55 countries have a ban on the use of asbestos. The U.S. is not one of them.
An estimated 10,000 Americans die each year from asbestos disease. Yet, powerful asbestos lobbyists have successfully struck down attempts to ban asbestos, and the U.S continues to import and use asbestos products today.
Early Asbestos Regulation
The Occupational Safety and Health Administration (OSHA) first began reporting on the dangers of asbestos exposure in the early 1970s, although it was widely recognized as a hazardous material long before. In 1971, the Environmental Protection Agency (EPA) issued an emissions standard policy under the Clean Air Act, followed by an occupational standard issued by OSHA in 1972. Although standards got steadily more protective, it wasn’t until 1979 when the EPA issued a notice of intent to regulate asbestos under the authority of Section 6 of the Toxic Substances Control Act (TSCA). The move prompted asbestos companies and the Canadian government to lobby the Reagan Administration’s Office of Management and Budget (OMB) to put a stop to the EPA’s efforts. Canada became involved because 95 percent of the 85,000 tons of asbestos used in the United States at the time came from Canada, mainly Quebec. The EPA initially referred the asbestos issue to OSHA as a result of lobbying pressure in 1985, but EPA employee outrage over the issue caused the EPA to reverse its position again and support a ban on asbestos.
Why is asbestos not banned in the U.S.? Powerful asbestos industry lobbying.
1989 EPA Ban and Phase-Out Rule
In 1989, the EPA created policy to phase out and eventually ban all products containing asbestos. The policy applied to the manufacturing, importation, processing and development of asbestos products, and would affect 94 percent of U.S. asbestos consumption. The policy was created based on the results of a 10-year study and $10 million of research on the fatal effects of asbestos exposure. The report stated “asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.” (54 Fed. Reg. 29,460, at 29,468 (1989)).
The ban on asbestos was met with fierce opposition. Asbestos lobbyist and industry supporters cited massive job loss and economic devastation as potential results from the proposed ban. Organizations within the asbestos industry filed a lawsuit challenging the ban’s validity under TSCA in Corrosion Proof Fittings v. EPA. Although the EPA defended the ban, citing the unreasonable risk of harm imposed if asbestos products were not banned, the Fifth Circuit Court dismissed the ban on asbestos. The ruling stated that the EPA failed to present substantial evidence to justify the ban under TSCA. Although the court acknowledged that “asbestos is a potential carcinogen at all levels of exposure,” the court charged that the EPA failed to create the “least burdensome alternative” for eliminating the “unreasonable risk” of exposure to asbestos, as required by the TSCA. The court also rejected the EPA’s cost/benefit analysis and its analysis of product substitutes.
The Fifth Court ruling was a tragedy for the EPA, placing an unreasonable burden of proof by requiring extensive analytical requirements on government agencies. The ruling not only allowed for asbestos exposure to continue, it made it difficult for the EPA to restrict other toxins. If the EPA can’t restrict asbestos, a known carcinogen, it will surely have difficulty restricting any other toxic substance.
No administration has attempted to appeal the ruling, and no further action was pursued regarding this rule.
Products containing asbestos are still manufactured and sold in the U.S today. Although there are restrictions, asbestos is still used in certain materials, most notably roofing materials and other construction items. Homes that have not been updated also represent a possible risk for new asbestos exposures. Many construction materials used in older homes contain asbestos, and when disturbed by remodeling or demolishing, can expose workers and families to asbestos dust.
Unfortunately, asbestos lobbyists frequently try to pass legislation, like the Furthering Asbestos Claim Transparency Act (The FACT Act), which could create further delays for mesothelioma patients from seeking compensation.