EPA Issues Asbestos Reporting Rule, Seeks Comments

FTC Considers Enforcement Related to “Made in the USA” Label Statements

On May 6, the U.S. Environmental Protection Agency (EPA) published a proposed rule in the Federal Register with reporting and recordkeeping requirements for manufacturers, importers and processors of asbestos, including asbestos in bulk form, mixtures with asbestos or trace contaminants of asbestos and asbestos in articles, where activities occurred in the four years prior to the effective date of the rule.

The rule is designed to inform EPA’s ongoing Toxic Substances Control Act (TSCA) Section 6 risk mitigation and risk evaluation activities related to asbestos. EPA is also issuing this rule in compliance with an agreement with plaintiffs in Asbestos Disease Awareness v. EPA (No. 19-CV-00871, N. Dist. of California) and State of California v. EPA (No. 19-CV-03807, N. Dist. of California). In these consolidated cases, the Northern District of California ruled in Plaintiffs’ favor noting deficiencies in EPA’s Chemical Data Reporting Rule (CDR) reporting requirements for asbestos and mixtures with asbestos.  The agency agreed to issue the one-time data-collection rule in a June 2021 settlement approved by the U.S. District Court for the Northern District of California.

In the proposed rule, EPA seeks data submission within nine months following the effective date of the rule, to be determined by the agency. Small manufacturers would be exempt from requirements related to Libby Amphibole Asbestos only, but not other identified asbestos types, based on EPA’s interpretation of the small business exemption under the TSCA Section 8(a)(1) and (a)(3). EPA also proposes exemptions for manufacture of non-isolated intermediates and activities related to research and development.

As proposed, the EPA rule requires reporting of amounts as impurities and contaminants, with no de minimis exemption. EPA is seeking detailed comments on whether it should include a de minimis exemption. Comments should include any details and justification for a proposed de minimis amount.

EPA will accept comment through July 5, 2022.

Proposal Details 

In its proposal, EPA defines ‘Asbestos’ as the following:

  • Asbestos (CAS No. 1332-21-4)
  • Chrysotile (CAS No. 132207-32-0)
  • Crocidolite (CAS No. 12001-28-4)
  • Amosite (CAS No. 2172-73-5) (NOTE: EPA may have listed this CAS number in error, in its federal register notice. The CAS number for Amosite Asbestos is CAS No. 12172-73-5)
  • Anthophyllite (CAS No. 77536-67-5)
  • Tremolite (CAS No. 77536-68-6) Tremolite
  • Actonilite (CAS No. 77536-66-4)
  • Libby Amphibole, mainly consisting of Tremolite (CAS No. 77536-68-6), Whinchite (CAS No. 12425-92-2) and Richterite (CAS No. 17068-76-7).

Companies would be required to report information that is “known to or reasonably ascertainable by” the company, adopting the same standard of due diligence used for CDR reporting. EPA is proposing reporting on one of two forms, based on whether the reporting company knows or can reasonably ascertain asbestos quantity. The due diligence standard typically does not require testing. However, EPA includes a data submission element for any testing of asbestos content known to or reasonably ascertainable by the reporting company.

Reportable information includes company / site size, quantities of asbestos mined, handled or in products, products produced, numbers of employees affected, relevant PPE and exposure information. EPA proposes varying reportable data elements related to asbestos-related activities for:

  • Mining, milling and importing of bulk materials with asbestos
  • Primary processors, defined as companies processing bulk asbestos into a mixture
  • Secondary processors, defined as companies further processing asbestos, after primary processing is complete, into a mixture or article
  • Import, including import as a component in a mixture or an article

EPA proposes companies maintain supporting documentation for a period of five (5)years after reporting to EPA.

EPA includes requirements for claiming confidentiality, as specified in TSCA Section 14. Adopting those requirements into proposed regulatory text, EPA explains that companies claiming confidentiality are required to submit detailed substantiating information for those claims, including a detailed explanation of how disclosure would cause substantial harm. Companies cannot claim confidentiality for NAICS codes, chemical identities of specified bulk forms, blank data elements and information that is not “known to or reasonably ascertainable by” the company.  Generally, companies cannot claim confidentiality of health and safety information, except for text containing specific process information, company identifying information and personal private information (e.g., individual medical records). All confidentiality claims and substantiation must be submitted at the time of reporting. Companies must include “public copies” of documentation with confidential information removed.

EPA also bases its economic impact assessment on a limited set of data, with no data related to companies that may process asbestos in a mixture or article as an impurity. EPA estimates that only 18 firms may submit reports on 27 sites, including manufacturers and processors. EPA estimates the burden of reporting for intentional manufacturers or processors at a range of 12 hours at $1,146 to 26 hours at $2,265, per reporting facility or site. Where a company processes asbestos as an impurity, EPA estimates the burden at 17 hours at $1,573 to 40 hours at $3,334, per site.

For additional information see EPA’s press release, including docket information.

Contact ACA’s Riaz Zaman for more information.

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