Document Bmkd3kqE2eGxZykdZpY6Y62m

LAEVTIFF'S EXHIBIT Good Riddance? Worries over asbestos and health hazards have moved out ofmines and factories and into everyday life, and again the Environmental Protection Agency is inhaling a controversy. BY MARGARET E KRIZ about how they're going to hue with any who a director ofEPA's toxic suhwanree thing that doesn't have as good a data office. On July 6, the Environmental Protec* base in terms ofhuman deaths." said Jac tioo Agency (EPA) began a seven* queline M. Warren, a lawyer for the Natu year phaseout of nearly all uses of asbersal Resources Defense Council Inc. Under TSCA (pronounced "tosca"), EPA must measure health risks against the social benefits of any substance it is tos, ending what EPA administrator (NRDQ. considering restricting. In the case of as William K. Reilly called "a terrible legacy Despite the material's killer qualities, bestos, that tricky and often subjective of dead, dying and crippled" persons. By federal regulators have been slow to ban risk-benefit analysis baa left a legacy of 1996, ail but a handful of product* con the ubiquitous substance because of its intergovernmental wrangling, multi- taining the natural fiber will be etiminated important industrial uses. The simplest million-dollar lawsuits and international from commerce in the United States. answer to why it took so long to regulate controversy that continues today. That year will also mark another envi is that asbestos has played a very impor By the time EPA got around to banning ronmental mikstooe; the 20th anniver tant role in our economy," EPA's Rally asbestos, though, staff members could sary of the Toxic Substances Control Act said in an interview. document that the government action (TSCA), perhaps the least known envi Once dubbed the "miracle fiber," as would prevent only 200 cancer deaths ronmental law, which Congress designed bestos is durable; heat-resistant and al over the next 13 years. The estimates were to curtail uses of hazardous materials, most indestructible. It has been used in low because it is hard to prove that asbes particularly asbestos. car brakes, thermal insulation, building tos has caused illnesses outside of a work EPA's 20-year route to final action materials, paper products and other ev place and because EPA is regulating a dy against asbestos is remarkable in light of eryday and specialized products. ing industry. Only two U.S. mines still the long-standing body of evidence dem "Having asbestos in our braking sys extract asbestos; 95 per cent of the 85,000 onstrating the devastating effects ofasbes tem, for example, through the years has tons of the fiber used domestically in 1987 tos on human health. As early as the turn given us the transportation system that (the latest data available) came from Can of the century, exposure to the kmg. thin has cars that can slop from 60 miles an ada. Many U.S. firms stopped using as fibers was linked to respiratory diseases hour pretty fast," said Charles L Elkins, bestos as it became dear that a ban was (mbestosis) and later coming. to a host ofother ail What is more ments, notably can daunting to many cer. Even the indus businesses, however, try's education is the increase in mil- group in Arlington, Uon-dollar product- Va., the Asbestos In liability lawsuits formation Associa filed by workers suf tion. puts a dis fering from exposure claimer on its to carcinogens. brochure, saying it Despite its kmg "recognizes the gestation period, health problems as EPA's action is sig sociated with exces nificant because it fi sive exposure to as nally breaks the cy bestos dust." cle of asbestos "For EPA to have exposures, which so much trouble can occur when the regulating asbestos, substance is mined, which is a known when products are human carcinogen, made and when really gives pause The risky, expensive process ofasbestos removal is largely unregulated. those products fait 1928 NATIONAL JOURNAL 7/29/W ST 0706306 limb and establish standards spell* mg our safe methods of removing asbestos from the many types of af fected buildings. EPA is being pressured by Con gress, unions and environmental groups to lake definitive action on asbestos in buildings. And building owners are pushing the govern ment to develop standards for safe removal. As worries about asbestos have moved out of the mines and factories and into the public's ev eryday life. EPA again finds itself inhaling a controversy.- POLITICAL FOOTBALL EPA's Elkins likes to describe the asbestos ban and phaseout regulation as a "gold-plated'* rule. After years ofprocedural, technical and political delays, Elkins said, he was determined to sail the rule through the regulatory review pro cess of the Office of Management and Budget (OMB) with flying col ors, no matter how many studies he EPA toxic* office director Charles L Elkins Asbestos ban was preceded by multiple studies. needed. "I can't tell you how many years extra were built into the process, apart, according to Irving J. SelikofT, a ' how many millions of dollars extra in physician at the Mount Sinai Medical studies." he said. "But I would say if we Center in New York City whose pioneer were to take the same gold-plating ap ing research helped document the health proach in the future, it's not in the public -hazards of asbestos. interest. We should be able to take a little "If there were a way of preventing ex bit more risk that we're not making the posure to asbestos fibers, then it wouldn't right decision, because for every day you be a problem.*' Sdikoff said. "It can be don't make the decision, you are subject mined safely; you could put on a space ing people to risk. And that's hard to in suit, for example. But the problem is how clude in the equation" to determine do you use it and, once it's used, how are whether asbestos should be controlled. you going to keep an eye on it?" "The American taxpayer can't afford it," How to handle the asbestos already in he added. use is a question EPA is still pondering. Elkins had ample reason to be wary of With asbestos products being phased out. OMB. Asbestos has been a political foot the worst exposures will no longer be in ball for the environmental agency, the the workplace where asbestos products budget office and Congress for years. The are made or used but in schools and office congressional authors of TSCA specifi and apartment buildings. And though cally cited asbestos as an example of a special asbestos disposal requirements are hazardous material that should be regu in place, critics say they are too lenient lated under that law. But they alio built in and confusing to those who must adhere some safeguards. Aside from the federal to them pesticides taw. which many specialists see In the past five years, manufacturers of as primarily agricultural. TSCA is the asbestos products have been hit with law only environmental law that requires suits filed by thousands of school districts EPA to assess both the hazards and the and building owners facing the expensive benefits of substances on which it is con job of removing crumbling, dangerous as* sidering controls. "This law is Ailed with bestos from their premises. In 1986. Con checks and balances to make sure that gress required school districts to inspect due process is carried out and you don't their buildings for crumbling asbestos and have arbitrary decisions," Elkins said. develop plans to limit exposures or re Those safeguards have tangled EPA move the substance. But no regulations scientists and attorneys in continuing dis apply to the nation's office and apartment putes among themselves and with outside buildings, an estimated 733,000 of which parries over how to measure the social contain crumbling asbestos, according to benefits of a chemical. "Congress in its EPA studies. And the government has wisdom has left the agency this very steadfastly refused to go out on a legal sticky wicket." said B.C. Pigg, president of the Asbestos Information Association. "I have not seen any detailed criteria for what is an unreasonable risk. There is no human activity that is free of risk." The agency first announced hs inten tion to regulate asbestos in 1979 under the Carter Administration. Reagan Adminis tration appointees, however, assigned more weight to the fiber's marketplace benefits and gave less emphasis to effons for a ban. The ban effort didn't reemerge until EPA administrator Anne McGill Burford left the agency under fire in 1983. By 1985, agency officials were ready to propose strong asbestos controls, only to be shot down by OMB officials who in sisted that EPA hand over its asbestos efforts to ocher agencies with overlapping jurisdictions, asserting that such referral was required under their interpretation of the (aw. Outraged environmentalists quickly dubbed OMB's rationale "the chewing gum theory of TSCA," having jokingly reasoned that the budget office found the requirements when they pried open two stuck pages of the stature book. Congress was not amused. House En ergy and Commerce Committee chair man John D. Dingell. D*Mich.. held heated hearings in which EPA officials were blasted for acquiescing to OMB pressure. Dingdl also unsuccessfully sought to thwart OMB by eliminating funds for its regulatory review office. Nor did tensions ease when EPA finally proposed an asbestos ban in January 1986. Shortly after the proposal was is sued, a budget office official was accused of promising Canadian government repre sentatives that he would Mock a Anal ban on asbestos products. Canada, the world's largest miner ofasbestos, opposes the ban. EPA spent the next three years battling the industry's challenges to agency scien tific and economic data and answering questions from the budget office. "Many of the (OMB regulatory review special ists) are economists." Elkins said. "And a ban is inherently upsetting to an econo mist, because we're telling the market place it can't even have this product." For all of EPA's thoroughness, the ban continues to be attacked. Environmental ists criticized the slow pace in which as bestos products will be phased off the market. "The rule, to me, doesn't begin to have any impact until the second phase in 1993," the NRDCs Warren said. Asbestos manufacturers said the rule i> too costly and that asbestos substitutes are no safer. Pigg of the asbestos associa tion said. "That is a real problem--does the substitute work as well as asbestos?" And as far as health is concerned, he said, some adverse health effects in substitutes have already been demonstrated in stud ies using laboratory animals. The Canadian government argued that ST0706307 NATIONAL JOURNAL 7/29/19 1939 the ban will cause unemployment in that nee for governor, in a May speech on mental Managment Group Inc., an At country, which could then worsen ifother asbestos problems. lanta consulting firm. He said that some - countries follow the U.S. lead. EPA, however, was unwilling to miti buildings' values have declined by 5-15 OMB, too. is due for more criticism. gate those problems, despite lawsuits filed per cent because of asbestos. John F. Congress, in considering reauthorization against it by the Service Employees Inter Welch, president ofthe Safe Buildings Al of the Paperwork Reduction Act, is national Union, which represents build liance, a Washington association ofbudd examining the asbestos episode and other ing janitors. Finally, Congress in 1986 re ing product (inns, countered that "Class examples of alleged budget office interfer quired school districts to inspect for A" properties "aren't suffering any mate ence in the government's handling of asbestos and suggested that EPA create rial erosion in their value." health and safety issues. Recent Bush Ad guidelines for minimizing asbestos expo EPA's asbestos ban is the government's ministration promises that OMB will not sure during cleanup. By early July of this first step in taking the hazardous sub delay health and safety rules have left year, 80 per cent of the schools had taken stance out of the nation's industrial life Congress unconvinced. Congressional at least preliminary steps to begin that cycle, but it is not destined to be its last. sources said Members are considering ev task; 20 per cent had not been beard from. Asbestos will iikdy dog the government erything from imposing stricter timeta Today, Florio, who actively supported and the courts for decades. For one thing, bles on OMB reviews of agency actions to the school asbestos law, would like to ex the deaths continue--Mount Sinai's barring OMB from commenting on an tend it to government and commercial Sdikoff estimated that 10,000 excess agency proposal until after it has been buildings. In May, be proposed a bill to deaths continue to occur each year as a published. "OMB has to be made more require government buildings to be in result of high asbestos exposures that oc accountable,*' a House staffmember said. spected and crumbling asbestos to be curred decades ago. THE PERILS OF REMOVAL - dsaned up. Commercial buildings would What today's exposure will mean in 20 have to be inspected. The bill also would yean is debatable. "There are scientists Days after EPA announced the fruits of force EPA to establish safety standards who say there is a threshold" amount of the asbestos ban rule making that had for the few existing asbestos-removal asbestos exposure that won't cause illness, taken 10 years, agency staff members met companies. the asbestos association's Pigg said. with environmentalists, real estate repre So far, EPA officials have declined to "There has to be. You can never ban as sentatives and asbestos industry officials require inspection and control actions in bestos from the face ofthe earth. Even if to try to reach agreement on how to han office and apartment buildings or to set there's not a threshold, with minimal ex dle asbestos still present in buildings safe asbestos-removal standards, arguing posure you would have to live to 140 for around the country. that asbestos problems are different at there to be a manifestation ofthedisease." Asbestos was widely used to insulate each location In fact, many buildings But EPA officials, not prepared to dis buildings.erected in the 1950s and 1960s contain asbestos that is still in good condi miss the pernicious history of asbestos, because of its fire-retardant qualities. Its tion and that should not be removed, ac are casting a wary eye As RcjJly said, "1 -benefits were thought to be so great that cording to EPA officials. stilt fear where it goes [when asbestos is some community building codes required But some in Congress and in environ removed from buildings), whether it asbestos insulation. It wasn't until the mental groups worry that asbestos re really is disposed of in a place where we 1970s that EPA outlawed the use ofmany moval is endangering building occupants. can trust that it's been put to rest and it asbestos-containing insulatun products. A June article in The New England Jour won't come back again in the future." Today the asbestos once thought to be a nal ofMedicine noted "an increase safety measure in school, office and apart in the asbestos concentrations in ment buildings has become a health threat the air after fibers are removed as it begins to crumble, releasing fibers from buildings--a phenomenon into the air. A 1983 EPA study estimated that is due to disturbance of fibers that 20 per cent of the nation's more than and improper containment during 3.6 million government and commercial the removal process.'* buildings contain crumbling asbestos. The asbestos rules requiring And the federal government has been at a school cleanups have had some loss over how to handle the problem. - thundering legal repercussions. In the late 1970s, EPA encouraged Thousands of school districts have school districts to voluntarily inspect filed suit trying to force asbestos their buildings and remove asbestos. But manufacturers to pay removal in response, districts either ignored the costs. In the past two years, mort agency or tore asbestos materials out of gage bankers have begun requiring their buildings haphazardly. A 1985 EPA office and apartment building own survey estimated chat as much as 75 per ers to conduct environmental au cent of all school asbestos cleanup work dits to check for potential time was being done improperly. bombs such as crumbling asbestos. "1 was particularly alarmed by a photo And in some cases, building owners graph showing teenage boys in cutoff are being advised to remove the jeans ripping asbestos off walls and-pipes substance. Those building owners, in a New Jersey school, releasing clouds in turn, have followed the schools' of asbestos dust with nothing to protect lead in seeking to recover costs them from breathing it or ktep.it from from the asbestos industry. contaminating the entire building," said "There are some mortgage bank Rep. James 1. Florio, D-NJ., who serves ers that have said they're not witl on the Energy and Commerce Sub ing to lend on properties that con committee on Transportation and Haz tain asbestos," said Lloyd A. Fox, Asbestos association president B.G. Pigg ardous Materials and is his party's nomi chief executive officer of Environ There is no human activityfree ofrisk. ST0706308 1930 NATIONAL JOURNAL 7/29/89