Legislation & Litigation

New Bill Could Further Deregulate the Asbestos Industry

Written By:
May 25, 2017
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Written By: Matt Mauney,
May 25, 2017

National environmental groups are banding together to fight the Regulatory Accountability Act, a bill they say would make it harder to protect consumers from dangerous substances such as asbestos.

Officially known as the Regulatory Accountability Act (RAA) of 2017, it passed the U.S. House of Representatives in January and is now on the U.S. Senate floor.

It combines six previously passed bills to eliminate what sponsors call “overly burdensome red tape and regulation,” while promising to hold federal agencies more accountable and create a more transparent rulemaking process.

But critics claim the RAA has nothing to do with accountability or transparency. They claim it will make it harder for federal safety regulatory agencies, such as the U.S. Environmental Protection Agency (EPA), to protect the public from dangerous chemicals and toxic substances.

Scott Slesinger, legislative director of the Natural Resources Defense Council (NRDC) — one of 14 environmental groups that co-signed a letter to members of the Senate urging them to oppose the bill — said the RAA will tilt the scales in favor of polluters at the public’s expense.

The U.S. is one of few industrialized nations to not have a complete ban on asbestos, a toxic mineral linked to serious health conditions including mesothelioma cancer.

“The bill includes a lot of the philosophies that were included in the old [Toxic Substances Control Act] that made it impossible to regulate certain chemicals, most notably asbestos,” Slesinger told Asbestos.com. “[RAA] sets up a regulatory process that’s so convoluted, so available for litigation, that we don’t think any major rule, such as banning asbestos, would make it through.”

State of Future Asbestos Ban Unclear

Since the dangers of asbestos became more known in the 1970s, various pieces of legislation were implemented to regulate the carcinogenic mineral.

Although asbestos is banned from most products, it continues to be used in the manufacturing of brake pads and chlorine.

To date, the best attempt for a full federal ban of asbestos came in 1989 when the EPA issued the Asbestos Ban and Phase Out Rule.

But that rule was overturned two years later by a court of appeals after asbestos manufacturer Corrosion Proof Fittings won a landmark lawsuit against the EPA. The court ruled the EPA failed to prove the ban was the “least burdensome alternative” to regulating asbestos under the Toxic Substances Control Act.

In 2016, asbestos was designated among the top-10 chemicals for priority action under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The EPA is set to review asbestos later this year, a step in the right direction for a comprehensive federal ban.

But the recent appointment of new EPA administrator Scott Pruitt has anti-asbestos advocates concerned about future asbestos legislation.

President Donald Trump has publicly praised asbestos in the past and claimed the toxic mineral “got a bad rap” in his 1997 book “The Art of the Comeback.”

Slesinger and other critics of the RAA claim that if the bill passes, the chance of an asbestos ban becomes much more difficult because the act will shift power from the EPA and other agencies to corporations and industry giants, making it easier to sue the government and tie up legislation in court similar to the Corrosion Proof Fittings case.

The EPA currently does a cost-benefit analysis to review three alternate proposals.

“Trying to do a cost-benefit analysis of three is incredibly expensive and wasteful and also unproductive, because frankly, cost-benefit analysis is at best a weak science. It’s trying to predict the future,” Slesinger said. “What makes it worse, in this case, is that now the companies can sue if the cost-benefit analysis wasn’t done sufficiently or if they didn’t do enough alternatives.”

Another issue is that in order for an alternative to be accepted, an agency must prove that it is the most cost-effective replacement.

“The problem with that is we don’t know what cost effective means,” Slesinger said. “What makes [RAA] worse is that if you take something that is not the most cost effective, you have to show every single benefit caused by taking the additional protective stance. It would so open you up to litigation that no agency would do that.”

Critics Say the Bill Will ‘Shortchange the Public’

In the joint letter sent to senators on behalf of the 14 environmental groups, critics say the RAA would “make even the most critical safeguards nearly impossible to attain by tilting the entire regulatory system against those who think a new rule is needed to protect the public.”

Advocates for regulation reform say provisions have gotten out of control, requiring approval procedures that take far too long and cost businesses billions. Proponents of the new bill claim that less regulation will increase economic growth and innovation.

“The facts about the RAA reveal a narrowly tailored effort by Congress to make sure that for the costliest one-half of 1 percent of regulations, the agencies do a better job of finding the facts, getting the science right, involving the public and ensuring the benefits outweigh the costs,” William Kovacs, vice president of Environment, Technology, and Regulatory Affairs of the U.S. Chamber of Commerce wrote in an opinion post in The Hill.

But federal agencies, such as the EPA and the U.S. Food and Drug Administration, are in place to protect consumers.

Slesinger said the bill would not only complicate future asbestos regulation but also “shortchange the public,” stepping further away from a precautionary approach and making it much more difficult to protect the public from dirty air, unsafe drinking water and other health threats.

The bill would also require an adjudicatory hearing if requested. This outdated trial-like system uses cross-examination to figure out what the facts are, but critics of the RAA claim the hearings would be “skewed by apparently allowing industry but not agencies to cross examine witnesses and by placing the burden of proof on those who support a regulation.”

“The presence system, where everybody comments in public and the agency has to respond in public, is a much better way,” Slesinger said. “It moves so far away from what the rest of the world is moving toward — which is the precautionary principal — to regulate as least as possible or you’re going to get sued.”

Robin Tucker, who lost his father as a result of workplace asbestos exposure, said it’s time for Congress to protect the average American and not “corporations that care mostly about making a big profit.”

“If a proposal like this one became law, there would be more people like me and my family,” Tucker said in a NRDC press release.

This is something NRDC and other critics of the bill are fighting to prevent.

“If this passes, it’s going to be virtually impossible for any major rule to go into place, including the obvious things that need regulation such as asbestos, lead in drinking water and other serious pollutants,” Slesinger said. “It essentially takes a system which we think doesn’t work real well — where it will take four, six or 10 years to pass a rule — and tries to fix that system by making things take longer, allowing more litigation and giving corporations more chances to have the system work in their favor.”

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