Comments of J. Brent Kynoch, Managing Director In response to the Draft Risk Evaluation for Asbestos

Brent Kynoch serves as the Managing Director of the Environmental Information Association or EIA. EIA is a membership organization that was founded in 1983 as the National Asbestos Council. EIA is a multi-disciplinary organization, representing every person and organization involved in asbestos abatement. Our mission is to collect, generate and disseminate information regarding environmental issues in the built environment. Asbestos is arguably the most important of these issues. EIA members are companies, organizations and persons involved in asbestos abatement and management in buildings and facilities. Our members include the entire vertical spectrum of persons involved in the abatement industry, including contractors, consultants, laboratories, training providers, regulators, equipment suppliers, owners and managers.

Mr. Kynoch has been actively involved in the Risk Evaluation process for asbestos since it was initiated by EPA in December 2016. Mr. Kynoch has submitted comments to the docket at every possible opportunity, and he has been involved in a number of meetings with EPA officials, the Asbestos Disease Awareness Organization and others during this time. All of Mr. Kynoch’s comments have a central and common theme.  Mr. Kynoch and EIA urge EPA to use its authority under TSCA to ban asbestos in the USA.

The draft risk evaluation for asbestos has found that most of the uses of asbestos exhibit an “unreasonable risk.” This is great news, although such a finding was certainly expected. Regardless of the findings of the Draft Risk Evaluation, there are problems and concerns about the process, studies and formulas that EPA has used as a basis for the Risk Evaluation. EPA has admittedly narrowed the scope of the Risk Evaluation and has used methods and a template for the risk assessment that underestimates the risk of exposure to asbestos and the number of deaths related to asbestos exposure.[1]

These comments are broken into three specific areas of concern that should be addressed by the Science Advisory Committee on Chemicals (SACC) in finalizing the Risk Evaluation for Asbestos. These areas of concern are as follows:

  1. EPA has not addressed the requirements imposed by the court in the Safer Chemicals Healthy Families, et al v. U.S. EPA decision relating to “legacy uses” of asbestos as a part of the Draft Risk Evaluation. A “supplement” to the Risk Evaluation, as proposed by EPA is not adequate because exposure concerns related to legacy asbestos-containing materials opens up numerous exposure pathways which will increase the exposure models and add other forms of asbestos to the evaluation. EPA’s decision results in an underestimate of the risks associated with exposure to asbestos.
  1. EPA’s risk evaluation is based solely on mortality rates instead of incidences of cancer associated with exposure to asbestos. This results in an underestimate of the risks associated with exposure to asbestos.
  1. EPA’s narrow scope of evaluation for asbestos should not be used as a template for future risk evaluation by the Agency or other organizations because it has been hastily crafted and is designed to underestimate risk.

EPA has not addressed the requirements imposed by the court in the Safer Chemicals Healthy Families, et al v. U.S. EPA decision relating to “legacy uses” of asbestos as a part of the Draft Risk Evaluation. A “supplement” to the Risk Evaluation, as proposed by EPA is not adequate because exposure concerns related to legacy asbestos-containing materials opens up numerous exposure pathways which will increase the exposure models and add other forms of asbestos to the evaluation. EPA’s decision results in an underestimate of the risks associated with exposure to asbestos.

The SACC should be very concerned that the requirements imposed by the court in the Safer Chemicals Healthy Families matter have not been addressed by EPA. By merely submitting a supplement to the Risk Evaluation for legacy uses and disposal of asbestos, EPA will not adequately address the exposures and concerns associated with materials that currently remain in buildings and facilities throughout the US. Under TSCA, conditions of use are defined as the circumstances, as determined by the Administrator, under which the substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce used, or disposed of.[2] 

The 9th Circuit Court of Appeals, in its decision, has clearly stated that it disagrees with the determination by the Administrators determination and that “use” of asbestos materials currently existing in the nations homes and buildings should be a condition of use (COU) to be considered in the Risk Evaluation of asbestos. By not considering legacy exposures as an integral part of the current risk evaluation, it has narrowed the modeling and by EPA’s own admission, has undercounted both exposure and the likely mortality rates.  A "supplemental" document and risk evaluation will do nothing if it is not integrated into the entire risk modeling process.

By not considering exposures to “legacy” asbestos in buildings, EPA leaves two important factors out of the risk evaluation: 1) Exposures occur to persons that are not aware of the presence of asbestos and therefore, these persons are not adequately protected, and 2) Exposures occur to other forms of asbestos besides chrysotile.

EPA has not considered exposure to “legacy” materials that exist in the US, because these materials are not currently in commerce. However, the exposure to these materials is not “legacy” at all. The exposures occur every day. This decision by EPA ignores the fact that there are millions, perhaps billions, of square and linear feet of existing asbestos-containing materials (ACM) in buildings, homes, structures and facilities throughout the US. There are still significant risks that are not being assessed to those working with or around the materials every day. From those in maintenance work to those working in construction and demolition activities. What is most vexing is the EPA and the Occupational Safety and Health Administration (OSHA) have significant rules in place for the identification of ACM, its management and handling should these materials be present or disturbed, so the exposure threat is obviously real. The current existence of asbestos in buildings leads to a myriad of exposures on a daily basis at all levels of work.

While EPA might assume that employers have knowledge of the presence of ACM in buildings, this is generally not true. There is no EPA requirement to do a complete building survey (inspection) for the presence of ACM except that which is required for schools (K-12, 40 CFR Part 763, Subpart E). This means that there are a vast number of buildings where there never has been a complete survey, nor have workers been trained even at the basic awareness level as is required by EPA (schools) and OSHA in their regulations. To this day there are many workers on a daily basis performing necessary tasks with no knowledge of the presence of ACM in their work, nor have they been training in required worker protection and work practices. These “unknowing, unprotected” exposures are not considered by EPA in the Risk Evaluation, which obviously leads to an under assessment of the exposures and risk associated with existing asbestos.

Another reality of EPA’s decision not to include exposures to “legacy” materials is that other forms of asbestos besides chrysotile (amosite, crocidolite, anthophyllite, tremolite and actinolite) currently exist in buildings. In addition, there are asbestiform minerals that have become known as “Libby Amphiboles” that are not considered by EPA in the Risk Evaluation. All of these asbestiform minerals (both the defined asbestos types and the Libby Amphiboles) are known to cause cancer and mesothelioma.

Chrysotile is a serpentine form of asbestos, while the other five forms of asbestos and the Libby Amphiboles are part of the amphibole family. By limiting the Risk Evaluation only to materials currently in commerce, EPA has determined that the only form of asbestos that needs to be evaluated is the chrysotile, or serpentine, form of asbestos. There are a number of scientists and epidemiologists that believe amphibole varieties of asbestos present a greater risk of cancer (and mortality) than serpentine forms of asbestos.[3] If it is true that amphibole varieties of asbestos present a greater risk of cancer, and therefore, mortality, than serpentine forms of asbestos, then EPA has further underestimated the risk of exposure to asbestos. Furthermore, many dedicated epidemiologists have made it abundantly clear that the Libby Amphiboles cause cancer and cause deaths. The Libby Amphiboles are another legacy material form of asbestos that should most surely be a part of any Risk Evaluation model created by EPA.

This commenter believes that by not including exposure to legacy asbestos materials, EPA has underestimated the potential exposures in exponential proportions rather than geometric or arithmetic proportions.

EPA’s risk evaluation is based solely on mortality rates instead of incidences of cancer associated with exposure to asbestos. This results in an underestimate of the total risks associated with exposure to asbestos

Continuing in the “undercounting and underestimating” theme, EPA has chosen to base the Risk Evaluation calculations on mortality rates from exposure to asbestos, rather than incidences of disease, such as asbestosis, lung cancer, mesothelioma, ovarian cancer and other cancers. Further, EPA’s Risk Evaluation is related only to mortality of mesothelioma and lung cancer, not any other cancers.[4]

Granted, the survival rates for persons with pleural mesothelioma (affecting the lining of the chest cavity) is low (less than 5%)[5]. However, survival rates for peritoneal mesothelioma (affecting the lining of the abdomen) is better. Peritoneal mesothelioma patients can expect a 5 year survival rate of 39%[6]. Going further, survival rates for ovarian cancer, lung cancer and asbestosis are better still.

All of this points to the fact that by counting only mortality rates, EPA is likely only counting deaths caused by mesothelioma. And, because mesothelioma is a signature disease, meaning that a diagnosis of mesothelioma is almost always indicative of exposure to asbestos, EPA easily weeds out cancer deaths related to other exposure concerns. By looking at mesothelioma mortality rates, EPA makes it easy for them to separate the concerns of cancer deaths caused in whole or in part by smoking and other hazardous activities, since the only cause of mesothelioma is exposure to asbestos. EPA has not specifically stated that the Risk Evaluation only counts mesothelioma mortality rates. However, by choosing to count only mortality rates as a part of the Risk Evaluation, EPA is most likely counting only mesothelioma deaths, since many other forms of asbestos-related disease and cancer do not result in death. Therefore, the decision to use only mortality as the basis for the Risk Evaluation means EPA is seriously underestimating the risk posed by exposure to asbestos.

As with the concerns of a narrow scope related to elimination of legacy asbestos, this commenter believes that by counting only mortality rates in the risk evaluation, EPA is underestimating the risk in exponential proportions, not geometric or arithmetic proportions.

EPA’s narrow scope of evaluation for asbestos should not be used as a template for future risk evaluation by the Agency or other organizations because it has been hastily crafted and is designed to underestimate risk.

In the past, EPA has often been revered as a leader in risk evaluations. Many other countries have used EPA’s assessments as models for their own evaluations. In the case of asbestos, EPA’s risk evaluation is woefully inadequate. EPA admits in its Risk Evaluation that some of the methods and processes that were employed have resulted in an under-estimation of the risk from exposure to asbestos. As pointed out in these comments, EPA’s narrowing of the scope of the risk evaluation is likely underestimating the risk in much greater numbers than EPA hints.

Even with the narrowing of the scope of the risk evaluation and the resulting underestimating of the risk of exposure to asbestos, EPA still arrives at the conclusion that asbestos poses an unreasonable risk in most conditions of use.

Streamlining should not be used in other evaluations, just because it makes the process of risk evaluation easier for the agency.

Lastly, and most importantly is “What will EPA do now?” The draft Risk Evaluation has determined that most of the uses of asbestos present an unreasonable risk. For this reason, EEPA should move now, under the authority of TSCA, to ban asbestos. The SNUR enacted by EPA will not adequately protect persons from exposure to asbestos and ultimately to the risk of death from asbestos exposure. The SNUR requires self-reporting by manufacturers and importer of asbestos and asbestos-containing products to EPA, through a SNUN. Any person would agree that self-reporting is not likely, and given EPA’s limited staff dedicated to enforcement of its regulations, there is no doubt that a SNUR will not be effective.

EPA has the authority to ban asbestos under TSCA. It should use the authority to eliminate this deadly mineral completely in the USA.

Respectfully submitted,

J. Brent Kynoch
Managing Director


[1] Lines 7022-7050 of Draft Risk Evaluation for Asbestos, EPA Document # EPA-740-R1-8012, March 2020

[2] TSCA Para 3(4). Underlining added by commenter.

[3] https://www.ncbi.nlm.nih.gov/books/NBK304374/

[4] Line 934-942 of Draft Risk Evaluation for Asbestos, EPA Document # EPA-740-R1-8012, March 2020

[5] Skammeritz E, Omland LH, Johansen JP, Omland O. Asbestos Exposure and Survival in Malignant Mesothelioma: A Description of 122 Consecutive Cases at an Occupational Clinic. In J Occup Environ Med (The IJOEM). 2011 Oct;2(4):224-36

[6] https://www.asbestos.com/mesothelioma/statistics

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