In July, the U.S. Environmental Protection Agency (EPA) announced it had finalized new asbestos reporting and recordkeeping requirements.
The Final Rule, which took effect August 24, applies to companies that import, process, or manufacture asbestos-containing products, and requires those companies to electronically report information about the quantities of asbestos (including asbestos that is a component of mixtures) they manufacture, import or process; types of use; and employee data. Under the new rule, companies will be required to report use and exposure information from the previous four years and must maintain records for at least five years.
The EPA’s Final Rule for new asbestos reporting and recordkeeping requirements is intended to provide the agency with critical information that can be used to guide risk evaluations, risk management activities, and potential future actions. And while the rule dramatically strengthens asbestos oversight, it still falls short in addressing the true health risks of asbestos exposure and the real problem: the fact that asbestos is still legal in the U.S.
How Is Asbestos Still Legal in the U.S.?
Asbestos is a naturally occurring mineral that was used widely in building, industrial, and consumer product applications throughout the 20th century. As such, it can still be found in products and materials all around us, including nearly every older home and piece of machinery.
Moreover, while asbestos use is limited in the U.S., it is not entirely banned. It remains legal to import and use the mineral in small amounts. The result is that many products produced today can still legally contain up to 1% of the mineral, and that workers in at-risk occupations are still exposed to asbestos.
So why is asbestos still legal in the U.S. despite all that we know about this dangerous mineral? The answer has a lot to do with aggressive lobbying by the asbestos industry and other corporations that profit from asbestos. In fact, asbestos lobbyists have been one of the biggest barriers to more stringent asbestos regulations for decades.
A brief look at the history of asbestos regulation makes that very clear.
Asbestos Regulation in the 1970s
The work of lobbyists was readily apparent in the 1970s, when several agencies tasked with health, safety, and the environment were created.
This includes OSHA, an agency created in 1970 to coordinate health and safety initiatives in the workplace, and NIOSH, the research branch of OSHA.
In 1975, OSHA declared asbestos a carcinogen and proposed lowering the safe-exposure threshold for asbestos. In 1976, NIOSH concluded that there was no “safe” level of asbestos exposure. Despite these two agencies’ important findings and efforts, however, industry and political pressure largely prevented changes from being made.
While little progress was made in regulating asbestos in the 1970s, there were two major pieces of legislation passed during this time that would help regulate asbestos in later years. This included:
- The Clean Air Act (CAA) of 1970, which established the EPA’s authority to regulate air pollution. Since the CAA was passed, the EPA has used it to ban several asbestos-containing products, including asbestos pipe insulation and spray materials.
- The Toxic Substances Control Act (TSCA) of 1976, which gave the EPA authority to require reporting on chemical substances and to conduct risk evaluations that are used for restricting substances.
The Asbestos Ban and Phase-Out Rule (ABPR)
Thanks to powers granted to it by the CAA and TSCA, the EPA made significant steps toward banning asbestos in the 1980s. This included the agency’s 1989 Asbestos Ban and Phase-Out Rule (ABPR), which banned most asbestos products and aimed to ban future manufacturing, importation, and distribution of asbestos products.
Unfortunately, the asbestos industry quickly organized to challenge the ban in Corrosion Proof Fitting v. EPA, which produced a landmark ruling in 1991 overturning most of the ABPR. In the ruling, the Fifth Circuit Court of Appeals acknowledged that asbestos is a carcinogen, but still sided with industries that claimed the ban would be too costly.
While the ban on new uses of asbestos survived, the Corrosion Proof Fittings v. EPA ruling severely limited the ban on asbestos products only to certain types of paper and felt flooring and allowed companies to continue exposing Americans to asbestos.
Asbestos Regulation in the Early 2000s
Renewed attempts to ban asbestos produced several important legislative efforts in the early 2000s, including:
- The Ban Asbestos in America Act (2002), also known as the Murray Bill, which would have required the EPA to ban almost all uses of asbestos in the U.S. The bill was approved by the Senate in 2007 but failed to pass the House of Representatives.
- The Bruce Vento Ban Asbestos and Prevent Mesothelioma Act, which would have strengthened the TSCA by expanding the definition of asbestos to include various forms of the mineral, ban more asbestos-containing products, and establish a national research and treatment network. The Act failed to overcome opposition and did not become law.
Asbestos Regulation Today: Will the U.S. Ever Ban Asbestos?
Today, asbestos bans have been effectively passed in many countries, including Australia, Canada, the European Union, and Japan. Several states, including New Jersey and Washington, have also passed laws banning certain asbestos products.
Unfortunately, the U.S. federal government has still not fully prohibited asbestos use. Asbestos companies and other corporations that profit from asbestos still use and expose workers to this known carcinogen and continue to lobby against legislation that threatens their bottom line. Often, these corporations misrepresent the costs of banning asbestos, understate the risks to workers, or commission studies of their own to downplay the dangers of asbestos.
Despite the continued efforts of asbestos lobbyists, support for an asbestos ban is growing. Some important legislative efforts with the potential to help include:
- The Frank R. Lautenberg Chemical Safety for the 21st Century Act, which gave the EPA authority to ban asbestos. The agency has not yet used its authority under this law to implement a ban.
- The Alan Reinstein Ban Asbestos Now Act, which would prohibit the use and importation of asbestos.
- The EPA’s Proposed Rule to ban the use of chrysotile asbestos, the only type of asbestos used in the U.S.
SWMW Law: Fighting for Victims of Asbestos Exposure Nationwide
SWMW Law is a leading plaintiffs firm known for litigating claims involving asbestos exposure, mesothelioma, and other asbestos-related diseases nationwide.
In addition to supporting legislation to ban asbestos once and for all, we help victims and families with legal problems that need solutions today. This includes providing victims of asbestos exposure with the firepower they need to fight back against corporations, insurance carriers, and powerful defendants that put profits over people.
If you have questions about a potential case involving mesothelioma or other conditions caused by exposure to asbestos, we want to help. Call (855) 744-1922 or contact us online for a FREE consultation.