Ignominious Anniversary: Overturn of U.S. Ban
It is nearly twenty years since industry lobbyists succeeded in quashing the United States asbestos ban. A judicial decision handed down on October 18, 1991 by the 5th Circuit Court of Appeals invalidated the Environmental Protection Agency's (EPA's) 1989 order phasing-out the use of asbestos from 1994.1 The contentious EPA regulation, which was issued under section 6 of the Toxic Substances Control Act, would have prohibited the future manufacture, importation, processing, and distribution of asbestos in almost all products. As a direct consequence of the appellate decision, a further 250,000+ tonnes of asbestos were used in the U.S., the vast majority of which was imported from Canada.2
The case, which was heard by three Circuit Judges in a New Orleans courthouse, attracted a huge amount of interest from vested interests in the U.S. and Canada. A number of bodies from the anti-ban camp retained legal counsel including: the Federal Government of Canada, the Province of Quebec, the Asbestos Information Association and Asbestos Cement (Products Association?), the Asbestos Institute, Cassiar (Asbestos) Mining Corporation, and the Institute of Scrap Recycling Industry, Inc.3 It may seem odd that the Governments of Canada and Quebec chose to intervene in what, one would have thought, was a domestic matter. That they took such an active role in the case was a harbinger of things to come; when the Government of France adopted a ban on asbestos in 1996, a protesting Canadian Government instituted official, and ultimately unsuccessful, proceedings at the World Trade Organization (WTO).
While the price tag for the WTO shenanigans remains unknown, U.S. legal experts have estimated that the bill footed by Canadian taxpayers for the attack on the U.S. ban exceeded $1,000,000. 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.4 Despite their lack of standing in the case, there is no doubt that the outcome was a huge victory for the Canadians; to this day, the fact that no asbestos ban exists in the United States constitutes a major plank in their global propaganda onslaught. In the latest issue of the newsletter issued by the Chrysotile Institute – the mouthpiece of Canada's asbestos lobby – an article headline “The Americas are far away from having banned Chrysotile,” states:
“Canada has not banned it, nor has the United States. The following is a list of (28) products containing chrysotile whose use is approved in the United States.”5
The EPA could have taken action to overcome the Court's technical objections to the ban regulations; indeed the appellate judgment indicated that the judges believed this would happen. Judge Jerry E. Smith wrote: “Because the EPA failed to muster substantial evidence to support its rule, we remand this matter to the EPA for further consideration in light of this opinion.” Agency officials were anxious to pursue options to reinstate the ban. American asbestos expert Barry Castleman recalled:
“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.”6
It is unfortunate, although perhaps not surprising that the EPA's asbestos challenge was left to die its death under the Republican administration of President George H. W. Bush.
Despite several attempts by members of Congress to ban asbestos through legislative means,7 no ban has been adopted. From an economic standpoint, the U.S. has little to lose from banning asbestos; a graph prepared by the U.S.G.S. reveals that consumption of raw asbestos in the U.S. is virtually nil.
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The ban which eluded the EPA seems to have been brought to fruition by a collapse in consumer demand and liability aversion therapy acting on the corporations, many of which are now bankrupt, that used to make, process, handle or sell asbestos or asbestos-containing goods. Surely, the 20th anniversary of the appellate ruling would be an appropriate time to ban asbestos and thereby bring this sad story to an end. After twenty years, surely the time has come.
February 25, 2011
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1 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
See also: http://www.epa.gov/asbestos/pubs/ban.html
2 According to data from the United States Geological Survey (U.S.G.S.), between 1991 and 2010, 274,570 tonnes of asbestos were consumed in the U.S.
3 In the online documentation related to this case, there is a degree of error and lack of clarity in the names of the litigants. We believe that “Asbestor Information Ass'n” is the Asbestos Information Association, that the term “Asbestos Cement” could refer to the Asbestos Cement Products Association and that the Asbestos Institute is the one based in Quebec; we have made enquiries to verify these and other facts relating to the identities of the participants in this case.
4 In paragraph 17 of the judgment, the Court disagreed that the Canadians had 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.”
5 The Americas are far away from having banned Chrysotile. 2010. Newsletter from the Chrysotile Institute. Vol 9, Nu. 2, November 2010.
http://www.chrysotile.com/data/newsletter/Bulletin_V9_No2-Ang.pdf
6 Castleman B. Asbestos is Not Banned in North America. European Journal of Oncology 11: 85-88 (2006).
7 Failed Congressional attempts to ban asbestos include the: Ban Asbestos in America Act of 2007, Bruce Vento Ban Asbestos and Prevent Mesothelioma Act of 2008 and Ban Asbestos in America Act of 2003.
