The U.S. has still not banned the use of asbestos, even though 55 other countries have.
All attempts to place a ban on asbestos in the U.S. have been successfully struck down by powerful lobbyists, and this dangerous human carcinogen continues to be imported and used in our country to this day. This continues despite the fact that asbestos-related diseases kill an estimated 10,000 Americans each year.
Early Attempts to Regulate Asbestos
As early as the 1970s, the Occupational Safety and Health Administration, or OSHA, first reported on the dangers of exposure to asbestos – and the material was well known as being hazardous decades earlier. The Environmental Protection Agency (EPA), under the Clean Air Act, issued a standard policy for emissions in 1971. One year later, OSHA issued an occupational standard. That standard became more protective throughout the decade until the EPA, under the authority of Section 6 of the Toxic Substances Control Act (TSCA), issued a notice of intent to regulate asbestos. In response, during the Reagan Administration the Canadian government and asbestos companies lobbied the Office of Management and Budget (OMB) to end the regulation efforts of the EPA. The reason the Canadian government became involved was that out of the 85,000 tons of asbestos being used in the United States at the time, 95 percent came from Canada. The majority of that came from the province of Quebec. Under pressure from lobbyists, the EPA began referring the issue of asbestos to OSHA. However, by 1985, a number of EPA employees became outraged over the issue. As a result, the EPA reversed its position and supported an asbestos ban.
The Phase-Out Rule and EPA Ban of 1989
The EPA issued a policy in 1989 designed to initially phase out, and then eventually ban, all asbestos-containing products. Not only did this policy apply to the manufacturing of asbestos products, but also their development, processing and importation. Approximately 94 percent of asbestos consumption in the U.S. would be affected. The EPA policy was issued after a $10 million, 10-year study examining exposure to asbestos and its fatal effects. “Asbestos is a human carcinogen,” the study stated, “and is one of the most hazardous substances to which humans are exposed in occupational and non-occupational settings.” (54 Fed. Reg. 29,460, at 29,468 (1989)).
As you may have expected, this attempt to ban asbestos was fiercely opposed by asbestos industry supporters and lobbyists. They tried to sway opinion toward opposing the ban, citing economic devastation and massive job loss. Within the asbestos industry, organizations challenged the validity of the ban by filing a lawsuit in Corrosion Proof Fittings v. EPA under the TSCA. The Fifth Court dismissed the asbestos ban, although the EPA stated that, if asbestos products were not banned, an unreasonable risk of harm would be imposed. In its ruling, the court stated that the EPA had not been able to provide enough substantial evidence to justify the ban under the TSCA. The court also stated that the EPA did not create the “least burdensome alternative” for eliminating the “unreasonable risk” of asbestos exposure, which the TSCA required. However, the court did acknowledge that “asbestos is a potential carcinogen at all levels of exposure.” In addition, the EPA’s analysis of product substitutes, as well as its cost/benefit analysis, were also rejected by the court.
The ruling by the Fifth Court was a devastating setback to the EPA’s effort to ban asbestos. By requiring government agencies to undergo extensive analytical requirements, the court imposed an unreasonable burden of proof. Not only did this ruling allow exposure to asbestos to continue, it also made restricting other toxins extremely difficult for the EPA. After all, the EPA would surely have a difficult time restricting any other type of toxic substance if it can’t restrict a known carcinogen such as asbestos.
In subsequent years, no further action has been pursued regarding this rule, and no administration has attempted to appeal the ruling.
Is Asbestos Still Being Used Today?
There are still asbestos-containing products being manufactured and sold in the United States to this day. There have been restrictions placed on asbestos use, but it is still used in certain kinds of materials, primarily construction items such as roofing materials. In homes where asbestos has not been removed, possible new risks for exposure exist. Also, since asbestos can be found in the construction materials that were used to build many older homes, families and workers can be exposed to asbestos through demolition or remodeling.
Lobbyists continue to try and pass litigation that would create further delays for mesothelioma patients attempting to obtain compensation. One example is the Furthering Asbestos Claim Transparency Act (The FACT Act).