July 18, 2018
New updates to the Toxic Substances Control Act prompted the Environmental Protection Agency (“EPA”) to issue a proposed significant new use rule (“SNUR”) last month. In the first action of its kind related to asbestos, the SNUR will give the EPA power to investigate and prevent new uses of asbestos. This will include investigating what the intended use of the asbestos is, and gives the EPA authority to take necessary action. With this significant control, the EPA can also approve of or prevent any new uses of asbestos.
We briefly discussed the EPA’s SNUR in our post “EPA Announcement on Asbestos” which highlighted that the SNUR would give the EPA authority to prohibit the manufacturing and importation of certain asbestos-containing products, including “adhesives, sealants, and roof and non-roof coatings; arc chutes; beater-add gaskets; extruded sealant tape and other tape; filler for acetylene cylinders; high-grade electrical paper; millboard; missile liner; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; and any other building material (other than cement),”
So what does this SNUR mean and how will it actually impact the industry? That will depend mostly on how the EPA intends to use its newly found power. The most important aspect of the SNUR seems to be the EPA’s stamp of approval before any asbestos can be manufactured or imported into the United States. Currently chrysotile (serpentine) is the only type of asbestos that is imported into the United States. Manufacturers and importers of asbestos, including asbestos-containing goods would need to go through the EPA before doing business.
With a slightly different take, the EPA also announced that they will no longer review or prohibit any new uses or exposures from abandoned asbestos uses. This could have a major affect on the types of asbestos exposure cases being brought in court. Even though exposure to abandoned asbestos can still be brought as a legitimate claim for any potential plaintiffs, the EPA’s failure to prohibit abandoned asbestos may affect the liability of any potential abandoned asbestos defendants.
Companies that manufacture or import any asbestos-containing goods, especially those goods listed above, should keep a close watch on what the EPA is doing and what types of products are receiving this “stamp of approval”. It will also be important to monitor any comments on the proposed new rule and see what the final version looks like.