A federal appeals court Oct. 21 overturned the Environmental Protection Agency's rule to ban and phase out asbestos products by 1996, saying EPA failed to prove such products pose unreasonable health risks and ignored the high costs and potential hazards of asbestos substitutes.

The decision by the 5th U.S. Circuit Court of Appeals gives the green light to the continued manufacture and use of the following asbestos-containing products: cement water pipe; roof coatings and cements; siding and roofing shingles; friction materials (brake linings and clutch facings); and gaskets.

EPA's 1989 rule was challenged by various asbestos manufacturing and mining Interests who feared the ban promised the "death penalty* for the asbestos Industry (ACR, April 12, 1990, p. 64). The Asbestos Information Association/ North America (AIA/NA), The Asbestos Institute In Montreal and the Canadian government further warned that the ban would damage economies in the United States, Canada and developing nations that use asbestos-cement pipes in their water systems.

Marking a victory for the challengers, the New Orleans-based appeals court ruled that "EPA presented insufficient evidence to justify its ban." Among other things, the court criticized EPA's regulatory methodology, failure to project the costs and benefits of the ban past the year 2000, and failure to study the health risks and effectiveness of asbestos substitutes. Common substitutes for asbestos-cement pipe are polyvinyl chloride and ductile Iron pipe, which also contain known carcinogens.

EPA's Heavy Burden of Proof

Joe Carra, deputy director of EPA'S Office of Toxic Substances, said the agency has not decided whether to appeal the ruling because It is unclear on certain aspects of the court's decision. He emphasized that while the court rejected EPA*s rulemaking, It did not reject asbestos as a hazard.

They seem to accept our risk assessment," Carra told ACR. "But I think their decision indicates the extent of the burden the federal government has to bear in trying to do a comprehensive ban on a known toxic substance such as asbestos."

AIA/NA attorney Edward Warren said the court has made a strong statement about EPA's responsibility to use a "sensible and rational approach" to regulating toxic substances. Neither the Toxic Substances Control Act (TSCA) nor the Clean Air Act ever intended to create a risk-free world, he added. Even though TSCA gives ERA broad authority to strictly control and even ban chemicals, the agency first must consider all costs and benefits, the risks of substitutes and determine the least burdensome regulations that eliminate unreasonable risks.

Warren noted that while the court found EPA failed to prove that today's asbestos products pose unreasonable risks, the decision "doesn't slam the door once and for all" on an asbestos ban.

AIA/NA President B.J. Pigg applauded the court's decision as "a vindication of our efforts to promote the controlled and safe use of asbestos ... the regulatory pattern adopted in most of the world."

Clement God bout, secretary general of the Quebec Federation of Labor agreed that the U.S. court's decision is a step in the right direction. "We've always maintained that banning is not the solution to the problem of hazardous substances," he said. " Any product can pose a danger if not properly controlled." God bout said a lot more studies are needed on substitute fibers.

Most of the world endorses the controlled-use approach, said Michel Gratton, president of The Asbestos Institute. He noted that the Commission of European Communities recently rejected a proposal to totally ban asbestos on the grounds that a ban "would entail the use on a massive scale of a wide variety of fibers, whose long-term effects are not known."

SOURCE: Asbestos Control Report - Oct 24, 1991