Asbestos – a well-known culprit behind lung disease and cancer – has been regulated in the United States only since the early 1970s. Whereas the first laws were just baby steps, they quickly led to a series of increasingly rigid regulations that today affect almost every industry in the nation.
Asbestos laws, both federal and state, are intended to protect people from exposure to dangerous levels of asbestos fibers in the air. In the federal government, the primary regulating agencies are:
- Environmental Protection Agency (EPA)
- Consumer Product Safety Commission (CSPC)
- Occupation Health and Safety Administration (OSHA)
Many states impose additional worker health and safety regulations, and rigorously regulate the construction industry regarding disturbance and removal of asbestos-containing materials in existing residential and commercial buildings.
The 1970s
By 1970, the connection between asbestos and lung damage had been clearly established. But there were no federal agencies with clear authority to do anything about it until Richard Nixon created the Environmental Protection Agency by Executive Order in 1970. The Environmental Protection Agency fired the first shot in the battle against asbestos by declaring it a toxic substance in 1971.
Also in 1971, Congress authorized the creation of the Occupational Health and Safety Administration which lost no time imposing workplace limits on exposure to airborne asbestos fibers in the same year (along with 400 other hazardous substances). The permissible amount of airborne asbestos in the workplace was lowered in 1972, and lowered again in 1976.
In 1973, the EPA issued the first restrictions on asbestos use by banning spray-on fire coatings or building insulation when either contained more than 1% asbestos.
Additional regulations in 1975 banned installing wet-applied and molded asbestos pipe insulation, and molded asbestos insulation blocks in boilers and hot water tanks.
In 1978, the ban on asbestos-containing spray-on coatings was extended to “decorative” uses. But eventually, the ban against spray application was modified to allow spray-on uses if no fibers were released into the air in the process, and the resulting product was coated with a resin-like material to prevent release of asbestos fibers.
As increasing media coverage fanned the public’s concern over asbestos, the Consumer Product Safety Commission (CSPC) entered the regulatory fray in 1978 by banning asbestos-containing drywall patching compounds, and “emberizing” compounds used on fake fireplace logs. In 1979, CSPC further banned hand-held hair dryers containing asbestos insulation, though it was criticized by manufacturers for creating unwarranted alarm and an unnecessary recall.
The 1980s
In the 1980s, the much-smaller Consumer Product Safety Commission backed away from continuing aggressive examination of asbestos-laden products, ceding the effort to the much-larger EPA, particularly after the EPA announced in 1979 it would use the Toxic Substances Control Act of 1976 to further regulate asbestos.
Thus, it was the EPA and OSHA that led the fight to regulate asbestos throughout the ’80s. And a fight it was going to be because asbestos was an essential component in more than 3,000 industrial and building products.
OSHA Makes Headway
In the case of OSHA, they held extensive rulemaking meetings and listened to arguments pro and con from hundreds of industry and union representatives. In 1986, OSHA finally adopted revised workplace exposure standards applying to workers in general and other rules specifically for construction workers. These standards defined the substances covered to include minerals related to asbestos, but not technically asbestos.
The new OSHA standards were quickly challenged in court by several unions and industry groups. By 1988, the Court had upheld the majority of the OSHA regulations but sent several matters back for reconsideration. The back and forth between the Court and OSHA over these issues continued into the 1990s.
EPA Makes News
The 1980s saw several successes for the EPA on the asbestos hazard front.
First was the Asbestos in Schools Identification and Notification Rule (ASINR) set down in 1982 requiring all public and private elementary and secondary schools in the U.S. to identify any friable asbestos-containing materials existing in their buildings (Friable means “easily crumbled or reduced to powder.”) The rule requires that schools also:
- Maintain a record of their findings
- Notify employees of the location of friable asbestos
- Provide employees with instructions on reducing exposure to asbestos
- Notify parents or the parent teacher association if friable asbestos is found
By 1984, these mandatory inspections resulted in estimates of 34,800 schools containing friable asbestos, potentially exposing 1.4 million school workers and 15 million students. This led to President Reagan signing the Asbestos School Hazard Abatement Act of 1984 authorizing $600 million in asbestos cleanup loans and grants to poor schools with significant asbestos problems.
AHERA
Possibly one of the most significant asbestos regulations to come out of the 1980s was the Asbestos Hazard Emergency Response Act (AHERA) of 1986. Ostensibly, AHERA’s purpose was to ensure “appropriate response actions” by schools to the presence of asbestos hazards discovered under the ASINR. But the law didn’t stop at mandating procedures for school cleanups. It also included provisions related to:
- Creating accreditation programs for inspectors and asbestos abatement contractors
- Accrediting laboratories for analyzing sample materials for asbestos
- Studying the availability of liability insurance for schools and contractors
- Creating an asbestos inspection program for public buildings
Asbestos Ban and Phaseout Rule of 1989
After ten years of studies, many millions of dollars spent, and interminable meetings, testimony and hearings, EPA finally adopted the “Asbestos Ban and Phaseout Rule” of 1989. The ban designed to be implemented in phases over many years applied to the manufacture, import, processing and distribution of as much as 94% of all asbestos-containing products. So sweeping was the ban that it galvanized manufacturers and industry organizations in opposition, and a lawsuit was quickly filed.
The 1990s
The seeming successes of the 80s were quickly met by the setbacks of the 90s. The EPA’s asbestos ban was overturned by the Court in 1991 on the basis that EPA had not met the legal requirement for constructing the “least burdensome alternative” for regulating the risk of asbestos exposure. The verdict was not appealed.
On the plus side, however, the Asbestos School Hazard Abatement Reauthorization Act of 1992 (ASHARA) not only continued the AHERA asbestos abatement programs for schools, it also extended them to public and commercial buildings.
Despite minor legal disputes over workplace rules, OSHA continued refining regulations for workplace exposure to asbestos. General rules applicable to all workers and the specific regulations governing construction workers were extended in special regulations to similarly cover shipyard workers and those in the asbestos brake-lining industry.
Meanwhile, the Consumer Product Safety Commission continued to be conspicuously absent. Its most recent previous recall had been in 1983 for a paper-maché modeling compound used in school art projects that had not been manufactured since 1975. It’s next asbestos-related press release didn’t come until 2000 when it declared chalk for chalkboards and drawing did not contain asbestos, while some colors of crayons produced by three different manufacturers contained “scientifically insignificant” levels of asbestos posing no risk to children. Nonetheless, the crayon manufacturers agreed to reformulate the crayons to eliminate any traces of asbestos.
Regulations Today
In current law, a limited number of specifically named asbestos-containing products are no longer permitted to be manufactured or commercially imported into the United States. Most of these laws do not apply to importation of asbestos-containing products for private use.
Still, asbestos has such unique properties for which there are no commercially reasonable substitutes, it continues to be important in the manufacture of many present day products. In use, these products encapsulate the asbestos in ways designed to reduce the risk for them giving off airborne fibers. The creation of new products containing asbestos, however, is effectively prohibited.
Despite the continued existence of asbestos-containing products, workplace exposure to asbestos fibers is heavily regulated and when the rules and regulations are followed, the health risks are far lower than ever in history.
The most significant remaining risk is to occupants of older homes who may be unwittingly disturbing asbestos-containing construction materials in their home, and releasing asbestos fibers into the air. A one-time occurrence is not likely to result in enough exposure to cause any health problems, but continuing exposure over months or years could set them up for unexplained health problems many years from now.
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