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New EPA Rule Permits Continued Use of Asbestos, Opens Door for More

The devastating health hazards associated with asbestos have been recognized since the early 20th century. Thanks to landmark publications documenting the link between asbestos exposure and cancer in the 1960s, that information became more widespread, and helped bring about the decline of asbestos use in the U.S.

Despite the progress, the growing evidence of asbestos’ harmful effects, and the immense toll it has had (and continues to have) on American families, the current administration and EPA are backing a new rule that not only permits the continued use of asbestos in the U.S., but also potentially more of it.

Asbestos Regulation in the U.S.

While many Americans know asbestos is bad for humans and is tightly regulated as a result, few realize it is not totally prohibited. Asbestos is not, nor has it ever been, permanently banned in the U.S.

According to the U.S. Geologic Survey, the United States used approximately 750 metric tons of asbestos in 2018. While that’s a far cry from the 650,000+ metric tons used in 1963, it’s still a significant amount. It’s also an indicator of the success of tough regulations restricting asbestos use, protracted litigation from victims, workers, and families harmed as a result of asbestos exposure, and our collective understanding of asbestos’ substantial dangers.

Given the 99% decline in asbestos use, it’s easy to assume it is no longer a pressing health issue. That simply isn’t the case. Not only does asbestos remain in many American homes, buildings, and products built prior to widespread regulatory crackdowns, it’s still being used for several purposes:

  • The chemical manufacturing industry accounts for the largest use of legally permitted asbestos in the U.S., primarily in the production of chlorine and caustic soda.
  • Asbestos is currently permitted for use in oil-field brake locks, aftermarket brake linings and brake pads for commercial vehicles, and sheet gaskets.

A History of Shortfalls: 30 Years of Asbestos Regulation Failures

While other developed nations passed laws to prohibit such use, and to replace asbestos with safer alternatives which are still economically viable, the U.S. has continued to use asbestos for these reasons. It’s also failed repeatedly in its attempts to ban asbestos outright:

  • In 1989, the EPA’s Toxic Substances Control Act included provisions which would have permanently banned asbestos. However, the Fifth Circuit Court of Appeals overturned the ban in 1991 in a case brought by the asbestos industry (Corrosion Proof Fittings v. EPA).
  • In 2016, the EPA again missed an opportunity to ban asbestos when the Frank R. Lautenberg Chemical Safety for the 21st Century Act was passed. The law was an intended modernization of the Toxic Substances Control Act, and required the EPA to conduct safety reviews for the highest priority hazardous chemicals (of which asbestos was one). That review process has since stalled.

On the 30th anniversary of the EPA’s 1989 ban, the Asbestos Disease Awareness Organization released a 23-page report about the agency’s continued failures to ban asbestos in the U.S., as well as the impact on the environment and human health. You can read the full report here.

A Push for New Regulations

These major shortfalls may have created an atmosphere in which lawmakers and regulators continually succumb to the will of the asbestos industry and its lobbyists, and have made the EPA ripe for a new push in a different direction.

In April 2019, for example, the EPA released a new use rule for asbestos. That rule went into effect on June 24, 2019. Here’s what it does:

  • The new rule misleadingly prohibits various uses of asbestos which have already been abandoned years or decades ago, while creating loopholes that allow the continued and potentially expanded use of asbestos in the U.S.
  • Allows for continued use of asbestos in gasket and brake manufacturing.
  • Permits the asbestos mining industry to support continued manufacturing with a policy that could allow asbestos mines that have been closed since 2002 to reopen.
  • Creates a new process allowing American industries to submit proposals for new uses of asbestos for consideration by the EPA.

Advocates Speak Out

The new EPA asbestos rule is being widely criticized for its recklessness, and is most concerning in that it may open to the door to a new generation of workers and families who could be exposed to and harmed by asbestos, mesothelioma, and other preventable diseases and deaths.

Critics like those behind a recent article published in the New England Journal of Medicine, “A Most Reckless Proposal — A Plan to Continue Asbestos Use in the United States,” are also calling attention to the current administration’s impact on environmental and human health regulations.

The new rule and its new policies, the authors note, are a brazen attempt to expand the use of asbestos, the largest manufacturer of which is Russia. What’s more, they say, is that it ignores over 5 decades of research that has unequivocally established asbestos as dangerous, even in small amounts.

For critics and other public health and safety advocates, there is still hope; a new bill named after a California man who died from mesothelioma would ban asbestos importation, processing, and distribution of all asbestos-containing materials in the U.S.

The Alan Reinstein Ban Asbestos Now Act of 2019 was introduced in Congress in early March. If passed, the ban would take effect 1 year later, and would supersede the EPA’s new rule.

BCH: Representing Asbestos, Mesothelioma Victims Nationwide

Bailey Cowan Heckaman is a Texas Trial Law Firm that handles a broad range of complex claims, including those involving asbestos exposure and mesothelioma. Our firm recently filed a mesothelioma lawsuit in Harris County for a family whose loved one was exposed to asbestos through work.

If you or someone you love have questions about asbestos litigation and your rights, call or contact us online for a free consultation.

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