The U.S. Environmental Protective Agency (EPA), Office of Chemical Safety and Pollution Prevention and Toxics, on March 30, 2020, has issued a "Draft Risk Evaluation for Asbestos" for public comment and peer review. The Risk Evaluation will potentially affect businesses involved with both current and legacy asbestos-containing products. See https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/draft-risk-evaluation-asbestos for the "Draft risk evaluation and supporting documents," which can be accessed at the fourth bullet point at the end of the first section. Comments are due 60 days after the publication of the Federal Register Notice, which occurred on April 3, 2020.
The Draft Risk Evaluation is a document that should be carefully reviewed, particularly by those entities that are current or potential defendants in asbestos friction litigation, to ascertain the extent to which the Agency's potential final conclusions could influence the approach to their defense. As the EPA expresses it: "The preliminary conclusions, findings, and determinations in this draft risk evaluation are for the purposes of identifying whether asbestos presents unreasonable risk or no unreasonable risk under the conditions of use," in accordance with the Toxic Substances Control Act, section 6. The Risk Evaluation will also be subject to peer review.
Although asbestos has not been mined in the U.S. since 2002, and a relatively small amount of raw chrysotile asbestos is imported for the chlor-alkali industry, some asbestos-containing products continue to be imported in unknown amounts. These products include sheet gaskets (asbestos-containing rubberized sheeting processed into gaskets), oil field brake blocks, aftermarket automotive brakes/linings and pads and clutches, and other friction products (e.g., brake block replacement for the Super Guppy Turbine (SGT) aircraft, which is operated by the National Aeronautics and Space Administration), and other gaskets (e.g. in utility vehicles) manufactured outside the U.S. using chrysotile.
The EPA has also indicated that it intends to consider legacy asbestos uses, such as old asbestos-containing brake linings and brake pads sold by vintage automotive shops and associated disposal of such products in a supplemental scope document and supplemental risk evaluation.
In the sections dealing with Aftermarket Automotive Brakes/Linings and Clutches, Draft Risk Evaluation 2.3.1.7, pages 87-95, there is discussion of historical aspects of the removal and replacement of friction products in automobiles and small trucks. There is also discussion regarding (i) Hazards, including Human Health Hazards; (ii) Risk Characterization, including Human Health Risk; and (iii) Risk Determination.
One of the more interesting aspects of the Draft Risk Evaluation is its list of references which includes articles and studies by experts testifying principally for asbestos defendants such as Charles Blake, Brett Finley, Dana Hollins, Amy Madl, Dennis Paustenbach, and Drew Van Orden. In addition, the Draft Risk Evaluation refers to the EPA Peer Review Handbook, currently in its 4th Edition, https://www.epa.gov/osa/peer-review-handbook-4th-edition-2015. The EPA issued its first Agency-wide Peer Review Policy in 1993, and the first edition of the Handbook was published in 1998. Some EPA reports issued before 1993 may not have been peer reviewed.
Businesses may want to consider commenting on the Draft Risk Evaluation in order to influence the final risk determinations and the scope of any supplemental risk evaluations so that they are reflective of and consistent with what the scientific literature actually sets forth. Further consideration should also be given to correcting some factual misstatements such as, for example, the EPA statements about the timing of the industry transition away from asbestos-containing products and the characterizations made about the nature of historic "Do It Yourself" work practices.
If the Risk Evaluation goes into effect without change, it could have a significant impact by memorializing a distortion of the scientific literature which could be used by opposing experts to influence juries in finding against some entities that have historically manufactured and sold asbestos-containing products.
Originally published 15 April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.