Document pmgGk9y4NaKV1QqVGZVR3D1RD

TO: All P&PG Salaried Employees Attached for your information is a copy of an A/C Pipe Producers Association "ADVISORY" and an AIA publication regarding the U.S. Court of Appeals reversal on the ban on asbestos-cement pipe. I have also included the text from the court decision that pertains to A/C pipe. RECEIVED OCT 28 1931 A ttachmen t 01-91-0001 5/90 CTOOO^90 10/21/91 16:U3 202 ST9 5200 2rd"-ko KIRKLAND & ELLIS i CAiuCcf'rrAj^Ld CERTAXNTEED P&PG ig)002/009 ADVISORYpAr/oCduPciepresAisocotion October 21, 1991 FOR FURTHER INFORMATION CONTACT: ( B. J. Pigg, President COURT OF APPEALS REVERSES EPA'S BAN ON ASBESTOS-CEMENT PIPE The U.s Court of Appeals for the Fifth Circuit issued a decision on October 18, 1991, reversing EPA's 1989 ban on asbestoscement pipe. As a result of the reversal by a three-judge panel of the Court, the EPA rule banning manufacture of A/C pipe after August 26, 1996, is vacated, and manufacturers are free to continue manufacturing A/C pipe after that date. The Court agreed with ACPPA's arguments that EPA had failed to present substantial information that A/C pipe posed an unreasonable risk that justified its ban. The Court noted that EPA could find only minimal exposures to asbestos occurring in the manufacture, installation and use of A/C pipe, and thus benefits from banning the pipe. The Court also noted that EPA's own findings indicated that alternative pipe materials -- polyvinyl chloride and iron ductile - also posed their own risks, which may be larger than the risks posed by A/c pipe. Accordingly, said the Court, banning A/C pipe and thus requiring use of PVC or iron ductile pipe was not justified. Finally, the Court said EPA had failed to consider less burdensome controls before it imposes a ban. EPA has several options in light of the Court of Appeals decision: it can (1) accept the decision; (2) appeal the decision to the entire Fifth Circuit Court or to the Supreme Court; or (3) initiate a new rulemaking and attempt to develop a new case. ACPPA is confident that none of these options is likely to affect future marketing of A/C pipe; it will oppose any and all EPA efforts to reissue the ban. -30- CTD001991 Jefferson Davis Kiohwav Suite 509 Arlington, VA 22202 (703)579-1026 10/21/91 16 = 04___ 202 879 5200 t- -+o KIRKLAND & ELLIS --- CERTAINTEED P&PG 0003/009 Jlfl-frALa j- O^-o^rrxJkL^ 1745 Jefferson Davis Highway. Crystal Square 4, Suita 509 Arlington. Virginia 22202 (703) 979-1150 FAX (703) 979-1152 FOR IMMEDIATE RELEASE October 21,1991 CONTACT: B.J. Pigg (703) 979-1150 ASBESTOS INDUSTRY LAUDS COURT DECISION TO RESCIND EPA BAN WASHINGTON, Oct. 21 -- Calling the Court's decision a "critical step in the right direction," the Asbestos Information Association/North America (AIA/NA) praised today's ruling of the Fifth Circuit U.S. Court of Appeals that strikes down the U.S. Environmental Protection Agency's (EPA) ban on the manufacture of asbestoscontaining products in the United States. The Court's decision will allow the continued manufacture of asbestos cement water pipes, asbestos-cement siding and roofing shingles, roof coatings and cements, gaskets and brakes containing asbestos -- the current primary uses for the substance in the United States. In reaching its decision, the Court found that EPA had failed to provide substantial evidence that today's asbestos-containing products pose unreasonable risks and had failed to weigh the costs and benefits of less burdensome regulations. B.J. Pigg, AIA/NA president, lauded the decision as "a vindication of our efforts to promote the controlled and safe use of asbestos. We have known for many years that asbestos can be safely and securely bound in today's products, as long as carefully controlled manufacturing and installation processes are employed. We are glad to see - more - CTD001992 10/21/91_ 16:04 0202 879 5200 KIRKLAND & JLLIS CERTAINTEED P&PG @004/009 the Court agrees that the evidence supports this view," he added. The asbestos ban was challenged by the Asbestos Information Association/North America, the Asbestos Institute and the governments of Canada and Quebec. The AIA/NA and its co-petitioners successfully argued that there was minimal human exposure to these products, which provide significant benefits to consumers. They further argued that EPA's ban required the use of substitute materials that could themselves pose significant hazards, especially since many are not as stringently regulated as asbestos. Lastly, the petitioners argued that protecting against risks was best effected through careful controls on production and use, rather than product bans. In agreeing with the petitioners' arguments, the Court said that: "We conclude that the EPA has presented insufficient evidence to justify its asbestos ban. We base this conclusion upon two grounds: the failure of the EPA to consider all necessary evidence and its failure to give adequate weight to statutory language requiring it to promulgate the least burdensome, reasonable regulation to protect the environment adequately." AIA/NA, a non-profit organization established for educational and scientific purposes, was founded in 1970 to serve as the principal spokesgroup for the asbestos industry in North America. # ## CTD001993 -2- 10/21/91 16:04 S202 879 5200 KIRKLAND & ELLIS CERTAINTEED P&PG 0005/009 ^uJLm\S\ j\&ssJLlJL 6brVJT\ -^f\ A'/c p^2-2. ' Ohm7\" B. Asbstos-Cea*nt Pipe products. Th* Ul'* analysis supporting its ban o asbesto*-c*mt (X/C) pip* it *oc* troublssoM than its action 1a regard to frietioa product#. Asbestos pip* primarily it need to convey water in sains, sewage under pressure, end uttrialt ia various industrial proctta lints. BAllfca Boat uses e asbestos, asbestos pip* it valued primarily for itt strength tad resistance to corrosion, rather than for its heat-resistant qualities. fhe DA imposed a stage 3 ban on asbosto pip*. 54 /ad. Rag. at 39,463. petitioners question XPA'a cost/henefit balancing, noting that by tho SPA'a own predictions, tha baa of asbestos pipe will tart only 3-4 discounted lives, at a coat ranging from $118-32? Killian (843*74 million par lift saved), depending upon th* prio* of substitute*, id, at 29(484* Purthefflore, such of SPA'a data regarding this product and others depanda upon data received freo exposures obaarved during aetivitiee aiailer to tha ones to be regulated -- the "analogous expoiure* snalyaie that the SPA adopted subsequent to the public ecsaaut period/ which thus Yli not subjected to cross -examination or other critical testing.11 finally/ the petitioners protest that the SPA acted unreasonably because the most likely substitute* for the asb*stoe pip*, polyvinyl chloride (PVC) and ductile iron pipe, aleo contain known carcinogens. oL*aftgen la this vorfcors cvoitusl,fl<bth#n*betxcrpsxotsoesd*tpre*fitppsoaelbptsrrosdtdsusflcittd*surruinsvggfltxrsefltlptnlacgiarstsasnbdae.sdtsbissypoetxsspamol.sulrie. flbuMr* a ru 47 vn ok moxeit* wv i. e t * o CTD001994 is T * '0 7 10/2V1/91 16:05 202 879 5200 KIRKLAND & ELLIS CERTAINTEED P&PG @006/009 Once again w* are troubled by the EPA's aathodology and its valuation of th* substitute product*, tony of the objections raised by the aabectos cement pips producers'are "general protaite" about the EPA's etudiee and other similar complaints. We will not disturb such agency inquiries, as it is not our role to delve \ into matters better left for agency expertise, ire do, however/ examine the EPA's methodology in places' to determine whether it has presented substantial evidence to support its regulation. As vith friction products, the EPA refused to assess the risks of substitutes to asbestos pipe. Id. at 29,497-98. Unlike non-asbestos brakes, which the EPA contends are safe, the SPA here admits that vinyl chloride, used in PVC, is a human carcino gen that 1> especially potent during the manufacture of PVC pipe. As for the EPA's defense of the ductile iron pipe substitute, the spa also acknowledges evidence that it will cause cancer deaths but rejects these death* as overestimated, even though it oan present no acre support for this assumption than its own lose dixit. The EPA prssented several plausible, albeit untested, rea sons why PVC and ductile iron pipe sight be less of a health risk than asbestos pipe. Zt did not, however, actually evsluate the health risk flowing from these substitute products, even though the "SPA acknowledges that the individual lifetiae cancer risk associated with the production of PVC may be equivalent to that associated with the production of A/C pipe," id. at 29,497. The agency concedes that *[t]he population cancer risk for the pzo- e v d. CTD001995 - 43 - VTON AOX8 I 'I * kv l. csbo * * i r -o 10/21/91 16:05 0202 879 5200 KIRKLAKD & ELLIS ->->> CERTAlKTEED P&PG 0007/009 duction of ductile iron pip* could be comparable to the popula tion sneer risk for production of A/C pipe.* Id. St was insufficient* for the-SPA-to conclude that. while its data shoved that "the maber of cancer cun associated with pro* / duetioa of equivalent amounts of doetllo icon pipo and A/C plpoj' `may be alailar,' the estimate of quoit risk for dostlle iron pip* 'll solt likely an oversstlaate,' * see 54 rod. )i#g. at 29*498/ union tho agency caa present soaathing more eencroto than it* own speculation to refute that* earlier iron pip# cancer studies. Kusings and conjecture ar* 'not th* atuff of which tub* itanti&l ovidosc* is mad*,' Ami# Hid*. 56$ r.2d at 843, and [ujnartieulated relisnee on CossiMioa 'experience' say aatiafy an 'arbitrary/ capricious' standard of review, but it dots sot add on* jot to th* raeord evidence.1 4a t 841*42 (citation* omitted). *Vhil# apart opinion deserve* to bo hoodod/ it suit bo based on nor* than casual observation and spoeulation/ partic ularly where a risk of fatal injury is baing evaluated.* jd. Th*a* concerns are of special note where tho increased oarcinogen risk occasioned by tho BPA's proposed aubstitutes is both credi ble and known. This conclusion only is strengthened when ve consider the BPA's failure to analyse the health risks of yve pipe, th* moat likely substitute for asbestos pipe, which the BPA concedes poses a cancer risk similar to that presented by asbestos pipe. The failure of the EFA to make a record finding on the risks of PVC pip# is particularly inexplicable, as th* BPA already is studying Increasing the etringancy of pvc regulation in separate - 49 v *i o m osBn" KX C : C O CTD001996 T B 1 T g -O t 10/21/91 16:05 0202 879 5200 KIRKLAND & ELLIS CERTAINTEED P&PG 008/009 rulemaking proceedings, an action that mm of the nry inter" venora in the instant out hu boon urging for years. pyg XRDC v. Af 134 f.3d 1146# U48<i4J (D.C. CIS. 1187} (on bona}. Tho XPA# In these fsporete proceedings# ho* estimated tho cancer rifle from pvc plant* to bo as high as twenty deaths gar year, a death rate that stringont controls sight be able to reduce to one per mr. soy ifl. at 114S, far in excess of tho fractions of a Ilfs that tho esbeetos pips ban ear save each viar. bv tha ERA'S own oaleulatlona. Considering that the EPA concedes that there is no evldoncs shoving that Imrested, as opposed to inhaled, asbsstos is s health risk# vhilo tha SPA'S own studies show that ingatted vinyl chloride is a significant cancer risk that could cause up to 260 cancer deaths ever the next thirteen years, sse jd.i 54 red. Rig. at 29#49t# tho SJA'a failure to conaidas the ritka of substitute produets in the asbestos pipe area ia particularly troublesome. The agency can* not simply choose to note the si&ilar cancer risks of asbestos and Iran pipe and then reject the data underpinning the iron and PVC pipe without acre than ita own concluaery statements. He also axpreaa concern with the SPA'a cavalier attitude toward tha use of its own data. Tbs asbestos pipe industry argute that tha exposure times the SPA used to calculate its fig ures are much higher than experience would warrant# a contention that the CPA now basically eoncedas. Rather then recalculate ita figures, however# based upon the beat data available to it# tho ERA merely responds that while the one figure may be toe high# it undoubtedly underestimated the exposure levels# because contrac- TO* - 50 wa on oxs X T * K'f L C 1*0 CTD001997 T ' X C '7 10/21/91 ILlE. 202 ST9 5200 KIRKLAND & ELLIS CERTAlNTEED P&PG @009/009 1 tor# Idea comply with 0i regulations. In the word* of it* brief/ *[t]hua, t?A concluded tbit its estimates contain both over- and underestimates, kit nevertheless represented * reason able picture of aggregate erpoeuxe." The IFA is required to support its analysis with, substantial videnee under s?pcl. Whoa one figure is challenged, it eeaaot back up its position by changing an unrelated figure to yield the sans result* Allowing such behavior would require us only to focus on the final numbers provided by an egeney, and to ignore how it arrives st that number* tecause a conclusion it no better than the methodology used to reach it, such a result osaaot sur vive the substantial avidaaea test* Finally, we once again note that tbs SPA failed to discharge ita TSCA-mandated burden that it consider and reject less burdensons alternatives before it Impose a more burdensome alternative such as a complete baa. She SPA instead jumped Immediately to the ban provision, without calculating whether a less burdensome alternative sight accomplish TSCA'a goals. See 54 Fed* Mg* at 2P,4B9. Ye therefore conclude that the' SPA failed to present substantial evidence to support its ban of asbestos pipe. C. Caskets, hoofing, shingles, and Pipes Produots. Vs here deal with the remaining products affected by the IFA ban. Petitioners challenge the basis for the SPA's finding that beater-add and sheet gaskets, primarily used in automotive parts, should he banned. The sgency estimated its ban would save r c j. CTD001998 - 51 VIOX MOX8 I 1 * Kv i. W o re *t c -o t