Why Asbestos Is Not Banned

Although public health professionals had long been aware of the deaths and illnesses related to asbestos exposure, it wasn't until the early 1970s that asbestos garnered the attention of the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA). As the agencies began to take note of existing and developing science and epidemiology regarding asbestos-related health hazards, they started to issue safety standards and regulations of the dangerous fiber. In 1971, EPA promulgated an emissions standard under the Clean Air Act. A year later, OSHA put forth an occupational standard, which got progressively more protective over the course of the decade.

In 1991, the U.S. Fifth Circuit Court of Appeals overturned what was commonly known as the "Asbestos Ban and Phaseout Rule of 1989." Consequently, scores of asbestos products remain on the market today.

In spite of the court's action, a short list of products remain banned under the Toxic Substances Control Act (TSCA) and the Clean Air Act. These include: corrugated paper, rollboard, commercial paper, specialty paper, flooring felt, sprayed-on materials containing more than one percent asbestos, and all new asbestos applications are banned.

EPA and OSHA regulations of asbestos remained limited in their reach when EPA decided in 1979 to issue a notice of its intent to regulate asbestos under the authority of Section 6 of the Toxic Substances Control Act (TSCA). Because an absolute ban is possible under TSCA, the potential for a ban became imminent, and asbestos producers and the Canadian government began to pressure the Reagan Administration's Office of Management and Budget (OMB) to halt EPA's efforts. Canada took a particular interest in the matter because 95 percent of the 85,000 tons of asbestos used in the United States at the time came from Canada, primarily Quebec (Kriz, Good Riddance, 1989; Canada Reportedly Pushing Asbestos Exports to US, Asbestos and Lead Abatement Report 2000). EPA officials eventually succumbed to this pressure, and, in 1984, announced that EPA would refer the asbestos issue to OSHA and the Consumer Product Safety Commission (CPSC) (BNA 1985; AP 1985). Notably, CPSC had not taken any significant action to limit asbestos exposure in consumer products since 1982. EPA employees were outraged by the decision, and issued a public letter of protest. In the face of this public pressure, EPA reversed its position again and decided to support the ban (McGarity, 1994, at 952-54; AP 1985).

In 1989, after conducting a ten year study, spending ten million dollars, and accumulating a 100,000 page administrative record, EPA announced that it would phase out and ban virtually all products containing asbestos. (54 Fed. Reg. 29,460 (1989); Stadler, 1993, at 423). The ban applied to the manufacture, import, processing and distribution of asbestos products. It would affect 94% of all asbestos consumption, including a ban of asbestos-containing products like brake linings, roofing, pipes, tile, and insulation. EPA's stated rationale for the ban was simple: "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)). An apparent victory in the nearly 20-year struggle to protect the public from asbestos exposure, and promising use of TSCA as a tool to protect public health, the EPA ban would ultimately fail to overcome the vigorous campaign to perpetuate the use of asbestos.

From the outset, the measure met with fierce opposition. Citing job loss and potential economic ruin, asbestos industry supporters referred to the ban as "death by regulation." Asbestos product manufacturers and industry organizations swiftly filed a lawsuit challenging the ban's validity under TSCA in Corrosion Proof Fittings v. EPA. They sought to overturn the ban, claiming that it was too costly and that the alternatives were neither more effective nor safer than asbestos. The Canadian Federal Government and the Province of Quebec sought to join in the case, but were denied due to lack of standing. EPA defended the ban, arguing that a ban was necessary to address the unreasonable risk of harm imposed by the continued use of asbestos.

In a seminal decision, the Fifth Circuit vacated the ban, finding that EPA failed to present "substantial evidence" to justify the ban under TSCA. Despite its acknowledgment that "asbestos is a potential carcinogen at all levels of exposure," the court attacked the EPA's action on several fronts. The court determined that the agency's administrative record failed to demonstrate that the ruling was the "least burdensome alternative" for eliminating the "unreasonable risk" of exposure to asbestos, as required by TSCA. The court questioned EPA's analysis of product substitutes, finding that the proposed substitutes were unavailable or potentially harmful (Corrosion Proof Fittings v. EPA, at 1220). The court also rejected EPA's cost/benefit analysis, challenging EPA's consideration of "unquantifiable benefits," and dismissing EPA's determination with respect to the presence of unreasonable risk (18 Am. L. J. and Med. 395).

The Fifth Circuit's decision has been called a "tragedy for the EPA," for it is seen as having "place[d] seemingly impossible analytical requirements on [government] agencies." (Stadler, 1993, at 433; Percival, 1997, at 521). Scholars note that the ruling in "Corrosion Proof Fittings reaches beyond asbestos regulation, restricting the EPA's ability to regulate the use of any toxic substance under TSCA." The holding indeed poses a serious question: If EPA can't ban a known carcinogen, at which no level of exposure is safe, how can EPA regulate any toxic substance?