I am often critical of OSHA’s failure to move forward on life-saving standards. But the Environmental Protection Agency (EPA) is showing us what a reasonably well-funded agency supported by a good law and strong leadership can do to protect the American people. Over the past few weeks, EPA has issued a good regulation protecting communities that live near chemical plants (as well as plant workers). I will write about this later.
Earlier this week, EPA took a long awaited and long-overdue action to ban the import and use of asbestos in this country.
The asbestos ban was particularly welcome, coming 33 years after a federal court blocked the agency’s initial attempt to ban the cancer-causing substance. Despite the fact that most uses of asbestos (such as building insulation) were banned decades ago, EPA estimates that asbestos, which “is known to cause lung cancer, mesothelioma, ovarian cancer, and laryngeal cancer… is linked to more than 40,000 deaths in the U.S. each year” from exposures that occurred years ago. Over 50 countries have already banned asbestos.
The ban was made possible by a 2016 revision of the Toxic Substances Control Act (TSCA). The original TSCA, passed in 1976, required the agency to regulate asbestos in the way that was “least burdensome” to industry. The chlorine industry had used that language to successfully opposed a ban, claiming that without asbestos in chlorine production, there would be no clean water. People would die. Western Civilization would fall. And as usual, the chemical industry won. So when the agency enacted an asbestos ban in 1989, it carved out an exemption for the mineral’s use in the chlorine industry.
The industry’s dire predictions are belied by the fact that two-thirds of the chlorine now produced in the U.S. is produced without using asbestos.
Although the 2016 modernization of TSCA removed the “last burdensome” language, enabling the agency to move forward, the Trump administration cut EPA’s budget and refused to anger its industry friends. But the Biden administration moved forward.
In addition to phasing out the use of asbestos in chlorine production, the new regulation also bans the use of asbestos in oilfield brake blocks, aftermarket automotive brakes and linings, other vehicle friction products, and other gaskets six months after the effective date of the final rule. Other uses in chemical plants and the nuclear industry will be phased out over the next two to five years. EPA is allowing asbestos-containing sheet gaskets to continue to be used through 2037 at the Department of Energy’s Savannah River Site “to ensure that the safe disposal of nuclear materials can continue on schedule while continuing to protect workers from exposure to radioactive materials.”
History of Death
For centuries asbestos was known as the miracle mineral — a fire and heat resistant mineral widely used to insulate boilers in ships and buildings, to insulate houses, office buildings and factories, as well as automotive transmission components, brake blocks, clutch facings, disk brake pads, drum brake linings, friction materials, and gaskets.
The deadly nature of asbestos was well known — at least to the manufacturers, if not their employees and users — at least since the 1930s. But workers had little idea that they were being poisoned until groundbreaking studies by workplace health legends like Irving Selikoff in the 1960s showed that thousands of workers were dying every year from asbestos they were exposed to years, and sometimes decades before.
OSHA and EPA issued regulations controlling exposure to asbestos in the 1970s. EPA banned asbestos-containing insulation in the 1970s and OSHA tightly regulates protections for those workers who still work with asbestos.
But what really killed the US asbestos industry were lawsuits against the asbestos manufacturers that eventually drove them out of the asbestos business. Unfortunately, that didn’t mean that asbestos hazards disappeared. For years after asbestos insulation was banned in the mid-1970s, workers continued to be exposed when insulation deteriorated, creating toxic dust. And workers tasked with removing asbestos insulation were also exposed if they weren’t adequately protected. Imported asbestos continued to be used in brake pads, exposing auto mechanics to the deadly dust.
Today things are better. Very few asbestos-containing break pads are used. Much of the asbestos insulation in schools and other buildings has been safely removed or sealed, although there are still exposures, especially underground, low-road construction employers. Demolition of asbestos-containing buildings continues to be a problem if proper precautions aren’t taken. Any asbestos still used in this country is imported.
EPA specifically banned only one type of asbestos, chrysotile, which makes up almost all of the asbestos still used in this country. Currently, the fire and heat-proof mineral is used only for automotive parts, sheet gaskets and brake blocks used in the oil industry, and for the production of chlorine.
But workers are still getting exposed. In 2022, I summarized a ProPublica series that focused on asbestos use in the chlorine industry, the exposures that workers continue to face, the failure of enforcement agencies to effective address the problems, and the chemical industry’s continuing campaign to oppose an asbestos ban.
The articles focused on one company, Occidental Chemical (OxyChem), that continues to use asbestos to make chlorine.
Workers there reported how
asbestos dust hung in the air, collected on the beams and light fixtures and built up until it was inches thick. Workers tramped in and out of it all day, often without protective suits or masks, and carried it around on their coveralls and boots. They implored the plant’s managers to address the conditions, they said, but the dangers remained until the plant closed in late 2021 for unrelated reasons.
Despite OxyChem’s claim that it had strict safety rules in place,
Water-blasting the screens was like washing a car with a high-powered hose. Asbestos splattered everywhere. It wasn’t a problem when the asbestos was wet. But it would dry overnight, and the next morning, it would be stuck to the ceiling and the walls. Clumps would roll across the floor like tiny tumbleweeds. Floating particles would catch the light when the sun poured in. There was so much asbestos in the cell-maintenance building that it was impossible to keep it all wet, said Robert Cheff, who worked at the plant from 1981 to 2007. “We were constantly swimming in this stuff.”
Workers wore protective gear for certain tasks, like pressure washing and screen dipping. But they went into the building to carry out other tasks without special suits or anything protecting their faces, despite company requirement
Worker exposures repeatedly exceeded OSHA’s standards.
More Work To Be Done
All is not quite completely well. Because of the continuing opposition of the American Chemistry Council and the few companies that still use asbestos to produce chlorine, EPA will allow 5 years or longer in some cases to phase out the use of asbestos diaphragms used to make chlorine and sodium hydroxide, instead of having two years which EPA is allowing for most other uses.
The American Chemistry Council, which continues to claim that “Chrysotile asbestos diaphragm technology is being used safely by the chlor-alkali industry,” and continues to advocate for a 15 year timeline.
Linda Reinstein, president of the Asbestos Disease Awareness Organization, while expressing gratitude to the EPA, still fears that a future chemical industry-friendly administration might repeal or weaken the ban, continues to advocate for legislation that would outlaw all asbestos fibers and all uses. She is also not sure that chrysotile asbestos is the only type of asbestos still used in the United States.
The five asbestos fiber types not addressed by the rule are crocidolite, amosite, anthophyllite, tremolite, and actinolite. Advocates, scientists, unions, public health groups and asbestos victims have worked tirelessly to ban all six carcinogenic asbestos fibers since 1989 when an industry legal challenge voided EPA’s original asbestos rule.
“The limited scope of the EPA rule underscores that imports and use of asbestos will only end when Congress enacts a comprehensive asbestos ban that prohibits all six asbestos fibers and all cases of use. Congress must pass the Alan Reinstein Ban Asbestos Now Act (ARBAN) to pave the way for a future free from the tragedy of asbestos-related diseases,” said Reinstein.
Bottom Line
Circling back to where we started, this and other recent EPA actions show the impact that strong Presidential leadership — as well as funding and workable laws — can have on improving public health. On the other hand, I have been highly critical of OSHA for issuing any major regulatory proposals or final standard during the entire Biden administration. This is not entirely the fault of OSHA’s leadership. While a different regulatory strategy might have resulted in one or two final standards, the agency is severely handicapped by a tiny budget and a weak law that has been further undermined by court decisions over the past 50 years. Spending the entire first year working on protecting workers from COVID didn’t help.
Imagine the progress that OSHA could make if their budget resembled EPA’s. OSHA’s current budget is only $632 million, while EPA’s approaches $10 billion. OSHA is operating under a weak 50 year old law, while TSCA was just updated in 2016.
Finally, nothing is permanent. There is nothing to keep a future Trump administration from repealing this ban or extending the transition time. Legislation banning asbestos would be better, as Lina Reinstein argues, but that is also unlikely given the current (or near future) configuration of Congress.
Keep that in mind when you vote — and when you talk to friends and relatives about which candidates are better for the health of workers and the public this November.
I am forwarding this to a union brother who worked with asbestos in his industry, thank you.