During hearings related to Nancy Beck’s nomination to the Consumer Product Safety Commission (CPSC) earlier this month, Senate Democrats engaged in what basically amounted to character assassination. I’ve already addressed unfair comments and criticism levied by Sen. Tom Udall (D-NM). And I have addressed general attacks that environmental activists launched before the hearings as well, which you can find here and here.
Today we examine claims that Beck somehow blocked regulations to ban asbestos, leaving the public exposed to allegedly serious public health risks. Sen. Jon Tester (D-MT) appeared to have no interest in listening to—or even understanding—Beck’s answers. It also appears that he did not fully understand the process set for chemical reviews under the Lautenberg Chemical Safety Act, which reformed the Toxic Substances Control Act (TSCA) in 2016.
At the hearing, Tester took an accusatory tone as he inquired as to why the Environmental Protection Agency (EPA) was taking so long to ban asbestos, as if Beck was somehow able to push a ban all by herself. (You can see the exchange at 1:55 to 1:59 in to the hearing video).
Asbestos was a key tool used by activists to push the TSCA reform bill. Activists complained the law was so weak that it even failed to ban asbestos, so reform was urgently needed to prevent more cancers.
Clearly dangerous asbestos products and uses were banned or phased out years ago, and only the much lower risk asbestos products, for which risks can be managed with personal protective measures, had remained legal for a limited number of uses.
If Congress wanted to ban all types of asbestos, they could have done it outright within the Lautenberg bill. Instead, as Beck started to explain, the EPA had to comply with the law that set up a process for considering asbestos and other chemicals, which involves a year process of several year that neither she nor the agency at large can legally unilaterally ignore.
“Let me ask you this,” Tester said. “Is asbestos banned today?”
Beck explained that some types of asbestos have in fact been banned for decades, and some uses remained on the market, and that the EPA was following the TSCA law to review those remaining uses to determine whether they should be banned under the new law. But Tester didn’t seem to want to hear the facts, so he cut her off. Instead, he wanted to attack.
“But, but stop,” he interrupted. “The TSCA from 1989 was to evaluate them based on cost. … The TSCA that we passed … was supposed to evaluate it from a health and safety standpoint, so the question is … is asbestos banned today?”
Beck looked perplexed because she had just answered that question, so she tried again to explain, saying that yes, some uses are banned, and the EPA is working “aggressively” under the legally required guidelines of the Lautenberg law to consider the rest.
“I don’t know what your definition of aggressive is, but with a known carcinogen such as asbestos is, it would appear to me that it hasn’t been very aggressive from my perspective,” Tester griped.
Beck attempted to explain the process and science again, but he just cut her off and said that the risks associated with these products is so significant that bans should have happened practically immediately. Yet that’s not how the law he voted for works in practice, as it requires a comprehensive scientific review. Tester apparently doesn’t care about science or the legal realities because he would not allow Beck to provide that information.
For those who care about facts, here’s some background.
The left has used the asbestos issue as a political tool to push a narrative to advance more onerous regulation of chemicals in general. To achieve that end, they promoted an unbalanced and misleading narrative that casts all types and uses of asbestos as always posing unacceptable risks.
That line of reasoning also works well for trial attorneys who seek to get rich on asbestos cases. It’s not surprising that confusion is so common because these lawyers have populated the Internet with articles about asbestos risks that are also very unbalanced.
Yet this narrative is out of line with reality.
First, it is important to understand that asbestos fibers became commercially important because of their ability to retard fires. They have been particularly valuable in construction-related products and for preventing fires related to heat from friction in products like automobile brakes. Today, most asbestos uses in the United States are involved in the production of chlorine.
Second, not all asbestos-related risks are the same. The term “asbestos” refers to a group of several different mineral substances, each with unique properties and risks. An American Council on Scient and Health (ACSH) paper described asbestos as a “generic term used to describe a number of fibrous minerals with differing toxicological properties and propensities for causing disease.”
Of those in commercial use, there are two asbestos categories: chrysotile and amphibole, and the risks of each is different. The ACSH report notes that “amphibole fibers (which tend to be relatively long and thin) are a more potent risk factor for the development of mesothelioma and, to a lesser degree, lung cancer than are chrysotile fibers (which tend to be relatively short and wide).” The National Cancer Institute also notes:
Although all forms of asbestos are considered hazardous, different types of asbestos fibers may be associated with different health risks. For example, the results of several studies suggest that amphibole forms of asbestos may be more harmful than chrysotile, particularly for mesothelioma risk, because they tend to stay in the lungs for a longer period of time.
The only asbestos used in the United States today are the lower risk, chrysotile fibers, although risks remain and must be carefully managed.
Asbestos products are mainly dangerous when the asbestos fibers become friable—airborne, where one might breathe them into the lungs. That is why removal of old asbestos tiles and other construction materials must be done carefully by professionals to prevent them from become friable.
Some asbestos uses are unlikely to ever be friable because the fibers are encapsulated—such as in the use of automobile brakes. As detailed in the ASCH report, numerous studies on workers exposed to chrysotile asbestos in friction-control industries—such as workers for brake manufacturers and automotive brake repair workers—failed to detect significant cancer risks. In addition, protective work practices can prevent dangerous exposures and friability.
EPA regulators’ job is to weigh these risks against beneficial uses to maximize public health and safety. They must be sure that bans won’t lead to a net loss of human life because replacement products fail to perform. In fact, as CEI’s John Berlau documents well in his book Eco-Freaks, that has been an issue with past asbestos bans.
It’s not a zero-sum game as Tester, environmental activists, and trial lawyers to depict it for political and (in the case of trial lawyers) financial benefit. In fact, it was a potentially dangerous tradeoff that prevented the EPA from finalizing its 1989 proposed ban on all asbestos uses.
The original TSCA law required that the agency apply the least “burdensome regulations” to achieve its public safety goals. That was the provision Tester appears to be addressing when he said the EPA could not ban asbestos merely because of “cost.” However, it wasn’t monetary cost that prevented the ban; it was the potential cost to human life. In 1991, a federal court found that the EPA’s plan to ban all asbestos uses did not meet that standard and could result in a net loss of human life.
The Fifth Circuit Court of Appeals’ opinion in Corrosion Proof Fittings v. EPA stated:
What we cannot ignore is that the EPA failed to study the effect of non-asbestos brakes on automotive safety, despite credible evidence that non-asbestos brakes could increase significantly the number of highway fatalities, and that the EPA failed to evaluate the toxicity of likely brake substitutes. As we already mentioned, the EPA, in its zeal to ban asbestos, cannot overlook, with only cursory study, credible contentions that substitute products actually might increase fatalities.
In 2016, Congress reformed the TSCA to remove the requirement that the agency apply the “least burdensome” regulation, potentially opening the door for bans on the remaining asbestos. But this change still did not give the agency blanket authority to ban them without consideration whether it’s necessary from a public safety point of view and whether current uses remain important for public health and safety.
Most asbestos uses in the United States are important because they involve the production of chlorine. In the age of COVID-19, the public health benefits of chlorine disinfection in hospitals and beyond are well known. Chlorine also ensures a safe and sanitary water supply and is used in the production of 88 percent of all pharmaceuticals.
Accordingly, these important uses are at stake, so the EPA must consider whether the risks are significant and warrant a ban and whether substitute products and processes might pose other risks. As I noted in a prior post, the revised TSCA set up a multi-year process for the EPA to assess such issues and consider whether bans or new regulations were necessary.
The process requires the agency to pick priority chemicals and thoroughly assess their risks, draft a risk assessment, open the assessment to public comments, review comments, refine the assessment, and eventually develop regulations if warranted. There is no provision that allows the EPA to skip these steps, and the law allows three years for this process with the right to extend for six months. That means the EPA has three and a half years after the chemical was listed as a priority for review. That is a lot of work for a relatively short time frame for any regulatory agency.
In December 2016, the Obama EPA listed these last few legal uses of asbestos as a priority for evaluation under the reformed TSCA, which passed just about six months earlier. That listing gave the agency until December 2019 to finalize its decision unless it opted to take an additional six months, putting the hard deadline at June 2020.
Despite the complexity of the issue, the EPA is relatively close to being on time, with some delays related to COVID-19. The agency published a draft risk assessment for the remaining asbestos uses on April 3, 2020, and opened a public comment period that ended on June 2, 2020. The EPA must now review comments and proceed toward finalizing its assessment, after which it may propose a final rule if necessary.
So, it is unfair for Tester to present the situation as a zero-sum game and present Beck as a roadblock to banning something that “everyone knows” is dangerous. It is not clear that these last few uses are particularly dangerous, nor is it clear that workplace personal protective measures cannot sufficiently address those risks. And there is nothing Beck could have done to singlehandedly override the legally mandated process for reviewing asbestos—a process that Tester agreed to when voting in favor of TSCA reform.
In any case, the EPA may well ban these valuable and limited uses of asbestos because of political pressure, even if the risks can be managed. But ultimately, that has little to do with Nancy Beck and her qualifications to run the Consumer Product Safety Commission. And it is certainly no excuse to attack her character.