By Tina Sigurdson, Staff Attorney, EWG and Alex Formuzis, VP for Strategic Campaigns, EWG Action Fund

Many Americans probably believe asbestos was banned years ago, consigned to the trash bin of history, never to be seen again. Not so. This notorious human carcinogen is still legal for use in the U.S.

In 1989, during the administration of President George H.W. Bush, the federal Environmental Protection Agency attempted to ban asbestos, but its efforts were thwarted.

EPA’s attempted ban grew out of a 10-year, $10 million study that generated 100,000 pages of evidence.

The industry went to court and succeeded in blocking the ban. In 1991 the U.S. Court of Appeals for the Fifth Circuit threw out most parts of EPA’s regulation, on grounds that the federal Toxic Substances Control Act of 1976 says EPA must prove that a ban is the “least burdensome alternative” for controlling the public’s exposure to the “unreasonable risks” posed by asbestos.

Today, the nation faces two alternatives for reforming the broken federal chemicals law —a chemical industry-backed bill proposed by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), or a bill proposed by Sens. Barbara Boxer (D-Calif.) and Ed Markey (D-Mass.) backed by the majority of the environmental and public health groups.

As the U.S. Senate considers these two measures, the key question is, would this bill ensure that EPA could ban asbestos, even in the face of legal challenges from industry? Any proposal that does not lay the groundwork for a ban is wholly inadequate. If a “chemical safety” bill leaves any uncertainty as to whether EPA can protect Americans from a known killer like asbestos that has devastated tens of thousands of families for decades, what will it do to keep any other chemicals of concern out of our bodies and the bodies of our children?

The fate of any new effort to ban asbestos depends on how courts apply a combination of three parts of TSCA: the safety standard, a weighing of the costs and benefits of protecting public health, and the judicial standard of review.

Here are the scenarios we anticipate under each bill:

1) Safety Standard:

Industry bill: This bill uses a modified version of the “unreasonable risk” safety standard in current law. This term has already been interpreted in the courts to mean that some risks are reasonable and not worth preventing.  But the industry bill also says regulators should not consider any question other than the health hazards of asbestos. How would courts interpret these conflicting instructions? We don’t know.

Boxer-Markey Bill: The Boxer-Markey bill says the safety standard should be “reasonable certainty of no harm.” This is the same standard EPA applies to pesticides on fruits and vegetables. Unlike the industry-backed bill, which proposes an untested and unpredictable new safety standard, the “reasonable certainty of no harm” standard would ensure that EPA’s focus is where it belongs, squarely on the health risks of asbestos.

2) Costs and Benefits:

Industry bill:  This bill sets up a series of hurdles in the form of calculations EPA would have to make before banning asbestos or anything else. The agency would have to weigh the costs and benefits of a ban, including the costs and benefits of alternatives to asbestos. Then it would have to calculate the costs and benefits of at least one alternative regulatory scheme. Because the industry bill’s “unreasonable risk” standard could be interpreted to mean that some risks are acceptable, a court could end up forcing EPA to issue a regulation restricting asbestos but not banning it entirely, even though that option wouldn’t save as many lives.

The requirement in current law, which was applied in the case that struck down the 1989 asbestos ban, is that EPA must use the “least burdensome” means of addressing risk.  This is a very onerous type of cost-benefit analysis.  Although the industry bill improves upon this requirement by removing the “least burdensome” language, the bill does not resolve the problem of factoring in costs instead of focusing on human health.  It is the bill’s untested safety standard and the required cost-benefit analysis of addressing that “unreasonable risk” to different degrees, operating together, that are problematic for public health.

Boxer-Markey bill: This proposal would require a cost-benefit analysis only for rules that would cost industry $100 million or more. The EPA would need to consider alternatives less sweeping than a ban only if other regulatory actions would also meet the safety standard of “reasonable certainty of no harm.”  Since scientists have concluded that any exposure to asbestos, no matter how small or brief, can cause cancer, a court would most likely find that nothing short of a ban can solve the nation’s asbestos problem.

3) Standard of Review:

Industry bill:  In 1991, when the chemical industry won the court fight and overturned EPA’s ban of asbestos, it had an unusually strict standard of judicial review on its side. The “standard of review” is a federal statute’s instruction to the court on how closely to scrutinize an agency’s decision-making process. It tells the court how much evidence the agency must provide to back up its decision and how much to defer to the agency’s reasoning as the expert on the subject at hand. The TSCA law says that courts must throw out any EPA rule “not supported by substantial evidence in the rulemaking record.”  The court that struck down EPA’s asbestos ban said in its decision that this “substantial evidence” standard “imposes a considerable burden on the agency.” Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1214 (5th Cir. 1991). This burden made it harder for EPA to defend its asbestos ban in court and ultimately contributed to its failure.

Boxer-Markey bill:  The Boxer-Markey bill would replace the “substantial evidence” standard with a more common standard, called “arbitrary and capricious” review, which means a court can reject only those decisions that the agency did not make rationally or that resulted from an abuse in the agency’s discretion. In effect, this standard tells the court to apply less intense scrutiny to EPA’s decision-making process and defer to the agency’s expertise when it comes to chemicals and public health.

The bottom line:

The Udall-Vitter bill, blessed by the chemical industry, fails to fully eliminate the legal obstacles that prevented EPA from banning asbestos. It could generate wasteful, expensive and time-consuming litigation that would distract EPA from its real work to protect public health.

In contrast, the Boxer-Markey proposal would make it possible for the EPA to make an asbestos ban stick. It would do much to bring the decades-long American asbestos epidemic to an end.

Note: This post was posted with permission from EWG – the C3 sister organization of EWG Action Fund.