EPA Regulation: Corrosion Proof Fittings v. EPA

The fifth circuit U.S. court of Appeals on Oct. 18 vacated a regulation issued by the U.S. Environmental protection Agency that imposed over a period of years a virtual ban on all asbestos - containing products (corrosion Proof Fittings et al. V. Environmental Protection Agency and William K. Reilly, 5th Cir., No. 89 - 4596).

"••• [O]f most concern to us," the panel said, "is that the EPA has failed to implement the dictates of TSCA (Toxic Substances Control Act and the prior decisions of this and other courts that, before it Impose a ban on a product, it first evaluate and then reject the less burdensome alternatives laid out for it by Congress While the EPA spent much time and care Grafting its asbestos regulation, its explicit failure to consider the alternatives required of it by Congress deprived its final rule of the reasonable basis it needed to survive judicial scrutiny."

The court also faulted the agency for failing to give notice that it intended to use "analogous exposure" data to calculate the expected benefits of certain product bans. EPA should not hold critical analysis in reserve and then use it to justify its regulation despite the lack of public comment on the validity of its basis. Failure to seek public comment on such an important part of the EPA's analysis deprived its role of the substantial evidence it required to survive judicial scrutiny-," the court said.

The appeals court found a third major shortcoming in the agency's refusal to evaluate the toxicity of likely substitute products that will be used to replace asbestos*containing products. "While the EPA does not have the duty under TSCA of affirmatively seeking out and testing all possible substitutes, when an interested party comes forward with credible evidence that the planned substitutes present a significant, or even greater, toxic risk than the substance in question, the agency must make a formal finding on the record that its proposed action still is both reasonable and warranted under TSCA."

EPA began its rulemaking in 1979, when it issued an Advanced Notice of Proposed Rulemaking announcing its intent to explore the use of TSCA to reduce the risk to human health posed by exposure to asbestos* After reviewing over 100 studies of asbestos and a series of public meetings, the agency in 1989 found that asbestos constitutes an unreasonable risk to health and the environment, and it issued a final rule prohibiting the manufacture, importation, processing and distribution of most asbestos-containing products.

The final rule banned the products in three stages: A ban on asbestos-containing floor materials, clothing, roofing felt, corrugated and flat sheet materials, pipeline wrap and new asbestos uses went into effect on Aug. 27, 1990: a ban on asbestos-containing friction products such as clutch and brake pads and certain automotive products was to take effect Aug. 25, 1993: and a ban on other asbestos-containing automotive products and building products, including shingles, was to take effect Aug. 26, 1996.

The ban was challenged by way of appeal to the Fifth Circuit by the Asbestos Information Association/North America, the Asbestos Institute and the governments of Canada and Quebec.

The Asbestos Information Association/North America, a trade organization consisting of asbestos product manufacturers, immediately praised the court’s ruling. BJ. Pigg, AIA/NA president, called the decision "a vindication of our efforts to promote the controlled and safe use of asbestos. We have Known for many years that asbestos can be safely and securely bound in today’s products, as long as carefully controlled manufacturing and installation process are employed. We are glad to see the court agrees that the evidence supports this view.”

AIA is represented in the action by Edward Warren, Timothy Hardy and Susan O'Sullivan with Kirkland & Ellis in Washington, DC.

SOURCE: Asbestos Litigation Reporter Nov 1, 1991