June 11, 2018
The mini-media firestorm over the United States Environmental Protection Agency (“EPA”)’s decision to no longer assess ‘in place’ asbestos may have more to do with President Trump’s historical comments about asbestos than with the effect of the actual decision.In 1987, developer Donald Trump said it was “100 percent safe” once installed, and that the effort to regulate asbestos and hold manufacturers liable was part of a conspiracy inspired by what he called mob-controlled abatement contractors. Of course, developer Trump was then operating and buying older buildings and was looking to avoid the costs of potential asbestos abatement work.
It is clear now after many years of litigation that ‘blanket’ statements about asbestos ultimately do not withstand scientific scrutiny. The dangers of asbestos depend on the type of fiber, manner in which it is incorporated into a product, and the “frequency, regularity and proximity” of users to asbestos that is actually released through use or otherwise. So, whether evaluating statements such as Trump’s over-the-top comments of 1987 or the EPA’s present decision, these are the factors to be assessed.
The federal government’s regulation of asbestos has included laws and regulations from the EPA, the Consumer Product Safety Commission and the Occupational Safety and Health Administration.In July 1989, the EPA issued regulations intended to ban completely the manufacturing, importation, processing and sale of asbestos-containing products.
However, the 1989 regulations were overturned in Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991).The Court held that the EPA failed to follow the statutory mandate that it consider fully, and implement, “the least burdensome regulation to achieve a goal of minimum reasonable risk,” because it “failed to assess costs and benefits of the least to most burdensome alternatives, and that its calculations of benefits and costs were inaccurate and failed to factor the costs and risks of substitute products.”
Nonetheless, after that decision, the following remained “banned” according to federal law:
* Most spray-applied Surfacing ACM
* Sprayed-on application of materials containing more than 1% asbestos to
buildings, structures, pipes, and conduits unless the material is encapsulated with
a bituminous or resinous binder during spraying and the materials are not friable
after drying.
* Wet-applied and pre-formed asbestos pipe insulation, and pre-formed asbestos
block insulation on boilers and hot water tanks.
* Corrugated paper, rollboard, commercial paper, specialty paper, flooring felt,
and new uses of asbestos.
In fact, EPA said that “EPA does NOT track the manufacture, processing, or distribution in commerce of asbestos-containing products. It would be prudent for a consumer or other buyer to inquire as to the presence of asbestos in particular products.”
There was widespread criticism of the Court’s decision, but much of it was based on the supposed “fact” that there was no safe level of asbestos exposure, which criticism usually took no notice of industry’s contention that the evidence does not support a “one size fits all” approach to asbestos regulation and liability. In 2016, amendments to the TSCA.
The EPA, however, is not leaving the field of asbestos regulation.It continues to recognize asbestos as a carcinogen and cause of mesothelioma.In addition to the list of products that had already been banned, EPA is currently proposing a “Significant New Use Rule” to prohibit the re-commencement of manufacture or importation of certain asbestos-containing products that are not presently being made or imported into the US, including “adhesives, sealants, and roof and non-roof coatings; arc chutes; beater-add gaskets; extruded sealant tape and other tape; filler for acetylene cylinders; high-grade electrical paper; millboard; missile liner; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; and any other building material (other than cement).”