The US government’s response to asbestos-related illness and death centers on risk reduction and public education rather than eradication. While the US has not uni- formly banned asbestos, there are safety regulations for the workplace and product- related regulations for manufacturers. Asbestos is also monitored and regulated as part of laws addressing air quality in general.
Several US agencies are involved in asbestos regulation, education, and monitor- ing. Federal agencies with regulation oversight or policy enforcement regarding asbestos products, wastes and emissions include: The Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA, within US Department of Labor), US Consumer Product Safety Commission (CPSC), Agency for Toxic Substances and Disease Registry (ATSDR), National Institute for Occupational Safety and Health (NIOSH), National Institute of Standards and Technology (NIST), and Mine Safety and Health Administration (MSHA). Several other government agencies provide information and public education about asbes- tos or are part of the enforcement structure for regulation. For example, in Wisconsin, the Department of Natural Resources (DNR) is responsible for enforc- ing EPA regulations in regard to building demolition and renovation, to prevent asbestos fibers from becoming airborne. Other states have their own agencies that serve the same function. Additionally, the Centers for Disease Control and Prevention (CDC) provides information on asbestos regulation, exposure preven- tion and health effects of exposure.
For the following report of asbestos policy development, the website of each agency were reviewed, as well as government and industry documents posted on the Environmental Working Group (EWG) website. The legislative tracking site at thomas.loc.gov from the Library of Congress also was consulted and the government action tracking database at govtrack.us provided details about status of recent legis- lative actions. Other relevant sources are cited within the text when referenced.
Timeline of Major Asbestos-Related Government Actions
The timeline of asbestos regulation does not parallel the timeline of medical discovery regarding asbestos-related illness and mortality. Although asbestos harms were documented in the early part of the twentieth century, asbestos regulations in the US were not passed until decades later: The earliest known independent asbestos
medical studies were conducted in the US in 1917, but the first asbestos-related government regulation was passed in 1970.
Several policies were enacted beginning in 1970 with the Clean Air Act (CAA), a federal law that opened the door for asbestos regulation. The CAA “regulates air emissions from area, stationary, and mobile sources.”4 The CAA also empowered the EPA to create testable standards for air quality that protect the environment and people in the interest of public health: National Ambient Air Quality Standards (NAAQS). The EPA officially recognized asbestos as a hazardous pollutant in 1971. This led to the National Emission Standards for Hazardous Air Pollutants (NESHAP) regulation in April 1973, attached to the CAA. This was a significant act, as it made asbestos one of the first hazardous air pollutants under government regulation. For example, spray-on asbestos insulation was banned by the EPA as an air pollutant. NESHAP is designed to prevent asbestos fibers from becoming air- borne when being handled in some form, whether friable or non-friable. It particu- larly specifies work practices to be followed during renovation, demolition or other abatement activities when friable asbestos is involved. Under the CAA, these national ambient air standards were to be met by every state by 1975. It was amended in 1977 to reset these goals, which were difficult for many states to achieve in the prescribed timeframe. The amendment also clarified the act in relation to issues such as ozone depletion and acid rain. The asbestos-related tenets of NESHAP, however, remained unchanged.
In response to the CAA’s and the EPA’s designation of asbestos as a hazardous pollutant, OSHA specified worker protections in 1972. These threshold standards for asbestos exposure were made even more stringent 2 years later. This was a significant year for asbestos regulation; the crux of current class action lawsuits is whether employers knowingly exposed workers to asbestos after this regulation was passed.
In 1976, the Toxic Substance Control Act (TSCA) was passed, authorizing the EPA to regulate asbestos in schools and public and commercial buildings. The TSCA also gave responsibility to the EPA for tracking industrial chemicals either produced or imported into the United States. The EPA has the discretion to test any of these chemicals and can ban those it deems a public health or environmental threat. Meanwhile, 1976 marked an all time high for asbestos production in the United States, with 1 million tons processed (Djerassi et al. 1979).
In 1977, the US Consumer Product Safety Commission (CPSC) became involved in asbestos regulation. It approved a ban on two consumer products con- taining inhalable asbestos – consumer patching compounds and artificial fireplace ash used for aesthetics only – due to concerns that asbestos fibers would be released into the air while being used.
NESHAP next banned most spray-applied surfacing asbestos-containing mate- rial (ACM) in 1978, although this was revised in 1990. Under the revised 1990 rule, instead of an outright ban, spray-on applications were allowed if the asbestos mate- rial was encapsulated within a binder and the asbestos fibers were not released after the spray dried. This revised rule by NESHAP also prohibits spray-on application
4 See: Environmental Protection Agency website: http://www.epa.gov/
of materials containing more than 1% asbestos to any structures, pipes, and con- duits, unless the material is encapsulated with a bituminous or resinous binder dur- ing spraying and the materials are not friable after drying.
To alleviate costs associated with new asbestos regulations stemming from the CAA and EPA guidelines, the Asbestos School Hazard Abatement Act (ASHAA) was passed in 1984. This Act created funds for loans and grants to both public and private schools that otherwise could not afford to finance asbestos abatement dur- ing renovations. These funds were provided between 1985 and 1993, but no funds have been awarded since then. Complementary to the TSCA, the Asbestos Hazard Emergency Response Act (AHERA) was passed by Congress in 1986. Its main provisions were to set guidelines for asbestos inspection and abatement proce- dures for schools. AHERA also provided grants for schools not only for asbestos inspections but also to create management plans to address abatement needs. All of these regulations fall under the control of the EPA. The year 1986 is significant, because both the EPA and the International Agency for Research on Cancer, part of the World Health Organization, declared asbestos “a human carcinogen”
(Landrigan 1998).
Also in 1986, OSHA created stricter guidelines limiting asbestos exposure in the workplace, and the EPA outlined new asbestos abatement guidelines. The EPA took the stance that asbestos at any level is not safe. Below is an excerpt from the EPA report, containing the conclusion and three of the most significant findings that support it:
Therefore, EPA finds that unregulated removal, enclosure, or encapsulation of friable asbestos material presents an unreasonable risk to human health and proposes to require that certain measures be taken to reduce the risk faced by asbestos abatement workers and persons using and visiting buildings during and after asbestos abatement activities. This finding is based on the following points:
1. The health effects from asbestos are very serious. Asbestos is a demonstrated human carcinogen. The cancers caused by asbestos are usually fatal and cause much pain and suffering.
2. Available evidence supports the conclusion that there is no safe level of exposure to asbestos. This conclusion is consistent with present theory of cancer etiology and is further supported by the many documented cases where low or short-term exposure has been shown to cause asbestos-related disease.
3. Models developed to estimate the relative risk of developing cancer from exposure to asbestos show a linear dose-response relationship. Based on data from epidemiology studies, these models predict that humans exposed to even very low levels of asbestos incur some risk (Environmental Protection Agency 1986).
Two years after these guidelines were issued, the EPA banned new uses of asbestos.
This later was empowered by the Toxic Substances Control Act of 1989, also known as “Asbestos Ban and Phase-out Rule” (this was appealed and never put into effect; see below). In 1988, considering vulnerable publics, the EPA created new requirements that schools must inspect for damaged asbestos and if identified, either remove it or encase it. It also clarified 1973 NESHAP guidelines for “acceptable use”
of asbestos and defined risk levels of asbestos exposure (e.g., enforcement rules for
“friable asbestos,” materials containing more than 1% asbestos by weight). In 1990,
the Asbestos School Hazard Abatement and Reauthorization Act (ASHARA) extended AHERA with minor revisions.
Other government efforts focused on informing relevant parties regarding asbestos exposure. For example, to address the increasing number of asbestos-related lawsuits, the Asbestos Information Act was passed in 1988, which required all companies that used asbestos in the manufacturing process to file reports revealing information on the types of products made, the years they were manufactured, and other information that would help identify their products. Companies had 90 days to file these reports once the Act was passed, and afterwards the EPA made the information available to the public. Having information readily available would also eliminate the time typi- cally used by lawyers and courts to collect such evidential data.
Other regulatory actions reflected the need for accurate assessment tools to detect asbestos levels. In 1990, NESHAP announced that the transmission electron microscopy (TEM) method was the best tool for identifying asbestos in the air, compared to current methods. Later, this was restated. The EPA distributed pam- phlets explaining the complex NESHAP regulations. The agency said there was no numeric emissions limit or standard for release of asbestos that may occur during building demolitions or renovations. The standard of “visibility” was described: If you can’t physically see the asbestos in the air then it is within the law’s guidelines.
Any visible particles of asbestos would mean it is unsafe under these guidelines (Bowker 2003).
Other restatements were issued. The EPA announced in 1993 that new studies determined that some previously recommended dry vacuuming and wet cleaning methods recommended by the agency for reducing exposure to asbestos actually increased hazardous emissions of asbestos and also did not effectively remove asbes- tos fiber from carpets. The next year, guidelines for asbestos cleaning at demolition sites were issued, prescribing that after cleanup, the demolition site should match the average asbestos level found in the area surrounding it. An EPA advisory was issued again reinforcing use of TEM for testing levels of asbestos in air samples.
Clearly, the Clean Air Act of 1970 paved the way for future asbestos regulation, with the majority of asbestos-related policies being passed between 1970 and 1990.
The CAA and the Toxic Substances Control Act are the two major federal laws under which asbestos policies are enacted and enforced. In the years following, however, many restatements were issued and some policies were over-ruled.
Asbestos in the Schools: Balancing the Science of Risk Assessment with Social Values
Although consumers can choose whether to worry about or ignore health dangers in their own homes, parents are less accepting of threats that potentially affect their children and are out of their direct control. Not surprisingly, the asbestos issue became salient to the public once children became the subject of risk assessment and government policy.
Jacqueline K. Corn (1999) addresses this issue in her book, Environmental Public Health Policy for Asbestos in the Schools: Unintended Consequences.
Specifically, she describes the development of science-based risk assessment tools for government decision-making in the 1970s, in regard to environmental policy.
She explains how these tools gained acceptance in the 1970s and early 1980s, and were questioned when risk estimates were applied to children and asbestos expo- sure, “where emotion overruled science” (Corn 1999, p. 24).
The struggle emerged when policymakers applied objective tools to estimate risk (probability and severity of harm) and then weighed their results in consult with the social values of the affected community. Corn cites an influential book by William Lowrance (Of Acceptable Risk), whose philosophy, she argues, was highly influential in guiding federal policy decisions: “Safety is not measured. Only when those risks are weighed on the balance of social values can safety be judged: a thing is safe if its attendant risks are judged to be acceptable” (Lowrance 1976, p. 8).
Although most studies conducted by the EPA and independent sources concluded minimal risk of children’s death from exposure to asbestos in schools, Corn said that instead the EPA primarily relied on epidemiology studies of non-occupational expo- sure as the basis for its decisions. She said no effort was made to measure how much asbestos was in the ambient air in schools under study. Such studies would provide important data required for science-based decision making (Corn 1999, p. 25). Thus, policy was determined and monies allocated without appropriate scientific testing. She charges the EPA with moving forward to regulate asbestos in the schools, including the expensive school asbestos-abatement policies, without adequate risk assessment to support its actions. In sum, she argues that AHERA and other policies were not based on scientific reasoning but on political pressures that had little to do with public health.
Additionally, at the time, reports of environmentally caused cancer and asbestos work- place hazards were well publicized, and public health campaigns were launched to educate the public about toxic substances. In this way, asbestos in the schools became embroiled in a larger value issue rather than a risk assessment issue.
Corn’s extensive analysis of policy actions in regard to the school asbestos issue represents an important case study of the perils of risk management in the public sphere. It is important to note, however, that Corn’s book was funded in part by a grant from the W.R. Grace Company to the Johns Hopkins University. Other scholars, however, have reached similar conclusions without funding from the asbestos industry. For example, a report by Wilson et al. (1994) argued that New York City school administrators’ actions following an asbestos emergency were not based on scientific assessments. The authors argued that the EPA’s subjective reasoning was employed, and “(d)ata on concentrations of asbestos in the air, important for the calculation of risk to building occupants, were not required” (Wilson et al. 1994, p.
161) for decision making. Comparable ambient air measures taken elsewhere indi- cated that exposure would bring no more risk than smoking 12 cigarettes in a life- time, yet the school administration bowed to pressure by parent groups that perceived greater risk to their children.
The issue of asbestos in the schools illustrates how the science of risk management can get muddied by politics and public pressure. While effective assessment tools
were available at the time to make sound science-based decisions, the judgment of social costs and values tipped the scale toward stronger precautionary actions.
Unsuccessful Asbestos Regulatory Efforts
While asbestos policy in regard to schools was very strict, given the minimal risk to children, not all government efforts to strengthen policy protecting consumers were successful. For example, the EPA’s 1989 announcement to phase out all products in the US that contained asbestos (reported above), did not become fed- eral law. It was overturned by the Fifth Circuit Court of Appeals in New Orleans in 1991. Following this ruling, the EPA ban covered only the following asbestos- containing products: flooring felt, rollboard, and corrugated, commercial, or spe- cialty paper, as well as new uses of asbestos; i.e., products that historically had not been manufactured using asbestos (Environmental Protection Agency 1992). This legal action by the courts placed much of the responsibility for asbestos safety in the hands of consumers, who are urged to visit the EPA website to find out where asbestos is commonly found and how to minimize personal exposure to asbestos.
Here, interested consumers will find a “commonly asked questions” section, as well.
Many attempts were made to create stronger protections for asbestos workers, as well. These efforts were bolstered by a series of government studies by the Asbestos Work Group, which was formed from two government agencies, OSHA and NIOSH. The group’s studies indicated a strong link between asbestos expo- sure and cancer even in low exposure conditions. The strongly worded document described incontrovertible evidence that “there is no level of exposure below which clinical effects do not occur” (Asbestos Work Group 1980). This led to a new policy ordering reduced threshold levels for airborne asbestos, enacted in an emergency ruling to protect workers. In 1984, however, this standard was over- turned by the United States Court of Appeals for the Fifth District. The New York Times reported:
An intermittent 13-year struggle by the Occupational Safety and Health Administration to sharply reduce the exposure of industrial workers to asbestos, a known cause of lung dis- ease, including cancer, has been dealt a setback by a Federal appeals court. A three-judge panel … has unanimously overturned an emergency regulation proposed by the agency last November to limit the asbestos content of workplace air to half a fiber per cubic centimeter.
The agency had said the standard would have immediately begun saving lives, but the court disputed the agency’s precise figures (Franklin 1984, sect. 1, p. 22).
The New York Times also reported that OSHA attempted to pass nine emergency asbestos regulations and five of these were overturned in courts. This particular court ruling from the US Court of Appeals led to the resignation of OSHA’s admin- istrator (Franklin 1984, sect. 1, p. 22).
The next year (1985), a controversy emerged when the White House Office of Management and Budget (OMB) attempted to prevent the EPA from enacting pro- grams to protect the public from asbestos:
A Congressional report issued today asserted that the White House Office of Management and Budget, in an “unlawful abuse of power,” had for more than a year blocked measures to protect the public from asbestos. The report, prepared by the House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations, said that the OMB deliberately obstructed proposed rules that would ban some asbestos products completely and gradually eliminate most other uses over 10 years (Shabecoff 1985, sect. A, p. 32).
This New York Times report described criticism of the Reagan administration for taking extraordinary measures to deregulate industry. The government attempted to control the EPA through the OMB; the EPA was one of the agencies the government attempted to control in this endeavor. “The report on the asbestos rules is one of the heaviest Congressional salvos fired to date at the Reagan Administration’s efforts to reduce the burden on industry of regulations to protect public health and safety. The White House budget office has taken the leading role in carrying out President Reagan’s program to cut back regulations” (Shabecoff 1985). It was unprecedented that the White House OMB would have oversight for established agencies such as the EPA. Interestingly, the head of Reagan’s committee to reduce government regu- lations was J. Peter Grace, Chairman of the Board of the W.R. Grace Company, the Libby, Montana, asbestos mine that is the focus of a federal court case today.
More recently, the OMB was criticized for squelching an EPA public warning about W.R. Grace & Company attic insulation, branded “zonolite.” The warning was to be issued in 2002 and is detailed in a formal report by Senator Patty Murray of Washington State, a key advocate for banning asbestos in America (Murray 2003). Internal documents showing e-mail conversations between OMB and EPA officials were leaked to Senator Murray, who formally launched a complaint with President George Bush and communicated it via a press release on her website (Murray 2003). The EPA report that never was released contained an estimate that several million homes in the US were insulated with zonolite. The EPA planned to warn homeowners and provide instructions for reducing exposure to it. Many people routinely remodeled their homes and were handling the asbestos-laced vermiculite insulation, unaware of its toxicity; zonolite was promoted as safe insulation.
It was no surprise to asbestos industry leaders, however, that the EPA warning on zonolite did not transpire. A former employee of the vermiculite mine in Louisa, Virginia, reported his bosses celebrating on Bush’s inauguration day in 2001: “(T) he bosses at the plant were joyful and ordered all the red flags and orange cones removed … and the workers were told to excavate through the asbestos as they always had” (Schneider & McCumber 2004, p. 280).
Other government agencies appear to have minimized the asbestos threat levels previously issued. For example, earlier consumer guidelines issued by the CPSC were more strongly cautionary regarding asbestos, quoting federal health depart- ment findings (e.g., “there is no level of exposure below which clinical effects do not occur”) to punctuate its warnings. Current reports on the agency’s website,