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International Ban Asbestos Secretariat

October 18, 2011: A Bloody Anniversary 

by Laurie Kazan-Allen

 

 

October 18, 2011 is a landmark date in the history of the world's worst industrial killer: asbestos. It was on October 18, 1991 that vested interests succeeded in overturning the U.S. Asbestos Ban and Phase-out Rule (ABPR), drafted by the Environmental Protection Agency (EPA) under section 6 of the Toxic Substances Control Act. The ABPR, which was promulgated on July 26, 1989 and became effective on August 25, 1989, introduced prohibitions on the import, processing, manufacture and distribution of asbestos-containing products in three stages over ten years.¹ These actions were intended to “reduce the unreasonable risks presented to human health by exposure to asbestos” and were the result of ten years of discussions, research, public meetings, consultations, hearings and cross-examinations by the EPA. In the vacuum left by the demise of the ABPR, a further 300,000+ tonnes of asbestos fiber was used, most sourced from Canadian mines,² and vast amounts of asbestos-containing construction products, friction materials and assorted other asbestos-containing items were incorporated into the U.S. infrastructure. The propaganda value of the ban's reversal has been ruthlessly exploited by asbestos lobbyists who are eager to tell anyone who will listen that the use of asbestos remains legal in the United States. In a 2011 issue of the newsletter published by the Chrysotile Institute³ – the mouthpiece of Canada's asbestos industry – an article headlined “The Americas are far away from having banned Chrysotile,” states:

“Canada has not banned it (chrysotile asbestos), nor has the United States. The following is a list of (28) products containing chrysotile whose use is approved in the United States.”⁴

The legal decision which vacated the ABPR was handed down by a three-man panel of the U.S. Court of Appeals for the Fifth Circuit. While the circuit judges did not dispute that “asbestos is a toxic material, and occupational exposure to asbestos dust can result in mesothelioma, asbestosis, and lung cancer,”⁵ they were troubled by procedural matters such as “the manner in which the EPA conducted some of its analysis” and the “EPA's explicit failure to consider the toxicity of likely substitutes.” In paragraph 143 of the judgment, the New Orleans Court granted the petition for review, vacated the EPA's proposed regulation, and remanded the matter to the EPA “for further proceedings in light of this opinion.” EPA officials were anxious to pursue options to reinstate the ban. On November 15, 1991, the EPA petitioned the Fifth Circuit Court of Appeals for a rehearing and asked “that the Court withdraw its October 18, 1991 opinion, order further briefing on certain issues, and issue a revised opinion.”⁶ The rehearing was denied on November 27, 1991.

American asbestos expert Dr. Barry Castleman, who had attended the 1986 EPA asbestos hearings, recalled what happened next:

“EPA wanted to appeal this ruling to the Supreme Court and asked the U.S. Department of Justice to take on the appeal. After the Justice Department refused, EPA asked Justice to reconsider and was turned down again. EPA had to settle for issuing a statement criticizing the court for 'significant legal errors' in interpreting the law and substituting its judgment for that of EPA in balancing the costs and benefits of asbestos products banned under the rule.”⁷

Despite several attempts by members of Congress to ban asbestos through legislative means,⁸ no ban on the use of asbestos has been adopted by the U.S. authorities.

Old Documents, New Perspective

In an attempt to better understand the background to the overturn of the Asbestos Ban and Phase-out Rule, a Freedom of Information application was made to the EPA in Spring 2011. Documents released pursuant to that request combined with archival material and files previously obtained from Canadian sources through the Access to Information Act reveal much about the political, economic and social context within which the opposition to the regulations was mounted. Judging from the content of these documents, it is clear that the actions of Canadian Ministers, cabinet members and politicans, including the Canadian Prime Minister, in conjunction with the efforts of the Quebec Premier, Quebec Ministers, local politicians and industry stakeholders in Canada were pivotal in the demise of the ABPR.⁹

Industry Opposition to the Ban Proposals

Almost as soon as news of the proposed asbestos ban began circulating (October 1979),¹⁰ the asbestos industry began to mobilize its forces. Within weeks, the Canadian Government sent a delegation of officials, scientists and doctors to the U.S. capital to “protest at the unnecessarily stringent rules concerning asbestos and its use” proposed by the EPA. The delegation had meetings in December 1979 with staff from the Occupational Safety and Health Administration, the Consumer Product Safety Commission and the EPA to raise Canada's concerns.¹¹ Documents circulated at an August 1980 meeting of the Asbestos International Association (AIA) highlighted the threat posed by the EPA's rule in great detail.¹² In the 28 page “AIA notes” distributed to delegates, four entire pages were occupied with the news from the U.S.:

“Certain regulatory agencies in the U.S., notably the Occupational Safety and Health Administration (OSHA); the Environmental Protection Agency (EPA) and the Consumer Product Safety Commission (CPSC) have shown by their combined actions that they are aiming for legislation concerning asbestos which would effectively stop its use…

AIA/NA [Asbestos Information Association/North America] has not been able to persuade government officials to adopt a practical and realistic approach to the problem and this difficulty has been aggravated by the attitude of organised labour and of public interest groups. Thus AIA/NA decided to retain a law firm to advise them on: -

(a)Rule-making processes.

(b)Possible future legislation.

The Advance Notices of Proposed Rulemaking (ANPR) which were issued by EPA and CPSC in 1979 were strongly argued against by AIA/NA…

Members may be interested to know that the law firm retained by AIA/NA had been earlier retained by the U.S. Chemical Industry who were contesting an OSHA-imposed workplace standard for benzene ten times more stringent than was considered necessary. This case has just been won by the Chemical Industry and it is now up to OSHA to prove that the hitherto accepted benzene standard is harmful and to prove at what level any new OSHA standard should be set.

This decision is bound to have a far-reaching impact on all U.S. Government programmes to control carcinogens and, for example, will have a bearing on OSHA's stated intention of reducing the present 2 fibre/ml workplace standard for asbestos…

The EPA has announced that a limitation or ban on non-essential commercial and industrial uses of asbestos would be considered but such action depended on showing an unreasonable risk with asbestos, the reliability of the substitute and the economic consequences of banning. EPA recognises that in order to minimise the impact on industry the timing of any effective dates could range from 1985 to 1995 and possibly later, resulting from any judicial appeal.

The timetable for expected EPA legislatory initiatives following their ANPR is approximately:

 

ANPR was published	October	1979
Proposed Rule	December	1980
Public Hearings	(?)	1981
Final Rule	(?)	198213

...“

Implications of U.S. Ban for Canada

Canadian politicians and asbestos stakeholders were in no doubt about the threat posed by the EPA's proposals. The U.S. was, for much of the 20th century, the largest market for Canadian asbestos; from 1900 to 2003, 98% of all U.S asbestos imports were from Canadian mines.¹⁴ Even though U.S. usage had fallen significantly as a result of “the asbestos health issue,” by 1985, U.S. customers still purchased 16% of all Canadian chrysotile asbestos exports, generating Can$72 million for the Canadian economy. ¹⁵ As well as the hit Canadian sales would take should the EPA regulations remain in place, the adverse impact on global sales that an American ban would undoubtedly have could not be discounted. Indeed numerous representatives of the asbestos industry recognized this fact in presentations they made in July 1986 at the EPA Asbestos Ban and Phase-out Legislative Hearings:

• According to Etienne van der Rest, Chairman of the Governing Council of the AIA and Chairman of Eternit Belgium: “If a decision of banning asbestos … is taken by USA, you can be assured that many countries will follow your example.”
• Luis Cejudo Alva, General Director, of the Mexican Asbestos-Cement Producers Association agreed: “whatever course of action [is] taken by your great country, is of tremendous influence world-wide, and I would say, it affects even more its south of the border neighbour which is Mexico.”
• Dr N. Anoruo Okere, Medical Consultant to the Nigerian Asbestos Association and Medical Director of Nigerite Limited, referred to the likely “bandwagon effect” in his comments: “There is no way a US government decision in this issue will not produce bandwagon effect. Many countries and in particular the developing ones look up to the US for leadership in areas of science and technology.”
• Describing “the panic” in Brazil when news of the U.S. phase-out plan was released, Viviano Ferrantini, General Manager of the Brazilian Asbestos Association [Associacao Brasilerira do Amiante], reported that: “all the press in our country put off (sic) the news by saying – 'USA finishes with asbestos' and this put in a short time panic in the public and in all those involved with the fiber… I put this point on (sic) to show how every move USA makes – by a government agency or department – as in this case, has a tremendous influence on us all, especially in Latin America.”¹⁶

Canada Goes to War

The Canadians, the world's most prolific suppliers of asbestos for most of the 20th century, were never going to sit on their hands and watch the EPA destroy the asbestos cash cow. That the EPA's proposal was regarded as completely unacceptable was clear from the multifaceted and aggressive fightback orchestrated by politicans, civil servants and industry lobbyists in Ottawa and Quebec. Indeed, the language of a 1986 telegram from the American Embassy in Ottawa to the Secretary of State in Washington, D.C. and the American Consul in Montreal indicated that the Canadians were now on a war footing:

“The GOC [Government of Canada] and the Canadian asbestos industry are marshaling (sic) forces and facts for a challenge to the proposed EPA ban on certain asbestos products and phasing-out of all asbestos use over a ten-year period. Canadian Minister of Mines Robert Layton announced on April 22 that the Federal Government, together with the, Province of Quebec and the asbestos industry, will lend financial assistance totalling CDOL$ 2.5 million to the Montreal-based Asbestos Institute to promote Canada's position on the controlled use of asbestos. The federal government and the Quebec provincial Government further agreed to consider reviewing this financial support for an additional three years…

The Asbestos Institute seized the opportunity to launch the opening round in its fight with the EPA. In a communiqué¹⁷ released April 22, the Institute charged that the 'scientific community' was 'shocked' by the EPA's methodology in recommending a ban on asbestos in the U.S…

Canadian officials fear that the EPA ruling will affect not only asbestos sales to the U.S., but the world-wide asbestos market, since third world nations frequently follow the U.S. lead in adopting regulatory standards.”¹⁸

It seems for vested interests north of the border, the battle over asbestos was personal. Charles L. Elkins, Director of the Office of Toxic Substances, EPA from 1987 to 1990, recalled:

“The Canadians felt that the ban was an anti-Canadian effort by the United States… We couldn't convince them that the EPA staff doesn't have the foggiest idea about foreign policy. This was strictly a public-health issue.”¹⁹

In a 1987 piece for the Toronto Star, Asbestos Institute spokesmen Gary Nash and Scott Houston speculated that the EPA's asbestos ban proposals were “instruments for trade protectionism,” camouflaged as “health and environmental legislation.”²⁰

A Twenty-Four Year Old Scandal Revisited

In early 1987, details of the retaliation devised by Canadian Ministers in collusion with members of the Canadian cabinet and asbestos lobbyists and implemented by civil servants, embassy personnel and industry hatchet men²¹ were uncovered by investigative reporters working for the Canadian Broadcasting Corporation, Southam News and the Ottawa Citizen.²² Many of the facts related in these stories came from documents obtained by Canadian researcher Ken Rubin through applications made under the Access to Information Act. Amongst the examples of political intrigue, commercial skullduggery and illicit proceedings which were exposed were the following:

• Support for Canada's “extensive campaign to try and force the EPA to not proceed [with the ban]… stretches from the Prime Minister's office to Energy & Mines and External Affairs...” The Canadian Embassy in Washington was closely monitoring developments, news of which was reported by telex to the offices of the Privy Council and the Prime Minister.
• The attack on the U.S. ban enjoyed active support from high-level federal authorities including the Ministries of: Energy, Mines, and Resources, the Environment, Consumer and Corporate Affairs, Regional Economic Expansion; Departments of: Health and Welfare, External Affairs; and the Canadian International Development Agency.
• Canada's three-pronged strategy was to do everything possible to “dispel the very negative image of asbestos,”²³ “challenge the credibility of the EPA,” and “isolate the U.S. on the international front.”
• A memo from Energy, Mines, and Resources (EMR) which stated that: “the objective is to challenge the EPA's credibility” also highlighted the need for subterfuge: “the Government must not look to be leading. Clearly the initiative has to be seen as coming from industry asbestos leaders on this issue.”
• Acknowledging the need for Ottawa's role in this plot to be buried, Alek Ignatow from EMR wrote in a March 1986 memo: “Clearly, the industry must be seen as leading on this issue.”
• The Asbestos Institute, the industry mouthpiece set up in Quebec just as the Canadian plot against the EPA was being hatched, recruited scientists, lawyers, Washington D.C. lobbyists and public relations spin doctors to progress the anti-ban campaign.
• The initial Can$2.5 million in the Asbestos Institute's war chest “to defend and communicate Canada's position on asbestos,” could swell by an additional Can$10 million in grants from the Canadian and Quebec Governments as well as yet more millions for other expenses, salaries, travel, research, publicity, legal services and consultancy fees.
• The House Commerce Oversight Subcommittee deemed as “illegal” meetings in Washington D.C. which took place at the behest of Canadian asbestos lobbyists with staff from the Office of Management and Budget, the body charged with overseeing regulatory decisions of agencies like the EPA to ensure their compliance with government guidelines.

Assistance or Interference?

There was no doubt in the minds of Canadian civil servants that the level of interest Canada was taking in what was, after all, an internal U.S. affair, was bordering on unacceptable. A trip planned by Canadian Minister Robert Layton to lobby the EPA Director was postponed on the advice of officials who felt it “could be perceived by the Washington media as interfering… and could be a PR disaster.” ²⁴ Diplomatic niceties held little sway with Quebeckers, however, who were in thrall to their much-loved asbestos industry, “a symbol of the social transformation of Quebec… [which] symbolizes the rupture from traditional Quebec and the start of a new era.”²⁵ On September 10, 1986, a delegation headed by Quebec's Minister of Mines Raymond Savoie²⁶ met with EPA officials Fitzhugh Green, Associate Administrator for International Activities, David Dull, Office of Toxic Substances, and Alan Carpien, Office of General Counsel; this meeting had been requested by the Canadian Embassy in Washington. Six days later, Canadian Minister Marcel Masse, elected representative of the asbestos mining region of Frontenac, Quebec, ratcheted up the political pressure when he and the Canadian Ambassador to the U.S. Allan Gotlieb²⁷ held talks with EPA Director Lee Thomas on the Agency's “proposed rule regarding asbestos.”²⁸ Also at the September 16 meeting were “various staff from EPA, the Canadian Embassy, and the Federal Government of Canada.” In a follow-up letter sent by Masse, which was carbon copied to Ambassador Gotlieb, the Minister reiterated Canada's arguments:

• the scientific justifications for the ban advanced by the EPA were incorrect;
• there were factual errors in EPA arguments and analyses;
• a formal hearing process was needed to resolve the discrepancies which would necessitate “full cross-examination privileges for all parties;”
• the controlled use of asbestos, which was based on sound science and medical evidence, was the preferred option.

No doubt in the spirit of North American fellowship, Masse included in the envelope sent to the EPA Director a copy of a six-page speech the Minister had made three days earlier at the 11th Industry–Government Conference of the Asbestos Information Association/North America.²⁹ Highlighting the “negative impact on asbestos markets here and abroad” of the EPA's proposals and acknowledging that U.S. imports of Canadian raw asbestos fiber the previous year (1985) had been worth U.S. $42 million,³⁰ Masse concluded his remarks with the statement:

“The battle for asbestos has been long and difficult but much progress has been made towards a worldwide consensus that the mineral can be used safely.

Canada has a decided interest in promoting the principle of controlled use in order to ensure the survival of our asbestos industry. But we have a higher calling. It is to protect the health and safety of our asbestos workers and the general public. That responsibility has always outweighed any economic consideration…

Canada and the United States have established a long and close relationship based on mutual trust and goodwill. We have always been able to work out our differences, just as we will over the issue of this important commodity.

But let the position of the Government of Canada remain clear. We are convinced that the finest contributions of asbestos have yet to be made, and we are committed to that end.”

The EPA was under a continuous bombardment from Canadian representatives and their lawyers as well as U.S. bodies representing industry interests and their lawyers. An EPA circular sent on August 15, 1986 regarding the availability of the transcript of oral testimony given at the Asbestos Hearings the previous month was copied to 32 participants including: P. Gosselin, Minister-Counsellor Canadian Embassy, Gary Nash, The Asbestos Institute, B. J. Pigg, Asbestos Information Association, John B. March, Raymark Corporation, Joseph P. Chu, General Motors Corporation, John A. Gray, Dow Chemical Company, George C. Nield, Automobile Importers of America, Dr. Fred W. Bowditch, Motor Vehicles Manufacturers Association, Dr. Robert G. Smerko, the Chlorine Institute as well as lawyers at Kirkland & Ellis, Arent, Fox, Kintner, Plotkin & Kahn, Clayton Associates, Inc., LaRoe, Winn & Moerman, O'Melveny & Myers, Schnader, Harrison, Segal & Lewis; the remaining recipients of this circular were trade unionists, asbestos victims' representatives and their allies.³¹

Correspondence sent to the EPA in August and September 1986 by lawyers Roger W. Patrick and Edward Warren, Counsel for the Asbestos Information Association/North America and the Asbestos Institute, not only reveal the detailed attention paid to the EPA's actions but also suggest the scope of financial resources available to the ban's opponents.³² At that time Patrick, who was two years out of law school, was likely to have been a fairly junior member of the law firm of Kirkland & Ellis but Warren had, by then, been a partner at the firm's Washington D.C. offices for eight years; typical hourly billing rates for legal professionals occupying their positions were respectively $100 and $190³³. Judging by the documents emanating from Kirkland and Ellis, it seems clear that many billable hours were racked up working on this file.

Even as the industry's U.S. lawyers continued their work, pressure was maintained by the Ottawa Government. On September 11, 1986, Canadian Ambassador Allan Gotlieb reminded EPA Administrator Lee Thomas, as if he needed any reminding, that “Canadian authorities are following closely the EPA asbestos rule-making process.” In a hand-delivered letter which was carbon copied to Clayton Yeutter, U.S. Trade Representative, Malcolm Baldridge, U.S. Secretary of Commerce, Donald Hodel, U.S. Secretary of the Interior, and Allen Wallis, U.S. Under-Secretary for Economic Affairs, Gotlieb reiterated the Canadian authorities “request that EPA agree to proceed to hearings in which all parties' evidence is subject to cross-examination.” ³⁴ There was to be no reprieve from the Canadian onslaught for Thomas. On October 3, 1986 Canadian Minister Marcel Masse again wrote to him.³⁵ More than two years later, Masse was still trying to influence EPA policy as evinced by a letter of December 16, 1988 in which the Minister again raised “certain technical points pertinent to the asbestos debate.” Standard arguments in the Canadian asbestos orthodoxy were advanced:

• “sound scientific evidence… has demonstrated that because the [asbestos] fibres are firmly bound in the cement matrix, asbestos cement products are safe to use.”
• “cost effective technology can be used to reduce exposure to asbestos dusts in brake shops thirty-fold…”
• “An EPA ban on asbestos products would undermine this important ILO initiative [1986 ILO Convention on Safety in the Use of Asbestos] and ultimately jeopardize the progress achieved worldwide on ensuring that asbestos is properly used in a manner to obviate health and safety concerns.”³⁶

Masse's letter was dispatched on December 19 to Thomas by Canadian Ambassador Allan Gotlieb³⁷ who hoped that Thomas would “be available to receive a telephone call from me on this subject.” Four months later, a new Canadian Ambassador D. H. Burney thanked new EPA Administrator William Reilly for meeting him on April 7, 1989 “to discuss our concerns regarding EPA's proposal to ban the use of asbestos in the United States.”³⁸ In the last sentence of Burney's letter, the Ambassador offered to arrange a briefing for EPA staff by “Sir Richard Doll and other key scientists…”

The Canadians made sure that their objections were known in as much detail and to as many people as possible. The Canadian Prime Minister Brian Mulroney discussed the EPA ban with President Reagan; Quebec's Premier Jean-Robert Bourassa held talks on the proposals with U.S. trade officials in Washington early in 1986.³⁹ Documents sent between January 1987 and January 1989 to the EPA's Office of Pesticides and Toxic Substances reveal the length to which the authorities in Ottawa were prepared to go (Table 1).

Table 1. Canadian Documents

Title of Document/ Extract	Date	Pages	File No.
Written Comments by the Government Of Canada: “The collapse of EPA's supporting evidence leads inexorably to one conclusion: The proposed rule must be withdrawn.”	Jan. 1987	25	N7-008(3)40
Submission of the Government of Canada: “Canada argued in January, 1987 that the rule should be withdrawn, pending the production of new evidence. The new evidence presented to date reinforces Canada's belief that the rule is not supported by the evidence and should be withdrawn.”	Jun. 1988	20	N7-008(2)41
Written Reply. Comments by the Government of Canada: “The Government of Canada submits that the proposed rule… will place the United States in a position inconsistent with the international community, the majority of which have accepted the philosophy of controlled-use.”	Oct. 1988	14	N7-008(4)42
Note No. 17 from the Canadian Ambassador to the U.S. Department of State: “The Government of Canada believes that the possibility of a consensus between major trading partners should be further explored before radically different regulatory initiatives are launched, especially when one initiative is based on objective scientific evidence and the other on deficient and incomplete data.”	Jan. 1989	13	N7-008(1)43

At the same time as letters, calls and offers were flying around from Canadian and Quebec Ministers, diplomats and politicians, industry bodies were also on active duty. President of the Asbestos Information Association/North America Bob Pigg requested meetings with the EPA's Administrator Thomas in correspondence dated December 2 and 19, 1986, and March 3, 1987.⁴⁴ On March 13, 1987, Thomas responded to Pigg's demands for a face-to-face⁴⁵ by referring to the March 18 meeting scheduled for Pigg with EPA representatives Francis S. Blake and John A. Moore. “Should I feel the need to meet personally with interested parties outside the Agency,” Thomas wrote “I will certainly do so.” One can only imagine the frustration Pigg must have felt at not being given an audience with the Chief of the EPA, an organization which Pigg alleged had been unwilling to “engage seriously over the past three years in these [asbestos ban] discussions.”⁴⁶ Pigg was in no doubt about the harm caused by the EPA proposals as he made clear in his statement at the EPA's public hearings on July 15, 1986:

“The asbestos industry is currently suffering economic difficulties because of the tremendous uncertainty caused by continuing government-announced plans to issue new regulations in the absence of actual promulgation of such regulations. This uncertainty makes it impossible for asbestos companies and their customers to plan for the future…

The mere presence of the proposal is causing significant harm to our members by unduly and without justification discouraging safe use of asbestos. Even more importantly, the presence of the proposal is harmful to society by de facto imposing both substantial economic costs and potential health and safety risks concomitant with increased use of substitutes.”

Three days later, Canadian Gary Nash, President of the Asbestos Institute, made a much more direct attack on the EPA:

“Obviously, I am not here today to help you ban asbestos. I believe that your proposal is unjustified and lacking in scientific foundation. Whatever your motivation for this proposal, it is not concern about worker and public health and safety… With all due respect, you don't know what you are talking about. Obviously, your view that [there is] 'no safe level of exposure' goes too far. Asbestos is ubiquitous.… Will EPA try to regulate or ban natural environmental release of asbestos fibres into the water or air? Possibly you could start with the state of California, since virtually the whole state is situated on asbestos-bearing serpentine rock.”⁴⁷

The considerable input that Canadian and industry interests had in the 1986 EPA public hearings was a source of pride for the anti-ban lobby. In a speech to the 6th biennial conference of the Asbestos Information Association, the new President of the Asbestos Institute Claude E. Forget bragged that the Institute and the Asbestos Information Association/North America had “succeeded in demonstrating the inaccuracies, deficiencies and inconsistencies inherent in the EPA's proposed rule to ban and phase-out asbestos use in the United States. This was a real and important success…”⁴⁸ As his predecessor Gary Nash had done, Forget spoke with disdain about the EPA's “regulatory overkill” and asked whether the agency's next initiative would be to ban “rainy days or excessive tides.”

Lawsuit against Asbestos: Manufacture, Importation, Processing and Distribution in Commerce Prohibitions⁴⁹

Given that the EPA would not rescind its rule and that the anti-ban axis would not accept the “death penalty” option for asbestos, it was inevitable that this dispute would wind up in court. During the New Orleans trial, Canadian interests were represented by American lawyers as well as by the Attorney for the Government of Canada who submitted a 20-page Amicus Curiae brief claiming Canada's right to be heard in this matter as:

“Canada is interested in promoting international commerce and therefore in promoting the international harmonization of regulations. Canada considers this Rule inconsistent with its own regulatory approach to asbestos health risks and… submits that it will unnecessarily impede international commerce.”⁵⁰

As would be expected, a number of asbestos stakeholders were parties to the lawsuit:

Canadian litigants

• The Federal Government of Canada was represented by Donald N. Dewees from Toronto.
• The Amici-Applicant Province of Quebec was represented by Arthur Kahn, from the law firm of Schnader, Harrison, Segal & Lewis in Philadelphia.
• The Asbestos Institute was represented by Edward W. Warren, Timothy S. Hardy, Susan M. O'Sullivan and Kathleen L. Blaner from the law firm of Kirkland & Ellis in Washington.
• Cassiar Mining Corporation was represented by David Booth Beers and Michael S. Giannotto from the law firm of Shea & Gardner, in Washington.

U.S. litigants

• Corrosion Proof Fittings et al, was represented by Robert E. Holden, Mary S. Johnson, from the law firm of Lislow & Lewis, in New Orleans.
• The Institute of Scrap Recycling Industries, Inc. was represented by Duane A. Siler from the law firm of Patton, Boggs & Blow in Washington.
• Caterpillar, Inc. was represented by Jeryl Dezelick and Robert E. Mann from the law firm of Seyfarth, Shaw, Fairweather & Geraldson in Chicago.
• The Asbestos Information Association, et al and Asbestos Cement Pipe Producers et al were represented by Edward W. Warren, Timothy S. Hardy, Susan M. O'Sullivan and Kathleen L. Blaner from the law firm of Kirkland & Ellis in Washington.

Although the 5th Circuit Court of Appeals did not find merit in the Canadian petitioners' assertion that under U.S. law “any person” capable of arranging transportation to the courthouse door had a right to be heard,⁵¹ the ruling handed down on October 18, 1991 was a huge victory for the Canadians and other asbestos stakeholders. With no support from the Justice Department, no appeal of this verdict was made to the Supreme Court. And that, it seems was that. In some ways the judgment of the Court of Appeals was a pyrrhic victory. From 1991 to 2007, U.S. asbestos imports declined year by year from 20,061 tonnes (1991) to 1,731 tonnes (2007). Data from the next three years showed a brief resurgence in 2008 to 3,094 tonnes but only 869 tonnes were imported in 2009 and 1,044 tonnes in 2010. It seems that the fear of asbestos liabilities succeeded where regulatory agencies and Congress had failed; the American public would no longer tolerate asbestos even if their elected representatives were too scared or incompetent to enact regulations prohibiting its use. Nowadays, consumption of raw asbestos in the U.S. is virtually nil; nevertheless, there is a symbolic importance of a ban for American workers as well as for citizens at home and abroad. Surely, the 20th anniversary of the appellate ruling would be an appropriate time to ban asbestos in the U.S. If not now, when?

Concluding Thoughts

The details contained in this exposé of Canada's attack on the U.S. ban are just part of the story. No doubt given more time and resources, there is more that could be learned. Nevertheless, in trying to explain why the U.S. has still not banned the world's worst industrial killer, the collection of documents amassed sheds enough light on what took place to enable us to draw some conclusions. It is conceivable that without the involvement, support and influence of Canadian asbestos interests, the attack on the EPA's Asbestos Ban and Phase-out Rule might well have failed. Should that have been so, then several things could have transpired. The U.S. would, by now, have benefited from twenty years of using asbestos-free products; a generation of workers would have escaped hazardous exposures to new asbestos-containing products even if the risks posed by contaminated material within the national infrastructure remained. In every case, less exposure is better than more. Countries in the developing world, where the vast majority of asbestos use now takes place, might have followed the U.S. example and banned asbestos. Faced with the contraction of global markets, asbestos production would have become less profitable; denied the financial means to bribe politicans, disseminate industry propaganda and buy pro-asbestos science, industry stakeholders would have lost control of national asbestos agendas. With more awareness of the asbestos hazard, safer alternatives would have become more popular, leading to an increased scale of production and lower unit costs. Beset by local and worldwide difficulties, members of the global asbestos mafia would have turned on each other; as a consequence of this disunity, obstacles to asbestos bans in some countries could have dissipated. The increasing restrictions on asbestos use, fall in consumer demand and discord amongst vested interests might very well have brought an end to the asbestos era.

Of course, it is not possible to say what might or might not have happened had the Canadians stayed on their side of the border when it came to deciding on how the U.S. Government could best protect the lives of American workers. It is interesting to note that at the same time as Canada was pimping for its asbestos industry in Washington D.C., it was taking the moral high ground over acid rain from the U.S. which was killing lakes, fish, crops and trees in Canada. When it comes to asbestos, there has been neither logic nor morality in the actions of successive governments in Ottawa and Quebec. One example which stood out like a sore thumb when reading through the hundreds of pages of documents that make up the bedrock of this paper was the Canadian justification for its “controlled use” asbestos policy. In the 1980s, Canada said there was a consensus amongst countries and international agencies which supported this policy. Of course that was not true, but for the sake of argument let us pretend it was. So, the 1986 position on safe use is vindicated and upheld by a global consensus which means the EPA should drop its ban proposal and follow the Canadian lead. In 2011, all major international agencies have adopted policies supporting a ban on asbestos as have 55 national governments and the vast majority of independent scientists, medical professionals and researchers. When this fact is put to asbestos representatives, they reply: “Well, they are wrong.” So, what suited them in the 1980s no longer suits them now. One thing is undeniable: the Canadian mindset is very flexible when it comes to interpreting facts and developments related to asbestos.

In the end what does this “bloody anniversary” mean. As well as providing the occasion for a retrospective look at how greed trumped morality back in the bad old days and indulging in a series of “what-if” hypotheses, the date of October 18 could become a rallying point for future action on the global asbestos scandal. The date could be adopted by the 100 asbestos victims support groups around the world as the “Asbestos No Day.” The Greek “No Day,” which celebrates the country's reply to a foreign dictator's ultimatum, is marked on October 28, a day when valiant Greek politicians refused to bow down in the face of superior force. In a similar vein, October 18 could be the day the world stands up to the asbestos dictators, the faceless men behind their desks far removed from those whose lives are threatened by their incautious actions. On October 18, let citizens in Ottawa and Quebec descend on the Parliament and National Assembly en masse to show their elected representatives that Canadians do not support the mining, sale and export of asbestos. Let people in asbestos-using countries like China, India and Indonesia take action to express their objections and citizens in all asbestos-producing nations make their views known in any way possible. Transforming the ignominy of October 18 from a day of defeat into one of hope would be something worth doing for all our sakes.

_______

¹ Federal Register. Part III Environmental Protection Agency 40 CFR Part 763. July 12, 1989.
http://www.epa.gov/asbestos/pubs/frl-3476-2.pdf (accessed August 28, 2011).

² According to data from the United States Geological Survey (U.S.G.S.), between 1990 and 2010, a total of 307,765 tonnes of asbestos were imported to the U.S. Based on the available data, as much as 99.5% of annual U.S. asbestos purchases were from Canada.

³ The Chrysotile Institute, formerly known as the Asbestos Institute, was founded in 1984 as a joint initiative of the Canadian and Quebec Governments and the Canadian asbestos industry.

⁴ Chrysotile Institute Newsletter. The Americas are far away from having banned Chrysotile. November 2010. http://www.chrysotile.com/data/newsletter/Bulletin_V9_No2-Ang.pdf (accessed August 20, 2011).

⁵ Corrosion Proof Fittings, et al., Petitioners, v. The Environmental Protection Agency and William K. Reilly, Administrator, Respondents. No. 89-4596.
http://openjurist.org/947/f2d/1201/corrosion-proof-fittings-v-environmental-protection-agency (accessed August 1, 2011). See also: http://www.epa.gov/asbestos/pubs/ban.html (accessed August 1, 2011).

⁶ Talking Points on EPA's Response to the Court in: Corrosion Proof Fittings v. Environmental Protection Agency. EPA archive document file “Talking Points”. http://www.ibasecretariat.org/epa-file-talking-points.pdf

⁷ Castleman B. Asbestos is Not Banned in North America. European Journal of Oncology 2006; 11: 85-88.

⁸ Failed Congressional attempts to ban asbestos include the: Ban Asbestos in America Act of 2003, Ban Asbestos in America Act of 2007 and Bruce Vento Ban Asbestos and Prevent Mesothelioma Act of 2008.

⁹ EPA documents cited in this paper can be viewed on the website of the International Ban Asbestos Secretariat: http://www.ibasecretariat.org

¹⁰ On October 17, 1979, the EPA lodged an Advance Notice of Proposed Rulemaking in the Federal Register (44 FR 60061) stating its intent to explore means to “reduce the risk to human health posed by exposure to asbestos.” On July 30, 1982, EPA issued a reporting rule (47 FR 33207, 40 CFR 763.60) regarding its collection of “information on industrial and commercial uses of asbestos.”

¹¹ Asbestos International Association. Notes for Associations. August 1980 (p.18-19).

¹² The Asbestos International Association, one of a number of industry-backed lobbying groups engaged in disseminating industry propaganda, was formed in 1974.

¹³Asbestos Information Association News (41). 31 July 1980: p25-28.

¹⁴ United States Geological Survey. Worldwide Asbestos Supply and Consumption Trends from 1900 to 2003. During this period, the U.S. imported 29.6 million tonnes of asbestos, of which around 93% was chrysotile asbestos from Canada. U.S. asbestos consumption peaked in the 1970s.

¹⁵Telegram U.S. Embassy in Ottawa to Secretary of State, Washington. EPA archive document files N1-054(1) and N1-054. May 7, 1986. http://www.ibasecretariat.org/epa-file-n1-054(1).pdf; http://www.ibasecretariat.org/epa-file-n1-054.pdf

¹⁶ Comments by the Asbestos Information Association/North America and the Asbestos Institute at the EPA Asbestos Ban and Phase-out Legislative Hearings. Volume VI. EPA archive document file F1-020e. August 8, 1986.
Van der Rest (extract p.72-82): http://www.ibasecretariat.org/epa-file-f1-020e-p72-82.pdf
Alva (p.140-148): http://www.ibasecretariat.org/epa-file-f1-020e-p140-148.pdf
Okere (p.149-155): http://www.ibasecretariat.org/epa-file-f1-020e-p149-155.pdf
Ferrantini (p.111-139): http://www.ibasecretariat.org/epa-file-f1-020e-p111-114.pdf

¹⁷ Asbestos Institute Communiqué. EPA archive document file N1-054(2). April 22, 1986.
http://www.ibasecretariat.org/epa-file-n1-054(2).pdf

¹⁸ Memo to John Moore and Telegram from U.S. Embassy in Ottawa to Secretary of State etc. EPA archive document file N1-054 and N1-054(1). May 7, 1986. http://www.ibasecretariat.org/epa-file-n1-054.pdf; http://www.ibasecretariat.org/epa-file-n1-054(1).pdf

¹⁹ Schneider A, Smith C. Asbestos – it's the killer that won't die. Seattle Post-Intelligencer February 11, 2000. http://www.carollsmith.com/pdf/asbestosfailure.pdf (accessed September 1, 2011).

²⁰ Nash G, Houston S. Proposed asbestos ban 'draconian, unjustified.' The Toronto Star. March 13, 1987.

²¹ Speaking about the challenge of whitewashing the tarnished image of asbestos, spin doctor George Worden of the infamous PR firm of Hill and Knowlton told Newsweek reporter Mary Hager: “The degree of difficulty is the highest I've ever been involved with.” [The Case for Asbestos. Newsweek. September 29, 1986.] Robert Gray, a Washington lobbyist, was hired by the Asbestos Institute as was the Washington law firm of Kirkland and Ellis.

²² Canadian Broadcasting Corporation. Asbestos Story – Special Report. [TV Broadcast] Canada; February 17, 1987.

²³In a statement to the EPA hearings, Roch Frechette, Mayor of the Quebec town of Asbestos, said: “asbestos is definitely not a public health issue… Our homes and playgrounds are built close to mining operations and the massive tailings piles, where waste from the mine and mill operations is discarded… the risks related to asbestos are no greater than a myriad of other risks that workers face every day in our modern day society.” EPA archive document file F1-020e (p.196-201). Online:
http://www.ibasecretariat.org/epa-file-f1-020e-p196-201.pdf

²⁴ Ludlow R. Canada's selective judgment on what's an environmental hazard; Pushing asbestos sales while decrying acid rain. The Ottawa Citizen. April 4, 1987.

²⁵ Evidence given by Paul Gerin-Lajoie to EPA hearings on July 18, 1986. EPA archive document file F1-020e ( p. 189-195). http://www.ibasecretariat.org/epa-file-f1-020e-p189-195.pdf

²⁶ According to the program for that meeting, Minister Savoie was accompanied by Gillis Reny, Political Attache, Bruno Perron, Counselor for Regional Development, and Jean-Marc Roy, Counselor for Regional Affairs. The meeting took place from 10:30-11:30 a.m. EPA archive document file NN2-009. September 11, 1986: p1-2. http://www.ibasecretariat.org/epa-file-nn2-009.pdf

²⁷ Memo by David Dull, EPA. EPA archive document file NN2-010. October 1, 1986. http://www.ibasecretariat.org/epa-file-nn2-010.pdf

²⁸ Letter from Minister Marcel Masse to Lee Thomas. EPA archive document file F1-007a(2). September 19, 1986. http://www.ibasecretariat.org/epa-file-f1-007a(2).pdf

²⁹ Notes for an address by the Honourable Marcel Masse to the 11th Industry-Government conference of the Asbestos Information Association/North America. EPA archive document file F1-007a(2a). September 16, 1986. http://www.ibasecretariat.org/epa-file-f1-007a(2a).pdf

³⁰ While Canadian Minister Masse stated that the value of U.S. imports of raw Canadian chrysotile asbestos in 1985 was U.S.$42 million, U.S. sources quoted earlier in this paper gave a figure of CAN$72 million for this trade. According to the Library of the Canadian Parliament, in 1985 CAN$72 million was worth U.S.$52.51 million. Clearly, the figures do not tie up.

³¹ EPA Circular. EPA archive document file F1-020h. August 15, 1986 (p.1-5). http://www.ibasecretariat.org/epa-file-f1-020h.pdf

³² Other lawyers at this firm named as acting for the AIA/NA and the AI are: Timothy S. Hardy and John A. Zackrison. Letters from Kirkland and Ellis sent in August and September 1986 to the EPA are in EPA archive document files F1-020d, F1-020e (p.1-3) and F1-020L (p.1-8).
http://www.ibasecretariat.org/epa-file-f1-020d.pdf; http://www.ibasecretariat.org/epa-file-f1-020e-p1-3.pdf
http://www.ibasecretariat.org/epa-file-f1-020l-p1-8.pdf
EPA correspondence sent during the Summer of 1986 to Kirkland & Ellis are in EPA archive document files F1-020a and F1-020b.
http://www.ibasecretariat.org/epa-file-f1-020a.pdf
http://www.ibasecretariat.org/epa-file-f1-020b.pdf

³³ http://www.justice.gov/usao/dc/divisions/civil_laffey_matrix_1.html

³⁴ Letter from Canadian Ambassador to EPA. EPA archive document file F1-006. September 11, 1986. http://www.ibasecretariat.org/epa-file-f1-006.pdf

³⁵ Letter from EPA to Canadian Minister M. Masse. EPA archive document file F1-008b. October 27, 1986. http://www.ibasecretariat.org/epa-file-f1-008b.pdf

³⁶ Letter from Canadian Minister M. Masse to EPA. EPA archive document file N6-2(1). December 16, 1988. http://www.ibasecretariat.org/epa-file-n6-2(1).pdf

³⁷ Letter from Canadian Ambassador Gotlieb to EPA. EPA archive document file N6-2. December 19, 1988. http://www.ibasecretariat.org/epa-file-n6-2.pdf

³⁸ Letter from Canadian Ambassador D. H. Burney to EPA. EPA archive document file N8-2a. April 25, 1989. http://www.ibasecretariat.org/epa-file-n8-2a.pdf

³⁹ Evidence given by Paul Gerin-Lajoie to EPA hearings on July 18, 1986. EPA archive document file F1-020e ( p.189-195). http://www.ibasecretariat.org/epa-file-f1-020e-p189-195.pdf

⁴⁰ EPA archive document file N7-008(3) ( p. 3-5 & 23-25). http://www.ibasecretariat.org/epa-file-n7-008(3)-p3-5.pdf; http://www.ibasecretariat.org/epa-file-n7-008(3)-p23-25.pdf

⁴¹ EPA archive document file N7-008(2). http://www.ibasecretariat.org/epa-file-n7-008(2).pdf

⁴² EPA archive document file N7-008(4). http://www.ibasecretariat.org/epa-file-n7-008(4).pdf

⁴³ EPA archive document file N7-008(1). http://www.ibasecretariat.org/epa-file-n7-008(1).pdf

⁴⁴Letter from B. J. Pigg, Asbestos Information Association, to EPA. EPA archive document file N2-002c. March 3, 1987. http://www.ibasecretariat.org/epa-file-n2-002c.pdf

⁴⁵ Letter from EPA's Lee Thomas to B. J. Pigg. EPA archive document file N2-002d. March 13, 1987. http://www.ibasecretariat.org/epa-file-n2-002d.pdf

⁴⁶ Evidence given by B. J. Pigg to EPA hearings on July 15, 1986. EPA archive document file F1-020e (p. 7-16). http://www.ibasecretariat.org/epa-file-f1-020e-p7-16.pdf

⁴⁷ Evidence given by Gary Nash, President of Asbestos Institute, to EPA hearings on July 18, 1986. EPA archive document file F1-020e (p.156-164). http://www.ibasecretariat.org/epa-file-f1-020e-p156-164.pdf

⁴⁸ Forget C. Message from the Asbestos Institute President. EPA archive document file N2-020(1). May 19, 1987 (p.1-15). http://www.ibasecretariat.org/epa-file-n2-020(1).pdf

⁴⁹ Federal Register. Part III Environmental Protection Agency 40 CFR Part 763. July 12, 1989.
http://www.epa.gov/asbestos/pubs/frl-3476-2.pdf (accessed August 28, 2011).

⁵⁰ Brief Amicus Curiae of the Government of Canada in Corrosion Proof Fittings, et al. v. Environmental Protection Agency. No. 89-4596. May 22, 1990.

⁵¹ Paragraph 17 of the judgment of the U.S. Court of Appeals for the Fifth Circuit ruled that the Canadians did not have the right to be heard: “The Canadian petitioners do not have standing to contest the EPA's actions. Nothing in the statute requires the EPA to consider the effects of its actions in areas outside the scope of section 6... We therefore do not consider the arguments raised by the Canadian petitioners.”