01. Federal Asbestos Laws
Federal Asbestos Laws
Federal laws regarding asbestos are applicable everywhere throughout the United States. For a federal law to be put in place, Congress must create and pass a bill, which is then signed by the president into a law.
James Zadroga 9/11 Health & Compensation Act and Reauthorization Act
Originally signed into law by President 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 by providing compensation for health conditions developed as part of their service. The original act covered 9/11 rescuers for only five years.
In 2015, when the original compensation act was set to expire, Congress took up the James Zadroga 9/11 Health & Compensation Reauthorization Act. Passed as part of the 2016 Consolidated Appropriations Act (also known as the “omnibus bill”), the Zadroga Reauthorization Act provided additional funding for the World Trade Center Health Program and the September 11th Victim Compensation Fund, which makes money available to 9/11 responders and survivors to help treat 50 different types of cancer, including mesothelioma and other conditions.
Toxic Substances Control Act (TSCA) and TSCA Modernization Act
The TSCA was first passed back in 1976 to provide regulation over how everyday chemicals are developed, used and disposed of, including dangerous substances like asbestos. However, since it became law, the TSCA has been criticized by a number of individuals and groups because it doesn’t provide adequate authority to regulatory agencies to enforce its provisions.
Recent calls for TSCA reform focused on a number of areas where the TSCA could be improved, including:
- Requiring regular reviews of commercially used chemicals
- Before marketing chemicals, companies must show that they are safe, similar to how the U.S. Food and Drug Administration (FDA) tests drugs for safety
- Implement better protections for children, women and other vulnerable groups
- Extend the Environmental Protection Agency’s (EPA’s) authority to analyze existing and new chemicals
In June 2015, the TSCA Modernization Act passed the House to address a number of these issues. 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
Since the passing of this bill, the EPA has implemented a variety of activities to meet the new requirements and work towards better management of toxic substances like asbestos.
Clean Air Act
In 1955, the U.S. Congress passed the Air Pollution Control Act, which was the first attempt by the federal government to research air pollution. Based on some of that research, the Clean Air Act was then passed in 1963 in an effort to control the amount of air pollution throughout the country. Subsequently, the act has been amended a number of times, including in 1970, 1977 and 1990.
When the EPA was created in 1970, the provisions of the Clean Air Act were placed within its sphere of regulatory action. Today, the EPA is responsible for protecting and improving air quality across the nation. In addition to setting standards related to air quality for things like emissions, the agency also provides standards for air pollutants. This includes asbestos, which is a friable mineral whose particles 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, whose standards were advisory rather than compulsory.
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 major 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 the piece of legislation that defines perhaps one of the most well-known projects the EPA oversees: Superfund. 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 famous asbestos Superfund sites include:
- Upper Clark Fork, which encompasses the largest Superfund mega-site, including sites such as Anaconda Copper Mill and Milltown Dam between Butte and Missoula
- Libby asbestos mines
- Pearl Harbor Naval Complex included “asbestos-containing materials” among many other dangerous substances
Asbestos Hazard Emergency Response Act (AHERA)
The AHERA created new regulations that required local educational administrations to inspect school buildings for any materials that might contain asbestos, as well as to 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. 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. As part of their reporting, companies were required to include a set of identifying characteristics about the asbestos materials they produced.
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. It also provided a leniency program that 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 that it would cost $3 billion for schools to comply with the AHERA, so 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. They 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. While this prevents asbestos from being incorporated into clothes meant for everyday wear, this regulation still allows some special-use types of protective gear.
02. Federal Agency Regulations
Federal Agency Regulations
While federal laws provide primary federal rules regarding asbestos, federal agencies are often tasked with developing and overseeing additional regulations and standards to implement the laws as they are passed. 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 this 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 warnings and regulations started almost immediately, and 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.
In 1989, after nearly two decades of fighting against asbestos use, the EPA ruled that nearly all asbestos products would be banned. However, after an intense court battle, that ruling was eventually overruled by the Fifth Circuit Court of Appeals in 1991.
Today, the bulk of the EPA’s authority with respect to asbestos falls under two federal laws: the Clean Air Act and the TSCA. However, it has also issued some of its own familiar 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. Importantly, 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 a number of 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 thus implemented its own rule to cover state and local government workers who work with asbestos materials.
Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP)
One major 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.
Asbestos Ban and Phase-Out Rule (Remanded)
One of the biggest actions the EPA took against asbestos was in the late 1980s, when the agency published a final rule in the Federal Register that banned nearly all products that contained asbestos, with some exceptions for military use. This ban was imposed as part of the agency’s authority under the TSCA, and it included a schedule for phasing out the manufacture, importation, processing and commercial distribution of many different types of materials, including flooring, insulation and roofing materials, among other things.
Faced with this ban, asbestos companies almost immediately filed suit, arguing that the EPA did not properly follow the rulemaking process, that the scientific evidence behind the EPA’s rules was flawed and that the ban would have severe implications for international trade with countries like Canada. The case, known as Corrosion Proof Fittings v. Environmental Protection Agency, was ultimately remanded by the Fifth Circuit Court of Appeals – a decision which effectively dismantled the ban on asbestos for most products.
However, even after the court’s decision, some products remained banned. Importantly, asbestos is not allowed in products that have not historically contained the mineral earning its recognizable name as the “new uses ban.”
Occupational Safety and Health Administration (OSHA) Regulations
The EPA isn’t the only agency which regulates asbestos use. In fact, OSHA was one of the first federal agencies to create rules and restrictions around the use of asbestos in the workplace. Through its authority under the Occupational Safety and Health Act, OSHA has developed a robust set of regulations to guide companies on how to protect their workers who may use or manufacture asbestos products on a regular basis.
One of the most important ways that OSHA regulated asbestos jobsite use was by setting standards on levels of asbestos fibers in the air. Also, employers are required to demarcate and control access to areas where asbestos is present and 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, and 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 are patching compounds, textured paint and artificial fireplace ash, all of which can result in free-form asbestos becoming airborne. The CPSC has oversight for things like toys and other products and is the primary agency for issuing recalls on such products, such as in 2015 when asbestos was found in crayons and toy forensic kits, and talcum powder in 2018.
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03. Proposed Legislation
Proposed Federal Legislation
Existing legislation around asbestos is well established. However, some groups continue to push for additional laws to strengthen bans on asbestos, while the asbestos industry is continually trying to reduce the number of rules and regulations against asbestos. As of 2015, there are two major pieces of legislation being considered by federal lawmakers that could drastically impact the future of asbestos law.
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. Despite the fact that, for decades, asbestos companies were held virtually blameless for exposing military service members, employees, customers and others to the deadly effects of asbestos, they now seem concerned with implementing “fairness” and “transparency” to the asbestos litigation process.
In reality, the FACT Act denies justice to victims of asbestos exposure who develop terminal diseases such as mesothelioma. 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, including extremely personal information such as medical records and partial Social Security numbers.
Reducing Exposure to Asbestos Database (READ) Act
Another piece of legislation is the READ Act, which 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 and other relevant details.
This piece of proposed legislation has been endorsed by the leaders of the Asbestos Disease Awareness Organization and the Environmental Working Group.
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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 the manufacture, use and distribution of asbestos, or the ability of victims to file claims against asbestos companies and trust funds. 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.
Arizona Asbestos Laws
The Arizona Department of Environmental Quality (ADEQ) oversees the various asbestos laws and regulations in Arizona. In addition, 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, the Department of Industrial Relations, and the 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), and 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 that 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), which was passed in 2005 in an attempt to reduce the amount of asbestos lawsuits filed in Florida. The act establishes rules around eligibility, liability limits and sets a statute of limitations, among other things.
In addition, 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 a number of different state agencies which regulate asbestos, including the Department of Health, Department of Labor and the Department of Environmental Conservation. These agencies ensure that activities such as worker safety, abatement, renovation and transfer of waste materials containing asbestos are all heavily monitored.
In addition, as the largest city in the U.S., New York City has its own 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), which includes regulations for managing asbestos in school buildings in accordance with 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 and 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 removing, collecting, transporting or disposing of asbestos-containing materials.
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 renovation and demolition of certain buildings, structures and institutions. Therefore, in some sense every state has its own regulations for asbestos. However, while some states go above and beyond the EPA’s guidelines, there are some that 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’re fully understanding how the laws might apply to your individual case. Reliable mesothelioma law firms will have a nationwide presence, allowing you to connect with a legal team that has experience in all of the states.