1991 Fifth Circuit Court’s Ruling Sabotaged EPA

According to the EWG…

Just a brief history…before the Ban Asbestos in America Act 2007 which was passed, but is now under attack, as big asbestos industry seeks all kinds of exceptions to the Act…

In 1991 with a seminal decision, the Fifth Circuit vacated the ban, finding that EPA failed to present “substantial evidence” to justify the ban under TSCA. Despite its acknowledgment that “asbestos is a potential carcinogen at all levels of exposure,” the court attacked the EPA’s action on several fronts. The court determined that the agency’s administrative record failed to demonstrate that the ruling was the “least burdensome alternative” for eliminating the “unreasonable risk” of exposure to asbestos, as required by TSCA. The court questioned EPA’s analysis of product substitutes, finding that the proposed substitutes were unavailable or potentially harmful (Corrosion Proof Fittings v. EPA, at 1220). The court also rejected EPA’s cost/benefit analysis, challenging EPA’s consideration of “unquantifiable benefits,” and dismissing EPA’s determination with respect to the presence of unreasonable risk (18 Am. L. J. and Med. 395).

The Fifth Circuit’s decision has been called a “tragedy for the EPA,” for it is seen as having “place[d] seemingly impossible analytical requirements on [government] agencies.” (Stadler, 1993, at 433; Percival, 1997, at 521). Scholars note that the ruling in “Corrosion Proof Fittings reaches beyond asbestos regulation, restricting the EPA’s ability to regulate the use of any toxic substance under TSCA.” The holding indeed poses a serious question: If EPA can’t ban a known carcinogen, at which no level of exposure is safe, how can EPA regulate any toxic substance?

Even more disturbing than the Fifth Circuit ruling was the decision by the first Bush Administration not to appeal the case. After ten years of research and deliberation, millions of dollars poured into the regulation, and countless hours of work by environmental health officials, the asbestos ban was completely abandoned (until 2007). The ruling left room for EPA to reconcile its research in accordance with the court’s reasoning, but no further action was pursued. EPA did not persist in its decision to eliminate the “unreasonable risk” posed by asbestos. Instead, the public was left to bear the burden. Products containing asbestos are still sold and manufactured in the United States today.