical substances”. In refusing a petition to fix the loophole, the EPA stated that it is "informed of all existing asbestos usage" and that stronger reporting regulations would not yield new information. The court ordered the EPA to fix reporting loopholes and apply its enforcement powers against corporations who fail to record their asbestos use appropriately. The future of the asbestos ban in the US is still uncertain. Representatives from Congress and other government leaders frequently speak about safeguarding our children and advancing environmental justice, but while raising awareness is good, action is more valuable. To do both, it is necessary to prioritise public health before private profit, address legal loopholes, and implement a full asbestos ban urgently. Very little new legislation in this area has been enacted into law in the last decades.

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