The legality of asbestos in the United States is typically not well-understood. The magnesium-silicate mineral is known to be dangerous to human bodies, and it would seem appropriate for an asbestos ban to have already been enacted.
So, is asbestos legal in the United States? The short is answer is “yes.” While asbestos has been regulated heavily by the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA), the substance is still allowed to be imported and used in certain products. Companies cannot mine for, process, or manufacture asbestos or asbestos-containing products on U.S. soil, however.
Asbestos was commonly used in insulation and other construction materials because of its unique fireproofing characteristics. As it became clear that asbestos was toxic and could cause life-threatening diseases, governments around the world began to regulate it and eventually impose full or partial bans. Currently, over 60 nations throughout the world have banned the substance.
Still, asbestos can be found in various products imported into the U.S. and in materials of buildings constructed prior to the 1980s.
But, why is an asbestos ban so important to so many people?
A History of Asbestos and Its Health Effects
Asbestos has been used by humans since antiquity. Cloths made from asbestos were used in the embalming process for Egyptian pharaohs as far back as 3,000 B.C. In around 456 B.C. Herodotus, a noted Greek historian, provided details of dead bodies being wrapped in asbestos cloths and thrown into a fire. The asbestos cloths did not burn which allowed the body’s ashes to remain separate.
Interestingly enough, ancient Greek and Roman slaves were known to have developed lung issues after working with asbestos for long periods of time.
Over the next thousand or so years, asbestos continued to be used in items like:
- Candle Wicks
- Cremation Blankets
In the 19th century, the substance was even woven into clothes for Parisian firefighters and used in Italian banknotes. Still, asbestos was used sparingly until the mid- to late-19th century when its usefulness in building materials and equipment insulators became apparent. Asbestos mining operations began popping up across the globe.
Machinery created and popularized during the Industrial Revolution often needed an insulator that could withstand extreme heat, water, corrosion, and electricity.
Asbestos was that insulator and was used in a variety of applications like:
- Steam Engines
- Generators that Used Electricity
By the end of the century, asbestos could be found in roofing tiles, brake linings, cement sheets, and a variety of other products. It was around that time that the widespread use of the substance began revealing its dangerous health threat.
In the 1890s, reports across Europe indicated that many factory workers were developing lung and breathing complications as a probable result of inhaling asbestos dust day in and day out.
An autopsy performed in London in 1906 on an individual who worked closely with asbestos uncovered lungs that were riddled with asbestos fibers. Studies in the 1900s in France, Italy, and the United States appeared to corroborate the idea that asbestos exposure was causing workers to die at unseasonably young ages. Even insurance companies took note and began increasing premiums for anyone who worked in an asbestos-related industry.
Despite clear warnings that asbestos was unsafe for humans, the asbestos industry boomed. In 1910, nearly 110,000 metric tons of the substance was consumed throughout the world. During World War II, asbestos consumption in the United States accounted for 60% of the global usage of the mineral.
At the time, asbestos had widespread practical applications, including in:
- Asphalt for Roads
- Automotive Parts like Brake Linings, Clutches, Gaskets, etc.
- Paper in Electrical Panels
- Electrical Wiring
- Spray-on Insulation Coating
- Roofing Tiles and Shingles
More medical and scientific studies in the 1920s and 30s exposed a direct link between asbestos exposure and the onset of mesothelioma. Clinical studies by Dr. Irving J. Selikoff in the 1960s further confirmed asbestos’ role in the developments of diseases like mesothelioma, asbestosis, and lung cancer.
Still, the United States produced 804,000 tons of asbestos products and material in 1973. Throughout the world, about 4.8 million metric tons of the substance were being produced annually.
Early Asbestos Regulation
Despite all the known risks of asbestos, regulation didn’t begin in the United States until 1970. The Clean Air Act of 1970 officially categorized asbestos as a toxic pollutant and fully banned all spray-on asbestos insulation products. The Environmental Protection Agency (EPA) was also given the authority to regulate how asbestos was used and disposed of.
The following year, the Occupational Safety and Health Administration (OSHA) was created. One of the first substances it sought to regulate was asbestos.
In 1976, the Toxic Substances Control Act (TCSA) was passed and provided the EPA with greater authority to regulate the distribution, production, use, and disposal of a variety of toxic materials including:
- Lead-based paint
- Polychlorinated biphenyls (PCBs)
In 1980, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was passed and allowed for the designation and cleanup of hazardous “Superfund” sites, including locations known to have high quantities of asbestos. Several asbestos sites have been added to the National Priorities List (NPL), a collection of the most hazardous Superfunds that need immediate cleaning. CERCLA is administered by the EPA.
Also in 1980, the National Institute for Occupational Safety and Health (NIOSH) declared that exposure to any amount of asbestos was clinically unsafe and could cause major illnesses later in life.
In 1986, the Asbestos Hazard Emergency Response Act (AHERA) was passed by Congress giving the EPA power to regulate and standardize asbestos abatement and removal in schools. AHERA also required proper training and certification in order for asbestos removal specialists to be qualified to perform abatement. AHERA is a part of the original TSCA from 1976.
Further Regulation and Ban Attempts
The first real attempt to place an outright ban on asbestos came in 1989 with the issuance of the EPA’s Asbestos Ban and Phase-Out Rule (ABPR). The rule, which was issued under section 6 of the TSCA, would have placed a ban on the production, processing, sale, and importation of asbestos of virtually all asbestos.
Almost immediately, however, asbestos product manufacturers balked at the ban suggesting that industries would die and vast amounts of people would lose their jobs. A 1991 court case (Corrosion Proof Fittings v. Environmental Protection Agency) in the Court of Appeals for the Fifth Circuit overturned the EPA’s ban.
The court noted that the EPA had neglected to prove the importance of a full ban and noted that further regulatory measures might have been more appropriate. The court did, however, apply the ban to any new uses of asbestos that occurred after the issuance of the ABPR in 1989.
These products included:
- Corrugated Paper
- Flooring Felt
- Specialty Paper
- Commercial Paper
- Any Further New Uses of Asbestos in the Future
It would be over a decade before the next attempt at a ban took place. Senator Patty Murray of Washington introduced the Ban Asbestos in America Act in 2002. Like the ABPR, the Murray Bill attempted to place an outright ban on the production, distribution, processing, sale, and importation of asbestos by amending the TSCA. It also attempted to ban 3 other asbestos-like minerals.
Other provisions in the bill included:
- Creating a network of centers for treatment and research of asbestos-related illnesses
- Mandating more thorough record-keeping
- Funding further research into potential cures, treatments, and known causes of asbestos-related illnesses
- Requiring NIOSH to review all known asbestos illness data and produce recommendations for new research avenues
- Financing programs to raise public awareness of asbestos and the diseases it can cause
The bill languished in the Senate until 2007 when it actually passed with unanimous consent. However, it was never passed in the House and was declared dead soon after. Compromises in the final language of the bill would have allowed products to contain asbestos if the substance was not deliberately added (e.g., vermiculite that had been contaminated with asbestos).
In 2008, another attempt at banning asbestos surfaced in the form of the Bruce Vento Ban Asbestos and Prevent Mesothelioma Act. This bill also aimed to amend the TSCA to place a ban on an increased number of products that contained asbestos. Although it still would have permitted asbestos to be used in certain applications, the bill’s goal was to remove the substance from numerous commercial and consumer products. The bill would have also categorized winchite, richterite, and any other “asbestiform amphibole mineral” as asbestos. Only 6 asbestiform minerals are legally considered asbestos.
The bill’s namesake, Bruce Vento, was a House of Representatives member from Minnesota who passed away in 2000 after a battle with mesothelioma. Like the Murray Bill, it would have also funded asbestos awareness campaigns. Unfortunately, the bill never passed either chamber of Congress.
Recent Asbestos Legislation and Rules
One of the more promising pieces of asbestos-related legislation was passed in 2016 as the Frank R. Lautenberg Chemical Safety for the 21st Century Act. It had initially been introduced by Senators David Vitter of Louisiana and the late Frank Lautenberg of New Jersey in 2013.
The Lautenberg Act amended the TSCA by giving the EPA a mandate to thoroughly review chemicals and giving it further authority to add restrictions on these chemicals (which could theoretically include an outright ban). The legislation also allowed the EPA to exclusively consider the health and safety risks of chemicals without weighing their industrial or economic impact. This had previously been an impediment to an asbestos ban.
As part of the Lautenberg Act, asbestos was also listed as one of 10 high-priority chemicals for the EPA to review and perform risk assessments on. The agency released a preliminary scoping document about asbestos in June 2017. It received some criticism for only identifying current uses of asbestos and omitting the fact that millions of tons of the substance continue to exist in the U.S. both in buildings and in disposal sites.
In May 2018, the EPA suggested that it would no longer review any of these “legacy uses” of the substance. The agency noted that many asbestos uses haven’t been applied in decades and are, thus, not necessary to fully study. Of course, asbestos product manufacturers could theoretically begin producing formerly dormant asbestos materials, but the known health risks and the possibility of litigation are what keeps them from doing so.
In June 2018, the EPA introduced something called the Significant New Use Rule (SNUR), which applies to several chemicals and toxins. The asbestos SNUR would require manufacturers to receive EPA approval before importing or manufacturing one of 15 specific “new uses” for the substance.
These 15 products include:
- Pipeline Wrapping
- Certain Adhesives and Sealants
- Roof and Non-Roof Coatings
- Floor Tiles Made of Asbestos-Containing Vinyl
- Missile Liner
- High-grade Electrical Paper
- Beater-add Gaskets
- Roofing Felt
- Fuel Cell and Battery Separators
- Certain Types of Sealant Tape
- Arc Chutes
- Reinforced Plastics
- Acetylene Cylinder Fillers
- Most Building Materials, Excluding Cement
Although setting up a review process for potential new uses sounds beneficial, it has led some (including EPA scientists) to worry about how the rule could be interpreted. The suggestion from the EPA is that this list of 15 potential new uses is exhaustive, but there are many other possible uses for asbestos that the agency may not have considered. Asbestos uses that have been dormant could theoretically find an official avenue toward renewed (or, at least, explicit) legality.
Clearly, the fight for an asbestos ban is not over by a long shot. The asbestos SNUR could possibly allow companies to manufacture asbestos-containing products with limited oversight. The EPA is supposed to be shoring up the rule by the end of 2018, to limit these loopholes hopefully. Critics have certainly noted that a full asbestos ban would have been significantly more useful than the new SNUR provision.
Despite the confusion with new rules and regulations, there is no question that asbestos is a toxic carcinogen capable of producing mesothelioma, lung cancer, asbestosis, and a whole host of other diseases in anyone who is exposed to it. This is an uncontroversial fact. Hopefully, the answer to the question “is asbestos banned in the United States?” will be answered affirmatively in the near future.