01. Federal Asbestos Laws
Federal Asbestos Laws
Federal laws on asbestos are applicable everywhere throughout the United States. Restrictions on asbestos began to emerge in the 1970s. Asbestos legislation continues today.
To enact a federal law:
- Congress must create and pass a bill
- The president must then sign the bill into law
James Zadroga 9/11 Health & Compensation Act and Reauthorization Act
Originally signed into law by President Barack Obama in 2011, the James L. Zadroga 9/11 Health & Compensation Act created a program to help first responders of the World Trade Center attacks. The act provided compensation for health conditions developed as part of their service.
The original act covered the 9/11 rescuers for only five years.
In 2015, when the original compensation act was set to expire, Congress responded with the James Zadroga 9/11 Health & Compensation Reauthorization Act.
The Zadroga Act passed as part of the 2016 Consolidated Appropriations Act (also known as the “omnibus bill”).
The Zadroga Reauthorization Act provided additional funding to the:
- World Trade Center Health Program
- September 11th Victim Compensation Fund (VCF)
The two organizations make money available to 9/11 responders and survivors to help treat 50 different types of cancer, including mesothelioma.
Toxic Substances Control Act (TSCA) and TSCA Modernization Act
The TSCA was first passed in 1976 to provide regulation over how everyday chemicals are developed, used and disposed of. The initial TSCA act included dangerous substances such as asbestos. However, since it became law, the TSCA has been criticized by several individuals and groups because it doesn’t provide adequate authority to regulatory agencies to enforce its provisions.
Recent calls for TSCA reform focused on areas where the TSCA could be improved, including:
- Requiring regular reviews of commercially used chemicals
- Requiring companies prove chemicals are safe before marketing to the public, similar to how the U.S. Food and Drug Administration (FDA) tests drugs for safety
- Implementing better protections for children, women and other vulnerable groups
- Extending the Environmental Protection Agency’s (EPA’s) authority to analyze existing and new chemicals
In June 2015, the TSCA Modernization Act passed in the House of Representatives. This act aimed to address a number of these issues.
Frank R. Lautenberg Chemical Safety for the 21st Century Act
In June of 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act was signed into law, amending the TSCA.
The new law made the following improvements:
- The EPA is required to evaluate existing chemicals with clear, enforced, mandatory deadlines
- Risk-based chemical assessments
- More transparency with the public regarding chemical information
- A consistent funding source for the EPA to execute their new responsibilities under the law
For those in the mesothelioma community, the Lautenberg Act had a positive impact. The EPA added asbestos to the list of top 10 chemicals for priority action.
Adding asbestos to the list of chemicals for priority action requires the EPA to complete a risk-based assessment of the mineral.
However, many critics still feel the EPA is not doing enough. Mesothelioma survivor Heather Von St. James wrote about the impact of the EPA on those with mesothelioma cancer on the Meothelioma.com blog. Heather feels the current administration is detrimental to asbestos regulations and overall environmental protection.
Results From the Lautenberg Act EPA Review
The last day for the EPA to publish its final risk assessment for the first 10 chemicals (including asbestos) was June 19, 2020. The peer review of the assessment scheduled for April 2020 was delayed due to the coronavirus. Following the rescheduled peer review from June 8 – 11, 2020, the assessment was found to be flawed.
“Overall, EPA’s environmental and human health risk evaluations for asbestos was not considered adequate and resulted in low confidence in the conclusions.”
–Science Advisory Committee on Chemicals Meeting Minutes and Final Report No. 2020-6
The peer review committee, Science Advisory Committee on Chemicals (SACC), found the EPA’s report focused solely on workers exposed to chrysotile asbestos fibers. The review also only incorporated present conditions of use and left out legacy uses.
The committee sought information from the EPA about other:
- types of asbestos and asbestos-like fibers
- sources of exposure, such as drinking water, talc, vermiculite and building materials
- pathways of exposure, such as secondhand exposure
The EPA stated a supplemental document will follow.
Clean Air Act
In 1955, the U.S. Congress passed the Air Pollution Control Act. This act was the first attempt by the federal government to research air pollution.
Based on some of that research, the Clean Air Act was passed in 1963. The Clean Air Act aimed to control the amount of air pollution throughout the country. Subsequently, the act was amended in 1970, 1977 and 1990.
When the EPA was created in 1970, the Clean Air Act was placed within its sphere of regulatory action. Today, the EPA is responsible for protecting and improving air quality across the nation.
The EPA sets standards related to:
- Air quality: This includes emissions
- Air pollutants: This includes asbestos, which can easily become airborne
The Clean Air Act includes asbestos in its list of hazardous air pollutants under §7412(b)(1).
Safe Drinking Water Act (SDWA)
Similar to the Clean Air Act, the SDWA is a piece of legislation that requires the EPA to set standards around the quality of public drinking water.
Signed into law in 1976, the SDWA was part of an effort to bring public health regulations into the modern era.
Before the SDWA and the establishment of the EPA in 1970, the regulation of drinking water had been managed by the U.S. Public Health Service. Their standards were advisory rather than required by law.
As part of the SDWA’s provisions, the EPA was required to set standards for levels of inorganic materials in drinking water, including asbestos.
Amended in 1986 and 1996, the SDWA is still the piece of legislation that oversees drinking water quality at the federal, state and municipal levels.
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – Superfund
The CERCLA is legislation that defines perhaps one of the most well-known projects the EPA oversees: Superfunds.
First passed in 1980, CERCLA allows the federal government to require the cleanup of sites that have been contaminated by hazardous waste or dangerous materials, such as asbestos.
Some of the most well-known asbestos Superfund sites include:
- Upper Clark Fork: Encompasses the largest Superfund mega-site, including sites such as Anaconda Copper Mill and Milltown Dam between Butte and Missoula
- Libby Asbestos Mines: The vermiculite mined at the W.R. Grace mines in Libby, Montana was commonly contaminated with asbestos
- Pearl Harbor Naval Complex: The complex included “asbestos-containing materials” among many other dangerous substances
Asbestos Hazard Emergency Response Act (AHERA)
AHERA created new regulations that required local educational administrations to:
- Inspect school buildings for any materials that might contain asbestos
- Create plans that would help prevent or decrease asbestos hazards in school buildings
Secondly, the act instructed the EPA to develop standards for states to use when accrediting asbestos inspectors.
Under AHERA, administrators are still required to inspect schools and use accredited specialists when renovating, expanding or demolishing school buildings.
Asbestos Information Act (AIA)
In 1988, Congress passed the AIA, which required manufacturers to provide information about any construction materials containing asbestos. As part of their reporting, companies were required to include a set of identifying characteristics of the asbestos materials they produced. This included products such as surfacing materials, insulation or other related building materials.
While this piece of legislation only required reporting, it shifted the balance of power by making information about asbestos-containing materials public information. Companies could no longer legally hide or be misleading about the presence of asbestos in their products.
This armed the American people with information to protect themselves and their families from asbestos-containing materials. Claimants may also use the information made public in this legislation when filing an asbestos lawsuit.
Asbestos School Hazard Abatement Act; Reauthorization Act (ASHARA)
The original Asbestos School Hazard Abatement Act was signed into law by President Reagan in 1984. It granted $600 million to help schools comply with asbestos regulations established over the previous decade, including the AHERA.
The Asbestos School Hazard Abatement Act also provided a leniency program. This allowed schools to report asbestos problems to the EPA without being penalized for failing to comply previously. However, by the end of the decade, funding for the program had run out.
At that time, the EPA estimated it would cost $3 billion for schools to comply with the AHERA. In 1990, Congress passed the ASHARA to update the original Asbestos School Hazard Abatement Act by providing additional funding and guidelines around how to apply for and administer those funds.
Federal Hazardous Substances Act (FHSA)
The FHSA specifically bans products containing asbestos in sections 1304 and 1305. These sections ban the use of asbestos in “artificial ashes and embers” used in fireplaces.
Also, section 1500.17(a)(7) of the FHSA bans the creation of general-use garments that contain asbestos. Although this prevents asbestos from being incorporated into clothes meant for everyday wear, this regulation still allows use in protective gear.
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02. Federal Agency Regulations
Federal Agency Regulations
Federal agencies are often tasked with developing and overseeing additional regulations and standards to implement federal laws. Directly authorized by particular pieces of legislation, these rules and regulations generally have the full weight of the law, though they are frequently challenged by asbestos companies.
Environmental Protection Agency (EPA) Regulations
Throughout the history of asbestos, the EPA has had a hand in helping to prevent and diminish the harmful effects of the naturally-occurring mineral, as well as other hazardous materials.
From its inception in 1970, the EPA has been aware of the dangers asbestos poses to the public.
Early EPA asbestos warnings and regulations started almost immediately. The passage of laws such as the Clean Air Act, Clean Water Act and other environmentally focused legislation helped to give the EPA the authority it needed to regulate how asbestos is mined, manufactured and used in products.
Asbestos Ban and Phase-Out Rule (ABPR)
On July 12, 1989, after nearly two decades of fighting against asbestos use, the EPA ruled that nearly all asbestos products would be banned. Initially, the EPA’s asbestos ban strictly regulated certain products.
Two years later, the Fifth Circuit Court of Appeals in New Orleans overturned the ban. The New Orleans ruling was prompted by a lawsuit, Corrosion Proof Fittings v. EPA.
Corrosion Proof Fittings v. EPA
- Who Filed the Suit? Asbestos product manufacturers filed the lawsuit to combat what they saw as “death by regulation.” The Canadian government attempted to join the suit but was deemed ineligible. At the time of the suit, 95% of the asbestos in the United States came from Canada.
- What Was the Ruling? The Fifth Circuit Court of Appeals in New Orleans overturned the bill. The court said the EPA failed to present substantial evidence for the ban under TSCA. It also noted a failure to prove this ban was the “least burdensome” option to eliminate asbestos risk.
- Was It Appealed? The George H.W. Bush administration did not appeal the ruling.
The 1989 partial ban on asbestos resulted from this ruling.
Today, the bulk of the EPA’s asbestos regulation authority falls under two federal laws:
- The Clean Air Act
- The TSCA
However, it has also issued some rulings that companies, organizations and agencies must comply with.
Asbestos-Containing Materials in Schools Rule
This rule requires local educational agencies to inspect school buildings for anything that contains asbestos.
It also instructs school administrators to develop asbestos management plans and respond appropriately to prevent or lessen the impact of asbestos hazards in their schools.
This rule applies not only to public schools but also to charter schools and nonprofit schools, including those affiliated with religious institutions.
EPA Asbestos Worker Protection Rule
Although worker safety is often covered by the Occupational Safety and Health Administration (OSHA), there are several cases where OSHA’s rules do not cover all employees, including some workers at the state and local government levels.
Using its authority under the TSCA, the EPA has implemented its own rule to cover state and local government workers who handle asbestos materials.
Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP)
One set of standards published by the EPA is related to the renovation and demolition of buildings, structures and installations with more than four units.
In short, these regulations provide instructions on the rules of how such renovations and demolitions should take place. For example, when removing waste that contains asbestos, owners and contractors must take care not to allow emissions from that work to exit the structure.
Before renovating or demolishing a building, owners are required to contact the appropriate state environmental agency responsible for overseeing NESHAP.
Significant New Use Rule (SNUR)
The Significant New Use Rule was passed on April 17, 2019. The rule may also be referred to as the April 2019 Final Rule. The SNUR is an addition to the TSCA.
The April 2019 Final Rule is the first time in 30 years the EPA has taken action on asbestos-containing products under the TSCA.
The April 2019 Final Rule states companies must notify the EPA 90 days before manufacturing anything with asbestos that has been noted as a “new use.”
Once the EPA is notified under the SNUR, the agency begins its evaluation of the intended new use. When the evaluation is complete, the EPA will request any restrictions or it may probit the new use.
The SNUR is not a means for asbestos-containing materials banned in the partial 1989 ban to reenter the market.
Banned uses of asbestos that cannot reenter the market under the SNUR include:
- Corrugated paper
- Commercial paper
- Specialty paper
- Flooring felt
- New commercial uses implemented after August 25, 1989
Asbestos ban advocacy groups, such as the Asbestos Disease Awareness Organization (ADAO), have expressed concerns about the SNUR. These groups worry the rule may result in more asbestos-containing materials entering the market.
The SNUR could enable the following uses of asbestos to reenter the market if approved by the EPA:
- Adhesives, sealants, roof and non-roof coatings
- Arc chutes
- Beater-add gaskets
- Cement products
- Extruded sealant tape and other tapes
- Filler for acetylene cylinders
- Friction materials
- High-grade electrical paper
- Missile liner
- Pipeline wrap
- Reinforced plastics
- Roofing felt
- Separators in fuel cells and batteries
- Vinyl-asbestos floor tile
- Woven products
- Other building products
Occupational Safety and Health Administration (OSHA) Regulations
The EPA isn’t the only agency that regulates asbestos use.
Through its authority under the Occupational Safety and Health Act, OSHA has developed a robust set of regulations to guide companies on protecting their workers who may use or manufacture asbestos products regularly.
One of the most important ways that OSHA regulated asbestos use on jobsites was by setting standards on acceptable levels of asbestos fibers in the air.
Under OSHA guidelines, employers are required to:
- Demarcate and control access to areas where asbestos is present
- Provide working respirators to employees who work in such areas
Mine Safety and Health Administration (MSHA)
Similar to OSHA, the MSHA implements regulations and sets standards to help keep miners and those who work at mining sites safe from the dangers of asbestos, as well as other dangerous substances.
As with other companies that use or manufacture asbestos products, mining organizations are required to:
- Monitor asbestos levels
- Limit miners’ exposure to asbestos
- Provide respirators to employees who work in asbestos-infested areas
Consumer Product Safety Commission (CPSC)
The CPSC is responsible for overseeing the use of asbestos in commercial products. In particular, the CPSC uses authority from the Consumer Product Safety Act to institute bans and issue recalls on products that are deemed to have a substantial or unreasonable risk of injury or death to the general public.
The main asbestos products that the CPSC has banned include:
- Patching compounds
- Textured paint
- Artificial fireplace ash
All of the banned products can result in free-form asbestos becoming airborne.
The CPSC has oversight for items like toys and other products. The agency is responsible for issuing recalls on such products.
Examples of CPSC recalls include:
- 2015: Asbestos was found in crayons and toy forensic kits
- 2018: Asbestos-contaminated talcum powder was found in children’s makeup kits
03. Proposed Legislation
Proposed Federal Legislation
Existing legislation around asbestos is well established. Some groups continue to push for additional laws to strengthen asbestos bans. While advocates push for more bans, the asbestos industry is continually trying to reduce the number of regulations against the mineral.
Two major pieces of legislation considered by federal lawmakers that could have drastically impacted the future of asbestos law include:
- Further Asbestos Claim Transparency (FACT) Act
- Reducing Exposure to Asbestos Database (READ) Act
Furthering Asbestos Claim Transparency (FACT) Act
Supported by the asbestos lobby, the FACT Act claims to be an attempt to expose fraud by victims of asbestos exposure. For decades, asbestos companies faced little blame for wrongfully exposing veterans, employees, consumers and others to asbestos. Despite that, the companies are now concerned about implementing “fairness” and “transparency” to the asbestos litigation process.
In reality, the FACT Act denies justice to victims of asbestos exposure. If implemented, the act would require the details of settlements between asbestos victims and asbestos companies to be reported. This would include providing many details about asbestos victims in a publicly readable report. Extremely personal information such as medical records and partial Social Security numbers would be included in the public report.
This legislation was passed in the United States House of Representatives but did not pass in the Senate.
Reducing Exposure to Asbestos Database (READ) Act
Another piece of legislation is the READ Act. This act aims to update the AIA (described above) to bring awareness of asbestos-containing products into the new millennium.
Specifically, the READ Act would create a new, publicly accessible database of products that contain asbestos.
This database would be searchable through a website interface and would include detailed information about the asbestos-containing products, including:
- Model information
- Manufacturer information
- Other relevant details
This piece of proposed legislation has been endorsed by the leaders of the Asbestos Disease Awareness Organization (ADAO) and the Environmental Working Group (EWG).
Since its proposal in 2015, the READ Act has been stagnant in Congress. As of 2020, the bill has been read twice in Congress and referred to the Committee on Environment and Public Works. Despite this, no action has been taken.
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04. State Laws and Regulations
State Asbestos Laws and Regulations
Federal laws and regulations are not the only pieces of legislation that govern asbestos. For example, one of the most important aspects of state asbestos laws is statutes of limitations, which vary by state.
Individual states also have their own rules related to asbestos, which while informed by federal laws, can sometimes differ in important ways.
State Management of Asbestos Regulations
Although New Jersey is the only state that has banned asbestos, a handful of states have enacted strict fines. Fines are in place to curb the use of products containing the mineral.
For instance, in Kansas, those found in violation of the state’s asbestos laws are fined up to $5,000 for each offense. In Hawaii, the cost is higher. Those who violate the Hawaiian asbestos laws are fined up to $10,000.
State-related legislation and regulations are largely focused on the management of existing products. They do not target the manufacturing of new asbestos materials. The Asbestos Hazard Emergency Response Act (AHERA), for example, deals with existing asbestos concerns.
AHERA also tasks the EPA with developing a model plan for states to accredit asbestos inspectors and those correcting asbestos risks in schools. AHERA is one example of making individual states responsible for asbestos risk management.
Asbestos risk management varies by state and is largely governed by specific laws and regulations enacted on the state level.
Arizona Asbestos Laws
The Arizona Department of Environmental Quality (ADEQ) oversees the various asbestos laws and regulations in Arizona.
Additionally, ADEQ monitors the EPA’s NESHAP standards, which Arizona companies must comply with when renovating or demolishing buildings.
Although Arizona does not have any additional statewide laws regulating asbestos, several Arizona counties have further requirements beyond the NESHAP standards. In particular, Maricopa County, Pima County and Pinal County all have additional asbestos legislation that companies and individuals must adhere to.
California Asbestos Laws
California has a significant number of regulations related to asbestos overseen by multiple state agencies, including the:
- Department of Public Health
- Department of Industrial Relations
- California Environmental Protection Agency (CalEPA)
About two-thirds of California’s 58 counties are segmented into 35 Air Districts, managed by the Air Resources Board (ARB). Each district has its own rules regulating air quality, including rules related to asbestos. Counties outside of these districts must report renovations and demolitions directly to the ARB.
Recently, a proposed piece of legislation was introduced into the California State Assembly. It would require mesothelioma victims who bring lawsuits to disclose bankruptcy and other financial information. However, the Asbestos Tort Claim Trust Transparency Act bill did not make it out of committee, and eventually, the legislation died.
Florida Asbestos Laws
One of the primary asbestos laws in Florida is the Asbestos and Silica Compensation Fairness Act (ASCFA). This was passed in 2005 in an attempt to reduce the number of asbestos lawsuits filed in Florida. The act establishes rules around:
- Liability limits
- Statute of limitations
Additionally, Florida has adopted the EPA’s NESHAP guidelines through its own Department of Environmental Protection (DEP).
Massachusetts Asbestos Laws
In Massachusetts, the Department of Environmental Protection (MassDEP) oversees the EPA’s NESHAP program and administers additional rules that regulate the manufacture, use and distribution of asbestos in the state.
For example, the Massachusetts Air Pollution Regulation, amended in 2014, has various regulations for non-traditional abatement of asbestos, waste shipment procedures and various recordkeeping requirements.
New York Asbestos Laws
New York has several different state agencies that regulate asbestos, including the:
- Department of Health
- Department of Labor
- Department of Environmental Conservation
These agencies ensure activities such as worker safety, abatement, renovation and transfer of waste materials containing asbestos are all heavily monitored.
Additionally, as the largest city in the U.S., New York City has an asbestos control program through the New York City Department of Environmental Protection.
Building owners and contractors in New York City must adhere to both city and state regulations when renovating or demolishing buildings and structures.
North Carolina Asbestos Laws
In North Carolina, the primary program for managing asbestos abatement is the Asbestos Hazard Management Program (AHMP). This program includes regulations for managing asbestos in school buildings per AHERA (described above).
As with other states, North Carolina has implemented the EPA’s NESHAP standards.
In addition to statewide asbestos legislation, three North Carolina counties also have local ordinances for managing asbestos:
- Buncombe County
- Forsyth County
- Mecklenburg County
Pennsylvania Asbestos Laws
Pennsylvania asbestos laws are enforced by the Pennsylvania Department of Environmental Protection, which along with other states has adopted the EPA’s NESHAP standards.
Regulations also require asbestos inspectors and contractors to receive certification before completing asbestos-containing material:
Additional regulations apply to certain areas of Pennsylvania, including Philadelphia and Allegheny Counties.
Asbestos Laws in Other States
The EPA’s NESHAP guidelines require states to establish a procedure for notices related to the renovation and demolition of certain buildings, structures and institutions.
Therefore, in some sense, every state has regulations for asbestos. However, while some states go above and beyond the EPA’s guidelines, others do little more than adopt the NESHAP standards.
Given the many differences in state laws, it’s best to contact a mesothelioma lawyer to ensure you understand how the laws might apply to your case. Reliable mesothelioma law firms will have a nationwide presence, allowing you to connect with a legal team that has experience in all 50 states.