United States: The Nickel Report: No, EPA Isn't Putting Asbestos Back Into Buildings

This summer, EPA sparked public outrage with its proposed "significant new use" rule, or SNUR, addressing certain commercial uses of asbestos. Publications like Rolling Stone, Newsweek and The Daily Beast criticized EPA for loosening its regulations to pave the way for asbestos to be reintroduced to the market, allowing asbestos-containing construction materials to be used in homes and other buildings again for the first time in decades. National figures like Senator Brian Schatz and Chelsea Clinton drew attention to the proposal while condemning the Agency for increasing public exposure to this well-known carcinogen.

There's just one issue: EPA's proposed action does the opposite of what these critics claim. The SNUR would impose substantial new prohibitions on the listed uses of asbestos—which currently are not regulated by EPA at all—while giving EPA the necessary legal "hook" to restrict or even ban these uses outright in the unlikely event that a company actually tries to resume them.

How can news reports have gotten it so backward?

The confusion probably stems from the collision of a poorly understood statute and a high-profile chemical. The public generally isn't familiar with the nuances of the Toxics Substances Control Act (TSCA) or the processes EPA must go through to regulate chemical substances under that statute. But people are aware of the health risks of asbestos, which are well documented and have led to discontinuation of its commercial use in all but a few niche applications, even absent any effective federal restrictions to date. At the same time, the President's stated views on asbestos are... unorthodox. He suggested at one point that reports of asbestos's cancer-causing effects are a hoax perpetrated by "the mob," and one Russian asbestos producer reportedly considers him to be so supportive of their industry that they printed his face on their packaging. In this context, perhaps it's unsurprising that a proposal with the words "asbestos" and "new use" might be greeted with reflexive skepticism.

To see why the proposed SNUR is a step toward stricter regulation of asbestos, one first has to understand how TSCA works. The law establishes separate regulatory tracks for "existing" chemicals (i.e., those listed on EPA's inventory, which includes asbestos) and "new" chemicals—including new uses of existing chemicals. For existing chemicals, regulation proceeds in two phases under section 6 of TSCA. First, EPA must perform a risk evaluation to assess whether the chemical's "manufacture, processing, distribution in commerce, use, or disposal" presents an unreasonable risk of injury to health or the environment, without regard for cost or other non-risk factors, under the chemical's conditions of use. If EPA determines use under the conditions examined does not present unreasonable risks, no regulation is warranted. But if EPA finds use under any of those conditions does present an unreasonable risk, it must impose sufficient regulations to eliminate that risk. Under TSCA's deadlines, this entire process from commencement of the risk evaluation to adoption of final restrictions may take from 5 to 7 years.

For "new" chemicals, TSCA proceeds differently. Under section 5 of TSCA, no person may manufacture, import or process a new chemical (or an existing chemical for a new use) without first giving notice to EPA. After receiving the notice, EPA reviews it to decide whether the new chemical or use presents an unreasonable risk to health or the environment. If there is such a risk, EPA must adopt regulations as necessary to prevent it—up to and including a ban on specific uses. Manufacture cannot proceed until EPA has completed its review, issued a risk determination and promulgated any restrictions necessary to address unreasonable risks. TSCA generally requires EPA to complete its review within 90 to 180 days.

So where does the asbestos SNUR fit in this process? Asbestos is considered an "existing" chemical, and the specific conditions of use addressed by the SNUR—as a component of various adhesives, sealants, coatings, floor tiles and other building materials—were fairly widespread in the past, although they have long since been discontinued in the United States. Accordingly, any restrictions on these uses would currently have to come through TSCA's section 6 process for existing chemicals. But in the SNUR, EPA is proposing to find that these uses have been discontinued for so long that any effort to revive them would constitute a "new" use that must be reviewed under TSCA section 5 before it may resume. Effectively, then, the SNUR would establish a blanket prohibition on the listed uses of asbestos that applies until EPA receives a pre-manufacture notice and has an opportunity to take more definitive long-term action.

To see why this is meaningful, consider the alternative. Without the SNUR, the listed uses of asbestos would fall under the section 6 process for existing chemicals. Although EPA's risk evaluation for asbestos is already underway, under TSCA's deadlines, the Agency is not required to issue final regulations addressing any unreasonable risks it finds until the end of 2021 at the earliest. In the interim, manufacturers could resume these uses without facing any federal restrictions under TSCA. More importantly, EPA interprets section 6 to not require evaluation of risks from "legacy uses" of a chemical (that is, activities that are not ongoing) or disposal of chemicals from those uses. Because the uses of asbestos discussed in the SNUR have been discontinued for years, EPA's recent "problem formulation" document for asbestos classifies them as "legacy uses" that will be excluded from the scope of its risk evaluation.

By contrast, the SNUR immediately would make it unlawful to manufacture, import or process asbestos for the listed uses, at least until EPA has an opportunity to review their risks after receiving a pre-manufacture notice. Critics may argue that this still leaves a window open for manufacturers to reintroduce asbestos-containing building materials to the market after they give the required notice, but, realistically, that is implausible. To avoid restrictions or an outright ban, the manufacturer would have to show that its proposed use is unlikely to present an unreasonable risk to health or the environment—yet it was the well-known and substantial health effects of these asbestos-containing materials that drove them out of the market in the first place. If nothing else, the SNUR provides greater protection than continuing to classify these as "existing" uses, which allows manufacturers to resume them at any time without giving notice and receiving clearance from EPA.

In short, EPA is not proposing to place asbestos construction materials back on the market or into your home, school or hospital as some media outlets have claimed. To the contrary, EPA is taking the necessary first steps to freeze these uses and set the stage for future restrictions if a manufacturer does attempt to reintroduce them.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Arnold & Porter
Arnold & Porter
Arnold & Porter
Smith Gambrell & Russell LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Arnold & Porter
Arnold & Porter
Arnold & Porter
Smith Gambrell & Russell LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions