Document 63mGVLRmNL9qBo19o5z7vKeE

FILE NAME Brakes BRK DATE 1984 Sept 13 DOC BRK242 DOCUMENT DESCRIPTION Petition to EPA Natural Resources Defense Council Inc. 122 EAST 42ND STREET NEW101 N.Y.6 108 168 212 949-0049 Washington Office 1725 I STREET N.W. SUITE 600 WASHINGTON D.C. 20006 202 223-8210 Western Office 25 KEARNY STREET SAN FRANCISCO CALIF 91108 91108 415 421-6561 PETITION TO THE ENVIRONMENTAL PROTECTION AGENCY TO PROHIBIT THE USE OF ASBESTOS IN BRAKES FOR NEW CARS AND TRUCKS AND IN REPLACEMENT BRAKES IN EXISTING VEHICLES September 13 1984 Submitted By Jacqueline M. Warren A. Karim Ahmed Michael F. Klein Shelley A. Hearne Bradford H. Sewell + ies + ya New England Office 16 PRESCOTT Public Public Lands Lands Lands Instituto Instituto 1200 STREET WELLESLEY HILLS MA 02181617 SEDETT DENIED wR 80006 80006 000 02181617 02181617 237-0472 eke nk TABLE OF CONTENTS I. INTRODUCTION 2.2 cacccvesrnsensvesnenceseenarerseseessses II JURISDICTION cccvernncesvevnvsenesvnersecsseseesneenes III IV DESCRIPTION OF PETI ceceT een I secs O neneN reseE esevR ace THE CONTINUED BRAKE LININGS USE OF ASBESTOS IN VEHICLE POSES AN UNREASONABLE RISK TO HEALTH A. Increased Risk of Dis verre e cesva esrss versee cene B. Brief and Term Exposure to Asbestos C. Health Risks From Asbestos Brake Products D. Automobile Maintenance Workers Are at Particular Risk From Exposure to Asbestos Brake Products . cc cee n areca snares seer nesses esssseseses V. VI SUBSTITUTES FOR ASBESTOS IN AUTOMOBILE BRAKES A. metallic Brakes B Brakes Reinforced With Asbestos Fibers C. Commercial Feasibility of Asbestos Brakes . wesc nv ene ser ers sraeseeesssensssaseeecern A REQUIREMENT UNDER THE TOXIC SUBSTANCES CONTROL ACT PROHIBITING THE USE OF ASBESTOS IN BRAKE LININGS IS NECESSARY AND REASONABLE TO PROTECT AGAINST THE RISKS cece eee reer vcs nvesces A. The EPA Administrator Has the Discretionary Authority Under 9 of TSCA to Act in the public interest to Protect Against a Risk of Injury . c ee ce rence eenrecessseccccsone - 13 .13 14 16 Asbestos in Brake Linings Poses an Unreasonable Risk Under Section 6 of TSCA VII CONCLUSION .. e@e#eeeet#esee eooeoeeeee eee eae ese ee ese eee eee ee ee ee FOOTNOTES .21 I. INTRODUCTION This petition which is filed pursuant to 21 of the Toxic Substances Control Act 15 U.S.C. 2620 TSCA requests that the Environmental Protection Agency exercise its authority under 6 of the statute 15 U.S.C. 2605 to prohibit the further use of asbestos in automobile and truck brake linings The hazards of exposure to asbestos are well established The evidence linking asbestos exposure to cancer in humans was first observed in 19351. By the early 1950's epidemiologists conclusively demonstrated the association between certain cancers and exposure to asbestos Since that time the association has been repeatedly confirmed.2confirmed.2 This petition presents evidence demonstrating that the continued use of asbestos in vehicle brake linings presents an unreasonable risk to health Approximately one million vehicle maintenance workers are at particular risk and the general public is exposed to unreasonable health risks as well A prohibition on the use of asbestos in both brake linings for new cars and trucks and in replacement brake linings in existing vehicles is necessary to protect against these risks Existing occupational asbestos standards are grossly inadequate to protect against cancer and national emission standards are insufficient to protect against the unreasonable risks posed by asbestos in brakes because no safe threshold levels of exposure to asbestos can be established Accordingly this petition requests EPA to initiate a rulemaking proceeding pursuant to 6 of TSCA no later than March 1 1985 by publishing a proposed rule prohibiting the use of asbestos in brake linings for new automobiles and trucks and in replacement brake linings for existing automobiles and trucks As discussed below economically and technologically feasible substitutes are available and their use would vastly reduce the health hazard posed by the use of asbestos products II JURISDICTION This petition is filed pursuant to 6 and 21 of the Toxic Substances Control Act Section 21 gives any person the right to petition the Administrator of the Environmental Protection Agency EPA or Agency to initiate a proceeding for the issuance of a rule under 6 of the Act Section 21 requires the Administrator to act on this petition within 90 days after it has been filed If the petition is granted the Administrator is required to promptly commence the requested rulemaking pursuant to 6 For purposes of the Act asbestos falls within the definition of a chemical substance since it is an inorganic substance of particular molecular identity 15 U.S.C. 2602 Under 6 of TSCA asbestos can be regulated as a chemical substance if there is reasonable basis to conclude that manufacture processing distribution in commerce use or disposal presents or will present an unreasonable risk of injury to health or the environment 15 U.S.C. 2605 -3- The Administrator is authorized to apply a variety of regulatory mechanisms including the prohibition of the chemical substance's use to the extent necessary to adequately protect against such risks The authority to take the action requested by petitioner is contained in a which permits the Administrator to prohibit or otherwise regulat any manner or method of commercial use of such substance or mixture Although the term unreasonable risk is not defined in the Toxic Substances Control Act itself the House Report stated that In general a determination that a risk associated with a chemical substance or mixture is unreasonable involves balancing the probability that harm will occur and the magnitude and severity of that harm against the effect of proposed regulatory action on the availability to society of the benefits of the substance or mixture taking into account the availability of substitutes for the substance or mixture which do not require regulation and the adverse effects which such proposed action may have on society The courts have also interpreted this term in other comparable statutes For example in interpreting Federal Hazardous Substances Act 15 U.S.C. 1261 its use in the the District of Columbia Circuit has defined unreasonable risk as involving a balancing test like that to be made in tort law the regulation issue if the severity of the injury that may result from the may product factored by the likelihood of the injury offsets the harm the regulation itself imposes on manufacturers and consumers Forester v CPSC 559 F.2d 774 D.C. Cir 1977 This same test has also been applied to regulatory decisions under the Consumer Product Safety Act 15 U.S.C. 2051 involving the same unreasonable risk standard see Aqua Slide N Dive v CPSC 569 F.2d 831 839 5th Cir 1978 and under the Federal Insecticide Fungicide and Rodenticide Act 7 U.S.C. 136 et seq see Environmental Defense Fund v EPA 548 F.2d 998 1005 D.C. Cir 1976 III DESCRIPTION OF PETITIONER Natural Resources Defense Council Inc. NRDC is a national nonprofit membership corporation organized under the laws of the State of New York NRDC's purposes which are supported by its members include the protection of public health through reduction of involuntary exposure to toxic substances particularly carcinogens NRDC files this petition on behalf of itself and its members NRDC has over 40,000 members and contributors throughout the country Each of NRDC's members is or may be exposed to asbestos originating in brake linings and is or may be exposed to unreasonable risks therefrom Previous NRDC activities involving asbestos include a similar petition to the Consumer Produce Safety Commission asking that home patching compounds which contain asbestos such as taping spackling and jointsealing materials be banned as hazardous products The Commission responded to our request by imposing a ban on these products in 1977 42 FR 63354 December 15 1977 IV THE CONTINUED USE OF AN UNREASONABLE RISK ASBESTOS IN TO HEALTH VEHICLE BRAKE LININGS POSES Asbestos is the generic name for a a number of naturally occuring hydrated silicate mineral fibers There are two groups of these minerals -- serpentine chrysotile and amphibole amosite crocidolite anthophyllite tremolite and actinolite Chrysotile itself accounts for 95 of the world's asbestos production.3 In the past asbestos had numerous widespread applications due to its unique combination of features These processed fibers offer high tensile strength and have good resistance to heat and chemicals Before its extremely dangerous health threats were recognized asbestos was extensively used in buildings automobiles and cement drinking water pipes In recent years safer substitutes have been developed for every commercial use of asbestos precipitating a 68 decline in U. S. asbestos consumption between 1977 and 1983 The sole product use that has not shown a rapid decline is for friction products such as brakes the largest single use of asbestos today Because of the delayed onset of asbestos diseases epidemiological and pathological reports have shown only recently that asbestos is one of the largest single causes of environmental human cancer in the United States Generally these diseases such as mesothelioma and cancers of the lung larynx and gastrointestinal tract are not clinically detectable for over 20 years after the first exposure to asbestos In 1978 the Secretary of Health Education and Welfare announced that approximately 17 of American cancer deaths over the next several decades will be linked to asbestos More recently Nicholson and workers have estimated that cancer deaths in the United States from asbestos will number 8,500 to 10,000 per year for the next twenty years -- or more than one death per hour A. Increased Risk of Disease Mesothelioma and lung cancer are the most significant causes of death among people exposed to asbestos In the case of asbestos insulation workers 20 of deaths were attributed to lung cancer and % died of mesothelioma Mesothelioma an always fatal malignancy of the pleura or peritoneum -- membranes which enclose the lungs and abdomen respectively -- is associated almost exclusively with asbestos exposure.9 Insulators also incur excessive mortality from asbestosis and cancers of the gastrointestinal tract larynx and kidney 10 Asbestos workers face a greater risk of cancer than the general public For example the risk of lung cancer for males who work with asbestos insulation and also smoke is 53 times the risk for males who do neither By contrast the risk of lung cancer for male smokers not exposed to asbestos is only 11 times 12 the risk for male smokers In other words male smokers who are exposed to asbestos at the workplace increase their risk of lung cancer as much as fold The same multiplier 5 seems to apply for increased risk of lung cancer among smoking asbestos insulation workers All commercial varieties of asbestos are carcinogenic in humans.14 Animal inhalation studies demonstrate no significant difference in the effects of various types of asbestos In fact each of the three commercial varieties of asbestos -- chrysotile amosite and crocidolite -- produced either lung cancer or mesothelioma in experimental animals with as little as seven hours of exposure to the dusts Asbestosis is a nonmalignant fibrosis scarring of the lungs that is caused solely from inhalation of asbestos When not fatal asbestosis can be a crippling disease leaving its victims with permanently scarred lungs and decreased vital capacity as well as increased susceptibility to development of pneumonia and other respiratory infections B. Brief and Long Exposure to Asbestos Ample scientific evidence exists to demonstrate that brief level exposure as well as term level exposure to asbestos leads to an increase in the risk of cer.17 In recommending criteria for asbestos exposure the National Institute for Occupational Safety and Health NIOSH noted The effect after several decades of a time acute dose of asbestos of limited duration which overwhelms the clearing mechanism and is retained in the lungs may be as harmful as the cumulative 18 effect of lower daily doses of exposure over many years of work Both term level and short level exposures to asbestos are associated with related diseases People living in the area of asbestos mines mills factories and even shipyards and family members of asbestos workers have become victims of mesothelioma despite what would be considered light exposure to the dust More recent follow studies have revealed that significant excess cancer mortality occurred in workers with short exposure -- one month or less 19 of employment in an asbestos plant A study done by Harries and workers reported 37 cases of mesothelioma among United Kingdom shipyard workers whose primary exposure to asbestos was from proximity to asbestos work This indirect occupational exposure was sufficient to produce 20 mesothelioma years later Other studies have also reported similar incidences of mesothelioma from such bystander exposure.21 exposure.21 C. Health Risks From Asbestos Brake Products Automobile brakes create substantial exposures to asbestos Each time a brake is used an asbestos pad or disc presses on the wheel base to slow the vehicle This friction causes asbestos fibers to be released into the brake drum and environment exposing not only brake workers but also the general public to a serious health threat Numerous studies published since 1970 have shown that a fraction of unaltered asbestos fiber survives the heat of the braking process In 1975 the National Institute for Occupational Safety and Health NIOSH warned that the present findings indicate that enough asbestos is preserved from the braking process to produce significant exposures during certain brake servicing 23 procedures Even earlier EPA noted that asbestos emissions from brake wear were not inconsequential relative to air pollution control Concern was also expressed over airborne emissions from brake servicing with compressed air jets and uncontrolled dust from brake grinding Dr. William Nicholson of Mt. Sinai School of Medicine has suggested that the increased asbestos level in urban areas can be attributed to asbestos from automobile brakes Rohl and his colleagues detected higher than ambient concentrations of asbestos fibers measured at the entrance to a large river- crossing tunnel in New York City In addition asbestos fiber concentrations at Connecticut toll booths were found to be higher than ambient levels in Connecticut cities Generally in areas where braking is extremely common asbestos concentrations can exceed observed background The literature also includes one report of mesothelioma in a toll collector A number of studies have measured the amount of asbestos that survives the processes of abrasion macroshear and thermal wear that occur during braking One such study determined that approximately 158,000 pounds per year of asbestos are released by American vehicles during normal braking processes Additionally the report estimates that 11.2 of the released asbestos remains in the brake drum and workers are potentially exposed to all of 28 this during servicing The Rohl study released in 1977 analyzed the components of -10- this brake dust with ray diffractometry 29 Chrysotile one of the several forms of carcinogenic asbestos fiber was found to comprise % to 15 by weight in ten brake dust samples taken from New York City repair shops Twenty more samples from Europe and Australia confirmed this conclusion Using transmission electron microscopy TEM the Rohl study established the existence of chrysotile fiber bundles and fibrils in all the samples Yet another study using dark field electron microscopy concluded that a significant fraction of asbestos fibers in brake wear products survived intact Using TEM Rohl observed as well that of the surviving fibers were shorter than 0.4 micrometer um which is unobservable by optical microscopy Rohl concluded also that asbestos fibers in brake drum debris appear to be reduced in length only with minimum alterations in crystallinity When instilled into the lungs of hamsters brake drum dust produced asbestos bodies in the lung tissues.32 During brake servicing ambient asbestos levels can easily exceed the Occupational Safety and Health Administration's OSHA's 15 minute ceiling of 10 fibers fibers longer than 5 microns visible under phase contrast optical microscopy The Rohl study found asbestos fiber concentrations from brake servicing to be 16 fibers Even as far away as 20 feet from the site of the brake repair operation significant levels of asbestos were reported In the garage environment background sampling revealed that at least 14 minutes after jet air blowing and up to 75 feet away asbestos concentrations are still -11- measurable even by optical microscopy.33 This results in exposure to millions of customers annually as well as to others in the area Other studies demonstrate asbestos fiber concentrations as high as 29 fibers and 87 fibers during brake servicing operations These results demonstrate that the problem of exposure to dangerous levels of asbestos during brake servicing is substantial because of both the high levels of optically detectable fibers and the more numerous submicroscopic fibers The small asbestos fibers from brake wear can easily penetrate throughout the respiratory system and also migrate to other organs in the body D. Automobile Maintenance Workers Are at Particular Risk From Exposure to Asbestos Brake Products Because of the airborne mobility of microscopic and submicroscopic asbestos fibers a diverse group of people are at risk from asbestos brake products Garage mechanics bystanders employed in adjacent areas of repair shops in sales and service and toll booth operators are among the groups of greatest concern Asbestos fibers from brake servicing can be readily carried reports home on the mechanic's clothing There have been 36 of mesothelioma in pets whose owners were mechanics and in a child of a brake mechanic Anyone who drives works or lives where heavy braking occurs such as New York City is exposed to asbestos from brakes and with it an increased risk of cancer A similar situation applies with asbestos exposure from -12- use and maintenance of industrial braking equipment More than 900,000 automobile maintenance workers are 38 potentially exposed to asbestos from brake linings It is believed that about 400 deaths per year now result from asbestos related cancer due to past exposure to asbestos from automobile maintenance work and that this toll will rise due to increased use and exposure in recent years to 500-600 per year between the years 1990 and 2015.39 This translates to more than 20,000 excess deaths from asbestos cancer in automobile maintenance workers in the United States over the next years.40 45 years.40 The mortality rate could remain at the level of 600 per year for an additional 10-15 years into the next century unless consumption of asbestos in automobile and truck brakes is drastically reduced from current levels Lorimer et al examined 90 vehicular maintainence workers who had 10 years or more experience in brake repair shops and who 41 had no other history of occupational asbestos exposure Sixty- one of these men were general mechanics who did brake lining work more than once a week for 10 years or more Tests were performed for pulmonary function and effects of smoking Twenty percent had decreased vital capacity and this percentage increased with age and exposure ray abnormalities consistent with asbestosis were seen in quarter of the group and the prevalence of abnormalities increased with length of asbestos- related work Moreover it has been reported since the 1930's that asbestosis occurred among workers who manufactured and -13- worked grinding brake linings in the United States and in 42 Europe More importantly the more recent literature also documents mesothelioma among automobile repair workers Pleural mesothelioma was diagnosed in a 55 year man who had 19 years of experience working in used car tire and car repair businesses 44 He had no history of other exposure to asbestos Two other cases of mesothelioma occurred in men who did brake repair work for many years None of their other work experience to their knowledge involved exposure to asbestos More recent cases have been more detailed in excluding exposures other than repair.46 brake repair.46 Daum has seen peritoneal mesothelioma in a brake mechani4c7 V. SUBSTITUTES FOR ASBESTOS IN VEHICLE BRAKES Several substitutes for asbestos are currently available for use in automobile brakes Of these the most promising are 1 metallic friction materials and 2 organic formulations that replace asbestos reinforcement with alternative fibers A. Metallic Brakes metallic friction materials for brakes were developed in the 1960s Foreign manufacturers were the first to install them in passenger cars police cars and taxicabs In 1970 police cars in this country including cars of the Los Angeles -14- Police Department were equipped with metallic front disc brakes Since then the use of metallic disc brakes has risen dramatically In 1980 representatives of Bendix Corporation reported that metallic brakes were already in use in some American automobile4s8 metallic brakes are superior in performance characteristics to asbestos products In particular they offer the following advantages 1 improved friction stability 2 improved fade resistance 3 excellent temperature wear resistance 4 minimal speed spread 5 excellent rotor compatibility 6 high performance with minimal noise and 7 improved high speed effectiveness Although initially more expensive metallic brakes are less expensive to the consumer in the long run because of their long life and high performance characteristics Studies using actual vehicle comparison show substantial improvements in projected lining life rotor life and noise characteristics for metallic brakes over conventional brakes under a variety of 49 usage conditions B. Brakes Reinforced With Asbestos Fibers This second group of asbestos brakes uses a similar composite formulation to conventional brakes The asbestos however is replaced by a combination of a cost filler fiber with higher cost reinforcing fibers added for strength and crack resistance -15- One of the alternative reinforcement fibers is DuPont's Kevlar aramid fiber introduced in 1972. Kevlar's unique characteristics make it particularly suitable for use in friction materials for the following reasons 1 high strength and toughness 1.3 to 1.5 times that of asbestos 2 high temperature stability 3 low density 4 good friction performance 5 good thermal and electrical insulation and 6 high resistance to wear Tests verify the superior friction and wear performance of aramid- reinforced brakes One study concluded that the wear rate for pads reinforced with Kevlar was 10 to 12 the same as for metallics compared with 18 to 25 for asbestos pads Because of these characteristics reinforced brakes like metallics are cheaper to the consumer over the long run Moreover because reinforced brakes have the same basic formulation as asbestos brakes production techniques already developed for asbestos brake manufacture can easily be retained.52 A new pulp form of Kevlar aramid fiber available since 1981 is currently being used in the manufacture of both disc and drum brakes.53 reinforced brakes have proven highly successful in field use A producer of reinforced truck brake blocks has improved brake life by 35 percent and estimates an improved drum life of up to 50 percent longer than 54 conventional products Fiberglass and sintered metal compositions have also been developed Recent European research into mineralized flax -16- fibers shows promise of becoming another alternative to asbestos in brakes Despite the immediate health risk of asbestos and the availability of superior asbestos substitutes use of asbestos- free alternatives remains limited General Motors has taken the lead in introducing passengers cars with metallic disc brakes Ford has asbestos brake drum linings in its Sierra models Saab Volvo and Jaguar have been leaders in Europe Reluctance by automobile manufacturers towards more rapid elimination of asbestos in brakes is understandable only from the saving viewpoint of the industries and the brake owner Manufacturers are hesitant to make the conversion to a asbestos brake technology with a higher initial purchase price even though the higher durability of asbestos brakes means that they last longer and therefore the overall costs to the consumer are almost equivalent C. Commercial Feasibility of Asbestos Brakes The automobile and friction products industries in Sweden have demonstrated the commercial feasibility of asbestos brake products In 1982 for example Saab introduced asbestos- free brake linings on all new models Saab also joined other Swedish manufacturers in providing asbestos brakes to the replacement market for cars from dozens of different manufacturers.5manufac5turers.5 In fact it is now illegal in Sweden to replace brakes on -17- vehicles using containing brakes if an asbestos brake is certified as satisfactory by the brake or vehicle manufacturer The director of the Swedish program reports that 56 We have not heard of any negative results so far Although Sweden has concentrated on eliminating the use of - asbestos- containing replacement brakes it is believed that thirds of all new cars now sold in Sweden are equipped with asbestos brakes The Swedish parliament is now investigating the possibility of a complete ban on imported cars containing 57 friction elements made with asbestos VI A REQUIREMENT UNDER PROHIBITING THE USE THE TOXIC SUBSTANCES OF ASBESTOS IN BRAKE CONTROL LININGS ACT IS NECESSARY AND REASONABLE TO PROTECT AGAINST THE HEALTH RISKS In the foregoing sections NRDC has demonstrated that asbestos emissions from brake linings present serious risks of injury to the health of automobile maintenance workers and to the public at large NRDC has also shown that asbestos brakes are commercially feasible In this section NRDC will demonstrate why the administrator of the EPA should regulate such emissions and why use of 6 of TSCA rather than any other federal law is an appropriate exercise of the Administrator's | discretionary authority as provided under 9 of TSCA In NRDC's view stricter workplace standards cannot eliminate the unreasonable risks posed by the use of asbestos in brake linings OSHA currently has in a place averaged exposure limit of fibers Accriding to NIOSH and OSHA -18- ie experts writing in 1980 this standard is grossly inadequate to protect the health of groups at risk from the continued use of asbestos in brake products OSHA also admits that its current peak limit for short asbestos exposure 10 fibers for fifteen minutes certainly would exceed the weighted average level at which a significant risk is found Moreover even OSHA's proposed limits of .5 or .2 fibers for asbestos exposure would still permit a substantial health risk to exist Finally any OSHA standard would be difficult to enforce and would not protect the general public For these reasons a ban pursuant to 6of TSCA is the only effective way to protect both workers and the public against the adverse health effects associated with asbestos emissions from brake linings Any delay based on the hope that OSHA will take action to substantially reduce the hazards from brake products is unwarranted OSHA's 1984 proposal is in some respects weaker than a similar proposed asbestos rule published October 9 1975. Given the unwillingness of OSHA in 1984 to propose workpractice controls for brake repair workers there is no basis for expecting that agency to act to reduce the risk to such workers Moreover even a stricter standard would not protect against the unreasonable risks posed by asbestos in brake products because the resulting exposures are substantial and it is currently impossible to set a safe level for exposure to asbestos Brakeshop facilities are also too numerous to permit universal application and enforcement of a stricter standard Finally and perhaps most significantly a workplace standard -19- will not protect the general public against asbestos exposures resulting from the use of asbestos brakes Other solutions short of a ban will inevitably be ineffective to protect against the risks posed by asbestos In the past warnings to brake repair workers in the absence of regulation have proven ineffective Mechanics are not inclined to change hardened work practices and to date managers have not been motivated to purchase expensive equipment to control asbestos release in brake servicing operations Although engineering control measures exist which in theory can greatly reduce but not eliminate exposure practical utilization of these techniques is probably unworkable First there are 900,000 mechanics and millions of bystanders and customers exposed in 100,000 facilities most of which are small Inspection of these shops would involve prohibitive costs Second over ninety percent of brake fibers are too small to be detected by OSHA's optical microscopy technique The electron microscopy needed for accurate air sampling can easily cost 300 per sample At least several samples would be needed for each garage Third substantial asbestos exposure can occur during filter changing when vacuum methods are used Fourth disposal remains a major problem wet methods may entail evaporation of the solvent and easy resuspension of fibers back into the air Vacuum methods produce heavily contaminated filters which are typically dispersed into municipal refuse streams Since there are no controls in use today in most -20- ue repair shops and adequate brake cleaning devices are in use in very few locations the problem defies a garage regulatory approach.62 approach.62 A. The EPA Administrator Has the Discretionary Authority Under Section 9 of TSCA to Act in the public interest to Protect Against a Risk of Injury NRDC believes that imposition of a ban is the only way to protect both workers and the public from the health hazards presented by asbestos in the workplace environment and in urban air released through the manufacture use and servicing of asbestos brake products TSCA is the best statutory instrument to effect such a ban As the legislative history of TSCA clearly shows the subject of deference to other statutes and to other agencies with jurisdiction over the subject matter was thoroughly debated prior to passage of TSCA The language of a of TSCA makes distinctly discretionary the determination whether EPA or another agency should act in the first instance to reduce or prevent unreasonable risks It makes no sense to require that EPA always defer to another regulatory agency or another EPA office in cases where TSCA might apply Such routine deference would not achieve the clear purpose of b of TSCA which is to provide ade- quate authority to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment -21- According to the plain words of TSCA it is left to the discretion of the EPA Administrator to determine whether a risk may be prevented or reduced to a sufficient extent by action taken under a federal law not administered by the EPA or under an EPA statute other than TSCA If the Administrator makes the discretionary judgment that it is in the public interest to protect against a risk under TSCA or that TSCA is more appropriate than another statute not administered by the EPA then TSCA gives the Administrator full authority to go forward to protect against the particular risk A recent letter from members of the Senate Committee on Environment and Public Works reaffirms Congressional intent on this issue which is that a of TSCA sets forth a coordinating mechanism and nota general proscription against the use of TSCA authorities in areas of overlapping authority B. Asbestos in Brake Linings Poses an Unreasonable Risk Under Section 6 of TSCA Asbestos can be regulated under 6 of TSCA if there is a reasonable basis to conclude that its use presents an unreasonable risk of injury to health or the environment As noted above the type of evidence and degree of proof required for such a finding is discussed in the House Report The Report states that a finding of unreasonable risk does require the factual certainty of a finding of fact of the sort associated with adjudication It further adds Factual certainty an unmeasurable risk of a particular harm may not -22- be possible and the bill does not require it H. Rep No. 94- 1341 94th Cong 2nd Sess 32 1976 Courts have applied a similar standard to regulatory decisions under statutes comparable to TSCA In Environmental Defense Fund Inc. v EPA 548 F.2d 998 1005 D.C. Cir 1976 the Court noted that Reliance on general data been held a sufficient basis for an order cancelling or suspending the registration of a pesticide Additionally where regulation of carcinogens is involved administrative actions have been upheld despite the absence of effect evidence courts have traditionally recognized a special judicial interest in protecting the public health particularly where the matter involved is as sensitive and fright as cancer Where the harm envisioned is cancer courts have recognized the need for action based upon lower standards of proof than otherwise applicable Environmental Defense Fund Inc. v EPA 598 F.2d 62 88 D.C. Cir footnotes omitted quoting EDF v EPA 465 F.2d 528 538 D.C. Cir 1972 Moreover Courts interpreting TSCA and other health protection statutes have concluded that they impose a heavy burden of explanation on an administrator who decides to permit the continued use of a chemical known to produce cancer in experimental animals Environmental Defense Fund v EPA 548 F.2d 998 1005 D.C. Cir 1976 See also EDF v EPA 636 F.2d 1267 1282 n 40 D.C. Cir 1980 EDF v EPA 548 F.2d at 1005 Under c of the Toxic Substances Control Act the Administrator is required to consider and publish a statement describing the following factors in making his determination of -23- whether a chemical substance or mixture presents an unreasonable risk 1 the effects of such substance or mixture on health and the magnitude of the exposure of human beings to such substance or mixture 2 the effects of such substance or mixture on the environment and the magnitude of the exposure of the environment to such substance or mixture 3 the benefits of such substance or mixture for various uses and the availability of substitutes for such uses and 4 the reasonably ascertainable economic consequences of the rule after consideration of the effect on the national economy small business technological innovation the environment and public health As discussed in the preceding section asbestos can produce mesothelioma lung and other cancers as well as asbestosis in humans Moreover scientists have yet to establish a threshold for asbestos that is a level below which no adverse health effects exist Indeed the evidence suggests that even very low levels of asbestos can lead to cancer over a sufficiently long latency period In making his determination the Administrator must also consider the benefits of such substance for various uses and the availability of substitutes for such uses as well as the reasonably ascertainable economic consequences of the rule a As demonstrated above economically and technologically feasible alternatives are available to replace asbestos in brake linings -24- Even if the regulations requested by NRDC were to impose a significant cost EPA would still be responsible for protecting the public against the risk posed by asbestos in brake linings Where Congress has authorized EPA to impose prohibitions even on the basis of suggested carcinogenicity the economic impact of such regulation alone should not prevent its implementation As the House Report noted the Committee doesn't intend that a chemical which presents marketed solely producers if it unreasonable risk should be permitted because it would cause economic costs to to be were not permitted to be sold H. Rep No. 94-1341 94th Cong 2nd Sess 35 1976 Measured against these standards the use of asbestos in vehicle brakes linings must be determined to pose an unreasonable risk of injury VII CONCLUSION Recent evidence indicates that the continued use of asbestos in brake products presents an unreasonable threat to health much greater than previously acknowledged At the same time several commercially viable economical alternatives to asbestos brake products have become available For the reasons stated above a ban under 6 of TSCA on asbestos brake products in both the new and replacement market is necessary to protect against the -25- documented risks NRDC believes that such a ban will result in a net increase of total benefits relative to costs and therefore urges that this petition be granted Respectfully submitted Jacqueline M. Warren Senior Staff Attorney ----,A--ku,,mal A. Karim Ahmed Ph.D. Senior Staff Scientist Michael F. Klein Legal Assistant Research A. Hearne Associate Sep Bradford Research H. Sewell Assistant FOOTNOTES Lynch K.M. and Smith W.A. Pulmonary Asbestosis III Carcinoma of Lung in Silicosis A.M.J. Cancer 56-64 1935 40 Doll R. Mortality from Lung Cancer in Asbestos Workers B.R.J. Ind Med 12.81-86 1955 Newhouse M.L. Thompson H. Mesothelioma of the Pleura and Peritoneum Following Exposure to Asbestos in the London Area Br J. Ind Med 261 1965 Selikoff I.J. Hammond E.C. and Seidman H. Mortality Experiences of Insulation Workers in the United States and Canada Ann NY Acad Sci 330 91-116 1979 Stell Lancet P.M. 416 McGill 1973 T. Asbestos and Laryngeal Carcinoma Cooper W.C. et al Asbestos -- The Need for and Feasibility of Air Pollution Controls National Academy of Sciences Washington D.C. 1971 Clifton R. Asbestos Minerals Yearbook 1982 1983 Bureau of Mines Department of Interior Washington GPO 1982 Asbestos Figure 1 Consumption in the United U.S. Bureau of Mines States Year Total Consumption Consumption In Friction Products Friction Products Percentage of Total 1977 1978 1979 1980 1981 1982 1983 671,500 618,700 560,000 560,000 358,700 348,800 246,500 217,000 metric tons 57,000 52,600 47,600 52,000 51,000 52,900 48,300 48,300 metric tons 8.5 8.5 8.5 14.5 14.6 21.5 22.2 Bridbord K. et al Estimates of the Fraction of Cancer in the United States Related to Occupational Factors U.S. Department of Health Education and Welfare Washington D.C. September 15 1978 Nicholson W. Perkel G. and Selikoff Occupation1 Exposures to Asbestos Population at Risk and Projection Mortality -- 1980-2030 Amer J. of Industrial Med 259 311 1982 2 Nicholson W. Effects Update Environmental June 1983 Protection Agency Health Selikoff I. Hammond E. and Seidman H. Mortality Experiences of Insulation Workers in the United States Canada Ann N.Y. Acad Sci 91-116 1979 and Council on Environmental Quality 1976 Sixth Annual Report 13 Selikoff Ambio 4 I. Recent 1975 Perspectives in Occupational Cancer 10 Selikoff Hammond and Seidman supra n 8 11 Hammond E. Selikoff I. and Seidman H. Asbestos Exposure Cigarette Smoking and Acad Sci 473-490 1979 Death Rates Ann N. 12 Ibid 13 14 Castleman B. et al Hazards of Asbestos for Brake Mechanics Public Health Rep 254 1975 Selikoff I. Hammond E. and Churg J. Carcinogenicity of Amosite Asbestos Arch Environ Health 181 1972 Meurman L. Kiviluoto .. and Hakama M. Mortality and Morbidity Among the Working Population of Anthophyllite Asbestos Miners in Finland Brit J. Industr Med 105 1974 IARC Monographs on the Evaluation of Chemicals to Man Asbestos Vol 14 for Research on Cancer Lyon France Carcinogenic Risk of International Agency 1977 15 Wagner J.C. et al The Effects of the Inhalation of Asbestos in Rats Brit J. Cancer 252 1974 16 Ibid 17 Selikoff I. Nicholson W. and Langer A. Asbestos Air Pollution Arch Environ Health 25 1972 18 National Institute for Occupational Safety and Health Criteria for a Recommended Standard Occupational Exposure to Asbestos HMS 72-10267 U.S. Government Printing Office Washington D.C. 1972 19 Seidman H. Selikoff I. and Hammond E. : Short Asbestos Work Exposure and Term Observation Ann N.Y. Acad Sci 61-89 1979 3 20 Harries P. et al Radiological Survey of Men Exposed to Asbestos in Naval Dockyards Brit J. Ind Med 274 1972 21 Stumphius J. and Meyer P. Asbestos Bodies and Mesothelioma Ann Occup Hyg 283 1968 Murphy R. et al Floor Asbestos Exposure Amer Tile Rev. Installation as a Source of Resp Dis 576 1971 22 Rohl A.N. Langer A.M. Wolff M.S. Weisman I. Asbestos Exposure During Brake Lining Maintenance and Repair Environ Research 12 110-128 1976 Rohl A.N. Langer A.M. Klimentides R. Wolff M.S. Selikoff I.J. 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An ray Study of the Lungs of Workmen in the Asbestos Industry Covering a Period of Ten Years Radiology 33 196-209 1939 Lanza A.J. McConnell W.J. and Fehnel J.W. Effects of the Inhalation of Asbestos Dust on the Lungs of Asbestos Workers Publ Health Resp 50 1-12 1935 Stone M.J. Clinical Studies in Asbestosis Amer Rev. Tuberc 41 12-21 1940 Also Studies in Asbestosis Dis Chest 6 170-171 1940 43 Greenberg M. and Lloyd Davies T.A. Mesothelioma Register 1967-1968 Brit J. Ind Med 91-104 1974 44 Langer A.M. and McCaughey W.T. Mesothelioma in a Brake Repair Worker Lancet 1103-1104 Nov. 13 1982 45 Viem G. in Castleman B.I. Asbestos Medical and Legal Aspects Law and Business Clifton N.J. 1984 pp 397- 399 46 Langer and McCaughey and Viem supra n.44 45 47 Daum Susan July 20 1984 Personal Communication to Barry Castleman 48 Jacko M.C. Brunhofer M. and Aldrich F.W. Asbestos Friction Materials Proceedings of the National Workshop on Substitutes for Asbestos Arlington VA July 14-16 1980 Conract 1981 No. 68-02-3168 U.S. Environmental , Protection Agency 49 Kwolek John P. Friction Materials for Small Car Solid Rotor Applications 2374 1974 SAE Transactions Paper 750874 2369- 50 Kevlar - a Reinforcing Fiber Substitute for Asbestos DuPont Inc. E38531 1/81 Kevlar -- Its Impact on Today's Brake Industry Transcript of a DuPont Inc. presentation to APRA Brake Systems Institute Meeting Toronto May 16 1983 Asbestos Disc Brake Pads Reinforced with Kevlar Aramid wears like Metallic not detrimental to rotor surfaces Industry News DuPont Canada Inc. n 1282 1982 52 Loken Halvar Y. SAE Transactions Paper 800667 1980 53 Kevlar -- A Reinforcing supra n 50 Kevlar DuPont Aramid Fiber in Canada Inc. Friction Products Industry News 55 Letter from Remaeus B. Chemistry Division National Board of Occupational Safety and Health Sweden to B. Castleman July 1 1984 56 Ibid < 6 57 58 NIOSH Asbestos Work Group Workplace Exposure to Asbestos Review and Recommendations DHHS NIOSH No. 81- 103 1980 49 Fed Reg 14123 April 10 1984 60 Castleman B. et al supra n.14 61 Department of Commerce Bureau of Census supra n.38 62 Ziem G. Johns Hopkins School of Hygiene and Public Health Baltimore Maryland -- personal communication 1984 63 Conf Rpt House Rpt No. 94-1679 94th Cong 2d Sess 84 85 1976 64 Letter from Senators Stafford R. Randolph J. Baucus M. Durenberger D. Committee on Environment and Public Works to W. Ruckelshaus Administrator of U.S. Environmental Protection Agency May 4 1984