The dangers of asbestos are well-known in the U.S. Everyone knows the health hazards related to exposure, but America does not have a comprehensive federal law addressing the issue.
Instead, those issues largely are left to individual states. Each state has different approaches for dealing with risks and legal claims.
Federal legislation to ensure that claimants can be compensated for sickness, loss of life and loss of wages has also been limited.
Federal laws were passed to create compensation systems for other types of claimants. The Black Lung Benefits Act created a program for U.S. coal miners. A similar program has not been established for people who are sick because of asbestos exposure.
Working with specialized mesothelioma lawyers provides the best chance for people harmed by asbestos to receive compensation.
Major legislation on asbestos abatement and tort reform have been considered at the federal level.
There are two main federal agencies in charge of enforcing asbestos abatement legislation: The U.S. Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA).
The EPA and OSHA were instrumental in the evolution of asbestos abatement litigation. Both agencies deal with workers who often come into contact with asbestos.
However, one of the biggest threats to those unfairly injured by asbestos exposure is the Furthering Asbestos Claims Transparency (FACT) Act.
It would require asbestos trusts to publicly disclose information about the settlement terms between trusts and claimants. Current state and federal laws consider these negotiations private and confidential. They are not currently subject to discovery or admissible in court cases.
History of Asbestos Use & Legislation
By the 1930s, medical evidence had already linked asbestos exposure with deadly diseases. Asbestos manufacturers knew about the early evidence. Many of them did not warn workers or the public about the dangers and potential future health issues. Routine use of asbestos in construction and industrial products continued.
Asbestos-related diseases do not surface until decades after exposure, so the health hazards did not receive widespread public attention until the 1960s and 1970s. Soon, the health risks of asbestos were too big to hide.
During the 1970s, the U.S. government issued guidelines to limit asbestos exposure. These guidelines were followed by more federal, state and local public safety laws during the 1980s.
Through the late 1980s, much of the attention surrounding asbestos focused on abatement. It involves encapsulating or removing asbestos from existing buildings. There were also calls for laws to ban the use of the toxic mineral.
U.S. Sen. Patty Murray (D-Wash.) sponsored the Ban Asbestos in America Act of 2007, but it died in Congress. In 2009, she also sponsored a bill that led to recognition of September 26 as National Mesothelioma Awareness Day. On June 1, 2018, the EPA proposed a Significant New Use Rule (SNUR) for asbestos. The SNUR could allow the EPA to review and approve new asbestos products.
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Clean Air Act of 1970
Congress first identified asbestos as a hazardous air pollutant under this law. The Clean Air Act has been amended over the years. These amendments resulted in the EPA regulations governing the use and disposal of asbestos.
The law has been followed by other federal measures to protect workers and the public. Examples of other measures include the Consumer Product Safety Act provisions and Occupational Safety and OSHA regulations.
Although asbestos is still used in certain products, its identification as a pollutant has helped reduce use.
Toxic Substances Control Act of 1976
The Toxic Substances Control Act (TSCA) gave the EPA the power to regulate new commercial chemicals. It also granted power to regulate existing materials that pose unreasonable health or environmental risks such as asbestos.
The EPA attempted to use this authority in 1989 by banning most asbestos-containing products. It was known as the “Asbestos Ban and Phase-Out Rule.” It would have prohibited manufacturing, importing, processing or distributing most asbestos products.
However, a group of interested corporations successfully challenged the rule in court. A 1991 decision by the U.S. Court of Appeals for the Fifth Circuit eventually rejected much of the rule. Some products were banned under the EPA’s rule, but most remained legal.
Banned Uses of Asbestos
- Corrugated paper
- Commercial paper
- Specialty paper
- Flooring felt
- New uses of asbestos after 1989
Asbestos Uses Not Banned in the US
- Asbestos-cement corrugated sheet
- Asbestos-cement flat sheet
- Asbestos clothing
- Pipeline wrap
- Roofing felt
- Vinyl-asbestos floor tile
- Asbestos-cement shingle
- Asbestos-cement pipe
- Automatic transmission components
- Clutch facings
- Friction materials
- Disc brake pads
- Drum brake linings
- Brake blocks
- Non-roofing coatings
- Roof coatings
Asbestos Hazard Emergency Response Act of 1986
This law ordered the EPA to monitor asbestos in schools. It established regulatory standards for inspections and proper abatement of asbestos in schools.
The EPA requires all public and private school systems to inspect facilities for asbestos. It requires schools to develop plans for containing and removing asbestos. The agency also provides guidelines and technical assistance to help school districts.
Bankruptcy Reform Act of 1994
The U.S. Bankruptcy Code was amended in 1994 to allow companies with significant asbestos liabilities to seek bankruptcy protection for future claims.
These amendments were sometimes called the “Manville Amendments.” The provisions provided an option for manufacturers such as the Johns Manville Corporation to file for bankruptcy. The company had been sued many times and faced more liabilities in the future.
The 1994 amendments were modeled after the Manville Trust. They established a way for the companies to settle future claims through the creation of special bankruptcy trusts.
Fairness in Asbestos Injury Resolution Act of 2006
The FAIR Act is Congress’s most comprehensive effort to address compensation for claimants. Federal lawmakers have introduced multiple versions of the bill in the U.S. House and the Senate during the past decade.
The most recent version of the FAIR Act was introduced in 2006 and would have done the following:
- Establish an office within the Department of Labor to handle asbestos injury claims
- Provide fair compensation to eligible claimants in a non-adversarial manner
- Determine compensation amounts based on the severity of the claimant’s disease
- Bring most pending claims in state and federal courts to a standstill
The FAIR Act never became law.
Ban Asbestos in America Act of 2007
Like the FAIR Act, multiple versions of the Ban Asbestos in America Act were introduced in Congress during the past decade. The most recent version, introduced in 2007, never became law.
The bill would have done the following:
- Revise the TSCA to include additional materials in that law’s definition of asbestos
- Direct a number of federal entities to conduct scientific studies about the relationships between certain asbestos materials and diseases
- Require the EPA to report to Congress on recommendations for protecting human health from asbestos exposure
- Authorize the EPA to issue more regulations banning the importing, manufacture, processing or distribution of asbestos products
- Appropriate money for research of asbestos-related diseases
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Significant New Use Rule in 2018
On June 1, 2018, the EPA announced a Significant New Use Rule regarding asbestos. According to the EPA, a SNUR requires notice to the agency before chemical substances are used in new ways that might create concerns.
Asbestos Product Categories Under EPA’s SNUR
- 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
- Missile liner
- Pipeline wrap
- Reinforced plastics
- Roofing felt
- Separators in fuel cells and batteries
- Vinyl-asbestos floor tile
- Any other building material (other than cement)
Most of these potential new uses are construction materials.
Opponents of the SNUR say it will put U.S. citizens at risk of exposure to a proven toxic substance.
The EPA intends to finalize the rule by the end of 2018.
The history of asbestos legislation in the U.S. is riddled with controversy, cover-ups and political and corporate interests.
People injured by asbestos have advocated for their rights. They work hard to implement regulations that might protect future workers.
But it’s been an uphill battle. Corporate interests continue to influence governmental policies and asbestos remains unbanned in the U.S.
9 Cited Article Sources
EPA. (n.d.). Significant New Use Rules.
Retrieved from: https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca/actions-under-tsca-section-5#SNURs
Friedman, L. (2018, August 10). E.P.A. Staff Objected to Agency’s New Rules on Asbestos Use, Internal Emails Show.
Retrieved from: https://www.nytimes.com/2018/08/10/climate/epa-asbestos-rule.html
Castleman, B. Asbestos: Medical and Legal Aspects, Aspen Publishers (2005).
Clean Air Act of 1970, 42 U.S.C. 7412(b).
Kazan-Allen, L. (2011, January 6). List of Current Asbestos Bans and Restrictions.
Retrieved from: http://ibasecretariat.org/alpha_ban_list.php
United States Department of Labor. (n.d.). About Black Lung Program.
Retrieved from: https://www.dol.gov/owcp/dcmwc/
United States Environmental Protection Agency. (2018, August 9). Asbestos.
Retrieved from: https://www.epa.gov/asbestos
Dixon, L. et al. (2010). RAND Institute for Civil Justice.
Retrieved from: http://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR872.pdf
- United States Senator Patty Murray. (n.d.) Ban Asbestos in America. Retrieved from: http://murray.senate.gov/public/index.cfm/banasbestosinamerica
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Last Modified November 26, 2019