The U.S. Environmental Protection Agency has published its draft scoping document for Part II of its asbestos evaluation under the Toxic Substances Control Act (TSCA). This Part II evaluation was mandated by the 9th Circuit (Court of Appeals) via a 2019 opinion in Safer Chemicals, Healthy Families v. EPA, 943 F.3d 397 (9th Cir. 2019), requiring that EPA consider legacy uses and associated disposal (i.e., ongoing and future disposal from legacy uses).

EPA’s evaluation could affect paints, coatings, sealants and adhesives, due to inclusion of minerals used in raw materials. EPA’s proposed scope includes asbestos as defined in Title II (Sec. 202) of TSCA with other minerals generally mined with asbestos, such as vermiculite and talc, due to geological mixing and proximity to asbestos. Under this scope, EPA would include:

  • Asbestiform varieties of six fiber types – chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite and actinolite;
  • Libby Amphibole Asbestos (LAA), its constituents tremolite, winchite and richterite, with vermiculite mined with LAA; and
  • Talc containing asbestos.

EPA identifies relevant CAS numbers as: 1332-21-4 (asbestos; this is the only asbestos on the TSCA Inventory), 12001-29- 5 (chrysotile), 12001-28-4 (crocidolite), 12172-73-5 (amosite), 17068-78-9 (anthophyllite), 14567-73-8 (tremolite), 12172-67-7 (actinolite), 1318-09-8 (LAA), 12425-92-2 (winchite), and 17068-76-7 (richterite). See pages 9-10 of the draft scope for EPA’s description of asbestos-related substances within scope of evaluation.

EPA will consider legacy use and associated disposal of vermiculate.. Its evaluation of talc would include ongoing use and disposal. For the purpose of EPA risk evaluation, conditions of use include a variety of industrial and consumer formulated products including coatings, textured paints, vehicle undercoats, adhesives and sealants, extruded sealant tape, etc. EPA’s selection of a use for evaluation is not an indication of risk. See p. 26 of the draft scoping document for EPA’s table of Conditions of Use.

EPA explains inclusion of vermiculite at p. 31 of the draft scope as follows:

“Vermiculite, a silicate, mica-like mineral, was widely used in building materials that will be a focus of much of Part 2 of the risk evaluation. It is well established that LAA—which consists mostly of winchite, richterite, and tremolite fibers with trace amounts of other amphiboles—is known to be present in vermiculite that was extracted from an open pit mine near Libby, Montana. Although the mine closed in 1990, it provided over 70 percent of all vermiculite sold in the United States from 1919 to 1990 (U.S. EPA, 2014). It has been demonstrated that asbestos has been detected in other vermiculite but not to the same degree or the same type of contamination. Thus, in the Part 2 risk evaluation, it will be important to consider asbestos fibers in vermiculite.”

Manufacturers have expressed concerns that the proposed scope may be overly broad and touching on products where health risk is already known and mitigated. Moreover, broadening the scope to include asbestos as a trace contaminant may misdirect agency resources resulting in inaccuracies in evaluation of potentially significant exposure pathways.

EPA will propose a related asbestos reporting rule later this month and issue the final rule in November 2022. In its regulatory agenda, EPA explains that the rule would,

“require the maintenance of records and submission to EPA: reports by manufacturers, importers and processors of asbestos and mixtures and articles containing asbestos (including as an impurity). The information sought includes data on the quantities of asbestos used in making products, employee exposure data, and waste disposal data. Reported information would be used by EPA and other Federal agencies in considering the regulation of asbestos.”

More information from EPA regarding the draft scoping document for Part II of the asbestos evaluation is available here. Notification related to the asbestos reporting rule is also available online.

Contact ACA’s Riaz Zaman for more information.