Two Wrongs and No Fight: Why Is Asbestos Still Legal In US?

In 1989 a game-changing EPA-driven asbestos ban—‘Asbestos Ban and Phase Out’—outlawed nearly every use of asbestos in the United States. But that wasn’t the end of America’s asbestos crisis: Today the use of asbestos in the U.S. is still going strong –and is quite legal. Though a relatively limited participant in worldwide asbestos use, U.S. gravitas is thought to influence some other countries’ acceptance of the hazardous material often billed as ‘harmless.’

Why is asbestos still legal in the U.S.? Actually it was banned in the U.S. for about a minute-and-a-half with the 1989 EPA rule after a ten-year uphill climb and millions spent on research. For one shining moment the epic moratorium was voted into law; but in 1991 the Fifth Circuit Court of New Orleans overturned the ruling based largely on the EPA’s unsatisfactory ability to show evidence that asbestos ‘substitutes’ might not be equally or more toxic. The decision was later appealed to no avail.

The EPA (Environmental Protection Agency), along with OSHA (Occupational Safety and Health Administration), faced opposition to such a comprehensive ban from the get-go, meeting with fierce hostility from asbestos product manufacturers and industry giants who cried job loss and potential economic ruin, challenging the ban as ‘death by regulation.’ Industry supporters swiftly filed a lawsuit challenging the ban’s validity under the Toxic Substance Control Act (TSCA), claiming the ban was too costly and that the alternatives were neither more effective nor safer than asbestos.

Also, at the time, U.S. asbestos industry players were plagued with thousands of mesothelioma lawsuits as a result of their long-term failure to warn product users about ‘lethal, non-obvious’ hazards created from inhaling asbestos dust, especially in confined spaces.

The New Orleans Circuit Court essentially demanded that the EPA look into a crystal ball and predict the future toxicity from breakdown of ‘asbestos substitutes.’ The Court further charged the EPA to conduct risk analysis on all proposed substitute products, setting an impossible burden for the agency to continue fighting for the ban’s prevalence.

After the tables were turned in New Orleans, subsequent new ‘regulations for controlled use’ were enacted with the promise of protecting people and their environment from unnecessary exposure to airborne asbestos dust. But the real story is that scores of asbestos products remain on the market today. The compensatory regulations have done little to regulate asbestos safety or control anything. Rather they have opened the door for many asbestos products to cruise under the radar—while asbestos-related mortality rates are surging.

The Fifth Circuit’s ruling has since been called a ‘tragedy for the EPA.’ The EPA has not banned any substance for any use since 1991 under the provision of law used for the ’91 reversal. If the EPA cannot ban a known carcinogen, at which no level of exposure is safe, how can EPA regulate any toxic substance?  Asbestos is still legal in the U.S. today—because it is.