The Unintended Consequences of Panic-Driven Policy
It is a bedrock principle of American regulatory policy that our decision-making process is a deliberative one. This is the principle that guides (or is supposed to guide) the Administrative Procedure Act, the set of rules that governs how agencies turn statue into regulation—allowing individuals and groups the opportunity to voice their support or concerns for proposals, especially how those proposals might have negative consequences (especially unintended consequences) on them, their lives, or their livelihoods.
The problem, of course, is that with increasing frequency, the Biden Administration (and a bureaucracy that is all-too-eager to expand the size and scope of the executive branch), those engaged in the decision-making process are out-and-out ignoring the deliberative comments that raise the alarm on unintended consequences, leaving the American people less-well-off as a result.
The EPA has been one such culprit—engaging in rulemakings regarding cars that are trying to force people to buy cars that they don’t want, get rid of household appliances that they DO want, and drive up the average family’s household energy bill.
But the EPA’s mischief gets more sinister—last year, for instance, the EPA engaged in a proceeding that would effectively ban a chemical called “ethylene oxide” (EtO), raising the alarm about EO’s potential as a carcinogen. The final rule on EtO was announced in March.
The problem is, while there might be some risk of cancer from serious exposure to EtO, there is a real risk should the EPA succeed banning it, since EtO is a vital chemical used in disinfecting medical devices—a chemical for which there is no ready substitute. In fact, according to the eminent toxicologist, Dr. Gail Charnley, one cannot have a surgical procedure in the United States without at least one major tool or device used in that surgery having been disinfected by EO.
Yet the EPA wants to ban it for phantom risk reasons, ignoring the real risk that comes from a ban.
More recently, EPA announced that it was going to ban chrysotile asbestos. Given the panic that has been fomented in America over asbestos over the last 40 years, this came as no real surprise. The problem is, of course, that in doing so, EPA once again trades a set of phantom risks for the real risks of harm that come from such a ban.
In the early 1990s, the Federal government attempted to eliminate “asbestos” from US commerce—EPA tried proposing a ban, generically, on all forms of asbestos.
But now, via the Toxic Substances Control Act (TSCA), it has essentially replaced the generic descriptive “asbestos” with a specific fiber type, chrysotile asbestos. Important amphibole asbestos minerals are no longer available, being driven from global commerce through litigation and discontinued uses. The Federal position to ban “asbestos” remains the same.
The paradox exists that the data accumulated over the past 30-years or so actually support retention of chrysotile in the forms of the products described: brake blocks and critical seals (gaskets and packing, for instance, used in the processing of harsh and hazardous chemicals, such as chlorine), the risk of asbestos disease to bystander populations is considered remote when operations are carried out under the current OSHA controls and protocols.
TSCA’s Science Advisory Committee (Chemicals) reviewed existing studies and concluded that there was “unreasonable risk to injury to humans” following estimated exposure to chrysotile under 33 specific workplace conditions (“conditions of use”), and recommended the chrysotile ban as a result. But critics of that review, including experts familiar with the essential nature of chrysotile in critical industrial processes, concluded that EPA’s assessment was fundamentally flawed.
Comments made by scientists at the American Chemistry Council underscore what is at stake:
EPA’s proposal to phase out the use of chrysotile asbestos in chlor-alkali manufacturing could significantly impact public health by reducing the domestic supply of chlorine which is vital to protecting the safety of the nation’s drinking water supply. Approximately 98% of public drinking water treatment facilities use some form of chlorine-based disinfectant, according to the American Water Works Association. The supply chain disruptions experienced by water utilities over the last couple of years have highlighted the vital importance of chlorine to water disinfection.
EPA also continues to use flawed science, which fails to account for how different fiber types post different risks to human health. During the 1980s and 1990s, when EPA was also considering a ban, they at least took into account data concerning fiber type, disease severity and exposure length and level, lifestyle factors (tobacco, alcohol), among important non—asbestos-related agents.
Cohort mortality studies supported the position that mesothelioma and fiber type were linked, and extrapolation of known data points into a region of an established, known, data point and zero, formed a no threshold model of exposure-response. The widely used amphibole asbestos varieties, amosite, crocidolite and anthophyllite asbestos, remained serious threats to exposed workforces, more so than chrysotile asbestos.
The phrase “follow the science” has, unfortunately, become a political one, with far too many pushing for greater regulation in a host of areas hypocritically refusing to look at the actual science. Attempts to reduce exposure levels to a variety of substances can sound attractive, but does the science make sense? In the case of chrysotile asbestos, it’s not just that historic (and continued) in-place asbestos utilization makes a zero-tolerance policy of exposure impossible, or that there are natural outcroppings of serpentine and other asbestos-containing masses.
But it’s these other situations, uses—whether for water purification and delivery, or as a stabilizing agent, or because of asbestos’ unique thermal load capabilities, that make chrysotile still an essential industrial mineral. And in the same way that there are no ready substitutes for ethylene oxide, there is a legitimate question of whether there are safe and effective substitutes for chrysotile that can serve these purposes.
We have seen the EPA open up the so-called “Pandora’s Box” in a whole host of areas. This latest decision adds to that chaos.
Andrew Langer is Director of the CPAC Foundation Center for Regulatory Freedom. Dr. Arthur Langer, PhD, is Professor Emeritus of the Graduate School of the City University of New York, Dr. Langer and Mr. Langer are father and son.
